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Law Dictionary

by Susan Ellis Wild, Legal Editor 01_542109 ffirs.qxp 3/28/06 12:15 PM Page ii 01_542109 ffirs.qxp 3/28/06 12:15 PM Page i

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Law Dictionary 01_542109 ffirs.qxp 3/28/06 12:15 PM Page ii 01_542109 ffirs.qxp 3/28/06 12:15 PM Page iii

TM

Law Dictionary

by Susan Ellis Wild, Legal Editor 01_542109 ffirs.qxp 3/28/06 12:15 PM Page iv

Webster’s New World® Law Dictionary Copyright © 2006 by Wiley, Hoboken, NJ Published by Wiley, Hoboken, NJ Published simultaneously in Canada No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Sections 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Legal Department, Wiley Publishing, Inc., 10475 Crosspoint Blvd., Indianapolis, IN 46256, 317-572-3447, fax 317-572-4355, or online at http://www.wiley.com/go/permissions. The publisher and the author make no representations or warranties with respect to the accuracy or completeness of the contents of this work and specifically disclaim all warranties, including without limitation warranties of fitness for a particular purpose. No warranty may be created or extended by sales or promotional materials. The advice and strategies contained herein may not be suitable for every situation. This work is sold with the understanding that the publisher is not engaged in ren- dering legal, accounting, or other professional services. If professional assistance is required, the ser- vices of a competent professional person should be sought. Neither the publisher nor the author shall be liable for damages arising herefrom. The fact that an organization or Website is referred to in this work as a citation and/or a potential source of further information does not mean that the author or the publisher endorses the information the organization or Website may provide or recommendations it may make. Further, readers should be aware that Internet Websites listed in this work may have changed or disappeared between when this work was written and when it is read. Trademarks: Wiley, the Wiley Publishing logo, Webster’s New World, the Webster’s New World logo, and all related trademarks, logos, and trade dress are trademarks or registered trademarks of John Wiley & Sons, Inc. and/or its affiliates. All other trademarks are the property of their respective own- ers. Wiley Publishing, Inc. is not associated with any product or vendor mentioned in this book. For general information on our other products and services or to obtain technical support, please con- tact our Customer Care Department within the U.S. at 800-762-2974, outside the U.S. at 317-572-3993, or fax 317-572-4002. Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information about Wiley products, please visit our web site at www.wiley.com. Library of Congress Cataloging-in-Publication data is available from the publisher upon request. ISBN-13 978-0-7645-4210-7 ISBN-10 0-7645-4210-9 Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 01_542109 ffirs.qxp 3/28/06 12:15 PM Page v

Dedication

To my mother, an original Webster, who gave me my love of words. 01_542109 ffirs.qxp 3/28/06 12:15 PM Page vi 01_542109 ffirs.qxp 3/28/06 12:15 PM Page vii

About the Author

Susan Ellis Wild has been a practicing since 1982, and currently is a fulltime litigator in Allentown, Pennsylvania. She is President of the 600+ member Bar Association of Lehigh County, Pennsylvania. Susan has litigated more than 100 cases and frequently writes and speaks to audiences about law-related topics. She has been appointed by on numerous occasions to act as an independent arbitrator/media- tor of cases. Susan is admitted to the Bars of Pennsylvania, the District of Columbia, and Maryland, and has appeared in courts in a number of other states. 01_542109 ffirs.qxp 3/28/06 12:15 PM Page viii 02_542109 ftoc.qxp 3/28/06 12:15 PM Page ix

Table of Contents

Part I: Dictionary...... 1

Part II: Appendices ...... 281

Abbreviations ...... 283

Foreign Words and Phrases ...... 291

The Constitution of the United States ...... 303 02_542109 ftoc.qxp 3/28/06 12:15 PM Page x 03_542109 pt01.qxp 3/28/06 12:16 PM Page 1

Part I DICTIONARY 03_542109 pt01.qxp 3/28/06 12:16 PM Page 2 04_542109 ch01.qxp 3/28/06 12:16 PM Page 3

the combined value of all bequests and devises, and/or the debts owed by a tes- tator, exceed the assets in the testator’s estate. 4 n. The rebate or reduction of taxes already assessed and/or paid. abatement n. 1 The act of abating. 2 The process of, or the state of, being A abated. 3 The amount abated. abatement clause n. A contractual provision releasing the tenant of a lease from the obligation to pay rent when an act of God prevents the occupancy of the AAA abbr. See American Arbitration premises. Association. abator n. A person who diminishes or AALS abbr. See Association of eliminates a nuisance. American Law Schools. ABC test n. A rule of law that allows ABA abbr. See American Bar employers not to provide unemployment Association. compensation to independent contrac- tors. The test for whether an individual abandon v. 1 To intentionally give up is an independent contractor as opposed for all time an assertion or a claim of an to an employee is threefold: 1) does the interest in property or in a right or priv- individual work independently of the ilege. 2 To repudiate, withdraw from, employer’s control (A = alone); 2) does or otherwise disassociate oneself from a the individual maintain his own place of duty or responsibility. 3 To intention- business (B = business); and 3) does the ally fail to complete. individual practice or work at an estab- lished trade, and exercise control over abandoned property See property. his own schedule and method of opera- abandonee n. A person or party to tion (C = control)? The name derives whom property or a right has been aban- from the letters normally used to desig- doned or relinquished. nate the three parts of the test. See contractor. abandonment n. 1 The act of aban- doning property or a right with no intent abdication n. The act of a person or of reclaiming it or of later giving it away branch of government renouncing or or selling it. See also forfeiture, relin- abandoning an office, trust, sovereignty, quishment, renunciation, surrender, privileges, or duties to which he or she and waiver. 2 The act of abandoning a is entitled, holds, or possesses by law. person with the intent of terminating the abduct v. 1 To carry or lead a person duties or him or her. For example, the away from where he wants to be or intentional failure by a parent to com- wants to go by use of force, threats, or municate with or to provide financial or deception. 2 To restrain or conceal a other support to his children. See also person in order to prevent his escape or desertion. rescue. See also kidnapping. abate 1 v. To end, eliminate, do away abet v. To actively, knowingly, and/or with, or make null and void. 2 v. To intentionally aid, encourage, incite, diminish, decrease, or lessen in degree instigate, or otherwise support the com- or amount. 3 n. The reduction of a mission of an act. bequest or devise made in a will because 04_542109 ch01.qxp 3/28/06 12:16 PM Page 4

abeyance 4

abeyance n. 1 An indefinite or tempo- abortion n. 1 The premature termina- rary state of inactivity or suspension. tion of a pregnancy. 2 The intentional 2 An incomplete or undetermined state and artificial termination of a pregnancy of existence. 3 The status of real prop- that destroys an embryo or fetus. 3 The erty or of a position or title when its spontaneous expulsion of an embryo or ownership or occupancy is not vested in fetus before it is capable of living outside any existing person or party. the womb. abide v. 1 To await. 2 To accept or above adv. 1 Previously in the same submit to. 3 To tolerate or withstand. chapter, document, or text. For example, 4 To adhere, execute, obey, perform, or a reference to a case cited earlier otherwise act in conformity with. 5 To in the same document. 2 Having the dwell, remain, reside, or stay. power to review the decisions regarding questions of fact and/or law made in a abiding adj. Certain; indestructible; court. For example, appellate courts, permanent; steadfast; unaltering; unfal- such as the United States Supreme tering; unshakeable. Court, are above, or can review, the deci- ab initio adv. Latin. From the first act. sions made by one or more trial courts. , question of fact, From the beginning; back to one’s cre- See and question of law. ation or inception. abridge v. 1 abnormally dangerous activity n. An To diminish, lessen, or 2 undertaking so dangerous that, even if restrict a legal right. To condense or precautions and reasonable care are shorten the whole of something, such as used, it cannot be safely performed and a book, and not merely a portion of it. anyone who engages in it is strictly abrogate v. 1 To annul, cancel, liable for any resulting injuries and dam- destroy, overturn, repeal, revoke, set age, especially if 1) there is a risk of aside, supercede, or otherwise do away serious harm to people or property, with or put an end to. 2 To abolish a 2) the activity cannot be performed in custom or law by some authoritative, some other way that avoids those risks, formal, legislative, or other legally effec- and 3) the undertaking does not nor- tive method. mally occur at the location where it is to take place. See also liability. abscond v. 1 To secretly or suddenly leave a place or to go into hiding, espe- abode 1 n. A dwelling, home, or other cially to avoid arrest, prosecution, the fixed place where a person resides. service of a summons or other legal 2 v. Past tense and past participle of process, or an action by a creditor. 2 To abide. leave a location, often in a hurry, with abolish v. To abrogate, annul, cancel, money or property of another. eliminate, put an end to, recall, repeal, absent without leave n. The act of or revoke, especially things of a seem- being away from one’s military duties or ingly permanent nature, such as cus- post without permission but with no toms, institutions, and usages. intent of deserting. Abbreviated as desertion. abolition n. 1 The act of abolishing. AWOL. See also 2 The legal abolition and prohibition of absentee n. A person who is not where slavery. 3 The abolition of slavery in he or she would normally be found, such the United States by the Thirteenth as a place of residence or work. Amendment to the United States Constitution. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 5

5 abstention

absentee landlord n. A landlord who state court’s decision involving resides so far from the leased real those regulations and proceedings property that his is not, or is not when they involve a substantial or expected to be, readily available to per- sensitive area of state concern. sonally address any problems concern- Burford v. Sun Oil Co. (1943). ing the property. Colorado River abstention. A federal court’s act of declining to exercise absentee voting See voting. its jurisdiction when there is under- absentia See in absentia. way a state court proceeding involv- ing the same parties and questions. absolute n. 1 Without any conditions, Colorado River Water Conservation encumbrance, qualification, or restric- Dist. v. United States (1976). tion. See also discretion, divorce, Pullman abstention. A federal court’s immunity, privilege, and fee. 2 Not decision to await the interpretation liable or subject to revisions; conclusive. of a state law by that state’s court 3 Free from any restraint or restriction before deciding a federal constitu- in the exercise of government power. tional question that is dependant upon how that law is interpreted. absolute law See natural law. Railroad Commission of Texas v. Pullman Co. (1941). absolute liability See strict liability. Rooker–Feldman abstention. A fed- absolve v. 1 To forgive misconduct. eral court’s declining to consider 2 To free from guilt or suspicion; for the argument that a state court example, when evidence proves that a judge violates a party’s federal suspect is innocent of a crime. 3 To rights for the reason that the proper free from the penalties imposed as a venue to challenge that judge is that state’s court system. Rooker v. result of misconduct. 4 To free from a Fidelity Trust Co. (1923) and District debt, duty, obligation, or responsibility. of Columbia Court of Appeals v. Feldman (1983). abstention n. 1 The act of voluntarily refraining from taking some action, Thibodaux abstention. A federal such as casting a vote or participating court’s act of declining to exercise in a decision or deliberation. 2 A fed- its jurisdiction to allow a state court eral court’s act of declining to exercise to decide difficult issues if impor- its jurisdiction while awaiting or defer- tance in order to avoid unnecessary ring to a decision by a state court. In friction between federal and state doing so, the federal court retains juris- authorities. Louisiana Power & Light Co. v. City of Thibodaux (1959). diction of the legal issues at hand and may decide those issues if the plaintiff Younger abstention. 1 A federal is not satisfied with the state court’s court’s decision to halt or interfere decision. See also comity and relin- with a state court’s criminal pro- quishment. Several rationales for a fed- ceeding unless the prosecution has eral court’s abstention are named for been brought in bad faith or harass- the United States Supreme Court deci- ment. 2 A federal court’s decision sion in which the rationale was first to halt or interfere with a state applied. These include: court proceeding on the grounds Burford abstention. The refusal of a that the arguments of the party federal court to consider a challenge seeking the federal courts involve- to a state’s administrative regula- ment can be raised and fairly deter- tions and proceedings or to review a 04_542109 ch01.qxp 3/28/06 12:16 PM Page 6

abstract 6

mined in the state court. Younger v. e.g., nurse-patient; 2 v. to use an object Harris (1971). in an illegal or unreasonable manner. 3 n. The mental or physical mistreat- abstract n. A concise summary of a ment of a person, frequently resulting in text. See also abstract of judgment, serious emotional, mental, physical, abstract of record, and abstract of title. and/or sexual injury. abstract of judgment n. A copy or child abuse. 1 The intentional or summary of a court’s judgment. When it neglectful abuse, which includes is filed with the appropriate authorities, sexual mistreatment, inflicted on a a is created on the judgment child. 2 A parent or caregiver’s debtor’s nonexempt property in favor of intentional or neglectful act or fail- the judgment creditor. ure to act that results in a child’s abuse, exploitation, or death. 3 abstract of record n. A summary of An act or failure to act that results the record of a case advising an appel- in a possibility of immediate and late court of the underlying facts, all the serious harm to a child. See also battered person syndrome and steps taken to-date in the case, the deci- child neglect. sion of the trial court, and the legal issues to be decided. elder abuse. The abuse of an elderly person by his or her child or care- abstract of title n. A short history or giver, that may include battery, ver- summary of the ownership of a parcel of bal abuse, isolation, and the denial land. The abstract includes a list of all or deprivation of food. conveyances, transfers, and other evi- dence of title; all grants, conveyances, sexual abuse. 1 An illegal sexual act. 2 Unlawful sexual activity or wills, records, and judicial proceedings contact with a person without her that may affect title; and a list of encum- consent. The activity or contact is brances and of record on the land, usually imposed by the use of force along with a statement whether the or threats of violence. The applica- encumbrances and liens still exist. A tion of the term varies, but it is usu- company whose business is to obtain ally applied to activities or contact such information from public records that do not amount to rape, but usually does such an abstract for the sometimes the term includes rape. mortgagee or buyer of real property in Also called carnal abuse and sex connection with a proposed sale of land. abuse. See also chain of title. spousal abuse. The abuse inflicted on abstraction n. 1 The act of separat- a person by his or her spouse. See ing, taking away, or withdrawing. 2 also battered person syndrome and The act of taking with the intent to cruelty. injure or defraud. 3 The unauthorized abuse excuse n. A courtroom tactic taking of financial statements or funds whereby a criminal defendant claims with the intent of misappropriating that mental or physical abuse either them. explains the defendant’s conduct, espe- abuse 1 v. To mistreat or neglect a cially in cases involving violence against person, particularly as to one for whom the alleged abuser, or makes the defen- the actor has special responsibility by dant incapable of telling right from virtue of a relationship, e.g., spouse, wrong. The phrase is almost exclusively child, elderly parent, or one for whom used as a term of derision by those the actor has undertaken a duty of care, unsympathetic to such claims. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 7

7 accession

abuse of discretion n. A trial court or vesting, of a legal duty, interest, or right administrative agency’s ruling on a mat- that was to arise or vest in the future. ter within its discretion that, in light of See also acceleration clause. 2 The the relevant facts and law, is arbitrary, hastening of a real property owner’s capricious, unconscionable, unfair, enjoyment, or the vesting, of his remain- unreasonable, or illegal. An appellate der interest in an estate because of the court will not reverse a ruling that was failure or premature termination of a within the discretion of the trial court or preceding estate. administrative agency merely because the appellate court would have reached acceleration clause n. A provision in a different decision. Instead, the trial a or in a testamentary or other court or administrative agency’s deci- legal document that, upon the occur- sion must be wholly inconsistent with rence of specific events, a party’s future the facts and the law and with any rea- interest in certain property will prema- sonable deductions that can be made turely vest. For example, in many loan therefrom. or mortgage agreements, provision is made that if some specified event abuse of process n. The tort of begin- occurs, such as the debtor’s failure to ning or otherwise using the judicial civil pay an installment, the creditor may or criminal process for an improper pur- declare the entire outstanding balance pose. There may be a legitimate basis to be immediately due. for instituting or using the judicial process, but the actual intent behind the acceptance 1 n. The act of voluntarily action is improper. See also malicious agreeing, expressly or by implication, to prosecution. the terms of an offer, thereby creating a contract. However, if the act modifies or abut v. To adjoin; to border on; to adds to the terms of the offer, it is not an cease at the point of contact; to connect acceptance, but a counteroffer. See also or join at a border; to share a common offer. 2 v. To accept delivery of prop- border with. erty or to otherwise agree, expressly or by implication, to become its owner, abuttal n. The border of a parcel of either in exchange for the performance land in relation to adjoining lands. of a contractual obligation or the com- academic freedom n. 1 The right of a pletion of an inter vivos gift. See also teacher or student, especially at the col- contract and gift. 3 n. The receipt of a lege or university level, to discuss or check or other negotiable instrument by investigate any issue, or to express opin- a bank or another drawee. ions, on any topic without interference access n. The ability, opportunity, per- or fear of penalty or other reprisal from mission, or right to approach, communi- either the school or the government. 2 cate, enter, pass to and from, or view A school’s freedom to control its own without interference or obstruction. See policies without government interfer- also easement and visitation rights. ence, penalty, or reprisal. The extent to which academic freedom exists depends accession n. 1 The act of acceding or on many facts, including whether the agreeing, especially when it involves the school is a private or public institution yielding of part or all of one’s own posi- and whether it is a primary or secondary tion. 2 The act of acceding to, or com- school or a college or university. ing into possession of, an office, right, or title. 3 In international law, the formal acceleration n. 1 The shortening of assent by one county to a treaty between the time, or the immediate creation or 04_542109 ch01.qxp 3/28/06 12:16 PM Page 8

accessory 8

other countries. By doing so, the country when the crime is committed. Such becomes a party to the treaty. 4 The a person, known as an aider and acquisition of title to personal property abettor, is normally considered as by applying labor that converts it into an culpable as the person who actually entirely different thing (such as turning commits the crime and is normally treated by the law as an accom- leather into shoes) or incorporates it plice. See also aid and abet. into other property. 5 An artificial or natural addition or improvement to accident n. 1 An unintended, unfore- property. 6 A real property owner’s seen, and undesirable event, especially right to all that the property produces one that causes harm, injury, damage, or and to all that is artificially or naturally loss. 2 An unintended and unexpected added to it, such as land reclaimed by event, especially one that is undesirable the use of dams or the construction of or harmful, that does not occur in the buildings and other improvements. See usual course of events under the cir- also annexation. cumstances in which it occurred, or that would not be reasonably anticipated. 3 accessory n. 1 Additional; aiding the In equity, an unexpected and injurious principal design; contributory; second- event not caused by misconduct, mistake, 2 ary; subordinate; supplemental. One or negligence. 4 In many automobile who aids or contributes to the commis- insurance policies, any unintentional sion or concealment of a crime or assists event including those caused by miscon- others in avoiding apprehension for the duct, mistake, or negligence. crime but not present when the crime was committed. Mere silence or unavoidable accident. An accident approval of the crime is insufficient to that is not caused by the negligence make one an accessory; the person must or other fault of anyone involved. take steps to facilitate the commission or concealment of the crime or the accidental death n. Death resulting avoidance of the criminal’s capture. from an accident from an unusual event See also misprision of felony, accom- that was unanticipated by everyone plice, aid and abet, conspiracy, and involved. A death may be considered principal. “accidental” even if it was intentional or expected. For example, an insurance accessory after the fact. One who was policy may provide that its accidental not at the scene of a crime but death benefit will be paid if the insured knowingly assists, comforts, or is murdered (although generally not if receives a person known to have the beneficiary committed the murder). committed a crime or to be sought for the commission or attempted accidental death and dismemberment commission of a crime, in an insurance n. Insurance that pays the attempt to hinder or prevent the insured or his beneficiaries specified felon’s arrest or punishment. Such a person is normally regarded as less amounts, in addition to or in substitu- culpable than the criminal and is tion for compensation for injuries suf- subject to prosecution for obstruc- fered by the injured, for the loss of tion of justice. specific body parts, body functions, or death resulting from an accident. accessory before the fact. One who assists, commands, counsels, accidental death benefit n. A pay- encourages, or procures another to ment, in addition to the compensation commit a crime, but is not present received by the beneficiaries of an 04_542109 ch01.qxp 3/28/06 12:16 PM Page 9

9 account

accident insurance or life insurance pol- accomplice n. One who knowingly, icy, to be made paid if the insured suffers voluntarily, or intentionally, and with an accidental death. See also double common intent and criminal purpose indemnity. shared with the principal offender, solic- its or encourages another to commit a accident insurance See insurance crime or assists or attempts to assist in (casualty insurance). its planning and execution. Normally, accommodated party See accommo- one’s mere presence while knowing the dation party. crime is about to be committed, without any contribution to the commission of accommodating party See accommo- the crime, does not make a person an dation party. accomplice. However, in some situa- tions, knowledge combined with the fail- accommodation n. 1 Something done, ure to make an attempt to prevent the such as providing a loan or signing an crime will make one an accomplice. An accommodation paper as a surety for accomplice is normally regarded as just another, that is done as a favor without as culpable as the person who actually any direct or indirect benefit, compensa- commits the crime. See also accessory, tion, or consideration. 2 The act of aid and abet, and conspiracy. making a change or provision for some- one or something. accord n. 1 An agreement to satisfy a claim by some form of discharging the accommodation maker See accom- obligation other than what the obligee modation party. is, or considers himself, entitled to. See also accord and satisfaction. 2 In accommodation paper n. A negotiable legal citation, the identification of one instrument that one co-signs as a surety case that clearly supports the proposi- as an accommodation to another party, tion for which another case is being who remains primarily liable without quoted. receiving any benefit, compensation, or consideration. See also accommodation accord and satisfaction n. An accord party. that has been satisfied by the completion of the agreed upon payment or perform- accommodation party n. A person ance. The satisfaction (that is, comple- who, without any direct or indirect ben- tion) of the accord extinguishes the efit, compensation, or consideration, co- original obligation that the obligee was, signs a negotiable instrument as a favor or considered himself, entitled to. Once to the person who owes the money and, satisfied, the subject of the accord can thus, becomes liable on it to all parties never be raised in any future legal action. except the accommodated party who, by See also novation and settlement. implication, agrees to pay the instru- ment and to indemnify the accommoda- account n. 1 A detailed record of a tion party for any losses incurred in financial transaction, indicating the deb- paying it. This is frequently done when its and credits between the parties to a the creditworthiness of the accommo- contract or a fiduciary relationship. 2 dated party does not satisfy the person The debt remaining to be paid, or the taking the negotiable instrument or credit to be refunded, as indicated in extending the credit. Also called, in the such a record. 3 A detailed record of case of a promissory note, an accommo- the financial transactions, business dation maker. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 10

accountant-client privilege 10

dealings, and other relations for which services performed, property sold, money records must be kept. 4 In the loaned, or for damage for the incomplete Uniform Commercial Code, a right to performance of minor . See also payment for goods whose sale or lease, account. 4 A legal action to complete or for services whose performance, are or settle all of a partnership’s affairs. not evidenced by a negotiable instru- Usually done in connection with the dis- ment or chattel paper. 5 A business solution of the partnership or with alle- relationship involving the management gations of a partner’s misconduct. See of money or the availability and use of also winding up. credit. 6 In the , a legal action to require a person to account for accounting for profits See accounting. accounting. money or property. See also accounting method n. The accepted 7 A statement by which someone method by which a person or business explains, or attempts to explain, an consistently determines his income and 8 event. In business, a particular expenses and allocates them to an joint client or customer. See also accounting period in order to determine account. his taxable income. See accrual accountant-client privilege See priv- method, cash method, and contract. ilege. accounting period n. The regular account creditor n. One to whom the span of time used for accounting pur- balance of an account is owed. See also poses. For example, the period used by a account debtor. taxpayer to calculate her income and to determine her tax liability. account debtor n. 1 One who owes the balance of an account. 2 In the accretion n. 1 In property law, the Uniform Commercial Code, one who gradual increase in land through natural owes an obligation on an account, chat- processes; for example, the creation of tel paper, or intangible property. See land caused by the deposit of sediment also debtor and account creditor. on a shoreline of a river or ocean. The new land becomes the property of the account payable n. The balance owed owner of the property to which it is to a creditor as indicated by an account. attached. See also alluvion, reliction, See also account receivable. and avulsion. 2 In succession law, the increase in an heir or legatee’s interest account receivable n. The balance in property when a co-heir or co-legatee owed by a debtor as indicated by an dies before the property vests, rejects account. See also account payable. his inheritance or legacy, fails to comply accounting n. 1 The act or a system of with a condition to be met before vest- establishing how the assets of a busi- ing, or otherwise becomes incapable of ness, estate, trust, or other similar taking the property. entity were managed and disposed of. accrual method n. An accounting 2 In equity, a legal action to require one, method that records income and usually a fiduciary or a constructive expenses when they are earned or trustee, to account for and pay over funds incurred rather than when they are held by them but owed to another. received or paid. See also cash method See also account. 3 In equity, a legal and completed contract method. action for the recovery of funds owed for 04_542109 ch01.qxp 3/28/06 12:16 PM Page 11

11 action

accrue v. 1 To come into existence or acquaintance rape See rape. mature as an enforceable claim or right. For example, a cause of action may be acquiescence n. Tacit or passive con- sued upon once it is an enforceable duct that implies agreement or consent. claim. Likewise, the interest on a sum For example, if one makes a statement owed accrues on the date the interest and another is silent when an objection becomes due. 2 To accumulate. should be forthcoming, the second per- son’s acquiescence to the statement accumulated depreciation n. The may be inferred. total depreciation currently recorded against either a single or all productive acquit v. 1 In criminal law, to clear a assets. person, to release or set him free, or to discharge him from an accusation of accusation n. 1 A formal charge of committing a criminal offense after a criminal wrongdoing against a person or judicial finding that he is not guilty of corporation. See also indictment, infor- the crime or after the court or prosecu- mation and presentment. 2 An infor- tion determines that the case should not mal charge that one has committed an continue after the criminal trial has illegal, immoral, or otherwise wrongful started. See also autrefois acquit and act. double jeopardy. 2 In contract law, to pay or discharge a debt, duty, or a claim. accusatorial system See adversary system. acquittal n. 1 In criminal law, the legal finding, by judge or jury, that an accuse v. 1 To make an accusation accused person is not guilty of the crime against. 2 To prosecute. 3 To for- he is charged with. Once the acquittal is mally institute a legal action against a reached, the defendant may not be pros- person or corporation wherein they are ecuted again for the same criminal act charged with committing a crime. 4 To or transaction. 2 In contract law, the judicially or publicly charge one with a release or discharge from a debt or other criminal offense. contractual obligation. accused n. 1 A person who is blamed act 1 n. A . 2 n. Something for a wrongdoing. 2 A person who has done or performed. 3 v. The process of been arrested or formally charged by an doing or performing. See also actus indictment, information, or presentment reus, overt act and omission. with a crime. action n. 1 Any behavior, conduct, or acknowledgment n. 1 The recognition series of acts by a person. 2 A civil or of a fact or the existence of an obligation criminal judicial proceeding intended and the acceptance of the accompanying to resolve a legal dispute, claim, or legal responsibility. For example, a puta- accusation. tive father may acknowledge a child as his during a paternity proceeding. 2 civil action. An action brought to One’s formal declaration in the presence enforce, protect, or redress a civil of a notary public or other authorized or private right or to compel a civil individual that she has signed a deed or remedy; any action brought other other document and that the signature is than a criminal action. authentic. class action. 1 An action brought by a person or a group of people as ACLU abbr. See American Civil representatives of a larger group Liberties Union. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 12

action in personam 12

who have a common legal claim but of contribution or indemnity, should are so numerous that it is impracti- the defendant be found liable to the cable for all of them to participate plaintiff. or be joined as individual parties in the case. 2 An action brought action in personam See in per- against a large group of people who sonam. have a common legal defense to a claim that they are all potentially action in rem See in rem. liable for but are so numerous that it is impracticable for all of them to action quasi in rem See action. participate or be joined as individ- ual parties in the case. actionable n. Wrongful conduct that provide grounds for a or other criminal action. An action initiated legal proceeding. by the government to punish a per- son or entity for a crime. actionable per quod n. Actions that damage action. An action seeking an require the allegation and proof of addi- award of money from the defendant tional facts. For example, in libel or for a wrong committed upon the slander, the statement in question may plaintiff. not appear defamatory on its face (such as “Mr. Smith is a member of a particu- derivative action. 1 An action lar club”), so the plaintiff has to prove brought on behalf of a corporation additional facts to establish its defama- by a shareholder when that corpora- tory nature (“Every member of that club tion is entitled to bring an action and, deliberatively or otherwise, is a sex offender”). In such actions, the fails to do so. 2 An action that is plaintiff has to prove that he suffered based upon the injury suffered by damages in order to have a cause of someone other than the plaintiff. action. For example, a husband may sue for loss of consortium or services if the actionable per se n. Actions that do defendant injured his wife. not require the allegation or proof of additional facts to constitute a cause of in personam action. See in per- action nor any allegation or proof that sonam. damages were suffered. An example, in in rem action. See in rem. libel or slander, is a statement that obvi- ously damages a person’s reputation quasi in rem action. An action (such as “Mr. Smith is a sex offender”) against an out-of-state defendant that does not require any reference to over whom the state lacks in per- circumstances or facts to understand its sonam jurisdiction that is com- defamatory meaning. In such actions, menced by the attachment, the plaintiff does not have to prove that garnishment, or other seizure of property owned by the defendant he suffered any damages in order to that is located within the state and have a cause of action. that is unrelated to the plaintiff’s act of Congress n. claim. A statute formally enacted by Congress in accordance with third-party action. An action initiated the powers granted to it by the United by a defendant in a civil case States Constitution. against a person or entity who is act of God n. not a party to the proceeding that is An overwhelming natu- against the defendant and against ral event, often unpredictable or difficult whom the defendant claims a right to anticipate, that is uncontrolled and 04_542109 ch01.qxp 3/28/06 12:16 PM Page 13

13 ad hominem

uninfluenced by the power of man and The term may also refer to the increase that could not be prevented or avoided itself, the procedure by which it is done, by foresight or prudence. and the court’s power to issue the order. actual adj. Real or existing in fact as adduce v. To compile or offer, gener- opposed to being assumed or deemed to ally in the context of introducing evi- have happened or exist. See also appar- dence at trial. ent and constructive. ADEA abbr. See Age Discrimination actual authority See authority. in Employment Act. actual cash value n. A fair or reason- ademption n. The reduction, extinc- able price that can be obtained for an tion, or withdrawal of a devise or legacy item or property in the ordinary course by some act of the testator, before his or of business, not under duress or exi- her death, that clearly indicates an gency. Synonymous with fair market intent to diminish or revoke it. See also value. ademption by extinction, ademption by satisfaction, abatement, advance- actuary n. One who computes insur- ment, and lapse. ance and property costs, such as the cost of insurance premiums and risks. ademption by extinction n. An ademption of some specific or unique actus reus n. The voluntary and property that occurs when the property wrongful act or omission that consti- is destroyed, given away, or sold or does tutes the physical components of a not otherwise exist at the time of the crime. Because a person cannot be pun- testator’s death. ished for bad thoughts alone, there can be no criminal liability without actus ademption by satisfaction n. An reus. ademption that occurs when the testa- tor, while alive, gives the property that ADA abbr. See Americans with is the subject of a devise or legacy to the Disabilities Act. intended beneficiary in lieu of the testa- ad damnum n. Latin. To the damage. mentary gift. The amount of money sought as dam- adequate remedy at law n. A legal ages by the plaintiff in a civil action. remedy, usually an award of money, that ad damnum clause n. A statement in provides sufficient compensation to the the complaint in a civil action that spec- plaintiff, thereby making equitable ifies the amount of money sought by the relief, such as specific performance, plaintiff. See also complaint and prayer. unavailable. addendum n. An addition to a docu- ad hoc adj. Latin. For this; for a par- ment. ticular purpose. For example, ad hoc committees are often created to accom- additur n. Latin. It is added to. A trial plish a particular purpose. court’s order to increase the damages awarded by a jury. It is done to prevent ad hominem adj. Latin. To the person. the plaintiff from appealing on the Appealing to personal prejudices grounds that inadequate damages were instead of reason; attacking one’s char- awarded, but the court cannot issue the acter rather than his arguments. order without the defendant’s consent. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 14

adjoining 14

adjoining adj. Abutting; bordering ad litem adj. Latin. For the suit. For upon; sharing a common boundary; touch- the purposes of, or pending, the particu- ing. See also contiguous and adjacent. lar lawsuit. See also administrator ad litem and guardian ad litem. adjourn v. To briefly delay, suspend, or postpone a court proceeding. See also administration n. 1 A court’s manage- continuance. ment and distribution of property during a judicial proceeding. 2 The manage- adjournment sine die See sine die. ment and settlement of the estate of an adjacent adj. Laying near or close by, intestate or of a testator who has no but not necessarily connected. See also executor by a person appointed by the adjoining. court. administrative agency n. adjudge v. To render a judicial deci- A govern- sion or judgment concerning a disputed mental regulatory body that controls subject that is before the court. For and supervises a particular activity or example, a court may adjudge that a area of public interest and administers defendant is obligated to pay the dam- and enforces a particular body of law ages sought by the plaintiff. related to that activity or interest. administrative law n. 1 adjudication n. The process of hear- The law cov- ing and resolving a dispute before a ering the organization, duties, and oper- 2 court or administrative agency. It ation of an administrative agency. implies a final judgment based on the The law created by an administrative evidence presented, as opposed to a pro- agency consisting of rules, regulations, ceeding where the merits of the case orders, opinions, or reports containing were not considered by the court or findings of fact and administrative hear- administrative agency. See also default ing decisions. judgment. administrative law judge n. An offi- adjure v. 1 To earnestly and solemnly cial of an administrative agency who bind, charge, or command. Frequently, presides at an administrative hearing persons who are adjured are placed and has the power to administer oaths, under oath or a threat of penalty. For issue subpoenas, and rule on the admis- example, juries are adjured to consider sibility of evidence as well as hear, con- only the evidence presented at trial as sider, and weigh testimony and other they attempt to reach a verdict in an evidence and make or recommend fac- action. 2 To earnestly and solemnly tual or legal decisions. entreat or request. Administrative Procedure Act n. A adjusted basis n. The value of a tax- federal statute governing the rule-mak- payer’s original investment in property, ing and administrative proceedings of adjusted by the value of subsequent cap- federal administrative agencies by pro- ital improvements and depreciation viding guidelines for rule-making and deductions. See also basis. adjudicative hearings, judicial review, and public access. Most states have sim- adjusted gross income n. A taxpayer’s ilar governing their state gross income minus the deductions, usu- administrative agencies. Abbreviated ally business deductions, they are APA. allowed under the tax code. See income. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 15

15 adoption

administrator n. A person appointed gation in a complaint, counterclaim, or by the court to manage a part or all of request for admissions. 3 The accept- the assets and liabilities of an intestate ance by a judge of evidence for consid- or of a testator who has no executor. In eration by himself or the jury when many states, the person can be a man or determining the merits of the action. 4 a woman, but in the others, the term The granting or obtaining of a license refers to a male, while a female who is from a state or an established licensing appointed to perform these duties is authority, such as a state bar associa- called an administratrix. See also tion, or permission from a court, to prac- administrator ad litem and ancillary tice law in that state or before that administrator. court. See also admission pro hoc vice. administrator ad litem n. A person admission pro hoc vice n. The grant- appointed by the court to represent the ing of special permission to an out-of- interests of an estate in an action. Such state attorney, or an attorney not an appointment is usually made because admitted to practice in any state or the estate has no administrator or before any court, to practice law as because the current administrator has counsel for a party in a particular law- interests in the action that conflict with suit. those of the estate. admonition n. A judge’s advice, cau- administratrix See administrator. tionary statement, direction, reprimand, or warning to a jury, lawyer, party, spec- admiralty and maritime n. All things tator, or witness regarding any matter related to events occurring at sea and on that arises during a judicial proceeding. inland waters. adoption n. 1 In family law, the legal admiralty courts n. Federal courts process that establishes a parent/child exercising jurisdiction over admiralty relationship between individuals who and maritime matters. However, in some are not related by blood. Once the adop- matters, the Congress has granted con- tion is completed, the adoptive child current jurisdiction to the state courts. becomes entitled to all the privileges admissible evidence n. Evidence per- belonging to a natural child of the adop- mitted by the law to be considered by a tive parents, and the adoptive parents judge or jury in deciding the merits of an acquire all the legal rights, duties, and action. Only admissible evidence may be obligations of the child’s natural par- considered, but the judge has the discre- ents. Furthermore, all legal rights, tion to exclude admissible evidence from duties, and obligations between the his or the jury’s consideration. For child and his or her natural parents example, cumulative evidence, or evi- (except, in some states, the obligation to dence whose probative value is out- pay delinquent child support payments) weighed by the risk of confusing the terminates upon the completion of the issues to be decided, may be excluded. adoption. 2 In contract law, the acceptance by a person or entity of the admission n. 1 Any act, assertion, or rights and responsibilities made for statement made by a party to an action their benefit under a contract to which that is offered as evidence against that she is not a party. 3 To accept legal party by the opponent. 2 A defendant’s responsibility for the act of another. See failure to deny, or his voluntary also ratify. acknowledgment of the truth, of an alle- 04_542109 ch01.qxp 3/28/06 12:16 PM Page 16

adoptive 16

adoptive adj. 1 Related by virtue of an court’s decision and the decision’s incor- adoption. For example, an adult who poration in a bound volume of law reports. adopts a child is that child’s adoptive See also reports and slip opinion. parent. (Although the adult is referred to as the adoptive parent, the minor is advancement n. An irrevocable gift to known as the adopted child.) 2 an heir during an intestate’s life, given Pertaining to an adoption of any kind. with the intention that it shall diminish For example, by adoptive works or con- or extinguish the heir’s share of the duct, one may accept legal responsibility intestate’s estate under the of for the act of another. intestate succession. See also satisfac- tion, ademption, and lapse. ADR abbr. See alternative dispute resolution. adventure n. Any commercial or financial venture involving speculation adult n. A person who has attained or risk. See also joint venture. the age of majority. See age. adversary n. An opponent, especially ad testificandum adv. Latin. For testi- an opposing attorney or party in an fying. See subpoena (subpoena ad testifi- action. candum). See also habeas corpus. adversary procedure See adversary adultery n. The voluntary sexual inter- system. course by a married person with some- one other than his or her spouse. The adversary proceeding n. 1 A judicial consent of both parties and penetration hearing or other proceeding involving a are required for adultery to exist. Under real dispute between opposing parties. the common law, only a married woman See also controversy and ex parte. 2 could commit adultery, but most states A proceeding before the Bankruptcy now apply the term to married men as Court to settle disputes regarding the well. Also, in the states where adultery distribution of the assets of a bankrupt. is still a crime, most statutes now pro- adversary system n. A method of vide that the unmarried sexual partner of adjudication in which active and unhin- a married person can also be charged dered parties, usually through their criminal con- with the offense. See also , contest with each other and versation, fornication, rape. and present support in favor of their respec- ad valorem tax See tax. tive positions, usually through the examination and cross-examination of advance n. Monies paid before any witnesses and the presentation of other consideration is received in exchange. evidence, to a neutral and independent decision-maker. In criminal cases, this advance directive n. A durable power is often called the accusatorial system. of attorney that becomes effective if and when one becomes incompetent, and adverse possession n. A method of that directs the limit to what medical acquiring title to real estate by actually, procedures should be employed to pro- continuously, and openly occupying the long one’s life. property for an uninterrupted amount of time to the exclusion of all others and in advance sheets n. A paperback or defiance of the real owner’s rights. The looseleaf booklet or pamphlet contain- required period of occupancy, as well as ing recent decisions issued by a (usually other possible conditions, are set by appellate) court. Advance sheets are pub- statute. lished between the announcement of the 04_542109 ch01.qxp 3/28/06 12:16 PM Page 17

17 affirmative action

adverse witness See hostile witness. by the declarant before a notary public or another officer authorized to adminis- advice and consent n. Phrase found ter oaths. See also affirmation. in Article II, Section 2, Clause 2 of the United States Constitution describing affidavit of service n. An affidavit the Senate’s role in confirming presiden- that certifies the service of a notice, tial appointments and ratifying treaties. process, summons, or writ by stating The “consent” takes the form of a vote. the time and manner in which the docu- Rarely does a president formally seek ment was served. the Senate’s advice (it has happened only twice; the last time was in 1848), but affiliate n. A corporation that is senators often advise the president infor- related to another corporation by one mally as to which potential nominees owning shares of the other, by common and treaty provisions are acceptable. ownership, or by other means of control. See also company (parent) and sub- advisory jury n. Used in cases where sidiary. there is no jury trial as a matter of right but the judge desires the non-binding affinity n. 1 A close agreement. 2 input of a jury. Rarely used. The attraction between people. 3 Any relationship created by marriage. See advisory opinion n. A nonbinding also consanguinity. 4 A term used to opinion by a court, judge, or law officer describe the relationship that one has to on the interpretation or constitutionality the adopted or blood (and usually close) of the law, a proposed statute, or a hypo- relatives of their spouse. For example, thetical legal question submitted to it by affinity exists between a woman and her a legislative or executive body or an husband’s brother. interested party. The United States Constitution prohibits federal courts affirm v. 1 To confirm, ratify, or other- from issuing advisory opinions. wise approve a lower court’s decision on appeal. 2 To solemnly declare that advisory verdict n. A decision, usually certain statements are true or that one non-binding, of an advisory jury. will testify truthfully. 3 To make a solemn promise. See also oath. advocacy n. Active support for a legal cause by argument and persuasion. affirmation n. 1 The act of affirming the truth of one’s statement. It serves advocate 1 n. One who actively the same purpose as an oath and is usu- assists, defends, pleads, prosecutes, ally done when the declarant objects to speaks, writes, or otherwise supports making an oath on religious or ethical the cause of another. 2 n. A lawyer. ground. 2 A voluntary and written ex 3 v. To speak, write, or otherwise sup- parte statement of facts. It is sometimes port a cause by argument. required that the document be signed aff’d abbr. Affirmed. and the truth of its content be affirmed by the declarant in the presence of a aff’g abbr. Affirming. notary public or another officer author- ized to administer oaths. See also oath, affiant n. One who makes and sub- affirm, and affidavit. scribes to an affidavit. affirmative action n. Any acts by a affidavit n. A voluntary and written ex private or public entity to eliminate dis- parte statement of facts signed and the crimination, to correct or remedy the truth of its content affirmed or sworn to effects of past discrimination, or to pre- 04_542109 ch01.qxp 3/28/06 12:16 PM Page 18

affirmative defense 18

vent future discrimination. Such dis- the property. Title automatically vests in crimination is usually based on the race, the buyer upon the completion of events sex, national origin, or disability of the that would otherwise give complete title person being discriminated against. See to the seller. also reverse discrimination. after-born child See child. affirmative defense See defense. after-born heir See heir. affirmative easement See easement. A.G. abbr. See Attorney General. affirmative relief See relief. against the (manifest) (weight of the) affix v. To permanently add to, attach, evidence n. An evidentiary standard or fasten on. allowing a trial judge to set aside a jury’s judgment or verdict and order a affray n. The voluntary and consen- new trial when it clearly appears to the sual fighting between two or more indi- judge that the jury’s decision is unsup- viduals in a public place to the terror of ported by the credible evidence pre- onlookers or the disturbance of the sented at trial; is based upon false peace. There is no affray when a person evidence or some improper motive, bias, is unlawfully attacked and resorts to or feelings; or would result in a miscar- self-defense instead of fleeing. See also riage of justice. However, this does not assembly. permit a judge to substitute the jury’s a fortiori v. Latin. By the stronger (rea- decision with his own merely because he son). To draw an inference that when disagrees with the decision. one proposition is true, then a second age n. A period of time, especially one proposition must also be true, especially marking the time of existence or the if the second is included in the first. For duration of life. example, if a 19 year old is legally an adult, then a 20 year old is, too. age of capacity. The age, usually determined by statute, at which a aforethought adj. Considered in person becomes legally capable of advance; deliberate; premeditated. See becoming a party to a contract, exe- also malice aforethought. cuting a testamentary document (such as a trust or will), initiate a after-acquired property n. 1 In com- lawsuit without a guardian, and so mercial law, property acquired by a on. See capacity. debtor after the execution of a security age of consent. 1 The age, usually agreement wherein property acquired by determined by statute, below which the debtor before the execution of the a person may not marry without agreement has been pledged as collat- parental consent. See also consent. eral for a loan. 2 In bankruptcy law, 2 The age, usually determined by property acquired by a bankrupt after a statute, below which a person is petition for bankruptcy is filed. legally incapable of consenting to sexual intercourse. See consent after-acquired title n. The title and rape. acquired by a buyer, who previously pur- chased property while unaware that the age of majority. The age, usually deter- mined by statute, at which a person seller did not have complete title to it, attains full civil, legal, and political after the seller, unbeknownst to the rights. See also age of consent. buyer, later acquires complete title to 04_542109 ch01.qxp 3/28/06 12:16 PM Page 19

19 agreement

age of reason. 1 The age, usually aggravated adj. In criminal and tort determined by statute, below which a law, a crime or tort becoming worse or child cannot be legally capable of more serious due to certain circum- committing a crime. 2 The age, stances (determined by a statute for usually determined by statute or case aggravated crimes and usually by law, below which a child cannot be legally capable of committing a tort. statute and case law for aggravated torts) that occur or are present during legal age. The age, usually deter- the commission of the crime or tort, mined by statute, at which a person such as the possession of a deadly becomes legally capable to exercise weapon, the youthfulness or pregnancy a specific right or privilege or to of the victim, or the reckless disregard assume a specific responsibility. For for the other people’s safety. The perpe- example, in many states, a person trator of an aggravated crime is usually may legally drive an automobile subject to more severe penalties than once she is 16 years of age, but has for unaggravated forms of offense. The to wait until she is 21 to legally perpetrator of an aggravated tort is sub- drink alcohol. ject to punitive damages. See also miti- gating circumstance and simple. age discrimination n. The denial of privilege or other unfair treatment based aggravating circumstances n. on the age of the person who is discrim- Circumstances, facts, or situations that inated against. increase the culpability, liability, or the measure of damages or punishment for Age Discrimination in Employment a crime or a tort. Act n. Federal statute that protects most employees between 40 and 70 aggregate 1 n. The sum, total, or years of age from age discrimination in whole of all the parts. 2 v. To collect the workforce. Other federal and local or combine. laws provide other protections against age discrimination in such areas as aggregation doctrine n. The rule that housing. Abbreviated ADEA. prevents a party from combining the amounts in controversy in all of their agency n. 1 A fiduciary relationship in claims in order to exceed the jurisdic- which a person or entity act, by mutual tional amount requirement in a federal consent, for the benefit of another and diversity of citizenship case. See also bind the other party by words or deeds. amount in controversy and jurisdic- See agent, authority, fiduciary and tion (jurisdictional amount). principal. 2 A governmental body with the legal authority to administer aggrieved adj. To be adversely and implement specific legislation. affected, or to perceive oneself as being so, by an act or situation or by a court’s agency couple with an interest n. A decision. relationship between principal and agent in which the agent is given an interest in agreement n. 1 A mutual understand- the subject matter of the agency. ing between two or more legally compe- tent individuals or entities about their agent n. One who by mutual consent is rights and duties regarding their past or authorized to act for another. See future performances and consideration. agency, authority, and principal. While an agreement usually leads to a 04_542109 ch01.qxp 3/28/06 12:16 PM Page 20

aid and abet 20

contract, it could also be an executed agreements are not enforceable sale, a gift or other transfer of property, unless each party makes a full dis- or a promise without a legal obligation. closure to the other of their assets 2 The understanding between two or and has consulted with their own more legally competent individuals or attorneys. Even then, most such agreements are not enforceable entities about the rights and duties unless made by spouses who are in regarding their past or future perform- the midst of a separation or divorce. ances and consideration as manifested by their language (oral or written) or by prenuptial agreement. An agreement implication from other circumstances between spouses made before their such as the usage of trade and the course marriage to determine the right to of performance. See also contract. support and each other’s property in case of death or divorce. Generally, agreement to agree. A mutual under- such agreements are enforceable, standing between two or more especially if both parties make a full legally competent individuals or disclosure of individual assets and entities that they will later enter have consulted with their own into a contract even though the con- attorneys. See also postnuptial tract’s exact terms have not yet agreement and separation agreement. been decided; non-binding. property settlement agreement. See binding agreement. An enforceable separation agreement. agreement or contract. separation agreement. An agreement collective bargaining agreement. A between spouses made during a contract between an employer and a divorce or while obtaining a legal union or other representative, vol- separation concerning child cus- untarily selected by a majority of tody, child and spousal support, the employer’s workers within a property distribution, and other bargaining group, concerning the matters. Such agreements are usu- wages, hours, and other conditions ally incorporated into the parties’ of employment for that group. divorce decree or into a judicial decree granting a separation to the divorce agreement. An agreement parties. Frequently referred to as between spouses made during a property settlement agreement (PSA). divorce concerning child custody, child and spousal support, property simple agreement. An agreement for distribution, and other matters. which nothing is legally required to Such agreements are usually incor- make it enforceable other then some porated into the parties’ divorce evidence that the agreement was decree. See separation agreement. made and the parties consent to it. gentlemen’s agreement. An agreement unconscionable agreement. Same as not intended by the parties to be adhesion contract. See contract. legally enforceable, but that is expected to be performed or followed aid and abet v. To order, encourage, as a matter of friendship or honor. facilitate, or to actively, knowingly, May or may not involve illegal sub- intentionally, or purposefully assist, or ject matter such as gambling bets. otherwise promote or attempt to pro- postnuptial agreement. An agreement mote the commission of a crime or a tort. between spouses made during their Affirmative conduct is regarded; aiding marriage to determine the right to and abetting cannot be established by support and each other’s property in omission or negative acquiescence. The case of death or divorce. Such 04_542109 ch01.qxp 3/28/06 12:16 PM Page 21

21 alienation of affections

person who aids and abets is usually just alien n. 1 One who is not a citizen, as liable, and subject to the same meas- national, or subject of a particular coun- urement of damages and penalties, as try. 2 One who is not a citizen, national, the person who commits the crime or the or subject of the country in which he tort. See also accessory, accomplice resides. 3 One who is born in or owes and conspiracy. his allegiance to a foreign country. air piracy See hijack. deportable alien. An alien who may be deported because she was an air rights n. The ownership or right to inadmissible alien when she use any or all of the airspace above one’s entered the United States or has real property. violated the regulations (for exam- ple, by committing a serious crime) a.k.a. abbr. “Also known as.” See governing the conduct of aliens who alias. are within the country. aleatory adj. Dependant on the occur- illegal alien. 1 An alien who enters or rence of an uncertain contingent event. remains in the United States with- out legal authorization or by fraud. aleatory contract n. A contract in 2 An alien who marries an American which the performance of at least one citizen, but with no intention of liv- party depends upon the occurrence of an ing with his or her spouse as hus- band and wife, for the purpose of uncertain future event. improperly entering the United Alford plea n. A guilty plea entered as States or avoiding deportation. part of a plea bargain by a criminal inadmissible alien. An alien who can- defendant who denies committing the not legally enter the United States. crime or who does not actually admit his There are many reasons why an alien guilt. In federal courts, such plea may be may be prohibited from entry, includ- accepted as long as there is evidence ing a criminal record or poor health. that the defendant is actually guilty. nonresident alien. An alien who per- Named after North Carolina v. Alford manently resides outside the United (1970). States. ALI abbr. See American Law resident alien. An alien who legally Institute. established permanent residency in alias n. 1 An assumed or additional the United States. name used by a person, frequently to alienation n. In real property law, the conceal her true identity, or such a name voluntary and absolute transfer of title applied to a person by others. See also of possession, by gift, sale, or testamen- known as. 2 An alias writ. tary instrument, of real property from alias writ See writ. one to another. alibi n. 1 In a criminal action, a alienation of affections n. In tort law, defense that the defendant was some- the willful or malicious interference where other than the scene of the crime with the relationship between a husband when the crime was committed. 2 The and wife by a third party without justifi- fact or state of being somewhere other cation or excuse. The interference may than the scene of the crime when the be adultery or some other act that crime was committed. deprives one of the affection of a spouse. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 22

alienee 22

It also includes mental pain and suffer- behalf to mitigate the punishment that ing such as anguish, humiliation, embar- is about to be imposed. The defendant rassment, and loss of social position as does not have to be sworn before he well as actual financial losses caused by makes his address, his comments are the disruption or destruction of the mar- not subject to cross-examination, and ital relationship. See consortium. the opportunity may include the right to offer evidence (such as an explanation alienee n. One to whom property is for his conduct or a reason why severe alienated. sentence should not be imposed) beyond alienor n. One who alienates property a request for mercy or an apology for his 2 to another person or entity. conduct. A similar procedure where the victim of a crime is given in some alimony n. Money paid after divorce to states the opportunity to personally former spouse for support, usually for a speak, before punishment is imposed, specified period of time, by court order about the pain and suffering suffered or or written agreement. If paid during about the convicted defendant. 3 The pendency of the divorce proceedings, procedure by which a guilty plea can be referred to as alimony pendente lite. See accepted in a criminal action. The pendente lite. process usually consists of a series of questions designed to assure the judge aliunde rule n. The doctrine that a that the defendant understands the verdict may not be called into question charges, is guilty of the crime he is by a juror’s testimony without a founda- accused of, understands the conse- tion for that testimony being first estab- quences of a guilty plea and that he is lished by competent evidence from entitled to a trial, and is voluntarily another source. For example, a verdict entering the plea. may not be overturned on the testimony of a juror that he was bribed, unless allodial See ownership and allodium. there was first evidence from another allodium n. source of the bribery. Real property owned absolutely and free of any obligation to ALJ n. abbr. Administration law judge. another with a superior vested right. allegation n. 1 An assertion of fact allowance n. 1 A portion or share, that one intends to prove at trial, espe- especially of money. 2 A portion of a cially one in a legal pleading such as a decedent’s estate awarded by statute to complaint, counterclaim, or indictment. the decedent’s survivors for support dur- 2 Any declaration of something to be ing the administration of the estate, true without giving any proof. regardless of whether they have any rights to the estate or any testamentary Allen charge n. In criminal law, an disposition or competing claims to the instruction given by a judge to encour- estate. If statutorily available is only to age a deadlocked jury to make a the surviving spouse, it is known as a renewed effort to reach a verdict. spousal (or widow’s or widower’s) Named after Allen v. United States allowance. If statutorily available is to (1896). surviving spouse, children, or parents, it is known as a family allowance. See also allocution n. 1 The procedure during elective share. 3 The court-ordered sentencing when a judge gives a con- financial award to a fiduciary for serv- victed defendant the opportunity to ices rendered. 4 A deduction. make a personal statement on his own 04_542109 ch01.qxp 3/28/06 12:16 PM Page 23

23 a mensa et thoro

alluvion n. The creation of land alternative minimum tax See tax. caused by the gradual depositing, either by artificial or natural forces, of earth, alternative pleading See pleadings. sand, gravel, and similar materials alternative writ See writ. along the shoreline of a river or ocean by running water. The new land becomes ambiguity n. A confusion or uncer- the property of the owner of the property tainty about the intention or meaning, to which it is attached, provided the especially of a provision in a contract or accumulation is so gradual that it can- statute. not be visibly perceived from moment to moment. See also accretion, reliction, latent ambiguity. An ambiguity that alluvium, and avulsion. is not obvious and is unlikely to be found while using reasonable care. alluvium n. The land created by allu- For example, a third party contract vion. that provides for a payment to be made to a charity, but two charities alonge n. A piece of paper occasion- exist with the same name. Extrinsic ally attached to a negotiable instrument evidence, if allowed, may be for the signing of endorsements once the required to determine the correct original instrument is filled with interpretation of the ambiguity. However, if each party, in good faith endorsements. interprets the ambiguity differently, also known as n. Phrase used before the meeting of the minds necessary to create a valid contract is not a list of names used by a specific indi- present. vidual in order to avoid confusion about the person’s true identity or by others patent ambiguity. An ambiguity that when referring to the individual. See is obvious or apparent upon reason- also a.k.a. and alias. able inspection. alteration See material alteration. ameliorating waste See waste. alter ego n. The other self. A doctrine amenable adj. 1 Legally answerable; allowing a court to ignore the limited required to respond; responsible; sub- personal liability of a person who acts in ject to. 2 Capable of being tested, a corporate capacity and impose per- adjudged, or brought to judgment. 3 sonal liability for the corporation’s Susceptible to; disposed toward; capa- wrongful acts when it is shown that the ble of being persuaded. individual was using the corporation to conduct personal business and that there amend v. To add to, delete, correct, was no real separation between the indi- revise, or otherwise alter. vidual’s and the corporation’s identity. See also corporate (corporate veil). amendment n. 1 The addition, dele- tion, correction, or other changes pro- a.k.a. abbr. See also known as. posed or made to a document. The term is usually capitalized when referring to an alternative dispute resolution n. amendment in the United States Formal methods of settling disputes Constitution (for example, the Fifth other than by court action, collectively Amendment). 2 The act or process or referred to as alternative dispute resolu- revising something. See also emendation. tion or ADR. See also arbitration, con- ciliation, mediation, and summary a mensa et thoro adv. Latin. From proceeding. board and hearth. See also divorce. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 24

amercement 24

amercement n. 1 The imposition of a Americans with Disabilities Act n. discretionary fine or penalty in an Federal law enacted in 1990 to protect amount not set by statute. 2 The fine individuals with physical or mental dis- or penalty so imposed. abilities from intentional or uninten- tional discrimination in housing, American Arbitration Association n. employment, education, access to public A national organization that promotes services, etc. Abbreviated ADA. the use of arbitration to resolve com- mercial and labor disputes. It also main- AMEX abbr. See American Stock tains a panel of arbitrators for those Exchange. who wish to utilize their services. Abbreviated AAA. amicus brief See brief. American Bar Association n. The amicus curiae n. Latin. Friend of the largest national organization of lawyers, court. One who is not a party to an it promotes improvements and reform in action but petitions the court or is the administration of justice and in the invited by the court to provide informa- provision of legal services to the public. tion or submit her views because she Abbreviated ABA. has a strong interest in the case at hand or a perspective that may not be ade- American Bar Foundation n. A sub- quately presented by the parties. sidiary of the American Bar Association that funds and sponsors projects in law- amnesty n. A pardon for past criminal related education, research, and social offenses for a class or group of individu- studies. als who are subject to trial but have not yet been convicted. Amnesty may be lim- American Civil Liberties Union n. A ited or conditional. For example, amnesty national organization of lawyers and may be offered only to those who perform others who are interested in enforcing a certain act, such as community service, and preserving the individual rights and within a specific period of time. Also civil liberties guaranteed by the federal referred to as grant of amnesty. and state constitutions. Abbreviated ACLU. amortize v. 1 To gradually extinguish a debt in advance of its maturity, usually American Law Institute n. A by paying regular installments in excess national organization of attorneys, of the accrued interest each time a peri- judges, and legal scholars who seek to odic interest payment is due. See also promote consistency, clarity, and simpli- sinking fund. 2 To arrange to gradu- fication in the law through such projects ally extinguish a debt. 3 To apportion as the Restatements of the Law and the the initial cost of an intangible asset Model Penal Code. Abbreviated ALI. each year over the course of the asset’s useful life until the entire cost has been American Stock Exchange n. The used up. second largest stock exchange in the United States. Located in New York City, amount in controversy n. The mone- it frequently engages in the trading of tary damages sought by a party in an stock of small or new companies action; the value of a claim even if not because of its less rigid listing require- expressly stated in the pleadings. See ments. Abbreviated as AMEX and ASE. aggregation doctrine and jurisdiction See also New York Stock Exchange. (jurisdictional amount). 04_542109 ch01.qxp 3/28/06 12:16 PM Page 25

25 annul

AMT abbr. Alternative minimum tax. annex v. 1 To add, affix, or append as See tax. an additional or minor part to an already existing item, such as a document, ancestor n. 1 One, such as a parent, building, or land. 2 To attach as an grandparent, great-grandparent, who attribute, condition, or consequence. precedes another in lineage. 2 Any relative from whom one inherits by annexation n. 1 The act of annexing; intestate succession. the state of being annexed. 2 The point in time when an addition or adden- ancient document See document. dum becomes part of the thing to which ancillary adj. Auxiliary; collateral; it attached. 3 The formal act of a polit- dependant; supplemental; subordinate. ical unit, such as a nation, state, or municipality, annexing land to its’ ancillary administrator n. A person domain. 4 Annexed land. appointed by the court in a state where the descendant was not domiciled to annotation n. Comments that ana- manage the assets and liabilities and to lyze, explain, or criticize, or a collection oversee the distribution of decedent’s of brief summaries of appellate cases estate in that state. Such an administra- that have applied or interpreted, a par- tor usually works as an adjunct to the ticular statutory provision. These com- executor or administrator appointed in ments and summaries are appended to, the state where the decedent was domi- and published with, the statute in a set ciled. of volumes. For example, the United States Code Annotated contains the ancillary claim n. A claim that is aux- statutes of the United States and, after iliary to, supplemental to, or dependant each statutory provision are the com- on another claim. For example, a claim ments and summaries pertaining to that against a physician who negligently pre- provision. scribed an unsafe drug may be ancillary to a claim against the drug manufac- annuitant n. One entitled to the peri- turer who produced the medication. See odical payments, but not the principal, jurisdiction. of an annuity. ancillary jurisdiction See jurisdic- annuity n. A fixed sum paid out at tion. regular intervals for a certain period of time and subject to limitations set by the and his heirs See heir. grantor. For example, a person may be entitled to fixed and periodic payments Anders brief n. A request filed by a for the rest of his life once he reaches a court-appointed attorney to withdraw certain age. See also life estate and from the appeal of a criminal case trust. because of his belief that the grounds for the appeal are frivolous. Named after annul v. 1 To cancel, make ineffective, Anders v. California (1967). invalidate, nullify, void. 2 To judicially declare something to be void either from animus adj. Latin. Purposefully; inten- the date of decree or ab initio. 3 To tionally. 1 Animosity; hostility; ill will; make an ecclesiastical or judicial decla- strong dislike; hate. 2 The animating ration that a marriage is void ab initio thought, intention, or purpose of an act. and never existed. See also divorce. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 26

answer 26

answer 1 v. To respond to a pleading, grandchildren could receive nothing, discovery request, or other judicial but with it, the grandchildren would process or procedural step. 2 v. To receive the gift that would have gone to address or counter allegations, account the son. Often, these statutes apply for one’s actions, or otherwise put up a only to the heirs of the testator’s rela- defense. 3 v. To assume the liability or tives who are named as devises and responsibility for another’s actions. 4 legatees in the testamentary document. v. To pay a debt or other liability; to suf- See also lapse. fer the consequences for one’s actions. 5 n. A pleading that is a defendant’s antitrust law n. The body of law, pri- principal response to a plaintiff’s com- marily consisting of federal statutes, plaint. It denies, admits, or otherwise designed to promote free competition in addresses each of the allegations in the trade and commerce by outlawing vari- complaint. It also usually sets forth the ous practices that restrain the market- defendant’s affirmative defenses and place. See also Clayton Act and counterclaims. See also reply. Sherman Antitrust Act. ante adv. Latin. Before. Before in time, APA abbr. See Administrative order, or position; in front of. See also Procedure Act. post. a posteriori adv. Latin. From what antenuptial agreement n. Same as comes after. Inductive; empirical; rea- prenuptial agreement, although less soning or the ascertaining of truth by commonly used. See agreement. actual experience or observation. See also a priori. anticipatory breach See breach of contract. apparent adj. 1 Readily perceived; manifest; obvious; visible. 2 Seeming, anticipatory repudiation Same as antic- but not actual or real. See also actual ipatory breach. See breach of contract. and constructive. antidumping law n. A federal statute apparent authority See authority. authorizing the imposition of special duties on imported foreign goods when appeal n. 1 The process to seek and the manufacturers are attempting to sell obtain a review and reversal by a court the goods in the United States at less of a lower court’s decision. 2 The than fair value to the material detriment process to seek and obtain a review and of American industry. See dumping. reversal of an administrative decision by a court or by a higher authority within antilapse statute n. A statute the administrative agency. See also cer- enacted in most states allowing the tiorari, notice of appeal, trial (trial de heirs of a devisee or legatee who dies novo), and writ of error. before the testator to take the testa- mentary gift intended for the devisee or appeal (as of) (by) right. An appeal in which a court or administrative legatee. Without the statute, the gift agency must review the decision would fail and go to the residuary bene- that is sought to be reversed. ficiary (if any) or to the testator’s intes- tate heirs. For example, without the appeal by permission. An appeal in statute, a bequest to a son who dies which a court or administrative before his father would lapse, and the agency’s review of a decision is 04_542109 ch01.qxp 3/28/06 12:16 PM Page 27

27 appellant

within the court or agency’s discre- appearance n. 1 The coming into a tion. Also called discretionary court to participate in a court proceed- appeal. See also certiorari. ing by a party who has been validly consolidated appeal. An appeal in served process or by a party who is vol- which the issues to be reviewed in untarily submitting itself to the court’s two or more cases are similar jurisdiction. 2 The coming into a court enough that it is practical to unite to participate in a court proceeding by a the reviews into a single appeal. See witness or an interested person or by a also joinder. lawyer acting on behalf of a party or interested person. cross appeal. An appeal by an appellee, usually considered at the compulsory appearance. An appear- same time as the appeal by the ance by one who is required to do so appellant. because he has been validly served with process. direct appeal. An appeal of a trial court’s decision made directly to the entry of appearance. The formal act jurisdiction’s highest appellate of an attorney notifying a court of court without first seeking review his representation of a party to the by the intermediate appellate proceedings, either by written docu- courts. For example, although a ment, or orally in open court. United States District Court deci- sion is usually first reviewed by one general appearance. An appearance of the Untied States Court of wherein a party consents to the Appeals before the United States court’s jurisdiction and waives the Supreme Court considers it, a direct ability to later contest the court’s appeal bypasses the Court of authority to reach a binding deci- Appeals and sends the District sion against her in the case. Court decision directly to the Supreme Court. initial appearance. A criminal defen- dant’s first appearance in court. interlocutory appeal. An appeal of a Usually, this is when the charges trial court’s interim decision while are read to the defendant or the the case is still pending in the trial defendant is given a copy of the court. Some interlocutory appeals charges, the defendant is advised of his rights and enters a plea, and the involve legal questions whose reso- amount of bail (if bail is not denied) lution are necessary for the trial is determined. See also arraign- court to reach a proper decision in ment and presentment. the action. Others involve issues that are entirely separate from the special appearance. An appearance merits of the case. In most states, made for the sole reason of contest- interlocutory appeals are permitted ing the court’s jurisdiction over the only in limited circumstances and defendant. are rarely granted. voluntary appearance. An appear- appeal (as of) (by) right See appeal. ance by one who has not yet been served with process in the case. appealable decision Same as appeal- able order. See order. appellant n. A party who appeals a court or administrative agency’s deci- appealable order See order. sion. See also appellee. appeal bond See bond. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 28

appellate 28

appellate adj. Relating to a specific ment. 3 The allocation after every appeal or to appeals in general. census of the seats in the United States House of Representatives among the appellate court See court. states based on population. appellate jurisdiction See jurisdic- apportionment of liability n. In tort tion. law, the division of liability for the plain- appellee n. The opponent of the party tiff’s injuries among multiple tortfea- who appeals a court’s or administrative sors. In some cases, some of the liability agency’s decision. may be apportioned to the plaintiff as well. See indemnity, liability, and set- applicant n. One who applies for or tlement. requests something. appraisal rights n. The statutory right application n. 1 The act of applying or available in most states for a corpora- making a request. 2 An oral or written tion’s minority shareholders who object formal motion, request, or petition. to certain extraordinary corporate actions (the nature of which varies state apply v. 1 To make a formal motion or to state, but usually includes consolida- request to a court. 2 To be relevant; to tions and mergers) to have a fair price of have bearing upon; to be instructive. 3 their stock determined in a judicial pro- To devote, use, or assign for a particular ceeding prior to the action and to purpose. require the corporation to repurchase their stock at that price. See also fault. appointed counsel See counsel (assigned counsel). appraise v. To determine the fair price or market value of something. See also appointee n. 1 One who is appointed market value and assess. or assigned to a position or a public or private office or to perform a task. 2 appreciation n. 1 The incremental One who will receive property pursuant increase in an asset’s value, usually to a power of appointment. See also because of inflation. Compare deprecia- power of appointment. tion. 2 The awareness or understand- ing of the meaning, significance, value, appointment n. 1 The appointment, or worth of something. designation, or placement of an individ- ual in a job, office, or position, or to per- unrealized appreciation. The appreci- form a duty. 2 A job, office, position, ation in the value of property that or duty to which one has been has not yet been subject to tax. See appointed. 3 The act of designating also realization. who will receive property pursuant to a appropriation n. 1 The taking of con- power power of appointment. See also trol or possession of property, especially of appointment. the government’s taking of private prop- apportionment n. 1 The allocation, erty for a public purpose. 2 The act by distribution, or division of something a legislative body to designate or set into proportionate shares. 2 The draw- aside public funds for a government ing of the boundaries of legislative dis- expenditure. 3 In tort law, the taking tricts so that each district is of the name or likeness of one person by approximately equal in population. See another for a commercial purpose. It is also gerrymandering and reapportion- considered an invasion of privacy. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 29

29 argument

appurtenant n. A right or thing, such tract to an arbitrator or group of as an easement, attached to or associ- arbitrators rather than to proceed ated with land, that benefits or burdens with litigation. Usually, a breach or the use or enjoyment of the property by repudiation of a contract will not its owner and continues to do so when nullify the clause. title passes to another. binding arbitration. Arbitration pro- ceeding that is final and binding by APR abbr. Annual percentage rate. prior agreement of the parties, or by a priori n. Latin. From what is before. legal rule or statute; no right of appeal or further proceedings. com- Deductive reasoning or the ascertaining pulsory arbitration. Arbitration of truth by proceeding from an assump- required by law rather than by the tion to its logical conclusion rather than mutual agreement of the parties to by actual experience or observation. For a dispute. example, one who walks by a store when its alarm is sounding and sees that its nonbinding arbitration. Arbitration in window is broken can deduce that a bur- which the parties to the dispute are glary has occurred without having not required to abide by the arbitra- watched the burglars commit the actual tor or arbitrators’ decision and may crime. ignore the decision and submit the dispute to litigation. arbiter n. One called upon to decide a legal dispute outside of a court. See also arbitrator n. A neutral person who arbitrator and conciliator. resolves disputes between parties. Usually, the parties to the dispute arbitrary adj. 1 Determined or choose the arbitrator. See also arbitra- founded on individual discretion, espe- tion, arbiter, and conciliator. cially when based on one’s opinion, judg- ment, or prejudice, rather than on fixed arguendo adv. Latin. In arguing. 1 rules, procedures, or law. See also Hypothetically; for the purpose or sake abuse of discretion. 2 Absolute; of argument. A term used to assume a despotic; completely unreasonable; lack- fact without waiving the right to ques- ing any rational basis. This type of deci- tion it later on. For example, a defense sion is often called arbitrary and attorney may state to the judge: capricious. “Assuming arguendo that the defendant committed the crime, the statute of lim- arbitration n. A method of alternative itations prevents the state from prose- dispute resolution whereby a dispute, cuting him for it.” 2 During the course with the consent of all the parties, is of an argument or a conversation. For submitted to a neutral person or group example, “Mr. Smith mentioned for a decision, usually including full evi- arguendo that his client had three prior dentiary hearing and presentations by convictions.” attorneys for the parties. Often, arbitra- tion is the only form of proceeding per- argument n. 1 The reason or reasons mitted under the terms of contracts; see offered for or against something. 2 arbitration clause. See also conciliation, The formal oral or written presentation mediation, and summary proceeding. of such reasons intended to convince or persuade. 3 The section of an appel- arbitration clause. A clause in a con- late or trial brief in which a party pre- tract requiring the parties to submit sents its interpretation of the law. all disputes arising from the con- 04_542109 ch01.qxp 3/28/06 12:16 PM Page 30

argumentative 30

closing argument. At a trial, the final them a copy of the charges. The defen- statement given by the parties or dant is also advised of his rights (for their attorneys to the judge or jury, example, the right to plead not guilty before deliberation, in which they and to have a jury trial) and enters a summarize the evidence and the plea, and the amount of bail (if bail is applicable law, present their inter- pretation of the same, and ask that not denied) is determined. a judgment or verdict be reached in array 1 n. A group of people called their or their clients’ favors. into court at the same time for potential oral argument. 1 A party or his attor- jury duty. From such a group the mem- ney’s oral presentation to a court bers of a jury or juries will be selected. stating the factual and legal rea- 2 n. The members of such a group who sons why the court should decide a are empaneled to be a jury. 3 v. To legal issue or take particular action empanel a jury for a trial. 4 n. The list in their favor. 2 The procedure by of empaneled jurors. 5 v. To call out which such arguments from all par- the names of the jurors as each is ties are heard by the court. empaneled. reargument. The oral, and some- arrear n. 1 The state of being late in times written, presentation of addi- the payment of a debt or the perform- tional arguments to a court on a ance of an obligation. 2 An overdue or matter previously argued before the unpaid debt or unfinished duty. See also court, but on which no decision has arrearage. yet been rendered, for the purpose of advising the court of some con- arrearage n. An overdue debt. See trolling appellate court decision or also arrear. principle of law that was previously overlooked or of some misapprehen- arrears See arrear. sion of facts. See also reconsidera- tion and rehearing. arrest n. The intentional deprivation, whether actual or constructive, of a per- argumentative adj. Stating facts and son’s freedom by legal authorities using suggesting that particular inferences forcible restraint, seizure, or otherwise and conclusions can be drawn from taking the individual into custody, espe- them. cially in response to a warrant or a sus- picion based on probable cause that the armed robbery See robbery. person being arrested has committed a crime. The person making the arrest arm’s length adj. Of or relating to the must have the present power to control bargaining position or dealings of two or the person being arrested. Furthermore, more unrelated parties of approximately the intent to make an arrest must be equal bargaining power who are not con- communicated to the individual who is nected, on close terms, or in a confiden- being detained and that person must tial relationship with each other and understand that the seizure or detention whose mutual dealings are influenced is an intentional arrest. See also privi- only by their own self-interest. lege and resisting arrest. arraignment n. The first step in a citizen’s arrest. An arrest made by a criminal prosecution wherein the defen- private individual rather than by a dant is formally advised of the charges law enforcement officer. Such against him. This is done by reading the arrests are lawful only if 1) an charges to the defendant or by giving offense was committed in the pres- 04_542109 ch01.qxp 3/28/06 12:16 PM Page 31

31 articles of impeachment

ence of the person making the arrest warrant See warrant. arrest, or 2) the person making the arrest has reasonable cause to arson n. 1 In common law, the willful believe that the person arrested has and malicious burning of someone else’s committed a felony. dwelling house. In some states, the term includes, under specific circumstances, false arrest. An arrest made by a per- son who falsely claims to be a law the burning of a dwelling house by its enforcement officer or by a law owner. 2 Under modern statutes, the enforcement officer who has no intentional causing of a dangerous fire legal grounds for making an arrest. or explosion for the purpose of destroy- See also false imprisonment. ing one’s own or another’s property. malicious arrest. 1 An arrest made art 1 v. To utilize knowledge or skill without probable cause and for an according to rules and principles to cre- improper purpose. 2 An arrest ate something. 2 n. A business, occu- made with knowledge that the per- pation, or pursuit that depends upon a son arrested did not commit the skill. 3 n. In patent law, the method, crime he is charged with. See also malicious prosecution. process, or technique for creating some- thing or for achieving a useful result. parol arrest. An arrest ordered by a judge or magistrate while presiding article n. 1 A separate and distinct over a court proceeding. Such an part of a written instrument, such as a arrest is done without a written contract, statute, or constitution, that is complaint and is executed immedi- often divided into sections. 2 A writ- ately, for example, an arrest of a ten instrument, containing a series of person in a courtroom who has been rules and stipulations that are each des- found in contempt of court. ignated as an article. pretextual arrest. A valid arrest made Article I court See court. for a minor offense with the intent to hold the person in custody while Article I judge See judge. investigating his involvement in a more serious offense for which Article III court See court. there is yet no lawful grounds to arrest the suspect. Article III judge See judge. warrantless arrest. An arrest made in articles of association n. A written a public place without a warrant agreement legally creating an associa- that is based on either the probable tion and sets forth the purpose and rules cause that the person committed a of the organization. felony or the person committing a misdemeanor in the law enforce- Articles of Confederation n. The first ment officer’s presence. constitution of the United States, rati- fied in 1781 and replaced eight years arrest of judgment n. The court’s later with the present Constitution of refusal to render or enforce a judgment the United States. after a verdict has been reached because of some apparent defect or error in the articles of impeachment n. A formal proceedings or because the verdict is statement of the reasons to remove a not supported by the evidence. public official from office. See impeach- ment. arrest record See criminal record. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 32

articles of incorporation 32

articles of incorporation n. A written assault n. 1 In criminal and tort law, agreement setting forth the basic struc- an act, usually consisting of a threat or ture of a corporation. The document nor- attempt to inflict bodily injury upon mally includes the name, duration, and another person, coupled with the appar- purpose of the corporation; the names ent present ability to succeed in carry- and addresses of its initial board of ing out the threat or the attempt if not directors; and the number and classes of prevented, that causes the person to shares of stock that it will be allowed to have a reasonable fear or apprehension issue. Normally, the corporation is not of immediate harmful or offensive con- legally created until the articles of incor- tact. No intent to cause battery or the poration are filed with a state govern- fear or apprehension is required so long ment. See also by-law and charter. as the victim is placed in reasonable apprehension or fear. No actual physical artificial person See person. injury is needed to establish an assault, as of right adj. Description of a court but if there is any physical contact, the action that a party may take without act constitutes both an assault and a battery. 2 permission of the court, as opposed to In criminal law, in some requiring leave of court. states, the term includes battery and attempted battery. 3 Any attack.4 ascendant See ancestor. v. The act of inflicting bodily injury upon another. See also mayhem. ascent n. The passing of an estate to an heir who is an ancestor of the intes- aggravated assault. A criminal tate. See also descent. assault accompanied by circum- stances that make it more severe, ASE abbr. See American Stock such as the victim’s suffering seri- Exchange. ous bodily injury or an assault com- mitted with a dangerous and deadly as is adj. In the condition it presently weapon. The additional circum- exists or as found on inspection immedi- stances that make the act an aggra- ately prior to purchase, even if damaged vated assault are set by statute. or defective, without modification and sexual assault. 1 Rape. 2 Any sex- without any express or implied war- ual contact with another person ranties. When referring to a sale of without the other’s consent or when goods that were sold as is, based on an the other lacks the capacity to give inspection of a sample, the goods deliv- legally effective consent. ered must be of the same type and qual- ity or better than the sample was assault and battery See battery. immediately prior to its inspection. assembly n. 1 A group of people gath- asportation n. The carrying away or ering, coming together, or meeting, or moving the personal property of another. already so assembled, for a common It does not matter how short the dis- purpose. 2 A legislative body, espe- tance or slight the movement as long as cially, in many states, the lower house of the person who carries away or moves the state legislature. the property is knowingly and intention- ally exercising control of the property unlawful assembly. Three or more individuals gathering, coming without the consent and to the exclusion together, or meeting with the com- of the rights of the owner. See also cap- mon intention of committing a vio- tion, larceny, robbery, and trespass. lent crime or some act, lawful or 04_542109 ch01.qxp 3/28/06 12:16 PM Page 33

33 assize

unlawful, that will breach the world-renowned author cannot unilater- peace. ally assign her contract to write a book to another writer. assess v. 1 To determine the value of something, especially of real estate for assigned counsel See counsel. property tax purposes. See also appraise. 2 To establish the amount assignee n. One to whom a duty, inter- of, and then charge, a fine, taxes, or est, or right is assigned. another payment. 3 To require stock- holders and partners to fill the need for assignment n. The transfer of a duty, additional capital by making additional interest, or right from one party to contributions to their corporation or another. See also subrogation. partnership. assignment for benefit of creditors. An assignment of most of a debtor’s asset n. 1 Any property or right that is property to another who, acting as a owned by a person or entity and has trustee, consolidates and liquidates monetary value. See also liability. 2 the assets and pays the debtor’s All of the property of a person or entity creditors with any surplus being or its total value; entries on a balance returned to the debtor. sheet listing such property. assignment of a lease. An assignment capital asset. For income tax pur- of a lessee’s entire interest in a poses, most property of the tax- lease. The assignor remains sec- payer except for a few certain ondarily liable to the landlord and business assets (for example, inven- will have to pay the rent if the tory and stock in trade) and other assignee does not. See also sub- property excluded by the Internal Revenue Code. lease. intangible asset. An asset that is not assignment of error n. The list in an a physical thing and only evidenced appellant’s brief of the trial court’s by a written document. For exam- alleged errors, upon which the appellant ple, a debt that is owed to a tax- seeks a modification, reversal, or vaca- payer is an intangible asset. tion of the trial court’s decision. tangible asset. An asset that is a assignor n. One who transfers a duty, physical thing, such as land, build- interest, or a right to another. ings, and goods. assigns n. The plural of assignee. See assign v. 1 To transfer one’s duty, heirs and assigns. interest, or right to another, especially regarding property or under a contract, assisted suicide See suicide, so that the transferee has the same duty, assisted. interest, or right as the transferor had. assize n. 1 Often spelled assizes: a See also assignment and delegate. 2 session of a court or legislative body. To appoint. 3 To identify. 2 The time or place of, or a law enacted assignable n. Capable of being by, such a session. 3 A cause of assigned. Certain rights and duties can- action, especially one relating to the not be assigned while others are not ownership or possession of land. 4 A assignable without the consent of the trial, especially one presided over by an other parties involved. For example, a itinerant judge and held in the county 04_542109 ch01.qxp 3/28/06 12:16 PM Page 34

assizes 34

that is the location of the land, dispute, trade association. An association of or crime in question. 5 The jury at businesses or business organiza- such a trial. tions that share common concerns or engage in similar activities, such general assize. The action, or the as a chamber of commerce or a trial or jury in an action, to deter- trade council. mine the ownership of land. Association of American Law Schools assizes See assize. n. A national organization of law schools associate n. 1 A colleague, compan- that have each graduated at least three ion, partner, or fellow employee. 2 A classes of students and have offered junior member of an association, institu- instruction for at least five years. tion, organization, profession, or society. Abbreviated AALS. 3 A junior member of a law firm who assumpsit n. Latin. He undertook. 1 typically works on salary and does not An enforceable promise or undertaking share in the ownership, profits, or deci- that is not under seal. 2 An action for sion-making of the firm. expectation damages caused by the associate judge See judge. breach of a promise or a contract not under seal. association n. A group of individuals express assumpsit. Such a promise meeting or associated for fellowship or a that is made orally or in writing. common purpose. See also freedom of association. implied assumpsit. Such a promise that is presumed due to individual’s unincorporated association. An conduct or the circumstances of the organized, but unincorporated situation. group of individuals. Thus, the organization does not have a legal general assumpsit. An action based existence separate from its mem- the breach of an implied promise or bers. However, if it has certain char- contract to pay a debt. Also called acteristics, such as centralized common assumpsit. management, that make it more like a corporation than a partnership, it special assumpsit. An action for may be treated and taxed as a cor- expectation damages based on the poration. breach of an express promise or contract to pay a debt. joint stock association. Same as joint stock company. See also company. non assumpsit. A defendant’s claim, in the form of a pleading, that he or professional association. 1 A group of she did not promise or undertake members of a profession organized any obligation as alleged in a com- to practice their profession together. The association may be a plaint. partnership, corporation, or some assumption n. 1 Something the truth other entity. 2 A group of mem- bers of a profession organized to of which is taken for granted; a supposi- promote, improve, regulate, or deal tion. 2 The act of taking for or on one- with the public on behalf of their self, especially accepting, or agreeing to profession, such as a bar associa- take the responsibility for, the obligation tion. 3 In some states, the same of another. as a professional corporation. See also corporation. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 35

35 attachment

assumption of risk n. 1 In contract at issue See issue. law, the act or agreement to take on a risk of damage, injury, or loss, often at large adj. 1 Free from confinement, stated as the risk “passes” to the pur- control, or restraint. 2 Chosen by the chaser upon the occurrence of a certain electorate of, or representing the resi- event, e.g., shipment of goods. 2 In dents of, an entire political unit, such as contract law, an employee’s express a state, country, or city, as opposed to a agreement to undertake the risks that subdivision of the unit, such as a district, normally accompany or arise from that riding, or ward. 3 Not ordered or organ- occupation. 3 In tort law, that a plain- ized by topics, especially when referring tiff voluntarily accepted or exposed him- to a group of statutes or ordinances. self to a risk of damage, injury, or loss, at law adj. Relating to law, as opposed after appreciating that the condition or to equity. See equity and operation of situation was clearly dangerous, and law. nonetheless made the decision to act; in such cases, the defendant may raise the at will n. A status or relationship that plaintiff’s knowledge and appreciation can be terminated for any reason, or for of the danger as an affirmative defense. no reason, at any time without prior Successful invocation of assumption of notice. risk as an affirmative defense will result in a reduction or elimination of damages at-risk adj. Characterization of per- assessed against the defendant. This son or property subject to unique jeop- defense has been strictly limited in ardy or threat, as in the case of youth many states, and is unavailable in cer- “at-risk” for increased likelihood of tain types of actions, e.g., product liabil- delinquency due to home and environ- ity cases. See also negligence. mental factors, or finances “at-risk” due to vagaries of stock market, global assurance 1 n. a promise or guaran- instability, health issues of individual tee, an act that inspires confidence. 2 v. having such finances, etc. the act of promising or assuring. atrocious n. An act that is outra- asylum n. A place of refuge, sanctu- geously cruel, vile, and wicked and that ary, or shelter, especially an institution demonstrates a depravity and insensi- for the maintenance and care of people tive brutality, especially when using requiring special assistance. senseless, excessive, or extreme vio- political asylum. 1 The decision by lence during the commission of a crime. a country’s government to allow attach v. 1 To add, affix, annex, bind, within its border a person from another country and to protect that fasten, or join as a part. 2 To seize or person from prosecution and perse- take by legal process; to carry out an cution by that other country’s gov- attachment, for example, to attach the ernment. 2 The protection and funds in a debtor’s bank account to pay refuge granted by a country to citi- a judgment. 3 To adhere or become zens and residents of other coun- legally effective, especially in connec- tries who obtain entry unto the tion with something or upon some event. premises of its foreign embassies For example, certain rights and respon- and consulates. sibilities attach to becoming a parent. at bar See bar. attachment n. 1 The seizure or freez- at equity See equity. ing of property by court order while an 04_542109 ch01.qxp 3/28/06 12:16 PM Page 36

attainder 36

action is pending so that its ownership 3 To certify by oath or signature. 4 To can be determined, it can be secured to affirm a document’s authenticity by be sold to satisfy a judgment, or its sale signing it as a witness to its execution or transfer can be prevented so that any by another person. future judgment arising from the action may later be secured or satisfied. See attestation n. The act of authenticat- also garnishment and replevin. 2 The ing a document by observing its execu- writ ordering such a seizure or freezing tion at the request of the party signing of property. 3 In commercial law, the the document, and then signing it as a creation of a in prop- witness. erty when the debtor agrees to the secu- attorn v. 1 To turn over or transfer rity, receives value from the secured something to another. 2 To acknowl- party, and obtains rights in the property. edge a new landlord and agree to attainder n. In common law, the auto- become his or her tenant. matic elimination of one’s civil rights attorney n. Lawyer; one who dis- and liberties when sentenced to death or penses legal advice to clients and advo- declared an outlaw for committing a cates for them. felony or treason. See also civil death and bill of attainder. attorney in fact. One who is the agent or representative of another attempt n. The intentional and overt and is authorized, pursuant to a taking of a substantial step toward the power of attorney, to act on their commission of a crime that falls short of behalf. completing the crime. The mere plan- ning of a crime, as well as soliciting attorney at law. 1 One who is spe- cially trained and licensed by a another to commit the crime, does not state to practice law. 2 One constitute an attempt to commit the whose profession is to provide crime. Attempt is a crime distinct from advice or to act or represent others the offense that the criminal was in legal matters. See also district attempting to commit. Various legal attorney, public defender, and tests are used to determine when, counsel. between planning a crime and commit- ting it, a person’s actions constitute an attorney of record. The attorney at attempt. See also conspiracy and solic- law or the law firm designated in a itation. court’s records as representing a particular party in a particular attendant adj. Accompanying; result- action. As long as a party is repre- ing in. For example, in criminal law, the sented by an attorney of record, all definitions of several crimes require the documents, correspondence, and presence or absence of attendant cir- other communications that are cumstances; for example, the absence of intended for that party, whether consent to be touched is required for an from the court or the other parties offensive touching to be considered a in the action, must go instead to the battery. attorney of record. attest v. 1 To bear witness; testify. 2 attorney-client privilege See privilege. To affirm as accurate, genuine, or true. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 37

37 authority

Attorney General n. The chief legal audit n A formal inspection of the officer of the United States or of a state, accounting procedures and records and who advises the federal or state govern- the financial situation of an individual, ment on legal matters, represents the business, organization, or government federal or state government in litigation, entity to verify the accuracy and com- and heads the United States Department pleteness of the records or their compli- of Justice or a state’s legal department. ance with another set of standards. Abbreviated A.G. See also solicitor(s) general and United States Attorney. authenticate v. 1 To prove that some- thing, such as a document, is what it attorney, power of See power of purports to be, especially so that the attorney. item can be admitted into evidence at a trial or hearing. For example, a party attorney’s fees n. The sum charged to wishing to admit a letter into evidence a client by an attorney at law for the pro- may ask the witness whether it is, fessional services performed for the indeed, the letter he received, does he client. The sum reflects a contingent recognize the handwriting, and similar fee, flat fee, hourly fee, compensation questions. 2 To place a mark, such as for out-of-pocket expenses, or some a signature or a stamp, on a document combination thereof. See also contin- to signify that it is authentic, effective, gent fee and retainer. or valid. 3 To approve or adopt a writ- attorney’s lien n. An encumbrance ing as one’s own. asserted by a lawyer against a client’s self-authentication n. The act of prov- file, money or property as security for ing that something, usually a document, unpaid legal fees. Strictly limited right is genuine or true without the use of to assert such a lien in most jurisdic- extrinsic evidence. For example, nota- tions, and prohibited by ethical rules in rized documents and certified copies of others. Also referred to as a charging public records are usually deemed to be lien or retaining lien. self-authenticating. attractive nuisance doctrine n. In authority n. 1 The authorization, per- tort law, the doctrine that one who has a mission, power, or right to act on dangerous condition or thing on his another’s behalf and to bind them by property that is likely to attract a curi- such actions. See also agency, agent, ous child is under a duty to take reason- and principal. 2 The right or power to able steps to protect the child from it. command, govern, or enforce obedience. For example, one has a duty to fence or 3 A legal writing, such as a judicial deci- cover an unsupervised swimming pool. sion, law review article or legal treatise, The fact that the child is a trespasser or a statute’s legislative history that does not negate the duty, but is one of provides information or insight on how many factors to be taken into account in to interpret and apply the law. See also determining the exact extent of the . property owner’s duty and the level of care required of him. actual authority. Authority, express or implied, intentionally given by a auction See sale. principal to an agent. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 38

automatic stay 38

adverse authority. Authority that is autre or auter n. French. Other, detrimental to a party’s argument or another. See also estate. position regarding a question or an issue. Usually, when a lawyer finds autrefois acquit n. French. Formerly such authority, he is under an ethi- acquitted. A plea by a person indicted cal obligation to reveal it to the for a crime for which he or she had pre- court, but it is done in such a way viously been tried and acquitted. See (for example, arguing that the deci- also double jeopardy and autrefois sion in a previous case should be convict. narrowly construed or was wrongly decided) as to minimize the author- autrefois convict n. French. Formerly ity’s effect upon his client’s case. convicted. A plea by a person indicted apparent authority. Authority that for a crime for which he or she had pre- can be reasonably inferred by a viously been tried and convicted. See third party to have been given to an also double jeopardy and autrefois agent based upon the third party’s acquit. dealings with the principal or upon the principal’s representations even autre (or auter) vie n. French. if the principal did not intend to give Another’s life. See estate. the agent such authority. aver v. To formally assert as a fact, binding authority. See precedent. such as in a pleading; to allege. persuasive authority. Authority that averment n. 1 The act of averring. 2 is not binding on a court but still merits consideration. For example, A positive affirmation, allegation, or a scholarly work or the decision of a declaration of facts, especially in a plead- higher court in another jurisdiction. ing, as opposed to an argumentative statement or a statement based on induc- primary authority. Authority that is tion or inference; generally this term is issued by law-making bodies, such used in civil proceedings, as opposed to as a court’s decision or a statute’s allegation in criminal proceedings. legislative history. averment of notice. See also notice. secondary authority. Authority that analyzes and explains the law, but immaterial averment. An averment is not issued by a court or legisla- that provides unnecessary informa- ture. For example, an annotation, tion and detail. law review article, or legal treatise. negative averment. An averment that automatic stay See stay. is stated in the negative, but is actu- ally affirmative in substance. For automobile guest statute See guest example, the negative averment “he statute. is not old enough to marry” really means that “he is too young to autopsy n. The post-mortem examina- marry.” Although one who makes a tion of a human body, including its dis- simple denial in a pleading does not section and the removal and inspection carry the burden of proof, the party of the major organs, to determine the who asserts negative averment has cause of death. the burden to prove the averment’s autoptic evidence See evidence. affirmative substance. 04_542109 ch01.qxp 3/28/06 12:16 PM Page 39

39 AWOL

a vinculo matrimonii adv. Latin. From award 1 n. The final decision of an the bond of marriage. See divorce. arbitrator. 2 The final decision of a court, jury, or administrative tribunal avoid v. Slang. To annul, cancel, make granting damages or other relief to a void, or nullify for some legal reason a party. 3 v. To formally grant such transaction to which one is a party or relief. See also confirmation, judg- owes an obligation. For example, a child ment, and order. who is under the age of capacity may disavow a contract and avoid her obliga- AWOL abbr. See absent without tions under it because she lacks the leave. legal capacity to enter into a contract. See also annul, voidable, and ratify. avoidance n. 1 The act of keeping away from, escaping, evading, or pre- venting. 2 Same as confession and avoidance. 3 Same as tax avoidance. 4 Same as voidance. avulsion n. The sudden and percepti- ble removal or severing of land from the property or jurisdiction of which it was a part by natural forces such as a flood or an abrupt change in the course of a river. Despite the removal or severing of the land, the boundaries between jurisdic- tions or properties are not altered by avulsion. For example, if a river was the boundary between two states, the boundary remains the same although the course of the river has changed. See also alluvion, accretion and reliction. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 40

court by or on behalf of one accused of committing a crime, to obtain release from incarceration and to ensure the person’s future appearance in court when required during the criminal pro- ceeding. See also preventive detention and recognizance. 2 v. To obtain for B oneself or another the release from incar- ceration by providing security to ensure the person’s future appearance at every stage in a criminal proceeding. 3 v. To temporarily give possession of personal property to someone. See also bailment. BAC abbr. Blood alcohol content. excessive bail. Bail set in an amount greater than what is reasonable, in bad character n. A person’s predispo- light of the seriousness of the sition to commit evil acts. alleged crime and the risk that the defendant might flee, to ensure bad check See check. the person’s appearance at every stage of a criminal proceeding. The bad debt n. An uncollectible debt aris- Eighth Amendment to the United ing due to the debtor’s refusal to pay, States Constitution prohibits the insolvency, or bankruptcy. setting of bail in excessive amounts. bad faith n. Dishonesty of purpose; lack of fairness and honesty; the contin- bail bond See bond. uous and willful failure to fulfill one’s duties or obligation. See also good bail bondsman See bailsman. faith. bailee n. One who temporarily pos- badge of fraud n. The facts or circum- sesses the personal property of another stances surrounding a transaction that pursuant to and agreement between indicate that one party is trying to hin- them. See also bailment. der or defraud another party, especially bailer See bailsman and bailor. a court, an opposing party in an action, or a creditor. Such badges include, bailiff n. 1 A court officer charged among other things, the transfer of with maintaining order in the court- property in anticipation of litigation or room, with taking care of the judge’s execution. See also fraud. and jury’s needs, and, in criminal pro- ceedings, with the custody of the defen- badge of slavery n. 1 A legal disabil- dant. 2 A sheriff’s deputy or other ity imposed on a slave, such as the officer who executes writs and serves inability to vote, own property, or enter processes and warrants of arrest. 3 into a contract. 2 Any visible trace of One who oversees the administration of slavery, such as racial discrimination in land, goods, and other property, includ- public education. 3 Any public or pri- ing the collection of rent, for the owner. vate act of racial discrimination that Congress can prohibit under the bail jumping v. To flee, hide, or other- Thirteenth Amendment to the United wise avoid an appearance at any stage States Constitution. in a criminal proceeding while free on bail. bad title See title. bail 1 n. Security, such as cash, a bond, or property, pledged or given to a 05_542109 ch02.qxp 3/28/06 12:16 PM Page 41

41 balance sheet

bailment n. The delivery of personal leaves personal property on the property from one person (the bailor) to bailee’s person or land. If the bailee another (the bailee) in trust for some refuses to return the property upon special purpose, as according to an the bailor’s demand or refuses to express or implied contract. Only the permit the bailor to remove the lawful possession of the property, and property, he can be liable for con- not ownership, is transferred. The rights version. See also property. and duties of the parties as to the prop- erty depend on the purpose of the bail- bailment offense See offense. ment and the terms of the contract. See bailor n. 1 Same as bailsman. 2 also lease. One who temporarily gives possession actual bailment. A bailment created of personal property to another, pur- by the actual or constructive deliv- suant to an agreement between them. ery of personal property to a bailee The bailor does not have to be the owner or his agents. of the property. See bailment. bailment for hire. A bailment in bailsman n. One who provides bail to which the bailor merely takes pos- secure the release of a criminal defen- session of personal property in dant. exchange for compensation. bailment for mutual benefit. A bail- bait and switch v. The practice of ment in which the bailee, in advertising a product or service at a low exchange for compensation, pro- price to bring customers into a store vides the bailor with some addi- and, once they are there, urging them to tional benefit as to the bailor’s buy a more expensive product or service personal property, such as cleaning by disparaging the original item or by or repair work. saying that it is no longer available. This is illegal in most states, especially when constructive bailment. A bailment in which, due to the particular circum- the original product or service was not stances, the bailee has a legal obli- available at the time it was advertised. gation to return the personal property to its owner, even if the balance 1 n. To determine the differ- owner is not the bailor or if the ence between the sum of the credits and bailee did not voluntarily take pos- the sum of the debits of an account. 2 session of the property. v. The act of estimating, measuring, or weighing two things in comparison to gratuitous bailment. A bailment in each other. For example, the balancing which the bailee accepts personal of the risks and benefits of filing a law- property without expecting compen- suit. 3 v. To offset or counteract. 4 v. sation. For example, a gratuitous bailment is created when a bailee To place or keep in equilibrium or pro- borrows the bailor’s property. In portion, such as balancing competing gratuitous bailments, the bailee is interests. 5 n. The result of balancing. liable to the bailor for the loss of or damage to the property only if it balance sheet n. A financial state- was caused by the bailee’s gross ment that indicates the value of an negligence. entity’s current fiscal situation as of a specific date, consisting of a summary of involuntary bailment. A bailment in the value of assets and a summary of which the bailor, without any negli- the value of its liabilities and the own- gence, unavoidably or accidentally ers’ equity. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 42

balancing of the equities 42

balancing of the equities n. A court’s savings bank. A bank that receives weighing of such factors as policy and deposits, maintains savings the convenience or hardship to the par- accounts (from which funds can ties in order to determine the fairness of usually be withdrawn only after a granting or denying equitable relief set period of time or advance (such as an injunction). notice), pays interest on them at usually higher rates than commer- balancing test n. The weighing, espe- cial banks, and makes certain cially by a court, of competing values loans. However, a savings bank can- and interests and deciding which one not maintain checking accounts and will prevail, in an attempt to achieve is allowed to invest only in certain equality or fairness between those val- types of corporate and government ues and interests. bonds and securities. balloon mortgage See mortgage. bankrupt n. 1 A person or entity balloon note See note. unable to pay debts due to insolvency. 2 A person (or entity) who has filed a balloon payment See payment. voluntary petition for bankruptcy or against whom an involuntary petition banc See en banc. for bankruptcy has been filed. See also debtor. 3 The state of having been B and E (or B & E) abbr. Breaking declared bankrupt by a Bankruptcy and entering. See burglary. Court. bank n. A financial institution, bankruptcy n. A federal judicial proce- whether incorporated or not, with a sub- dure by which most debts owed by a per- stantial portion of its business consist- son or entity are extinguished or reduced ing of receiving deposits and or the payment of which are delayed. maintaining savings accounts and checking accounts. Most also issue Chapter 7 bankruptcy. A bankruptcy loans and credit, exchange currencies, proceeding whereby most of the transmit funds, and deal in negotiable debtor’s assets are collected and bonds and securities issued by corpora- sold, the proceeds are distributed tions and the government. among the creditors, and the debtor’s liabilities are discharged. commercial bank. A bank, often Also called a straight bankruptcy. organized as a public corporation, that offers the broadest range of Chapter 11 bankruptcy. A bank- services allowed by law, but that is ruptcy proceeding whereby a required to keep a larger percent- debtor, usually a business, is age of its deposits on reserve than allowed to reorganize itself and is required of savings and loan asso- restructure its finances under court ciations and savings banks. supervision and to arrange and carry out a court-approved repay- savings and loan association. A finan- ment plan with its creditors while cial institution, often organized and continuing to operate its business. operated like a bank, with a primary Also called reorganization. purpose to make loans so that indi- viduals can purchase or construct Chapter 12 bankruptcy. A bank- homes, but that also provide vari- ruptcy proceeding whereby a farmer ous banking services. See also with a regular income who is insol- building and loan association. vent can keep and continue operat- 05_542109 ch02.qxp 3/28/06 12:16 PM Page 43

43 bar association

ing his farm while arranging and side exclusively over bankruptcy pro- carrying out, under court supervi- ceedings filed within a designated United sion, a repayment plan with his States District Court’s jurisdiction. creditors. bankruptcy trustee n. See trustee. Chapter 13 bankruptcy. A bank- ruptcy proceeding whereby a person bar 1 n. A legal obstacle or barrier with a regular income is allowed to that prevents or destroys a legal action propose a plan to reduce her obliga- or claim, especially one that prevents tions or extend the period to pay those obligations and allow her the relitigation of an issue or the forma- future earnings to be collected by a tion of a valid contract. See also double trustee and paid to the debtor’s jeopardy, estoppel, merger, plea, and unsecured creditors. Also called res judicata. 2 v. To prevent, prohibit, rehabilitation. or act as a bar to. 3 n. In bar. As a bar to an action. For example, if a defendant involuntary bankruptcy. A bank- in a criminal action was acquitted ear- ruptcy proceeding initiated by a lier of the same charges that he is now creditor to legally declare a debtor to be bankrupt and to impound all of accused, he may plead double jeopardy the debtor’s non-exempt property, in bar. 4 adj. At bar. Now before the distribute it or its proceeds to the court. For example, an action that is creditors, and extinguish the before the court may be referred to as debtor’s liability. the case at bar. 5 n. The legal profes- sion in general. 6 n. A group of attor- voluntary bankruptcy. A bankruptcy neys admitted to practice law in a proceeding voluntarily initiated by a particular jurisdiction or before a partic- debtor who files a petition with the ular court or who practice in a common bankruptcy court to be legally field or area of expertise in the law. 7 declared a bankrupt and, during the n. The railing in a courtroom that sepa- proceeding, surrenders his property rates the area used by the judge, in order to discharge his debts. lawyers, and court personnel to conduct judicial business from the seating pro- Bankruptcy Act n. The federal vided for observers. See also bench. statute, adopted in 1898, that governed all bankruptcy cases filed before bar association n. A professional October 1, 1979. organization of attorneys who practice law within a specific geographic area Bankruptcy Code n. The federal (for example, a state bar association) or statute, adopted in 1978, that governs who practice in a common field or area all bankruptcy cases filed after of expertise in the law (for example, a September 30, 1979. Superseded defense attorneys’ bar association). Bankruptcy Act. integrated bar. A bar association in Bankruptcy Court n. A United States which membership is legally District Court, or the bankruptcy judges required of all attorneys who prac- assigned to a given United States tice law in that state or jurisdiction. District Court, that deals only with Also called a compulsory bar, bankruptcy proceedings. mandatory bar, and unified bar. bankruptcy judge n. A United States voluntary bar. A bar association that District Court judge appointed by a attorneys do not need to join in United States Court of Appeals to pre- order to practice law. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 44

bare license 44

bare license See license. quarrels. Was a crime under the com- mon law and is a statutory crime in most bar examination n. A written exami- states. See also abuse of process, nation administered by a state or an champerty, and maintenance. established licensing authority, such as a state bar association, usually lasting barrister n. 1 In England, a lawyer two or more days, that tests the legal who argues cases in court. See also knowledge of individuals seeking a solicitor. 2 In the United States, a license to practice law in a particular lawyer. state. See admission. barter 1 n. The exchange of goods or bargain 1 n. A voluntary agreement services without the use of money. 2 between parties for the exchange or pur- v. To negotiate, engage in, or conclude a chase of goods or services, regardless of barter. whether the transaction is legal or the consideration is sufficient for the agree- basis n. The amount or value assigned ment to constitute a contract. to a taxpayer’s cost of acquiring, or Synonymous with contract. 2 v. To investment in, an asset. Primarily used negotiate the terms of an agreement. when determining the taxpayer’s gain or loss when the property is sold, bartered, bargain and sale n. A written contract or exchanged or the asset’s deprecia- to convey the legal title of, and raise a tion. use in, real property in exchange for valuable consideration recited in the adjusted basis. The value of a tax- payer’s basis in an asset, after mak- agreement without requiring the parties ing additions or subtractions to his to enter the land and perform a livery of or her original basis, to reflect cer- seisin. Unless it includes a covenant of tain events, such as capital seisin and right to convey, the agree- improvements and depreciation, ment contains no guarantees as to the that affect the value of the property seller’s title to the property. See also subsequent to the taxpayer’s acqui- deed. sition of or investment in the asset. bargainee n. The purchaser of land in carryover basis. The basis of an a bargain and sale. See also bargainor. asset transferred from one owner to another by gift or in trust at the bargaining unit n. A group of employ- time of the transfer. ees represented by a labor union or recovery of basis. See recovery. other group engaged in collective bar- gaining with a company or industry. stepped-down basis. The taxpayer’s Also called a collective bargaining unit. basis in an asset after the basis has been decreased to a certain value bargainor n. The seller of land in a (usually its fair market value) upon bargain and sale. See also bargainee. a certain date or event. For exam- ple, the basis of inherited property barrato See barrator. is its fair market value as of the date of the decedent’s death or an barrator n. One who commits barra- alternate valuation date and the try. Also called barrato or common decedent’s stepped-down (or barrator. stepped-up) basis in the asset is the new owner’s original basis. barratry n. The persistent incitement or initiation of groundless and 05_542109 ch02.qxp 3/28/06 12:16 PM Page 45

45 bench memorandum

stepped-up basis. The taxpayer’s son’s or the perpetrator’s sexual basis in an asset after the basis has organs. See also rape. been increased to a certain value (usually its fair market value) upon simple battery. A battery with no a certain date or event. accompanying aggravated circum- stances and not resulting in serious substituted basis. The basis of one bodily injury. asset that substitutes for that of another asset when the first asset battle of the forms n. The conflict has been exchanged or otherwise between the incompatible terms in transferred in return for the second preprinted standardized forms exchanged asset. The taxpayer does not incur by a buyer and seller while negotiating a any gain or loss, but substitutes the contract. basis of the asset she transferred to the property she acquired. bearer n. A person in possession of a negotiable instrument, document of bastard n. 1 Same as illegitimate title, security, or other similar document child. See child. 2 The child of a mar- that is marked “payable to bearer” or is ried woman whose father is not the indorsed in blank. Depending upon its woman’s husband or whose paternity is nature, the document is called a bearer not conclusively established. bond, bearer instrument, bearer paper, or the like and, if it is for the payment of bastardy proceeding n. See paternity money, it is said to be payable to bearer. suit. before the fact See accessory. battered-person syndrome n. The medical and psychological condition of a below adv. 1 Later in the same docu- person who has suffered (usually per- ment. See also infra. 2 Of or in a court sistent) emotional, physical, or sexual whose decision can be appealed. For abuse from another person. Also called example, when referring to a lower battered child syndrome or battered court’s decision, an appellant court may woman syndrome depending on the cir- rule that “the decision below” is cumstances. In the case of a woman, her affirmed or reversed. husband or partner inflicts the injuries. See also abuse. bench n. 1 Judges collectively or of a particular court. See also bar. 2 The battery n. The harmful or offensive area in the courtroom where the judge touching of any part of another person’s sits. body or of something, such as clothing or carried umbrella, that is so closely bench memo See bench memoran- attached to the person that it is custom- dum. arily regarded as part of the person. The bench memorandum n. A short mem- touching may be in anger or a result of orandum summarizing the facts, issues, some other intentional wrong. Any and arguments in a case, prepared amount of touching is considered a bat- either by a judge’s law clerk or by the tery, even if harmless, if it is offensive to lawyers in the case, for the judge to use the person who is touched. See also when preparing for trail, for hearing the assault and mayhem. lawyers’ oral arguments, or in drafting a aggravated battery. See aggravated. decision. Also called bench memo. sexual battery. The forced penetra- tion of or contact with another per- 05_542109 ch02.qxp 3/28/06 12:16 PM Page 46

bench ruling 46

bench ruling n. An oral decision benefit n. That which is helpful; given, or a written decision read aloud, advantage; financial assistance; gain; by a judge to the parties and their privilege; profit. lawyers from the bench. benefit-of-the-bargain rule n. 1 In bench trial See trial. breach of contract cases, the principle that the aggrieved party is entitled from bench warrant See warrant. the party who breached the contract to beneficial n. A right or interest that everything that he would have received, derives from something other than legal including profits, if the breach had not 2 title. See estate, interest, owner, use, occurred. In cases involving fraud or and equitable. misrepresentation of the value of prop- erty, the principle that the defrauded beneficiary n. A person entitled to an party is entitled to damages equal to the advantage, benefit, or profit (such as an difference between the misrepresented inheritance under a will or the proceeds value and the lower amount that repre- of an annuity, insurance policy, or prop- sents the true value of the property. erty held in trust) arising from an Also called loss of bargain. See also out- appointment, assignment, disposition, of-pocket rule. instrument, or legal arrangement. bequeath v. 1 To give a gift of per- creditor beneficiary. A third-party sonal property by means of a will. See beneficiary who is to receive the also devise. 2 In some states, to give benefit of a contract in satisfaction a gift of any type of property by means of of a debt, duty, or liability owed to a will. them by the party who purchased the benefit. Under certain circum- bequest n. 1 A gift of personal prop- stances, the execution of the con- erty (usually other than money) by tract itself may discharge the means of a will. Also, any personal prop- obligation. In any case, the contract erty given by means of a will. See also must be primarily for the third per- devise legacy. 2 son’s benefit. and In a broader sense, any gift of property by means of a donee beneficiary. A third-party ben- will. Also, any property given by means eficiary who is to receive the benefit of a will, including a devise or a legacy. of a contract as a gift from the party who purchased the benefit. conditional bequest. A bequest that is effective or continues unless some incidental beneficiary. A person who particular event does or does not is not a party to, but is the unin- occur. For example, a bequest from tended beneficiary of, a contract or a parent to a child that is to effec- trust. Such a person has no legally tive only if the child is still a minor enforceable right to the benefit they at the time of the parent’s death is a receive. conditional bequest, because the intended beneficiary. A person who is parent may die after the child not a party to a contract or trust, reaches adulthood. but is intended by the parties to executory bequest. A bequest that benefit from the contract or trust. does not take effect until after the Such a person has the ability to occurrence of a particular event. legally enforce the contract or trust For example, a bequest from a par- once their right to the benefit vests. ent to a child that is effective only if third-party beneficiary. the child is 18 years of age or older A person who at the time of the parent’s death is is not a party to, but is the intended beneficiary of, a contract. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 47

47 bid-shopping

an executory bequest, because the beyond a reasonable doubt n. The child must have first reached his standard for conviction in a criminal 18th birthday to receive it. trial; evidence sufficient to convince a general bequest. A bequest of a gen- beyond doubt of the eral type of property rather than of guilt of the defendant. The requirement a specific item of personal property. of proof beyond a reasonable doubt is For example, a bequest of “furni- not so stringent as to preclude the pos- ture” rather than “oak chair.” A sibility of error, as is, “beyond the bequest to be paid out of the general shadow of a doubt,” nor as loose as, “the assets of the testator’s estate. preponderance of the evidence,” as is the standard in a civil trial. pecuniary bequest. See legacy. residuary bequest. A bequest of what BFOQ abbr. See bona fide occupa- remains in the testator’s estate tional qualification. after the payment of debts and the satisfaction of all other bequests. BFP abbr. Bona fide purchaser. See purchaser. specific bequest. A bequest of a spe- cific item of personal property. bias n. A mental tendency, inclination, preconception, prejudice, taint. best efforts n. Diligence beyond a mere good faith effort to fulfill an obli- bias crime See crime (hate crime). gation. See also good faith and dili- bid 1 n. An offer to pay a specific price gence. for something. 2 n. An offer to perform best evidence rule n. The rule that, to work or supply services at a specific prove the contents of a writing, record- price. 3 v. The act of submitting an ing, or photograph, the original is offer to buy. required unless it is not available for firm bid. A bid that is publicly some reason other than the serious fault announced when made and that is of the party trying to prove the contents binding and cannot be revised until thereof. If the original is unavailable, it is accepted or rejected. the testimony of the person who created the original or the person who read it (if open bid. A bid that is publicly announced when made and that the a writing), listened to it (if a recording), bidder may repeatedly revise as or saw it (if a photograph) may testify to competing bids are announced. its content. However, modern eviden- tiary rules usually permit the use of sealed bid. A written bid that is mechanical, electronic, or other similar secret and not disclosed until all copy instead of the original. submitted bids (which are also writ- ten and secret) are simultaneously bestiality n. 1 Sexual intercourse opened and considered. between a person and an animal. 2 In a broader sense, any sexual activity or bid-shopping v. The legitimate prac- contact between a person and an animal. tice whereby a general contractor, after See also crime (crime against nature), being awarded a contract, tries to buggery, and sodomy. reduce his own costs by disclosing to interested subcontractors the lowest betterment n. An improvement that bids he received for subcontracts, and adds to the value of real property. then inviting even lower bids. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 48

bigamy 48

bigamy n. 1 The crime of marrying a no bill or no true bill. The words used person while legally married to another. in a grand jury’s notation on a bill of The second marriage is void. 2 In indictment indicating that insuffi- some states, the crime of cohabiting cient evidence exists to support a with a person of the opposite sex while criminal charge set forth in the pro- posed indictment. Such a decision legally married to another. See also by the grand jury prevents the pros- monogamy and polygamy. ecution from pursuing a criminal bilateral contract contract. action against the defendant based See on those charges until a new grand bill 1 n. A draft of a proposed statute jury is selected. submitted to a legislature by one of its revenue bill. A piece of legislation for members for consideration and possible the purpose of levying taxes. By the enactment. United States Constitution, all fed- eral revenue bills must originate in appropriation bill. A bill that, if the House of Representatives. A enacted, would authorize the expen- similar provision constraining the diture of government funds. origin of revenue bills to one partic- engrossed bill. The draft of a bill as it ular house of the state legislature is is adopted by one house of a legis- part of many of the various state lature and before it is sent to the constitutions. other house for consideration. See true bill. The words used in a grand enrolled bill. also jury’s notation on a bill of indict- enrolled bill. The final draft of a bill ment indicating that sufficient evi- after it is adopted by both houses of dence exists to support a criminal a legislature, printed, checked for charge set forth in the proposed errors, and signed by the presiding indictment that, if proved, would officers of both houses before it is result in the defendant’s conviction. sent to the president or a governor Once the bill of indictment is for approval or rejection. See also indorsed as a true bill and filed with engrossed bill. the court, the prosecution must pur- omnibus bill. 1 A bill that contains sue a criminal action against the proposals on a variety of subjects. defendant based on those charges Usually, such a bill will have one unless the court approves a dis- major provision dealing with one missal. topic and several minor provisions regarding matters unrelated to the 2 n. A statement by one person or entity major subject. 2 A bill that con- to another regarding money owed for tains all proposals on a single (usu- goods sold and services performed. ally broad) subject, such as an Usually, the statement is in the form of omnibus education bill that includes an itemized list of the goods and serv- all proposals regarding, however tan- gentially, the subject of education. ices, along with the amount owed for each item. 3 v. To submit a request for private bill. A bill concerning the payment for goods sold and services interests, or affecting, only one or a performed. 4 n. In equity law, the ini- small number of individuals, enti- tial pleading wherein a party sets out ties, or localities. their cause of action. See also com- plaint petition. public bill. A bill concerning the gen- and eral interests of, or affecting, the whole community, state, or country. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 49

49 bill of pains and particulars

bill of attainder n. 1 Any legislative bill of indictment n. 1 A proposed act that imposed a sentence of death and indictment submitted by the prosecution attainder upon one or more specific indi- to a grand jury, listing the deeds of crim- viduals or groups without a trial or other inal misconduct allegedly committed by judicial proceeding. 2 In United States a defendant. 2 An indictment as constitutional law, any legislative act approved by a grand jury. See indict- that prescribes a punishment on one or ment and bill. more specific individuals or groups or denies them of civil or political rights bill of lading n. A document issued by without a trial or other judicial proceed- a carrier or by a shipper’s agent that iden- ing. Such enactments are prohibited by tifies the goods received for shipment, the United States Constitution. See also where the goods are to be delivered, and attainder, bill of pains and particulars, who is entitled to receive the shipment. and civil death. Abbreviated B/L. bill of certiorari n. In equity law, a clean bill or clean bill of lading. A bill pleading that seeks the removal of an of lading with no added notations that change or qualify its terms. action to a higher court for appellate review. See also certiorari. order bill or order bill of lading. A bill of lading that is negotiable and that bill of costs n. An itemized and certi- states that the goods can be deliv- fied (or verified) list of the expenses ered only when the bill of lading is incurred by the prevailing party in a law- presented to the carrier. Title to the suit. The pleading is submitted to assist bill of lading and to the goods iden- the court in determining how many, if tified in it can be transferred by the any, of these costs should be paid by the shipper, indorsing and giving up losing party. possession of the document to another, who is then entitled to bill of discovery n. In equity law, a receive the goods from the carrier. pleading that seeks the disclosure of straight bill or straight bill of lading. facts known by the adverse party. See A nonnegotiable bill of lading that also discovery. merely specifies the specific place and person the carrier is to deliver bill of exceptions. n. 1 A written the goods to. statement from a trial judge to an appel- late court listing a party’s objections or through bill or through bill of lading. exceptions made during the trial and the A bill of lading issued by the first of grounds on which they were based. 2 multiple connecting carriers who In some states, a detailed record made, are going to ship the goods. By issu- after a trial judge has excluded evi- ing the document, the first carrier dence, of what that evidence was so assumes responsibility for the other that, in case of an appeal, the appellate carriers for the shipment’s eventual court can better determine whether it arrival and delivery at the desig- was proper for the evidence to be nated place and person. excluded at trial. For example, if the trial judge excluded a letter from evi- bill of pains and particulars n. Any dence, the letter might be read into the legislative act similar to a bill of attain- record so its contents may be part of the der that imposes a punishment less bill of exceptions. See also exception. severe than death. Such enactments are forbidden by the United States bill of exchange See draft. Constitution’s prohibition of bills of 05_542109 ch02.qxp 3/28/06 12:16 PM Page 50

bill of particulars 50

attainder. See also attainder, bill of memorandum of the important points of attainder, and civil death. the parties’ contract and is usually accompanied by the buyer’s first pay- bill of particulars n. In criminal law, a ment. 3 The buyer’s first payment written statement of the charges toward the purchase of real property. brought against the defendant specify- See also earnest money. ing the details of the alleged acts of wrongdoing that will be brought up at binding adj. Obligatory. trial. Such a document is usually filed in response to a defendant’s request for binding agreement See agreement. more specific information when the binding arbitration See arbitration. criminal charges are vague or ambigu- ous. In some states, a bill of particulars binding authority See precedent. can also be used in civil actions. binding over See bind over. bill of review n. In equity law, a plead- ing requesting a trial court to explain, binding precedent See precedent. revise, or reverse a final decree issued by the court. bind over v. 1 To require a person to do something (usually to appear in bill of rights n. 1 A section or adden- court). 2 To imprison or place a per- dum, usually in a constitution of a coun- son into a law enforcement officer’s try, state, or other similar political physical custody for imprisonment to entity, specifying the civil and political guarantee the person’s attendance at a rights of the entity’s citizens or resi- judicial proceeding (usually a criminal dents and the limits on the entity’s gov- trial). Also called binding over and ernment to infringe on or interfere with bound over. those rights. 2 Any formal list of rights given to a group of individuals by biological child See child. statutes or by adoption by an organiza- B/L abbr. See bill of lading. tion or institution. For example, a law concerning the provision of services for Blackacre n. The name of a fictitious the elderly may include a senior citi- piece of land frequently used, especially zens’ bill of rights. in law school, when discussing concepts and issues of the law concerning real Bill of Rights n. The first ten amend- property and future interests. When the ments to the United States Constitution. discussion involves two fictitious pieces bill of sale n. A document that con- of land, the second tract is frequently veys title to personal property from a referred to as Whiteacre. seller to a buyer. black letter law Same as hornbook bind v. To subject to a legal obligation. law. See hornbook. binder n. 1 A document giving a per- blackmail See extortion. son temporary insurance coverage until blackmail suit See suit. her application for insurance is rejected or until the insurance policy is issued. blanket bond See bond. 2 A document in which the parties to a sale of real property declare their inten- blanket search warrant See search tion to transfer ownership of the prop- warrant. erty. The document usually includes a 05_542109 ch02.qxp 3/28/06 12:16 PM Page 51

51 bona fide occupational qualification

blank check Same as blank indorse- ple, an ordinance prohibiting the opera- ment. See indorsement. tion on Sunday of a dance hall within city limits is a blue law if it was enacted blasphemy n. The act of reviling, for religious purposes. ridiculing, or being disrespectful or irreverent of, by words or conduct, blue sky law n. The popular name for God, religion, a religious doctrine, a reli- the statute, found in every state, that gious icon, or anything considered regulates within the state the sale of sacred. A crime under the common law corporate securities to the public. These if the blasphemy was directed towards laws are the states’ counterpart to the Christianity or Christian doctrine and federal securities acts. See securities icons and is still a statutory crime acts. (although rarely enforced) in many states. board of directors n. The governing body of a corporation elected by the blockbusting v. The inducement of shareholders to establish and carry out people by a real estate agent to sell real corporate policy, select the corporation’s property quickly, and frequently for less officers, make certain major decisions than what the property is worth, by concerning the corporation’s business spreading rumors about ethnic minori- and finances, and to oversee the corpo- ties moving into the neighborhood and ration’s operations. thereby generating business for the real estate agent. This practice is outlawed board of pardons n. A state agency by many state laws as well as by the fed- authorized to grant pardons to and com- eral Fair Housing Act of 1968. mute the sentences of convicted crimi- nals. Also called a pardon board. blood alcohol concentration (or blood alcohol content) n. The amount of bodily heir See heir. alcohol in an individual’s bloodstream bodily injury See injury. expressed as a percentage of the total composition of one’s blood. The percent- body politic n. The people who are age is used to determine whether the subjected to or owe allegiance to a sin- person is legally drunk, especially in gle organized political governmental regard to laws prohibiting the driving of authority, such as a state or country. vehicles while under the influence of alcohol. boilerplate n. Any standardized lan- guage or working that is almost always Bluebook, the n. The most frequently found in certain legal documents such used guide on how to cite court case, as contracts and deeds. The terms are statutes, treatises, law review articles, often in fine print and typically deal with legislative debates and hearings, and matters that are either noncontroversial other authorities on the status and inter- or nonnegotiable. See also contract, pretation of the law. Formerly titled, and fine print, and unconscionable. now subtitled, “A Uniform System of Citation.” bona fide adj. Latin. In good faith. Acting, being, carried out, or made in blue laws n. Laws regulating or pro- good faith; authentic; genuine; sincere. hibiting certain otherwise legal activi- ties, especially commercial activities, bona fide occupational qualification either on Sunday or all the time for n. Employment practices that would essentially a religious reason. For exam- constitute discrimination as to certain 05_542109 ch02.qxp 3/28/06 12:16 PM Page 52

bona fide purchaser 52

individuals of a particular religion, gen- ferred, so is also the ownership of der, national origin, or age range (but the bond and the entitlement to the not race or color) when the otherwise repayment of the debt and accom- illegal discrimination is a bona fide qual- panying interest payments. ification that is reasonably necessary for blanket bond. A bond, frequently in the normal performance of the duties of the form of a fidelity bond, to pro- that particular occupation. For example, tect against the wrongful action of a designer of women’s clothes by neces- one or more of a group or class of sity is permitted to hire only female individuals. For example, a summer models to show off new designs. Such camp for children might provide a practices are not illegal under federal blanket bond against acts of child law. In addition, religious organizations abuse by any of its camp coun- and schools are allowed to hire only selors. members of that religion even if religion completion bond. A bond to guaran- is not a bona fide occupational qualifica- tee that a contractor will complete a tion for that position (such as the project according to the terms of a requirement that all teachers in a contract. In the event of the con- parochial school be Catholic, even tractor’s default, the surety may though they teach subjects that do not complete the project or pay dam- require Catholic background). Abbr. ages to the aggrieved party up to BFOQ. the amount of the limits of the bond. Also called performance bond. bona fide purchaser purchaser. See convertible bond. A bond that, under bona fides n. 1 Same as good faith. specified circumstances, can be 2 exchanged for shares of stock in the Credential, documents, or other evi- corporation that issued the bond. dence of authenticity, good faith, legiti- macy, or trustworthiness. fidelity bond. A bond to protect against the loss caused by the bond n. A written promise to pay or wrongful conduct of an employee. forfeit money or perform some act upon the occurrence or nonoccurrence of a fiduciary bond. A bond required of a specific act or the passage of a specified trustee, administrator, executor, amount of time. See also indenture. guardian, conservator, or other fidu- ciary to protect against the loss appeal bond. A bond required of the caused by misconduct during the appellant in a civil case to ensure that performance of the person’s duties. the appellee’s costs will be paid if the appeal is dropped or unsuccessful. general obligation bond. A govern- ment bond for which repayment is bail bond. A bond given to a court by to be made from general tax rev- a surety to secure the release of a enues rather than from any specific criminal defendant from incarcera- fund or from the proceeds of any tion and to guarantee the defen- specific civic improvements or proj- dant’s future appearance in court, ect. Also called a bond for general when required, during the criminal purposes. proceeding pending against him. See also bailsman. judicial bond. A bond to protect the adverse party in a civil case against bearer bond. A bond payable to the loss caused by any delay or whomever has possession of it. inability to utilize property as a Whenever possession is trans- result of the lawsuit. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 53

53 bond

junk bond. A corporate bond that serial bond. One of several bonds pays high interest, because the issued at the same time, each of company issuing it has a great risk which has a different maturity date. of going out of business. series bonds. A group or groups of municipal (or state) bond. A bond bonds issued as a result of the same issued or guaranteed by a local or bond indenture, but offered to the state government or governmental public at different times and with body. different maturity dates and inter- est rates. payment bond. A bond to ensure that the employees, subcontractors, and supersedeas bond. A bond required of suppliers of materials for a general the losing party in a civil action for contractor on a construction project the amount of the judgment. The will be paid by the bonding com- bond is frequently a requirement for pany, which acts as an insurer, if the delaying the execution of the judg- contractor fails to pay them. ment while the losing party is appealing the case. Also called peace bond. A bond required by a supersedeas. court of a person who has previ- ously engaged in public distur- surety bond. 1 A bond provided, bances or disorderly conduct or has usually for a fee, by one party, such threatened to do so again to ensure as an insurance company, to protect that, if she breaches the peace in against the potential actions or the future, she will pay the court an default of another party, by guaran- amount up to the limits of the bond. teeing to perform certain acts or to See also breach and conduct. pay an amount up to the limits of the bond if the other party acts or penal bond. A bond to secure pay- fails to act as prescribed in the ment of a specified sum as a penalty bond. Also called a suretyship bond. if an obligation is not met. Often See also surety and suretyship. 2 used to ensure that the terms of a A long-term, interest-bearing contract are performed. Also called instrument, in the form of a certifi- a penalty bond. cate, issued to the public by a cor- porate or governmental entity as a personal bond. A bond issued by the way to borrow money. The obligor party whose own potential action or promises to repay the money on or default will trigger the payment or before a specific date and makes forfeiture of money up to the limits regular interest payments until of the bond. See also surety bond. then. The owner of the bond is not a registered bond. A bond that is not stockholder and has no ownership payable to an individual only interest in the entity, but is only a because he or she has possession of creditor, and the debt is often the certificate evidencing the bond’s secured by a lien on the entity’s existence, but instead is payable property. See also debenture. only to whomever the issuer’s records indicate is the owner of the zero-coupon bond. A bond for which bond. no interest is paid before its matu- rity. It is purchased at a discount revenue bond. A bond issued to raise price and redeemed at its maturity funds for a specific project. The for its face value. money used to repay the debt can derive only from the proceeds of that project. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 54

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bonded adj. Acting under, placed tax. 2 In commercial law, money or under, protected by, or secured by a property given or received to balance or bond. For example, a bonded contractor. equalize an exchange property. bond for general purposes n. See bootleg 1 v. To make or distribute bond (general obligation bond). something illegally, without required authorization or registration, or without bondholder n. The owner of a bond. payment of the appropriate taxes. 2 n. bond indenture See indenture. Something that is made or distributed in such a fashion. bondsman n. 1 One who, usually for a borrowed servant doctrine bor- fee, guarantees a surety bond for (or rowed servant rule n. another. 2 Same as bailsman. ) The common law principle that the employer of a bor- bonus n. 1 Wages paid in addition to rowed employee, rather than the the compensation ordinarily given or employee’s regular employer, is liable required under an employment contract. for the employee’s actions that occur A bonus is payment for services (such as while the employee is under the control for recognition of exceptional work per- of the temporary employer. Sometimes formance) or on consideration, and is referred to as borrowed employee doc- neither gift nor gratuity. 2 Anything trine. given or provided for free in addition to borrowing statute n. what is usual, agreed to, or legally due. A state statute specifying the circumstances when the bonus stock n. Extra shares of stock, statute of limitations of another state usually common stock, given without will be applied to in-state lawsuits payment or other consideration by a cor- whose cause of action arose in the other poration along with a bond or other state. stock, usually preferred stock, as an bounty n. 1 incentive for the public to purchase the A benefit, premium, or bond or other stock. reward offered or given, especially by a government, to cause a person to take book 1 n. A ledger or register record- some specific action. 2 A gift or favor ing particular transactions or events generously bestowed. 3 Liberality in such as financial transactions and police giving. arrests. 2 v. To enter or record the bounty hunter n. A person who, for an details of a transaction or event into such a book. 3 v. The process at a reward or fee, pursues and captures bail police station of completing an arrest, jumpers or individuals who have not yet including fingerprinting and photo- been arrested but are charged with or graphing the defendant. suspected of committing a criminal offense. book value n. The value according to boycott v. 1 a corporation’s books of an asset’s worth A concerted action by two minus its accompanying liabilities. See or more individuals or entities to avoid also market value. commercial dealings with a business or to induce others to take the same boot n. 1 In tax law, the extra money, action. This may include the refusal to unrelated or non-like-kind property, or work for the business and to purchase assumption of liabilities included in an or distribute the company’s products. otherwise like-kind nontaxable exchange While peaceful boycotts are generally of property. The boot is subject to income legal, boycotts that use coercion or 05_542109 ch02.qxp 3/28/06 12:16 PM Page 55

55 breach

intimidation to prevent others from deal- brain death See death. ing with the targeted business are not. 2 To engage in a boycott. See also pick- brand name See trademark. eting and strike. Brandeis brief n. A brief, usually an consumer boycott. A concerted appellate brief, that utilizes economic, refusal of consumers to purchase sociological, or other scientific and sta- the products or services of a busi- tistical evidence in addition to legal ness to indicate displeasure with principle when presenting arguments in the manufacturer, seller, or provider a case. Named after Louis D. Brandeis, of the product. who filed such a brief with the United group boycott. A concerted refusal of States Supreme Court in Muller v. a group of competing businesses to Oregon (1908) during his successful conduct commercial transactions defense of a state law limiting the max- with a company with whom they imum workday of female laundry work- would otherwise do business. Such ers. boycotts are illegal under the Sherman Antitrust Act. breach n. A violation of a law, obliga- tion, or promise. primary boycott. A union-organized boycott of an employer with which breach of the close. The common law the union’s membership have a trespass of entering another’s land labor dispute. For example, a union either unlawfully or without author- involved in a dispute over wages ization. with a business may encourage cus- tomers not to buy that company’s breach of duty. 1 The failure to per- products. form a legal or moral obligation owed to a person or to the public. secondary boycott. A boycott of a tar- 2 The failure to act as required by geted company’s customers or sup- the law. 3 The failure to exercise pliers with whom the boycotters the care that a reasonable person have no direct dispute to compel would exercise in the same or simi- those customers and suppliers to lar situation. refrain from doing business with the breach of fiduciary duty. The failure targeted company. Such boycotts of a fiduciary to fulfill his duties are illegal under the Taft-Hartley with a high standard of care. Act if organized by a union. breach of the peace. The criminal Brady rule n. Evidence or information offense of provoking violence, cre- favorable to the defendant in a criminal ating a public disturbance, or case that is known by the prosecution. engaging in public conduct that Under the United States Supreme Court offends public morals or under- mines public safety. See also bond. case of Brady v. Maryland (1963), the prosecution must disclose such material breach of promise. A common law to the defendant if requested to do so. action for breaking off a marriage Under subsequent United States engagement. Abolished in many Supreme Court cases, the material must states. also be disclosed, even if not requested, breach of trust. The breach by a if it is obviously helpful to the defen- trustee of the terms of a trust or of dant’s case. These requirements are col- her general fiduciary duties. lectively known as the Brady rule. 05_542109 ch02.qxp 3/28/06 12:16 PM Page 56

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breach of warranty. A violation of an from the further performance of his express or implied agreement or own obligations under the contract. warranty relating to the title, qual- For example, if a person purchases ity, content, or condition of goods a car with a radio, but the vehicle sold or of goods delivered to a does not have one when it is deliv- bailee. ered, the nonbreaching party can sue for the cost of the radio and its breach of contract n. A violation of a installation, but he is also obligated contract by either failing to perform to pay for the automobile. Also one’s own contractual obligations or by called immaterial breach. interfering with another party’s perform- ance of their obligations. breaking and entering n. Two of the elements constituting the crime of bur- anticipatory breach. A party’s posi- glary. Under the common law, forcible tive and unequivocal action or state- ment, before the time his entry into a building (however slight) contractual obligation is due, indi- without permission used to be required, cating that he does not intend or but many state laws now only require will not be able to perform when the one to enter (for example, through an time to do so arrives. In most unlocked door or open window) or states, the nonbreaching party may remain on the premises (for example, choose to treat the repudiation as hiding in a closet until no one else is left an immediate breach of the contract in the building) without authorization. and sue for damages without wait- ing for the time the breaching Breathalyzer n. A device that meas- party’s performance is actually due. ures that blood alcohol content of a per- The nonbreaching party can also son by analyzing the content of the urge the repudiating party to per- moisture in her breath. Usually used by form when performance is due, without giving up the right to sue. If police when a person is suspected of the repudiating party withdraws his driving while intoxicated. repudiation before there has been a bribe 1 n. material change in the nonbreach- Money or other valuable ing party’s position, the breach will consideration (including a gift or favor) be nullified. Also called anticipatory given or promised with the intent to cor- repudiation or constructive breach. ruptly influence the judgment or actions See also repudiation and voluntary of a person, especially one in a position disablement. of trust such as a public official or juror. 2 v. To give or promise a bribe. 3 v. To material breach. A breach of a con- gain influence by a bribe. tract that destroys the value of the contract for the nonbreaching party, bribery n. The criminal act or practice excusing her from the further per- of voluntarily giving, offering, receiving, formance of her own obligations under the contract and giving her or soliciting a bribe to influence the offi- the right to sue for damages. Also cial conduct of a person in a position or called total breach. office of public trust. See also kickback. partial breach. A breach of a contract commercial bribery. The voluntary giving, offering, receiving, or solicit- that does not substantially affect ing of a bribe to influence the dis- the value of the contract for the cretionary conduct or decision of nonbreaching party. Thus, while the an agent, officer, or employee of a nonbreaching party has the right to business. sue for damages, he is not excused 05_542109 ch02.qxp 3/28/06 12:16 PM Page 57

57 burden of allegation

bridge loan n. Short-term loan to women enter the legal profession, more cover excessive or concurrent obliga- gender-neutral phrases, such as “my col- tions, as in the case of a loan to cover league,” are being used. two separate mortgages until borrower is able to sell one home. buggery n. Anal sex with another per- son or with an animal. See also bestial- brief 1 n. A written statement pre- ity and sodomy. pared by a lawyer and submitted to the court that outlines the pertinent facts of bugging v. Intercepting, listening to, the case, the questions of law to be or recording a conversation, usually decided, the position of the lawyer’s done covertly, by the use of an electronic client as to those questions, and the device. See also pen register and wire- legal arguments and authorities (for tap. example, statutes and appellate court building and loan association n. A decisions) that support that position. quasi-public corporation to which its See also memorandum. members contribute money that is amicus brief. The brief submitted by loaned back to the members so they can an amicus curiae. Also called brief buy or build homes. See also bank. amicus curiae. bulk sale n. Any sale of a large quan- appellate brief. A brief submitted tity of materials, merchandise, supplies, when the case is on appeal. or other inventory that is not in the reply brief. A brief that responds to seller’s ordinary course of business. the arguments previously raised in Also called bulk transfer. Regulated by an opponent’s brief. the Uniform Commercial Code that is designed to prevent a seller from mak- trial brief. A brief usually submitted ing such a sale, and then spending or just before a trial. disappearing with the proceeds without first paying his creditors. 2 v. to counsel in an advisory capacity, as in “to brief” one’s senior partner on the bulk transfer See bulk sale. status of the case before going to court. burden n. 1 A duty, obligation, or broker n. A person or entity who, for a responsibility. 2 Something that commission or a fee, brings together causes anxiety or is grievous or oppres- buyers and sellers of property or serv- sive. 3 In property law, anything that ices and, while acting as the agent of encumbers or restrict the use or value of one or both of the parties, helps them land, such as an easement, restrictive negotiate contracts. covenant, or zoning ordinance. The bur- den indefinitely binds the current and all brokerage n. 1 The business or office future owners until it is extinguished, so of a broker. 2 A broker’s commission or it is the land, and the landowner, that is fee. burdened by the encumbrance or restric- brother n. A traditional term of colle- tion. See estate. giality (for example, “I respectfully dis- burden of allegation n. The burden on agree with my brother Smith on the a party seeking to raise an issue at trial issue of . . . .”), by which lawyers or to make allegations about it in a plead- judges refer to one another. When refer- ing. Also called burden of pleading or ring to more than one, the plural, pleading burden. brethren, is used. However, as more 05_542109 ch02.qxp 3/28/06 12:16 PM Page 58

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burden of evidence n. The burden on the burden shifts to the other party to a party seeking to support a claim or disprove such fact or assertion. defense at trial to produce sufficient evi- dence at trial to have the issue merit Burford abstention See abstention. consideration by the fact-finder. Also burglar n. An individual who commits burden of going forward called (with burglary. evidence), burden of introducing evi- dence, burden of proceeding, burden burglary 1 n. The common-law of producing evidence, burden of pro- offense of forcibly entering a dwelling at duction, duty of producing evidence, night to commit a felony therein. 2 v. and production burden. See also proof Under many modern statutes, the act of (burden of proof), verdict, dismissal, breaking and entering into any building nonsuit, and prima facie case. at any time with the intent to commit a felony (or, in some states, a felony or burden of going forward (with evi- petit larceny and, in other states, any burden of evidence. dence) See crime) therein. See also larceny and burden of introducing evidence See robbery. burden of evidence. business, course of See ordinary burden of persuasion n. The burden (ordinary course of business). on a party at trial to present sufficient business invitee See invitee. evidence to persuade the fact-finder, by the applicable standard of proof, of the business judgment rule n. The legal truth of a fact or assertion and to con- doctrine that a corporation’s officers and vince the fact-finder to interpret the directors cannot be liable for damages facts in a way that favors the party. Also to stockholders for a business decision called persuasion burden or risk of non- that proves unprofitable or harmful to persuasion. See also proof (burden of the corporation so long as the decision proof). was within the officers’ or directors’ dis- cretionary power and was made on an burden of pleading burden of See informed basis, in good faith without allegation. any direct conflict of interest, and in the burden of proceeding See burden of honest and reasonable belief that it was evidence. in the corporation’s best interest. burden of producing evidence See but-for cause See cause. burden of evidence. but-for test n. In criminal and tort burden of production See burden of law, the principle that causation exists evidence. only if the harm suffered by a party would not have happened in the absence burden of proof See proof. of (“but for”) the defendant’s conduct. burden shifting v. The shifting of the buyer n. One who buys or agrees to burden of proof from one party to make a purchase. See also purchaser. another at trial, after each party pres- ents sufficient evidence to initially per- buyer in the ordinary course of busi- ness. A person who buys goods in suade the fact-finder of the truth or the usual manner from a person in falsehood of a disputed fact or assertion, the business of selling such goods 05_542109 ch02.qxp 3/28/06 12:16 PM Page 59

59 by-law

and who does so in good faith and poration purchase, the interest or without knowledge that the sale shares of any withdrawing or deceased violates another person’s ownership owner or stockholder. See also continu- rights or security interest in the ation agreement. goods. Such a buyer will have good title to the item purchased. See also by-law (also bylaw) n. A rule or holder in due course. administrative provision adopted by an ready, willing, and able buyer. A per- association, corporation, or other body, son who is legally and financially subordinate to the body’s articles of able and has the disposition to incorporation, charter, or constitution, make a particular purchase. that regulates the body’s self-govern- ment and the rights and duties of its offi- straw buyer. See straw person (or cers and members. See also ordinance. man). buy-sell agreement n. An agreement among the owners of a business or the stockholders of a closed corporation to purchase, or to have the business or cor- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 60

cancel v. 1 To blot out, deface, mark off, perforate, destroy, or otherwise physically alter a writing to render it void. 2 To annul, terminate, or revoke a promise or obligation. cancellation n. 1 The act, or the C marks or perforations made in the act, of canceling something. 2 A remedy by which a court calls in, annuls, and retains possession of a void or rescinded written legal document because it may cause unnecessary litigation or make a person’s title to property unclear. For C & F n. abbr. Cost and freight. Both example, a court may call in, annul, and the initials and phrase are used in offers retain possession of a void deed to real and contracts for the sale of goods to estate that a party used to falsely claim indicate that the quoted price includes title to someone else’s real property, in the cost of the freight to a named desti- order to prevent any such claims in the nation as well as the cost of the goods. future. See also C.I.F. canon n. 1 A rule or principle, espe- calendar n. A list of the civil and crim- cially one that is fundamental. 2 A inal cases scheduled on a particular day, rule or standard of conduct, in the form week, or other time period for trial or of a general maxim, adopted by a pro- some other hearing (such as an arraign- fessional organization to guide the con- ment, sentencing, or the hearing of duct of its members. See also Model arguments concerning pretrial motions) Rules of Professional Conduct. to be conducted before a judge. capacity n. 1 The function, office, calendar call n. A courtroom proce- position, or role in which one acts. 2 A dure in which the judge or a court offi- legal qualification, such as age, that cer calls out the names of the cases on determines one’s ability to do something the calendar, is advised by the parties or that has legal consequences (such as their lawyers whether they are ready to making a contract or getting married). proceed, and, if they are, sets a date for Also called legal capacity. 3 The men- trial. In doing so, the judge or court offi- tal ability to perceive, understand, and cer is said to “call the calendar.” appreciate all relevant facts, to make a rational decision based thereon, and to call n. 1 In property law, an identifi- understand the nature and effect of able natural landmark that serves to one’s actions. See also sane. delineate the boundary of land. See also metes and bounds. 2 A demand for criminal capacity. The mental ability the payment of money or the delivery of required to sufficiently distinguish a security, such as a bond, by someone right from wrong to hold a person entitled to make such a demand. See liable for his criminal acts. See also also puts and calls. insanity and infancy. diminished capacity. calumny n. A false and malicious Reduced mental ability caused by such factors as statement about someone that is alcohol or drug use, disease, mental intended to injure his or her reputation. retardation, or injury, that prevents See also obloquy, defamation, and a person from sufficiently distin- slander. guishing right from wrong to hold 06_542109 ch03.qxp 3/28/06 12:16 PM Page 61

61 care

them liable for his criminal acts. bution are owned and controlled mostly See also insanity. by private individuals and businesses for profit, thus what is produced and the testamentary capacity. The mental ability a person must have at the quantities thereof are determined by con- time he signs a testamentary docu- sumer demand and competition. ment, such as a will, for the instru- ment to be valid. Although it varies capricious adj. 1 Characterized by or from state to state, it usually resulting from caprice, inconsistency in requires the person to understand feeling or purpose, a whim, or an unpre- who are the natural objects of his dictable or impulsive behavior. See also bounty, the nature and extent of his arbitrary. 2 Contrary to the evidence property, and the consequences of or law. executing the document. See also mind. caption n. 1 The heading of a pleading that contains the names of the parties capital 1 n. Money or other assets and court, the case index or docket num- used or available for the production of ber, and the type of pleading the docu- wealth. 2 adj. A crime punishable by ment is. 2 The taking or carrying or involving the death penalty. away of an object. See also larceny, rob- capital crime. Same as capital bery, and trespass. 3 The arrest or offense. See offense. seizure of a person pursuant to legal process. capital offense. See offense. care n. 1 Serious attention, concern, capital punishment. See punish- interest, or regard. 2 In negligence ment. law, the level of caution and prudence capital asset. See asset. demanded in the conduct of a person in a given situation. The appropriate level capital expenditure. The expenditure is determined by measuring the poten- of money to purchase, improve, or tial dangers in the particular situation, repair property that has, or whose the risk that the person’s actions might improvement has, a useful life that bring the risk to fruition, and the possi- is substantially longer than the ble ways of minimizing or eliminating length of the taxable year in which the risk. In some situations, the level of the purchase, improvement, or repair is made. Not deductible for care owed is determined by statute. See income tax purposes, but may be also reasonable man, malpractice, and subject to depletion or depreciation. negligence. Also called capital expense. degree of care. The level of care to be capital expense. See capital expendi- exercised in a particular situation. ture. due care. 1 A phrase used to capital gain. See gain. describe the level of care that an ordinarily reasonable, intelligent, capital gains tax. See tax. and prudent person would use under the same or similar circum- capital loss. See loss. stances. For example, “Smith’s fail- ure to exercise due care before the capital stock. See stock. accident constitutes negligence.” Depending upon the seriousness of capitalism n. An economic system in the particular situation and the which the means of production and distri- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 62

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known risks, due care may be rea- carryforward See carryover. sonable care or a higher or lower degree of care. 2 See reasonable carryover n. The part of an income tax care. credit or deduction that cannot be entirely claimed in a given tax year, but highest degree of care. The highest that a person may apply against (and degree of care that a very attentive, watchful, and cautious individual thereby reduce) their tax liability for a would exercise when dealing with a subsequent year. See also carryback. particular situation. Among other cartel n. things, this is the degree of care A group of independent pro- that trustees and other fiduciaries ducers or sellers in a particular industry, are required to exercise when carry- or a group of businesses with a common ing out their fiduciary duties. Also interest, who have joined together to called extraordinary care and high- reduce competition between themselves est degree of care. See also breach. by allocating markets, sharing knowl- edge, or controlling the price and pro- ordinary care. See reasonable care. duction of a product or service. See also reasonable care. The degree of care monopoly and oligopoly. that an ordinarily reasonable, intel- case n. 1 An action, cause of action, ligent, and prudent person utilizing controversy, proceeding, or suit at law diligence and good judgment would or in equity filed with a court. 2 Same exercise or reasonably be expected as trespass on the case. See trespass. to utilize under similar circum- 3 The aggregate of the evidence pre- stances. Also called due care and sented at trial by a party in support of ordinary care. their argument or position. carjacking See hijack. agreed case. See case stated. carrier n. A person or commercial case at bar. A case that is proceeding enterprise (such as an airline) in the towards resolution or trial or is business of transporting people or under the particular or immediate goods. attention of the court. Also called instant case and present case. See common carrier. A carrier who is also bar and sub judice. legally required to accept all busi- ness from the public, so long as the case in chief. 1 The primary case approved fee for the transport of presented by a party that satisfies passengers or freight is paid. that party’s initial burden of proof, as distinguished from the “rebuttal private carrier. A carrier who is not case”. legally required to accept business from the public, but who is hired in case on point. A previously decided case with facts or legal issues that particular cases to deliver passen- were similar or comparable to those gers or goods. in a case at bar. See also precedent. carryback n. The part of an income case of first impression. A case that tax credit or deduction, such as a net presents a legal issue that has operating loss, that cannot be entirely never been considered or decided by claimed in a given tax year, but that a any court in that jurisdiction. See person may apply against (and thereby also stare decisis. reduce) his tax liability for a previous year. See also carryover. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 63

63 causation

test case. A case initiated or selected otherwise made ineffective. 2 The from a group of cases that involve harm to an individual or property as a the same or substantially similar result of a sudden, unexpected, or facts and questions of law for the unusual event. 3 An accident, espe- purpose of testing the constitution- cially one that is fatal or serious. ality of a law or establishing an important legal principle. casus omissus n. Latin. Case omitted. prima facie case. The evidence pre- A legal issue or situation not governed sented at trial by a party that is suf- by statutory or administrative law or by ficient to satisfy the party’s burden the terms of a contract. The resolution of proof and to allow the fact-finder of any legal dispute arising from such an to decide the case in that party’s issue or situation is governed by the favor. See also verdict, dismissal, case law or, if it is a case of first impres- and nonsuit. sion, by whatever guidance the court rebuttal case. The evidence pre- finds in the common law. sented at trial by the plaintiff or caucus 1 n. A meeting of the leaders, prosecution to contradict the evi- dence presented during the defen- members, or representatives of a politi- dant’s case in chief. cal party to select the party’s nominees or convention delegates, plan a cam- surrebuttal case. The evidence pre- paign, or develop party policy or strat- sented at trial by the defendant to egy. 2 n. An organized group of contradict the evidence presented in members of a legislative body who share the plaintiff’s or prosecution’s a common interest and work together to rebuttal case. further those interests through legisla- tion. 3 n. Any group or meeting organ- case law n. 1 The law based on judi- ized to advance a particular cause. 4 cial opinions, including decisions that v. To meet in or hold a caucus. interpret statutes, rather than law based on statutes and other sources. See also causa n. Latin. Case, cause. See also administrative law, casus omissus, cause. and common law. 2 The collection of reported judicial decisions within a par- causa mortis. Latin. Because of death. Something done or made by a ticular jurisdiction dealing with a spe- person in anticipation of his own cific issue or topic. Also called imminent death. See also gift. decisional law. causa proxima. Latin. The nearest cash-basis method See also cash cause. See also cause. method. causa sine qua non. Latin. A cause cash method n. An accounting without which not. Same as but-for method that records income and cause. See cause. expenses when they are received or paid rather than when they are earned or causality n. The relationship between incurred. See also accrual method and an action or event and the effect that it completed contract method. produces. Also called causation. casual employee n. An employee of causation n. The act of causing or pro- less than full- or part-time status; an ducing an effect or a result. See also occasional or temporary employee. chain of causation, causality, and cause. casualty n. 1 An individual or property that has been destroyed, injured, lost, or 06_542109 ch03.qxp 3/28/06 12:16 PM Page 64

cause 64

cause n. 1 An action, event, or force away is the intervening cause. Also that produces or contributes to an effect called supervening cause. or result. Also called causation. 2 legal cause. proximate cause. The ground or reason for a choice made See or action taken. 3 A matter to be proximate cause. A cause that decided by a court. directly, without the contribution of any subsequent action, event, or but-for cause. A cause without which force, produces an effect or result, the events or results that follow and without which the effect or could not occur. Also called causa result would not have occurred. sine qua non. See also but-for test, Furthermore, the effect or result causa, and proximate cause. produced by the proximate cause concurrent cause. 1 One of multiple would have occurred even if there causes that simultaneously produce were a subsequent action, event, or an effect or result that no single force that contributed to the even- 2 tual effect or result. For example, if cause could. One of multiple a person is fatally injured in an acci- causes that simultaneously produce dent, the cause of the accident is an effect or result that any one of the the proximate cause of his death causes could have produced alone. and not the poor medical care they for cause. In support of a request received after the accident. Also made or an action taken. See also called causa proxima, direct cause, challenge and excuse. efficient cause, and legal cause. See also remote cause. good cause. A substantial or legally sufficient reason for a choice made remote cause. A cause that con- or action taken or for seeking a par- tributes to, but is not necessary for, ticular court order. What consti- the production of an effect or result. tutes good cause usually rests See also proximate cause. upon the circumstances of a partic- sole cause. ular situation. See also insufficient The only cause responsi- cause. ble for the production of an effect or result. immediate cause. The last of a series superseding cause. A cause that of causes, although not necessarily arises or occurs after the initial the proximate cause, of an effect or action, event, or force, and so sub- result. stantially alters the sequence of insufficient cause. An insubstantial later actions, events, or forces that or legally insufficient reason for a the persons responsible for all pre- choice made or action taken or for vious causes are not liable for the seeking a particular court order. final effect or result, even if their See also good cause. own actions were a substantial fac- tor in bringing about the final effect intervening cause. A contributing or result. For example, a parent cause that arises or occurs after the may be negligent for letting her 14- initial action, event, or force and year-old child drive a car, but the alters the sequence of later actions, subsequent theft of the vehicle from events, or forces to produce a final the child would absolve the parent effect or result. For example, if a of liability for any damages or person walks into a ditch, the dig- injuries caused by the thief’s use of ging of the ditch is the initial (that the vehicle. is, but-for) action, and the subse- quent removal of the barricade and supervening cause. See intervening warning signs that kept people cause. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 65

65 certificate of incorporation

cause of action n. 1 A collection of cede v. To assign; give up; relinquish; facts that, if true, would entitle a party surrender; transfer; yield. to be awarded a remedy from another party by a court; the facts that give a censor 1 v. To officially inspect books, person the legal right to sue. See also films, letters, newspapers, and other claim for relief and right of action. 2 media or methods of communication in A lawsuit. 3 In many states, the same order to suppress them or to delete any as a claim for relief. portions thereof deemed offensive or objectionable for moral, political, reli- cautionary instruction n. An instruc- gious, or other reasons. 2 n. A person tion given to a jury by the judge, usually who censors the media or other methods during trial, to disregard certain testi- of communication. mony or evidence that was improperly introduced, in lieu of calling a mistrial. censure n. An official condemnation, reprimand, or expression of adverse crit- caveat n. Latin. Let him or her beware. icism, usually by a legislative or other 1 An admonition, caution, or warning. formal body, of the conduct of one of its 2 A formal notice or warning given by a members or of someone whose behavior party to a judge or other court officer it monitors. concerning his or her behavior and requesting a suspension of the proceed- census n. The official counting of peo- ing until the merits of the notice or ple of a country, state, or other similar warning are determined. 3 A formal political entity. notice to a court or public official that cert. abbr. See certiorari. the notifier has an interest in a matter or property and requests the suspension of certificate n. 1 An official or sworn some procedure or proceeding concern- document that formally attests some- ing the matter or property until the noti- thing to be true. Also called certifica- fier is given a hearing. tion. 2 A formal document certifying some interest, permission, right, or sta- caveat emptor n. Latin. Let the buyer tus granted to its bearer. beware. The legal principle that, unless the quality of a product is guaranteed in certificate of deposit n. 1 A certifi- a warranty, the buyer purchases the cate from a bank acknowledging the product as it is and cannot hold another receipt of money and a promise to repay liable for any defects. Statutes and court it at a specified time and with interest decisions concerning products liability determined at a specified rate. 2 A and implied warranties have substan- bank document evidencing a time tially altered this rule. deposit. Abbreviated C.D. C corporation See corporation. certificate of incorporation n. 1 In most states, a certificate issued by the C.D. abbr. See certificate of deposit. state indicating that a corporation’s arti- cease and desist order n. A court or cles of incorporation have been filed, the administrative agency’s order prohibit- corporation has come into existence, and ing a person or entity from continuing or that the corporation has the right to oper- undertaking a particular activity or ate as a corporation. 2 In some states, course of conduct. See also injunction the same as articles of incorporation. and restraining order. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 66

certificate of occupancy 66

certificate of occupancy n. A certifi- have the addressee sign another receipt cate from a local government agency when the item is delivered, and that indicating that a building or dwelling receipt is returned to the sender, in adheres to the local building codes and which case the service is known as “cer- is ready for occupancy, generally a pre- tified mail, return receipt requested.” requisite to taking possession. Some court rules provide that service by certified mail is acceptable. certificate of service n. The section of a pleading or motion that certifies certify v. 1 To attest, authenticate, or that the party filing the document has verify something in writing. 2 To issue sent a copy of the document to the a certificate. 3 To judicially determine opposing party or his lawyer. that a person is mentally or otherwise not competent. 4 To judicially deter- certificate of title n. 1 A certificate mine that a group of individuals or enti- issued by the state or local government ties meets the requirements to proceed identifying the owner(s) of personal or with a class action. See also certifica- real property, and often listing any tion and decertify. encumbrances on the property. 2 A certificate issued by a title insurance certiorari n. Latin. To be more fully company indicating that it has con- informed. A writ issued at the discretion ducted a diligent examination of the title of an appellate court directing a lower of a piece of real property and that, court to certify and deliver the record of except for the encumbrances noted in a case that is not appealable as of right the certificate, a person has good title to to the appellate court for possible the land. This is not, however, a guaran- review. See also appeal and writ of tee or insurance of good title. error. certification n. 1 The act of certifying. cession 1 v. The act of surrendering 2 The state of being certified. 3 See or transferring title to real property. 2 certificate. 4 The same as certiorari n. Something that is surrendered or in some states. 5 The procedure transferred, especially real property. whereby a federal appellate court requests the United States Supreme cf. abbr. Compare. In legal citation, a Court or the highest court of a state to direction to the reader to review a cited review an issue concerning the applica- authority in which an explanatory or an tion or interpretation of a law that has analogous (but supportive) proposition arisen in a case pending before the might be found. appellate court, in order to give it guid- but cf. In legal citation, a direction ance. to the reader to review a cited authority in which a analogous (but certified copy See copy. contradictory) proposition might be certified mail n. A delivery service found. offered by the United States Postal C.F. abbr. See C & F. Service that is often used to send legal notices to addresses within the United C.F.I. abbr. See C.I.F. States. Upon the payment of a fee, the sender is given a receipt when an item is C.F.R. abbr. Code of Federal Regulat- mailed and a record of the delivery is ions. kept by the addressee’s local post office. For an additional fee, the sender may 06_542109 ch03.qxp 3/28/06 12:16 PM Page 67

67 champerty

chain of causation A series of events, facial challenge. An argument, claim, each of which was caused by the immedi- or lawsuit that a law or government ately previous event. See also causation. policy always operates in violation of the United States Constitution or chain of custody n. The order of a state constitution. places where, and the persons with whom, physical evidence was located challenge for cause. A challenge to a prospective juror based on a spe- from the time it was collected to its sub- cific cause or reason, such as bias, mission at trial. prejudice, or a financial or other interest in the outcome of the trial. chain of title n. The history of a parcel Usually, there is no limit to the of real property or of a commercial paper number of challenges for cause from its original owner or issuer to its available to each party. current owner or issuer, including all conveyances and owners in between. challenge to jury array. See challenge Any gap in the history casts doubt on to the array. the current owner’s claim of title. See challenge to the array. An objection also abstract of title and title insur- to an entire jury panel based on the ance. manner that the panel was selected. Also called challenge to jury array. challenge 1 n. An objection, excep- tion, or other formal questioning of the peremptory challenge. A challenge to capability or legal qualifications of a per- a prospective juror that may be son, the existence of a right, or the made without any specific cause or legality of an action or thing. 2 n. An reason. The number of peremptory objection by a party or a lawyer to a challenges allowed to each party is potential juror or jury panel and his or usually limited by statute or court her request that a judge disqualify the rule. individual or the panel from hearing that party’s cause or trial. 3 v. To call into chamber(s) n. 1 The office of a judge. question. 2 Any location where a judge conducts official business when court is not in as-applied challenge. An argument, session. See also in camera. claim, or lawsuit that a law or gov- ernment policy, although otherwise champerty 1 n. An agreement constitutional, is unconstitutional between a litigant and a person who is when applied to a particular party not a party to the action, including the or situation. litigant’s lawyer, for that person to pur- Batson challenge. A defendant’s sue or financially support the litigant’s claim that the plaintiff or prosecu- claim in exchange for a portion of any tion excluded potential jurors due to damages awarded. The practice was their race, color, ethnic background, once prohibited by the common law and or gender by use of peremptory it is still forbidden in some states, challenges. Named for the United thereby casting doubt on the legality of States Supreme Court case of lawyers advancing costs for their Batson v. Kentucky (1986), which clients, as in the payment of expert wit- forbids such a use of peremptory challenges in criminal cases. The ness fees. 2 v. To financially support principle in Batson was extended to or otherwise maintain or promote civil cases in Edmonson v. Leesville another person’s claim. Concrete Co. (1991). 06_542109 ch03.qxp 3/28/06 12:16 PM Page 68

chancellor 68

chancellor n. 1 Traditionally, the title instructions to the jury and to note any of the chief judge of a court of chancery. objections the lawyers may have to the 2 Any judge who sits in a court of equity. instructions proposed by the judge. See charge and jury instruction(s). chancery (or chancery court) n. 1 The traditional name for a court of equity. charitable contribution n. A volun- 2 Equity or proceedings administered in tary contribution of money or property courts of equity. Also called court of to an organization involved in charitable chancery. activities and without getting or expect- ing to receive anything of value in return. change in circumstances n. A modifi- See also charitable organization. cation, usually substantial, unantici- pated, and involuntary, in the emotional, charitable deduction See deduction. financial, or physical condition of one or both parents, warranting a modification charitable organization n. An organi- of a child custody or child support order. zation that meets the requirements of section 501c(3) of the Internal Revenue change of venue n. The transfer of a Code, operated solely for a religious, case from a court in one location to a charitable, scientific, literary, educa- court in another, or from one court to tional, or similar purpose. another in the same judicial district, for reasons of fairness or for the conven- charitable trust See trust. ience of the parties or the witnesses. charter n. 1 A formal document by venue. See which a sovereign or a government character evidence See evidence. grants rights, powers, and privileges to a person, business, or the people. character witness See witness. 2 The highest law of any organization. See also articles of incorporation and charge n. 1 The formal allegation, by-law. 3 The lease or rental of an air- contained in an indictment, information, plane, bus, ship, or similar mode of or presentment, that a person commit- transportation. ted a specific crime. 2 An instruction to the jury. 3 A claim, debt, encum- corporate charter. 1 A legislative brance, or lien. 4 An individual or act that establishes a corporation thing placed in another’s care. (including its purpose and basic governing structure) or defines a Allen charge. An instruction given, corporate franchise. 2 See certifi- generally in a criminal trial, encour- cate of incorporation. 3 See arti- aging a jury to continue its delibera- cles of incorporation. tions after reporting a deadlock, on the basis that considerable expense Great Charter. See Magna Carta. and time has gone into the trial of the matter and the jury should make chattel n. Any tangible property that every effort to come to a resolution. is moveable or transferable. See also See also jury instruction(s). personal property and real property. charge conference n. A meeting chattel personal. Any moveable prop- between a judge and the parties’ erty, tangible personal property, or lawyers, after the parties have closed an intangible right in such property (such as a patent). Also called per- their cases and before the jury is sonal chattel. charged, to determine the content of the 06_542109 ch03.qxp 3/28/06 12:16 PM Page 69

69 child

chattel real. Any interest in real set aside sufficient funds from the property less than a freehold or a drawer’s or maker’s deposit to guar- fee (such as an easement). Also antee payment of the check on called real chattel. demand. chattel mortgage. A lien on assets NSF check. abbr. Not sufficient funds other than real estate that secures a check. A check that a drawee bank loan. may not pay because the drawer has insufficient funds on deposit to chattel paper. A writing or writings cover it when it is presented for that evidence a monetary obligation payment. See also check kiting. as well as a security interest in or a lease of specific goods. Generally raised check. A check whose face used when a consumer buys goods amount has been increased. Unless on credit by signing a promissory done with the agreement of the note that promises payment in the drawer or maker, the charge consti- future as well as grants the seller a tutes a material alteration and dis- security interest in the goods. See charges the drawer or maker, as also accommodation paper and well as the drawee bank, from pay- commercial paper. ing any amount on the check. check n. A draft signed by a person check kiting v. To write a check while (the drawer or maker) that directs a knowing that there are insufficient bank (the drawee) to pay, on demand funds in one’s account to cover it. and without conditions, a specific sum of Depending on the circumstances, check money to another person (the payee). kiting is often a crime, especially if the Usually the funds are withdrawn from drawer or maker has previously an account or a deposit that the drawer deposited a check from another bank or maker has with the bank. Also called into his account and hopes that the cheque. funds from that check will reach his account before the outgoing check is bad check. A check that is not hon- paid. Also called kite and kiting. See ored by a drawee bank because it is also check. forged, the account it is drawn on has insufficient funds or does not exist, checks and balances n. A system of or the check is in some other way distribution of power among the execu- defective. See also check kiting. tive, legislative, and judicial branches of canceled check. A check with a nota- government, in relatively equal propor- tion (for example, the word “paid”) tions, such that each branch has the on it made by the drawee bank that ability to counter the actions of the indicates that the check has been other two and thus prevent the entire paid. government from being controlled by any single branch. See also separation cashiers check. A check drawn by a of powers. bank upon its own account rather than that of an individual depositor Chief Justice of the United States n. and made payable to another per- The formal title of the presiding justice son, to the same bank, or to a dif- ferent branch of the same bank. of the United States Supreme Court. certified check. A check with a certi- child n. 1 A person under the age of fication or notation written upon it majority. See also age. 2 Under the (for example, the word “certified”), common law, a person who is under 14 indicating that the drawee bank has 06_542109 ch03.qxp 3/28/06 12:16 PM Page 70

child abuse 70

years of age. 3 The son or daughter of posthumous child. Traditionally, a a person or an individual who is treated child born after his father’s death. as such. However, because it is now med- ically possible in some situations to after-born child. A child born after a keep a deceased pregnant woman certain event, such as a child born after the execution of a will or the on life-support machine until the death of its testator parent. birth of her child, the term can include a child born after his biological child. 1 A child born to mother’s death. his parents. Also called natural child. 2 A child genetically child abuse See abuse. related to a specified parent. Also called genetic child and natural child and dependant care credit See child. See also adoption. tax credit. delinquent child. 1 A minor who child custody See custody. intentionally and constantly engages in antisocial behavior. 2 child labor law n. A state or federal A minor who does something that statute that regulates employment of would be a crime if committed by an children. adult. Whether the child would be subject to the juvenile court’s juris- child molestation n. Subjecting a diction would depend on whether child to any sexual advances, contact, or the child is over the statutorily other activity. established age. See also juvenile delinquent. child neglect n.The failure of a person responsible for a child’s care and foster child. A child cared for and raised by an adult, usually selected upbringing to safeguard the child’s emo- by a government agency, who is not tional and physical health and general his or her natural or adoptive par- well-being. See also abuse. ents. child pornography See pornography. illegitimate child. A child who was not conceived or born in lawful wed- chilling effect n. In constitutional lock and who is not later legiti- law, the inhibition or discouragement of mated. Also called bastard. See the legitimate exercise of a a constitu- also paternity suit. tional right, especially one protected by the First Amendment to the United legitimate child. 1 In common law, States Constitution, by the potential or a child born or conceived in lawful wedlock. 2 Under most modern threatened prosecution under, or appli- statutes, a child born or conceived cation of, a law or sanction. in lawful wedlock or later legiti- Chinese Wall ethical wall. mated by her parents’ subsequent See marriage, her father’s acknowledge- choate adj. Completed or perfected in ment of paternity, or a judicial inchoate. determination of paternity. and of itself. See also neglected child. A child whose par- choice of forum clause n. 1 A provi- ents or legal custodians fail to safe- sion in a contract in which the parties guard the child’s emotional and stipulate that any lawsuit between them physical health and general well- arising from the contract shall be liti- being. gated before a particular court or in a 06_542109 ch03.qxp 3/28/06 12:16 PM Page 71

71 circumstance

particular jurisdiction. Because the par- tract for the sale of goods indicating ties cannot confer jurisdiction upon a that the quoted price includes the com- court, they must select a court and place bined cost of the goods, insurance, and that would otherwise have jurisdiction; the freight to a named destination. See however, since more than one court may also C&F. have jurisdiction, the parties opt to des- ignate in advance which one they circuit n. 1 Historically, a judicial dis- choose. 2 A provision in a contract in trict wherein a judge would travel from which the parties stipulate that any arbi- town to town to preside over hearings. tration or conciliation between them 2 A judicial district established in some arising from the contract shall be held states wherein one or more courts have before a particular arbitrator or concilia- jurisdiction to hear cases. 3 One of the tor or group of arbitrators or conciliators twelve judicial districts (along with a or at a particular place. Also called special nationwide thirteenth circuit) in forum selection clause. See also choice which the United States is divided for of law clause. the appellate review of federal trials by a United States Court of Appeals. choice of law n. The issue of which jurisdiction’s law shall apply in an action circumstance n. An act, condition, that involves events that have occurred event, or fact connected with another or have an impact in more than one act, condition, event, or fact either as an jurisdiction. See also conflict of law(s). accessory or as a contributing or deter- mining element. choice of law clause n. A provision in a contract in which the parties stipulate aggravating circumstance. A circum- that any dispute between them arising stance that increases the culpability or liability of a person or the meas- from the contract shall be determined in ure of damages or punishment for a accordance with the law of a particular crime or tort. jurisdiction. If the dispute is litigated, the choice is not binding, but is normally exigent circumstance. 1 An urgent honored, by the court hearing the law- situation that demands extraordi- suit. The choice is binding if the dispute nary or immediate action. Such a is arbitrated. See also choice of forum circumstance often allows for the clause. circumvention of procedures that would otherwise be required by law. churning v. In securities law, the For example, if a car hits a child, excessive and inappropriate trading of the fact that immediate medical attention is needed to save the securities in a customer’s stock invest- child’s life is an exigent circum- ment account for the purpose of earning stance that excuses the physician’s the stockbroker more commissions than treatment of the child before what would have been earned if the parental consent is obtained. 2 stockbroker was concerned only with An urgent situation in which a law the furtherance of his customer’s inter- enforcement officer who has proba- ests. This practice is illegal under the ble cause must take immediate Securities Exchange Act of 1934; how- steps to make an arrest, search, or ever, there is usually no right of action seizure without a warrant because for churning. someone’s life or safety is at risk or because there is an imminent threat C.I.F. abbr. Cost, insurance, and that a suspect will escape or evi- freight. Phrase used in an offer or a con- dence will be removed or destroyed. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 72

circumstantial evidence 72

mitigating circumstance. 1 A cir- cial decision. For example, in cumstance (such as having a mental Miranda v. Arizona, 384 U.S. 436, defect at the time of the wrongdo- 444–445 (1966), the numbers 444 ing) that does not exonerate, but and 445 are the pinpoint citation to reduces the culpability of, a person the pages where the rule is enunci- for a tort or crime he has committed ated. and that may result in a reduction of the damages or punishment to be cite 1 v. To bring forward, provide, or imposed. See also diminished refer to as authority, illustration, prece- capacity. 2 A circumstance (such dent, proof, or support. 2 n. A citation as turning oneself in for arrest) that to a statute, judicial decision, treatise, does not reduce a person’s culpabil- or other legal authority. ity for a crime he has committed, citizen n. 1 A person who, due to but that may result in a reduction of place of birth, naturalization, or other the punishment to be imposed. See reasons (for example, citizenship of par- negligence defense. also and ents) is a member of a political commu- circumstantial evidence See evi- nity or of a civil state, such as a country dence. or state, and is entitled to all the civil rights and protections thereof and owes citation n. 1 A writ issued by a court allegiance to its government. See also ordering a person to appear at a specific naturalization and resident. 2 For time and place and, at that time and purpose of federal diversity of citizen- place, do a specific act or to show the ship lawsuits, a corporation that is court sufficient cause why he or she can- incorporated or has its principal place of not do so or should not be required to do business in a state, or an alien granted so. See show cause order. 2 An order permanent residence in the United issued by a law enforcement officer to States and residing in a state, is a citi- appear in court at a specific time to zen of that state. defend oneself against the criminal alle- gations contained in the order. See also citizen’s arrest See arrest. summons. 3 A reference to a legal citizenship clause n. The provision in authority, such as a statute, court deci- the Fourteenth Amendment to the sion, or treatise, that supports or con- United States Constitution declaring tradicts a legal argument or position. that all persons born or naturalized in See also the Bluebook. the United States and subject to its parallel citation. An additional refer- jurisdiction are citizens of the United ence to a court decision that has States and of the state each resides in. been published in more than one reporter. For example, the citation civil n. 1 Of or pertaining to all mat- for the United States Supreme ters concerning the law except for mat- Court’s famous Miranda case is ters arising under criminal law and Miranda v. Arizona (1966), with the military law. See also civil law. 2 main citation to the United States Secular. 3 Of or pertaining to the Reports and with parallel citations duties, rights, and status of citizens and to the Supreme Court Reporter and to other residents of a country or state. Lawyer’s Edition. the See also civil disobedience and civil pinpoint citation The reference to a right. specific page where a particular civil action See action. quote or passage is found in a judi- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 73

73 C.J.S.

civil contempt See contempt. such as the freedom of speech or reli- gion, without governmental influence or civil court See court. limitation. See also civil right, liberty, civil death n. 1 Historically, the loss and right. of all civil rights by a person who had civil procedure See procedure. been sentenced to death or declared an outlaw for committing a felony or trea- civil right n. 1 Any governmentally son. This included the loss of right to recognized or constitutionally or legally contract, the right to sue, and the right protected economic, personal, or politi- to protection under the law. See also cal liberty or right of an individual. 2 attainder and bill of attainder. 2 In the United States, any of the liberties Today, the loss of certain civil rights, and rights guaranteed by the Bill of such as the right to vote by a person Rights, the Thirteenth, Fourteenth, convicted of or sentenced to imprison- Fifteenth, and Nineteenth Amendments ment for a felony. The rights lost, and for to the United States Constitution, and what crimes or sentences, varies state legislation designed to protect or to state. encourage the exercise of those rights. 3 Freedom from discrimination, espe- civil disobedience n. The deliberate, cially that based on race. See also civil public, and usually nonviolent breaking liberty, liberty, and right. of a law in order to call attention to the unfairness or undesirability of a statute Civil Rights Act n. One of the federal (usually the one that is broken) or some statutes adopted either after the Civil governmental policy, and to influence War (1861–1865) or in the 1950s and public opinion concerning the same. 1960s for the purpose of protecting and encouraging the exercise of the liberties civil disorder n. A public disturbance and rights guaranteed by the by three or more people involving acts of Thirteenth, Fourteenth, Fifteenth, and violence that cause immediate danger, Nineteenth Amendments to the United damage, or injury to others or their prop- States Constitution, especially the exer- erty. cise of voting rights and the prohibition civil forfeiture See forfeiture. of discrimination in employment, educa- tion, and public accommodations on the civil law n. 1 A legal system derived basis of age, color, race, religion, or sex. from Roman law and based on fixed rules and statutes rather than on a civil union n. A relationship between court’s interpretation of broad princi- cohabitating members of the same sex, ples. Prominent in continental Europe, legally recognized in some states, that Latin America, Scotland, Quebec, and conveys to the couple some or all attrib- Louisiana. See also common law and utes, benefits, and rights of marriage for natural law. 2 The law pertaining to purposes of that state’s law, but not for civil or private rights and duties rather purposes of other states’ laws or federal than to matters arising under adminis- law. See also cohabitation and mar- trative, criminal, or military law. riage. civil liability See liability. C.J. abbr. 1 Chief justice. 2 Chief judge. 3 Circuit judge. 4 Corpus civil liberty n. The freedom to exer- juris. cise a right of personal autonomy or political expression or participation, C.J.S. abbr. Corpus Juris Secundum. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 74

claim 74

claim 1 v. A demand for money or class action See action. property. 2 n. An assertion that one is entitled to, or the perceived or actual Clayton Act n. A federal statute, right to receive, money or property. 3 adopted in 1914, that amends the n. The totality of facts that gives rise to Sherman Antitrust Act and prohibits a right to receive money or property that certain business practices, such as price is enforceable in court. 4 n. In some discrimination as well as particular states and in the federal courts, the mergers and acquisitions, if the practice same as claim for relief. might substantially reduce competition or create a monopoly in a line of com- claimant n. An individual or entity merce. See also antitrust law and who asserts a right or demand to money Sherman Antitrust Act. or property. CLE abbr. See Continuing legal claim for relief n. An assertion of a education. collection of facts that, if true, would entitle a party to be awarded a remedy clean hands n. The quality of a person from another party by a court. See also who acted in an equitable way (that is, cause of action and claim. fair, just, proper, reasonable, with good faith) in a dispute or transaction, for class n. 1 A category of activities, which he or she is now seeking relief or objects, people, or qualities that have, or asserting a defense in an action in are considered to have, certain attrib- equity. See also unclean hands. utes or characteristics in common. 2 An identifiable group of individuals that clear and convincing evidence See a regulation or statute deals with or acts evidence. upon differently than it does other peo- clear and present danger n. In con- ple. If the group is identified by gender, stitutional law, the principle that the race, national origin, or religion, such a government, notwithstanding the First group is called a protected class or a Amendment to the United States suspect classifi- suspect class. See also Constitution, may restrict, prohibit, or cation. 3 A group of individuals who punish speech or the printing and distri- have, with the plaintiff in a civil action, bution of words if it is necessary to pre- a common interest in the subject, facts, vent a clear and present danger of an and legal issues that the action is based event that the government has a right to on and who seek to collectively partici- prevent. For example, the government pate in the action so all their claims can may prohibit a person from falsely cry- be adjudicated in a single proceeding. ing out “Fire!” in a crowded room in For example, the passengers of a cruise order to prevent panic and injury. This ship who became ill due to the cruise principle was first articulated in the line’s negligence may constitute a class. United States Supreme Court case of testamentary class. A group of indi- Schenck v. United States (1919). viduals who will share a testamen- tary gift upon the death of a testator clearinghouse n. 1 A place where but whose exact number and iden- banks daily exchange the checks, tity is not known until the testator’s drafts, and other forms of indebtedness death. For example, if a gift is “to that are held by one bank and owed to my children who survive me,” it will another, and settle their balances all at not be known until the testator’s one time. 2 A place where brokers in death who those children are. See stock or commodities exchanges daily also gift. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 75

75 closing

settle their debits and credits with one legal research and helps with case another. 3 A place for the exchange of management and the writing of information concerning a specific topic. opinions. clearly erroneous n. The standard client n. One to whom a lawyer for- that an appellate court normally uses to mally renders legal advice, pursuant to review a trial judge’s findings of fact an oral or written agreement for such when a civil case that was tried without advice to be given; any individual to a jury is appealed. The appellate court whom a lawyer provides advice about may not reverse the decision merely legal matters. because, based on the facts, it would have reached a different conclusion. close 1 n. An enclosed place or tract However, it may reverse the decision if of land. 2 n. The visible boundary the appellate court determines that the around an enclosed place or tract of trial court’s decision was clearly erro- land, consisting of a fence, hedge, wall, neous, even if there is some evidence in or similar structure, or the invisible the facts to support the decision. See boundary around an unenclosed place or also abuse of discretion and error. tract of land. The boundary is “broken” if anyone crosses the boundary without clear title See title. permission or an invitation from the land’s owner. See also breach. 3 n. clemency n. 1 An act of mercy or The legal interest of one who owns a leniency. 2 The grant by the president particular piece of enclosed or unen- or by the governor of a state of an closed land. 4 v. To consummate, con- amnesty, pardon, or reprieve or of a com- clude, or bring to an end, especially a mutation of a criminal sentence. discussion or negotiation. See also clos- clerk n. One who keeps records or ing. accounts, attends to correspondence, or close corporation See corporation. does other similar duties in an office. closed session See session. court clerk. The court official in charge of some or all of the admin- closed shop See shop. istrative aspects of the court’s oper- ations, including the filing, closely held corporation See corpo- processing, and maintenance of ration. court records; preparing summons and other papers that commence a closing n. 1 The final step in the pur- lawsuit, including endorsement or chase of real property or of an interest placement of raised seal to signify in real property when a deed or another that the papers are official docu- instrument of title is conveyed to the ments of the court; and entering judgments. buyer, the purchase price or a portion thereof is paid, and collateral matters, law clerk. 1 A law student who is such as the exchange or transfer of any employed as an assistant to a assignments, insurance policies, leases, lawyer or judge and does legal and mortgages, are finalized. 2 The research; helps with the writing of termination of the administration of a briefs, opinions, and other legal doc- decedent’s estate after the estate’s uments; and performs similar tasks. assets are distributed, taxes and other 2 A lawyer, usually a recent gradu- liabilities are paid, and all the necessary ate of a law school, who is employed documents have been filed with the as an assistant to a judge and does court. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 76

closing argument 76

closing argument See argument. Code of Federal Regulations n. The official annual compilation of all regula- closing statement n. 1 Same as clos- tions and rules promulgated during the ing argument. See argument. 2 A previous year by the agencies of the detailed written summary of the costs United States government, combined (bank fees, legal fees, purchase price, with all the previously issued regula- and so on) involved in conveyance of tions and rules of those agencies that real property or an interest in real prop- are still in effect. Abbreviated CFR. erty. Code of Military Justice Compilation cloud on title n. A defect or potential of laws and procedures governing court defect in the record of the title to real martials and all court proceedings property that evidences a possible out- involving military personnel. standing claim or encumbrance (such as an easement or a lien) that could annul Code of Professional Responsibility or impair title to the property. See Model Rules of Professional Conduct. COBRA abbr. See Consolidated Omnibus Budget Reconciliation Act of code pleading See pleading. 1985. codicil n. A testamentary document co-conspirator See conspirator. that adds to, subtracts from, qualifies, modifies, revokes, or otherwise alters or co-conspirator exception n. An explains an existing will. To be valid, it exception to the hearsay rule that must be executed with the same formal- allows the acts and statements of one ities as a will. conspirator, as long as they were done or said during or in furtherance of the codify v. 1 To arrange, compile, organ- conspiracy, to be admitted into evidence ize, and systematize into a code the at the trial of another conspirator, even statutes, or the entire body of law if done or said in the defendant’s (including case law) of a country or absence. In federal court and in some state or the statutes or the body of law states, the act or statement is admissi- concerning a particular area of the law. ble even if done or said after the con- 2 To enact a statute that restates the spirators were arrested and in custody. body of a particular area of law includ- ing applicable common law principles code n. 1 A systematized collection of and the judicial interpretation of previ- regulations, rules, or statutes of a par- ous or existing statutes. See also ticular jurisdiction. See also Code of statute. Federal Regulations and United States Code. 2 A systematized collec- codification n. The process of codify- tion of all statutes, or a single compre- ing existing statutes or an existing body hensive statute, dealing with one area of of law into a code. the law. See also Bankruptcy Code, Uniform Consumer Credit Code, and codifying statute See statute. Uniform Commercial Code. coerced confession See confession. co-defendant n. One of multiple defen- coercion n. 1 Constrain or restrain by dants sued in the same civil action or physical force or the threat of such formally accused of committing together force. See also duress and undue influ- joinder. the same crime. See also ence. 2 The improper use of economic 06_542109 ch03.qxp 3/28/06 12:16 PM Page 77

77 collective mark

power to alter, shape, or otherwise con- collateral ascendant. A relative, such trol the actions of another. as an aunt, uncle, or cousin, who has a common ancestor with a per- cogent adj. Convincing; strongly son but is not that person’s ances- appealing; compelling action, assent, or tor. Also called collateral. See also belief. ancestor and descendant. cognation n. Relationship by blood, collateral attack. An attack in a judi- whether through a common female or cial proceeding against another male descendant, rather than by mar- judicial proceeding or a judgment entered in another court. For exam- riage. ple, a party in Florida may attack a cognizable adj 1 Within the jurisdic- judgment entered against him by an Alaska court on the grounds that tion of a court, a dispute that a court has Alaska did not have jurisdiction the power to adjudicate. 2 Capable of over him or the underlying cause of being known or recognized. action. See also habeas corpus and direct. cognovit n. Latin. He has conceded. An acknowledgment of a debt or liability collateral consanguinity. See consan- in the form of the debtor’s written con- guinity. sent to a judgment taken against the debtor by the creditor, if a particular collateral estoppel. See estoppel. event does or does not occur. collateral heir. See heir. cognovit clause n. A contractual pro- collateral source rule. In tort law, the vision whereby a party agrees to the doctrine that any compensation, entry of a judgment against him in a par- such as insurance benefits, received ticular court or courts without any by an injured party from a source notice or opportunity to present a that is independent of the tortfeasor defense if he should default on his obli- does not reduce the damages that gations or otherwise breach the con- the tortfeasor is obligated to pay. tract. The use of such clauses are See also subrogation. outlawed or restricted in most states. collation n. The addition to the estate cohabitation n. The act of a man and a of an intestate of the value of the woman, unmarried to each other, pub- advancements made by the intestate to licly living together in an intimate rela- his or her children so that the estate can tionship as if husband and wife. be divided in accordance with an intes- Although a crime in most states, it is tacy statute. See also advancement. seldom prosecuted. Where illegal, it is also called illicit cohabitation, lascivious collective bargaining n. In labor law, cohabitation, and notorious cohabita- negotiations between an employer and a tion. See also fornication, bigamy, civil labor union or other group representing union, and marriage. employees concerning the terms and conditions of the employees’ work. See collateral 1 adj. Secondary; subordi- also bargaining unit and lockout. nate; supplemental. 2 n. Property, including accounts, contract rights, and collective mark n. A servicemark or chattel paper, that is subjected to a trademark used by the members of an security interest in exchange for credit association, club, union, or other group or as security for a debt. 3 adj. to identify and distinguish themselves Indirect; on a parallel or diverging line. or their products or services. When 06_542109 ch03.qxp 3/28/06 12:16 PM Page 78

colloquium 78

referring to a collective mark that signi- with governmental authority that, fies membership in a group, also called although it superficially appears to be collective membership mark. within the individual’s lawful power, is actually in contravention of the law. For colloquium n. In a case of libel or example, a police officer who makes a slander, the assertions or allegations in false arrest while on duty, or while off the plaintiff’s pleading, or the evidence duty but when they are wearing a uni- presented by the plaintiff at trial, show- form or badge, is acting under color of ing that the alleged defamatory state- law. In some circumstances, the phrase ment or writing by the defendant also applies to the conduct of private referred to the plaintiff. See also individuals that is specifically author- inducement and innuendo. ized or approved by a statute. Depriving colloquy n. Any formal conference, a person of his or her federal civil rights conversation, or discussion between the under color of law is, in and of itself, a lawyers and the judge during a judicial federal crime and a ground for a cause proceeding. of action. Also called under color of law. If the conduct violates a federal civil collusion n. 1 An agreement between right or criminal law, it is also called two or more individuals to perpetrate a state action. See also color of title. fraud or to commit an illegal act. 2 In color of title n. divorce law, in states that do not have A written instrument, no-fault divorce, an agreement between such as a forged deed, that falsely color husband and wife to suppress facts, appears to convey title. See also of law. manufacture false evidence, or to do some act that would create or appear to comity n. The deference and recogni- create a ground for divorce. If discov- tion that the courts of one jurisdiction ered, the agreement will cause the give to the law and the judicial decisions divorce to be denied. and proceedings of another jurisdiction color n. 1 A false appearance; dis- as a matter of courtesy and respect guise; pretext; especially the false rather than out of obligation. For exam- appearance of a claim to legal right, ple, comity normally prevents a federal authority, or office. See also color of court from interfering with a state crim- law and color of title. 2 The skin inal action. Likewise, American courts complexion of people who do not belong usually recognize the judicial decisions (for example, a judgment or a divorce to the Caucasian or Caucasoid ethnic group. The term is frequently added to decree) of another country if it is deter- “race” in constitutional provisions and mined that the judicial procedures of statutes barring discrimination. that country are substantially fair. See also abstention, full faith and credit, Colorado River abstention See and relinquishment. abstention. comity clause See privileges and colorable adj. That which appears immunities. plausible or reflective of reality, but is comment n. 1 deceptive, intended to conceal, does not A scholarly article or correspond with reality, or is not authen- essay, usually written by a law student and published in a law review, analyzing tic or valid. a judicial decision and its context in the color of law n. The conduct of a police law. See also annotation and note. 2 officer, judge, or another person clothed An explanation of a statute, code sec- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 79

79 commission

tion, or administrative rule written by goods and related matters such as the the drafters of the statute, section, or financing of credit, secured transac- rule. See also annotation. tions, and negotiable instruments. Most commercial law in the United States is comment on evidence n. Statements set out in the Uniform Commercial Code. made during a trial by a judge or lawyer regarding his or her own opinion about commercial paper n. A negotiable the evidence and the credibility of the instrument evidencing a debt to be witnesses. In many states, judges are unconditionally paid on demand or at a not permitted to make such statements. specified time and payable to order or to Furthermore, a prosecutor may not com- the instrument’s bearer; includes such ment on the defendant’s refusal to tes- instruments as certificates of deposit, tify in a criminal action. When made, checks, drafts, and notes. The use of such prohibited statements are some- commercial paper is generally governed times called an impermissible comment by the Uniform Commercial Code. Also on the evidence. called paper. See also accommodation paper and chattel (chattel paper). commerce n. The exchange of goods, materials, products, and services or the commercially reasonable See rea- travel of people. sonable. foreign commerce. Commerce that commercial unit n. A unit of goods involves the transport of goods, that is regarded by trade or commercial materials, products, services, or usage to be a single whole that cannot people across international bound- be divided without materially diminish- aries. ing or harming its character, market interstate commerce. Commerce that value, or use; for example, a chair is a involves the transport of goods, commercial unit. materials, products, services, and people within the United States but commingling of funds n. The mixing across state boundaries. by a fiduciary, trustee, or lawyer of the money or property of a customer or intrastate commerce. Commerce that client with his own without a detailed completely takes place within the and exact accounting of which part of boundaries of a state. the common funds and property belong to the customer or client. commerce clause n. The provision in the United States Constitution that gives commission n. 1 A formal written Congress the sole power to regulate the document from a government or court United States’ foreign commerce, inter- empowering the individual named therein state commerce, and commerce with to hold an appointive office or to perform Native American tribes. official duties. In the case of an appointive office, the individual must receive the commerce power See commerce commission before she can act in their clause. official capacity. 2 See administrative commercial frustration See frustration. agency. 3 A group of individuals appointed by a governmental authority to commercial name See tradename. perform some public service on an ad hoc basis. 4 The act of committing or commercial law n. The substantive law concerning the purchase and sale of 06_542109 ch03.qxp 3/28/06 12:16 PM Page 80

commit 80

perpetrating a crime. 5 Compensation tal health facility, or similar institu- paid to an agent, employee, executor, or tion at the request or with the con- trustee based on a percentage of the sent of the individual. money collected or to be collected in a committee n. 1 transaction or a percentage of the value of A person or group of the property involved. See also kickback people who are members of a larger and royalty. body or organization and are appointed or elected by the body or organization to commit v. 1 To do; perpetrate. 2 To consider, investigate, or make recom- order a person’s placement in, or to send mendations concerning a particular sub- a person to, a hospital, mental health ject or to carry out some other duty facility, prison, or similar institution, delegated to it by the body or organiza- especially pursuant to court order. tion on an ad hoc or permanent basis. 2 A person who has been civilly com- commitment n. 1 A promise, vow, or mitted. 3 The guardian of a civilly agreement to do something. 2 An committed person or the individual into order, especially one from a court, whose care an incompetent person has directing that a person be taken to and been placed. See also conservator. placed in the care or custody of a hospi- tal, mental health facility, prison, or sim- commodity n. Any tangible good or ilar institution. product that is the subject of sale or barter. civil commitment. The commitment of a person to a hospital, mental common area n. 1 In landlord-tenant health facility, or similar institution law, a part of the premises that is used upon a civil court’s finding that the by all the tenants, of which the landlord person is ill, incompetent, addicted retains control and is responsible to to drugs, or in some similar circum- maintain in a reasonably safe condition; stances and is a danger to himself or others. for example, an elevator, hallway, or stairway. 2 An area that is owned and diagnostic commitment. 1 The used by the residents of a condominium incarceration of a person while it is or similar housing development. determined whether she is compe- tent to participate in the prepara- common carrier See carrier. tion and presentation at trial of a defense in a criminal action. 2 common law n. 1 A legal system The incarceration of a person after derived from the broad and comprehen- she has been convicted of a crime sive principles encompassed within the while an appropriate sentence is unwritten laws of England and applied determined. in most English-speaking countries, mandatory commitment. The auto- including the United States (except the matic commitment of a person state of Louisiana). The principles are found not guilty of a crime by rea- created and modified by judicial deci- son of insanity to a hospital, mental sions; passed on through custom, tradi- health facility, or similar institution. tional usage, and precedent; are Required under federal law when adaptable when applied to new facts and dealing with a person charged with circumstances; and are changeable a federal crime, but not required by when required. Although much of what law in most states. was once part of the common law, such mortgage commitment. See mortgage. as commercial law and criminal law, has been codified, other areas of the law, voluntary commitment. The commit- ment of a person to a hospital, men- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 81

81 commutative justice

such as contract law, property law, and privileged communication. A commu- tort law, are still primarily governed by nication made, whether or not dur- the principles of the common law. See ing course of a confidential also case law, casus omissus, civil law, relationship, that is legally pro- and natural law. 2 The legal proce- tected from involuntary disclosure dures and decisions of courts of law as and may be withheld from evidence. See also privilege. distinguished from courts of equity. Also called law. community n. 1 A group of people liv- federal common law. The case law ing together or in the same locality or derived from federal court decisions who share interests or a sense of iden- interpreting federal statutes or tity. 2 The area, district, locality, addressing other matters of federal neighborhood, or vicinity where a group concern. of people lives. common law marriage See marriage. marital community. A married couple in a community property state. common law property state See com- mon law state. community notification law See Megan’s Law. common law state n. A state whose rules governing the ownership, division community of interest n. A common and inheritance of income and property grievance, interest, or other similarity acquired by a husband or wife during the among a group of people that justifies course of their marriage holds that, sub- treating them as a class for legal pur- ject to various qualifications, each poses. See also action. spouse owns and has complete control community property n. In a commu- over his or her own income and property. nity property state, the income and Also called common law property state property acquired by a couple during the and separate property state. See also course of their marriage, except for the elective share, equitable distribution, income or property obtained solely by property, and community property one of them by gift or inheritance. See state. also property, equitable distribution, commonwealth n. 1 The people of a and tenancy. state or country. 2 A state or country community property state n. A state in where sovereignty is vested in the people. which income or property acquired by a communication n. 1 The exchange, husband or wife during the course of their imparting, or transmission of ideas, marriage, except for the income or prop- information, opinions, or thoughts, erty obtained solely by one of them by gift transmitted electronically or by ges- or inheritance, is community property. tures, speech, or writing. 2 A message commutation n. In criminal law, the so exchanged, imparted, or transmitted. president’s or governor’s substitution of confidential communication. A com- a less severe punishment for a greater munication made during the course one that was imposed by a court in a of a confidential relationship that is criminal action. See also amnesty, par- legally protected from involuntary don, and reprieve. disclosure and may be withheld from evidence. See also privilege. commutative justice See justice. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 82

compact 82

compact n. An agreement between more individuals, corporations, or two or more parties, especially between even other LLCs. Members have states or a treaty between countries. some of the same protection as stockholders in a corporation, espe- interstate compact. An agreement cially, no personal liability. between two or more states that has been approved by Congress. parent company. A corporation that owns more than half of the voting compact clause n. A provision in the stock of another corporation. Also United States Constitution that pro- called parent corporation. See also hibits a state from entering into an affiliate, company, corporation, agreement with another state or a for- and subsidiary. eign country without Congressional personal holding company. A holding approval. company, usually with a limited number of shareholders and with company n. A group of individuals, over half of its income coming from such as an association, corporation, such passive sources as capital partnership, or union, associated for the gains, dividends, interest, rent, and purpose of carrying out, maintaining, or royalties. The income is subject to a performing a commercial or industrial special tax in order to prevent indi- enterprise. viduals from avoiding income taxes by placing their assets in such cor- holding company. A company, usu- porations. ally a corporation, organized to influence or control other compa- trust company. A company, usually nies by such means as owning large incorporated, that provides trust amounts of stock in other corpora- services, such as administering tions. See also company. trusts and managing funds and joint stock company. An unincorpo- property held in trust. Trust compa- rated company whose owners pool nies sometimes operate as commer- capital into a common fund in cial banks as well. exchange for a number of shares proportionate to their respective comparative negligence See negli- investments. However, unlike a gence. partnership, the shares can be transferred without the express compelling governmental interest test consent of the other owners and, See compelling interest test. unlike a corporation, the owners are personally liable to the company’s compelling interest test n. In consti- creditors if the company cannot pay tutional law, a method for determining its bills. See also company. the constitutionality of a statute that restricts the practice of a fundamental limited company. A company, usually right or distinguishes between people a corporation, in which the investor due to a suspect classification. In order or shareholder’s liability is limited for the statute to be valid, there must be to the amount invested or the value of the person’s share. a compelling governmental interest that can be furthered only by the law in ques- limited liability company (LLC). An tion. Also called compelling governmen- entity that blends features of a cor- tal interest test and, in the case of a poration and a partnership, but is state statute, the compelling state inter- neither; owners are called “mem- est test. bers” and may consist of one or 06_542109 ch03.qxp 3/28/06 12:16 PM Page 83

83 complaint

compelling state interest test See competition n. Rivalry, as between compelling interest test. two individuals or entities, a quest to secure an advantage over another; in compensating use tax Same as use business, rivalry for customers or a tax. See tax. share of the marketplace. See unfair compensation n. 1 Payment for work competition. done. 2 Payment for injury, loss, or compilation n. 1 In copyright law, an otherwise depriving a person of some- assemblage of data or preexisting liter- thing he or she is entitled to. See also acy works that is selected and arranged damages. in such a way that it results in an origi- deferred compensation. 1 Payment nal work of authorship. 2 A collection at some agreed time in the future of updated statutes that have been for work already done. 2 Payment rearranged to make their use more con- for work done paid in a tax year sub- venient. sequent to when the payment is earned or paid in a manner, such as complainant n. 1 One who enters a contributing to a qualified pension complaint against another in a civil or profit-sharing plan, that post- action. 2 One who signs and swears to pones the employee’s tax liability a criminal complaint. for the payment. complaint n. The initial pleading of a just compensation. The compensa- plaintiff in a civil action that identifies tion to a property owner required by the court’s jurisdiction, the alleged facts the Fifth Amendment to the United States Constitution whenever a that entitle the plaintiff to relief, and the state government or the federal gov- relief sought. See also ad damnum ernment takes possession of private clause, bill, petition, and prayer. property by means of eminent domain for public use. Generally, amended complaint. A complaint that the amount of compensation is the substitutes for the original com- market value of the property at the plaint and adds to, corrects, time of the taking. See also emi- revises, or subtracts from the nent domain. alleged facts contained in the origi- nal complaint. compensatory damages See dam- criminal complaint. A document, ages. signed and sworn to by a victim or witness to a crime or by a police competent 1 Possessing sufficient officer, alleging facts that give rise mental ability to understand an issue, to a reasonable belief that a crime problem, or situation; to make a reason- has been committed and that a per- able decision concerning it; and to son named in the instrument com- understand and appreciate the potential mitted that crime. Also called a consequences of the decision. See also complaint. capacity, compos mentis, and insanity. 2 Possessing the legal authority, juris- third-party complaint. A complaint by the defendant in a civil action diction, qualification, or legally required against a person or entity who is mental ability to perform a task. not a party to the proceeding, to competent evidence. See evidence. whom the defendant alleges a right of contribution or indemnity from competent witness. See witness. that person, should the defendant 06_542109 ch03.qxp 3/28/06 12:16 PM Page 84

completed contract method 84

be found liable to the plaintiff. See compromise 1 n. An agreement also action. between two or more parties to settle dif- ferences between them by mutual con- well-pleaded complaint. A complaint cessions. 2 n. The result of such in a civil action that identifies the concessions. 3 v. To end a dispute court’s jurisdiction, the alleged by compromise. 4 v. To adjust by facts that entitle the plaintiff to concessions. 5 n. Something midway relief, and the relief sought in a between two or more conflicting, differ- manner sufficient for the defendant ent, or opposing things. 6 n. A partial to respond to the issues contained payment made by a debtor in exchange therein. for the creditor’s promise not to seek completed contract method An payment of the remainder owed or accounting method that does not record claimed. the income and expenses of a long-term compromise verdict See verdict. project until the project is completed. See also accrual method and cash compulsory adj. Compelled, man- method. dated, obligatory, or required, especially if by legal process or a statute. completion bond See bond. compulsory appearance See appear- compos mentis adj. Latin. Master of ance. one’s mind. In sound mind; mentally competent. Sometimes shortened to compulsory arbitration See arbitra- compos. See also non compos mentis. tion. compound v. 1 To determine the inter- compulsory counterclaim See coun- est on the principal and on whatever terclaim. interest has already accrued. 2 To set- tle a claim or debt for an amount less compulsory joinder See joinder. than what is alleged to be due. 3 To compulsory nonsuit nonsuit. agree, in exchange for consideration, See not to prosecute a crime or seek punish- compulsory process n. The right of a ment for the convicted criminal. See defendant to utilize the subpoena power also compounding a crime. to compel the appearance of favorable compounding a crime n. The offense witnesses at trial. In civil actions, the committed by a victim of a crime when right is established by statute and, in he or she fails to report or prosecute the some states, by the state constitution. offender or agrees to hamper prosecu- In criminal cases, it is established by tion in exchange for a bribe, act of the due process clause of the Sixth atonement, or making of amends by the Amendment of the United States criminal. In some states, it is not a Constitution. In some cases, the right is crime if the victim agrees not to prose- also available during hearings or inves- cute when the criminal returns what tigations conducted by an administra- was taken or pays remuneration to the tive agency or a legislative committee. victim for the injury or loss. See also computer crime See crime. misprision of felony. computer fraud See fraud. compound interest See interest. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 85

85 conclusion of law

concealed carry law n. A state statute concert of action rule n. In criminal that allows private individuals to con- law, the doctrine that two or more par- ceal loaded handguns upon or about ties who agree to commit a particular their bodies. crime cannot be prosecuted for conspir- acy or concerted action if the agreed- concealed weapon See weapon. upon crime can be committed only by concealment n. 1 The act of hindering the exact number of parties involved. or preventing the discovery, knowledge, However, if any additional parties also or sight of something. 2 The hiding or participate in the underlying crime, all placement of an object out of notice or participants may be liable for conspiracy sight. or concerted action. Also called Wharton Rule. See also concerted active concealment. The concealment action, conspiracy, and tortfeasor. by deeds or speech of something that one has a duty to reveal. conciliation n. 1 The amicable resolu- tion of a dispute. 2 A method of alter- fraudulent concealment. The failure native dispute resolution whereby a to inform another of a material fact third party, who is usually but not nec- that one has a duty to reveal, with essarily neutral, meets with the parties the intention that the other party and assists them to find a way to settle rely upon the omission to his or her their dispute. See also arbitration, detriment. mediation, and summary proceeding. 3 In family law, an attempt by a third passive concealment. The conceal- party to assist a couple to settle their ment of something by maintaining differences and stay together. See also silence when one has a duty to mediation. speak. conciliator n. A person who helps par- concealment rule n. The legal doc- ties to find a way to resolve their dis- trine that when a plaintiff is hindered or putes. See also conciliation, arbiter, kept from discovering the existence of a arbitrator, and mediation. claim by the actions of a defendant, the statute of limitations is tolled until the conclusion of fact n. A deduction plaintiff discovers or should have dis- reached without applying any substan- covered the claim. tive law, but entirely from facts that are observed or shown to be true or genuine. concerted action n. Activity that is For example, the determination that planned, agreed upon, arranged, and Jones’ bicycle had a flat tire when he carried out by parties acting together purchased it is a conclusion of fact. See with the shared intent to pursue some also conclusion of law and findings of scheme or cause. Typically, each party fact. involved is civilly and criminally liable for the actions of all the other parties conclusion of law n. An inference committed in furtherance of the scheme reached by applying substantive law to or cause. Also called concert of action. the facts. For example, unless there is See also conspiracy, tortfeasor, and an express or implied warranty or prod- concert of action rule. ucts liability law that applies to Jones’ bicycle, the substantive legal principle concert of action See concerted known as caveat emptor will prevent action. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 86

conclusive presumption 86

Jones from holding the seller of the bicy- concurrent condition. A condition cle liable for the bike’s flat tire. See also precedent that must exist, occur, or conclusion of fact and findings of fact. be performed at the same time as another, but separate, condition conclusive presumption See pre- before a duty or obligation arises. sumption. condition precedent. A condition concur v. 1 To agree, approve, or con- (other than lapse of time) that must sent to, especially regarding an action exist, occur, or be performed before or opinion. 2 Regarding a decision of a a liability or obligation arises. court or court panel that has more than condition subsequent. A condition one judge, to agree with the opinion of that, if it occurs or comes into exis- another judge, but not necessarily for all tence, will extinguish a duty or obli- the same reasons or for a different rea- gation. son altogether. See also dissent. condominium n. An individual resi- concurrent adj. 1 Existing or occur- dential or commercial unit in a multi- ring at the same time. 2 Cooperating; unit building wherein each unit’s owner coordinated; united in purpose, action, also owns the common areas, such as or application. 3 Simultaneously hav- the hallways and elevators, as a tenant ing authority or jurisdiction over the in common with the other units’ owners. same legal action, dispute, or matter. See also cooperative. condemn v. 1 To expropriate private condonation n. 1 The forgiveness, property, usually land, for public use. purposeful disregard, or tacit approval See also appropriation and eminent by a victim of another’s illegal or objec- domain. 2 To adjudge someone guilty tionable act, especially by treating the of a crime or to impose sentence, espe- other person as if nothing happened. 2 cially a severe penalty such as death or In family law, an act (especially partici- life imprisonment. 3 To adjudge some- pation in sexual relations) indicating thing, often a building, to be illegal, forgiveness by one spouse of the other unfit for public use, or a hazard to the spouse’s improper conduct (such as public and order it to be destroyed. adultery) when that wrongful conduct is condemnee n. 1 A person or entity a potential ground for divorce. In some whose property has been condemned or states, condonation is an affirmative is about to be expropriated. 2 A per- defense in a divorce action if the act son or entity who claims an interest in asserted as grounds for the divorce is property that is being expropriated. the act that was condoned, the act was not repeated after the condonation, and condemnor n. A governmental or the spouse who acted wrongfully does semi-public entity that has condemned, not deny conjugal rights to the other or has the power to condemn, private spouse. See also connivance. property. confession n. An admission that one condition n. 1 A prerequisite or stipu- has committed a crime or any other incrim- lation in an instrument. 2 A future and inating statement made by a person. uncertain event, fact, or circumstance coerced confession. A confession whose existence or occurrence is neces- induced by the police or other law sary for the existence or determining the enforcement officers’ use of threats extent of an obligation or liability. See or force. also estate and fee simple. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 87

87 conflict of interest

involuntary confession. 1 A confes- confidential communication See sion induced by the police or other communication. law enforcement officers’ use of coercion, deceit, promises, or psy- confidential relation n. Any relation- chological pressure. 2 A confes- ship that carries with it a special trust sion obtained in violation of the or dependency based on history, pattern Miranda Rule. of dealing, familial relationship, or spe- oral confession. See voluntary confes- cial circumstances. sion. confirmation n. 1 An action, declara- voluntary confession. A confession tion, document, or statement that cor- that is not involuntary. Also called roborates, ratifies, verifies, gives formal an oral confession. approval, or assures the validity of something. See also advice and con- confession and avoidance n. A plead- sent. 2 A court order enforcing an ing in which a defendant admits the alle- arbitrator’s decision. See also award, gations against him, but alleges order, and judgment. 3 In commercial additional facts that negates the adverse law, an agreement, usually by a bank, to legal effect of what he has admitted. For honor a letter of credit issued by some- example, in a state where adultery is a one else, usually another bank, and to ground for divorce, a plea of condonation seek reimbursement from the instru- would be a confession and avoidance. ment’s issuer. 4 In property law, a con- veyance of an interest in real property to confession of judgment n. 1 A person one who has or claims an existing inter- or entity’s voluntary agreement to the est in the property, thereby curing a pre- entry against them of a judgment in vious conveyance that was defective, favor of another person or entity upon increasing or making permanent a pre- the occurrence or nonoccurrence of an viously conveyed interest, or making event without the cost, formality, or time avoidable estate certain and no longer of a legal action or the presentation of a voidable. See also deed. defense in court. Also called cognovit judgment. 2 A judgment taken against confiscation n. The appropriation of a defendant by a plaintiff pursuant to private property without just compensa- such an agreement, especially if the tion for the public use or treasury, often as defendant owes money to the plaintiff at a penalty resulting from a criminal prose- the time the agreement was made, and cution or when possession of the property the event that allows the plaintiff to is itself a crime. See also condemn. enter the judgment is the defendant’s failure to pay the amount owed or a por- conflict of authority n. 1 A difference tion thereof on time. Also called cog- of interpretation regarding a point of novit judgment. 3 The document law between two or more courts, often wherein a defendant made such an courts of equal importance or rank agreement before the judgment was (such as the highest appellate court in entered. two states). 2 A difference of opinion regarding a point of law between two or confidence game n. An intentional more legal scholars, especially on a misrepresentation of past or present point or in an area of law where there is facts in order to gain a person’s trust so little or no case law. that she will transfer money or property to the individual making the misrepre- conflict of interest n. 1 The real or sentation. Also called a con game. apparent conflict between one’s per- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 88

conflict of law(s) 88

sonal interest in a matter and one’s duty resentatives. 2 v. To meet at a con- to another or to the public in general gress. 3 n. The legislature of various regarding the same matter. 2 The real, countries. apparent, or potential conflict between the duty owed to one in a matter and the Congress. The national legislature of the United States consisting of duty owed to another regarding the two branches, the House of same matter, especially if the person Representatives and the Senate, who owes the duty is a lawyer (such as and created by the United States one who represents two defendants in Constitution. the same case). congressional immunity See immu- conflict of law(s) n. 1 A conflict nity. between the laws of two or more states or countries that would apply to a legal congressional intent See legislative action in which the underlying dispute, intent. transaction, or event affects or has a connection to those . 2 conjecture 1 n. A conclusion or infer- The area of law that deals with the prob- ence based upon incomplete or uncer- lems arising from such a conflict. See tain evidence. 2 v. To make a also choice of law, comity, federalism, conclusion or inference based upon such forum nonconveniens, full faith and evidence. credit, lex loci contractus, lex loci conjugal 1 adj. Pertaining to mar- delicti, and uniform laws. riage, the state of being married, or the conformed copy See copy. relationship between a husband and wife. 2 n. The sexual relationship or conforming use See use. relations between a husband and wife. confrontation clause n. The provision conjugal rights n. The mutual rights in the Sixth Amendment to the United and privileges between two individuals States Constitution guaranteeing a crim- that arise from the state of being mar- inal defendant the right to hear and ried. These include, among other things, cross-examine at trial all the witnesses affection, companionship, co-habitation, against them. joint property rights, and sexual gratifi- cation. See also alienation of affections confusion of goods n. The mixing of and consortium. items of personal property of like kind or nature belonging to different owners conjugal visit n. A visit by a person to to such an extent that it is impossible to his or her institutionalized spouse (for identify which specific items belong to example, a prison inmate) during which which owner. privacy is provided to the couple, usu- ally to permit them to engage in sexual con game See confidence game. relations. conglomerate n. A corporate entity conjunctive denial See denial. that owns or otherwise controls a group of other corporations that engage in connect up See connecting-up doc- unrelated businesses or industries. trine. congress 1 n. A formal assembly, con- connecting-up doctrine n. The rule ference, or meeting of delegates or rep- that allows evidence to be admitted at 06_542109 ch03.qxp 3/28/06 12:16 PM Page 89

89 consequential damages

trial, provided the party submitting it conscientious objector n. A person will later present other evidence to show who, due to religious belief, refuses to its admissibility or relevance. Typically, participate as a combatant in any war. the introduction of subsequent evidence By law, such an individual is exempt will “connect up” the earlier evidence, from serving as a combatant, but may be but if the original evidence is never con- required to perform an alternative form nected to the case, it will be disregarded of service to the country in a civilian or by the factfinder. non-combatant military role. connivance 1 n. The assent to, selective conscientious objector. A per- encouragement of, or promotion of son who does not object to all wars, another’s wrongdoing by silence or but only to those he considers feigned ignorance. See also conspiracy. unjust. Such an individual is not 2 v. To be in collusion with another per- exempt from service as a combatant. son. See also conspiracy. 3 n. In fam- conscious parallelism n. A decision ily law, the consent by one spouse of the by a business, made independently and other spouse’s improper conduct (such without any agreement with a competi- as adultery), either in advance of the tor, to follow a particular course of con- conduct or while it is occurring, when duct that a competitor has already that wrongful conduct is a potential taken. See also conspiracy. ground for divorce. consecutive sentences See sen- consanguinity n. The relationship tence. between people who share a common ancestor. See also degree, heir, and consecutive tortfeasors See tortfea- affinity. sor. collateral consanguinity. The rela- consent v. To acquiesce, agree, tionship between people who share approve, assent, to voluntarily comply a common ancestor but are not or yield, to give permission to some act ascended or descended from one or purpose. See also acquiescence. another. age of consent. See age. lineal consanguinity. The relation- ship between people who are express consent. Consent that is ascended or descended from one clear, definite, exact, and unmis- another. taken. conscience of the court n. A trial implied consent. Consent that is not court’s equitable power to resolve a dis- specifically expressed, but that is pute by applying the community’s (but inferred from one’s conduct. not the judge’s personal) notions of informed consent. Consent given decency, fairness, and justice. after being completely advised of shocks the conscience of the court. the nature, benefits, costs, and Phrase used when a trial judge risks of a suggested course of determines that a jury or the parties action. to an action acted beyond certain limits of decency and fairness. Such consequential contempt Same as a determination will be grounds for constructive contempt. See contempt. invalidating an award or verdict of the jury or a contract or other act of consequential damages See damages. the parties. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 90

conservator 90

conservator n. 1 The court-appointed the enforceability of a contract, but custodian of the property or financial today a nominal consideration affairs of a person who is under the age might be viewed as evidence that of capacity or who has been declared the contract is unconscionable or is, legally incompetent. See also commit- in reality, a gift rather than a con- tee and guardian. 2 In some states, tract. the same as guardian. past consideration. Consideration consisting of an act performed or consideration n. Something of value promise given in the past. For to either the promisee or the promisor of example, the promise to pay a debt a contract (usually cash, but also prop- that one is already obligated to pay erty, a promise to do something or not to is past consideration. A contract do something, and so on) that is given or based on such consideration is usu- will be given by the promisee to the ally unenforceable because, typi- promisor in exchange for a performance cally, the original performance was or a promise of a performance by the done or the original promise was made for some reason other than to promisor. For the contract to be enforce- exchange it for the current perform- able, the consideration must be some- ance or promise of the promisor. thing that the promisee, to his or her detriment or loss, is giving up, or some- sufficient consideration. Consider- thing that benefits the promisor. ation that is of a great enough value to be meaningful in light of the per- gratuitous consideration. Consider- formance or promise that it is being ation that is neither a detriment or exchanged for. loss to a promisee nor a benefit to the promisor. For example, the valuable consideration. Consideration promise to pay for an item with that is of a great enough value to be something that is worthless to both meaningful in light of the perform- the promisee and the promisor is ance or promise that it is being gratuitous consideration. A con- exchanged for and that has a meas- tract based on such consideration is unenforceable. urable financial value to either the promisee or the promisor. illegal consideration. Consideration that contravenes the law, public pol- consideration, failure of See failure icy, or the public interest. For exam- of consideration. ple, the promise to physically harm someone in exchange for an item is consideration, want of See want of illegal consideration. A contract consideration. based on such consideration is unenforceable. consignee n. One who receives cus- tody, but not ownership, of goods that nominal consideration. Consideration are consigned. See also consignment. that is so small that it has no mean- ingful value in light of the perform- consignment n. The bailment of goods ance or promise that it is being by their owner (the consignor) to exchanged for. For example, when another person (the consignee) to have buying a $10 million business for the consignee sell the goods on behalf of only one dollar, the dollar is nomi- the consignor in exchange for a portion nal consideration. Traditionally, courts did not consider the value of of the proceeds or to deliver them to a the consideration when determining designated recipient. See also con- signee. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 91

91 constant search

consolidated appeal See appeal. for a tort action for alienation of affections or an element in deter- Consolidated Omnibus Budget Rec- mining the damages awarded in a onciliation Act of 1985 n. A federal wrongful injury or death lawsuit. statute requiring employers who pro- vide a group health insurance plan for conspiracy n. 1 An agreement or com- their employees to continue providing bination by two or more individuals to coverage to an employee for 18 months commit a crime or to commit a lawful following termination or firing, or to a act by unlawful means. Making the spouse of an employee in the event of agreement is a crime, even if the unlaw- divorce, for a period of 36 months fol- ful act that is planned is never per- lowing the entry of the divorce decree, formed, but most states require overt provided that the spouse was covered action by one of the conspirators to fur- by the employee’s health insurance dur- ther the conspiracy before the making of ing the marriage. Obligation for pay- the agreement becomes criminal. A con- ment of the health insurance premium spiracy to harm someone is also a tort. is borne by the terminated employee or, Also called partnership in crime. See in the event of divorce, by the party des- also tortfeasor, concert of action rule, ignated in the divorce papers, but in no accessory, accomplice, aid and abet, event by the employer. Abbreviated attempt, connivance, conscious paral- COBRA. lelism, and solicitation. 2 Two or more individuals acting together to com- consolidation n. 1 The act of combin- mit a crime or to commit a lawful act by ing two or more things into one. 2 In unlawful means even if they are not corporate law, the union of two or more aware of each other’s participation or corporations into a new corporation role in the conspiracy. For example, along with the dissolution of the original Smith and Jones prepare to commit a corporations. See also merger. 3 In crime. Jones enlists Adam’s help. Even civil procedure, the court-ordered combi- though Adams and Smith are unaware nation of two or more actions that of each other’s participation, there is a involve the same parties or issues. In conspiracy between the two to commit the end, there may be a single judgment the crime and they will be held liable for for all the actions or a separate judg- each other’s actions. ment for each original action. See also joinder. seditious conspiracy. See sedition. consortium n. 1 The affection, compan- conspirator n. One who participates in ionship, and sexual gratification that one a conspiracy. Also called co-conspirator. receives from another, especially from a unindicted co-conspirator. One who is spouse or, in some states, a fellow partic- alleged to have participated in a ipant in a civil union. See also alienation conspiracy, but is not indicted for of affections and conjugal rights. 2 In the crime even though one or more some states, the affection and compan- fellow conspirators are. Also called ionship between a parent and a child. See unindicted conspirator. also alienation of affections. constant search n. A search that is loss of consortium. The loss of such conducted after a person who is author- affection, companionship, and sex- ized to do so waives his Fourth ual gratification as a result of the Amendment rights. The burden of proof negligent or intentional injury or is thereafter on the prosecution to show death of a spouse. May be the basis 06_542109 ch03.qxp 3/28/06 12:16 PM Page 92

constitution 92

that the consent was freely given, with constitutional question n. An issue no threats having been brought to bear. whose resolution requires the interpre- tation of a constitution rather than that constitution n. 1 The fundamental of a statute. and organic laws and principles of a country or state that create a system of constitutional right n. A liberty or government and provides a basis right whose protection from governmen- against which the validity of all other tal interference is guaranteed by a con- laws is determined. 2 The fundamen- stitution. See also bill of attainder, tal rules governing an association. contracts clause, due process, equal protection, ex post facto law, freedom Constitution. The Constitution of the of contract, overbreadth, search, and United States, written in 1787 and self-incrimination (privilege against). put into effect in 1789. unwritten constitution. The body of construction n. The process of inter- fundamental and organic laws and preting, or the interpretation of, a con- principles contained in a series of stitution, statute, or instrument. See statutes, court decisions, govern- also legislative history and intent. mental proclamations, and tradition that has been accepted as such by canon of construction. Any of the the government and people (often general principles that courts apply over generations or centuries). For to construe a statute or instrument example, the has whose meaning is in dispute. an unwritten constitution that liberal construction. The interpreta- includes the Magna Carta (written tion of a constitutional or statutory in 1215), the Bill of Rights of 1689, provision that applies the original and other documents and tradition. intent, purpose, and spirit of the written constitution. A single written writing to circumstances that are not specifically addressed by the document that embodies all the fun- constitution or statute. Also called damental and organic laws and broad interpretation. principals of a country or state. For example, the United States has a strict construction. The interpreta- written constitution. tion of a constitutional or statutory provision that applies only the lit- constitutional adj. Consistent with, eral words of the writing to circum- pertaining to, or mandated by the con- stances that are not specifically stitution of a country or state. See also addressed by the constitution or unconstitutional. statute. Also call narrow construc- constitutional issue See constitu- tion. tional question. constructive Something that, while constitutional law n. The body or not actually true, is imputed by the law branch of law concerned with the study, to exist or to have occurred and treated interpretation, and application of a as if it were actually so. For example, to country or state’s constitution, including say “I’m giving you my car” and to turn the issues of governance, the powers of over the car keys would probably be con- the branches and levels of government, sidered a constructive delivery of the civil liberties, and civil rights. vehicle itself. See also legal fiction, actual, apparent, and impute. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 93

93 content-based restriction

constructive bailment. See bailment. contempt n. The willful defiance, dis- regard, or disrespect of judicial or leg- constructive contempt. See con- islative authority or dignity, especially tempt. any disobedience of an order or any con- constructive delivery. See delivery. duct that disrupts, obstructs, or inter- feres with the administration or constructive eviction. See eviction. procedures of a court or legislature. See constructive fraud. See fraud. also contemner. constructive notice. See notice. civil contempt. Contempt that con- sists of the failure to comply with a constructive service. See service. court order that is issued for another’s benefit. The usual penalty constructive trust. See trust. is the daily imposition of a fine or imprisonment until the person in constructive-receipt doctrine Same contempt agrees to obey the order. as constructive receipt of income. See income. consequential contempt. See construc- tive contempt. constructive receipt of income See constructive contempt. Contempt that income. occurs outside of a judge’s presence or the immediate vicinity of a court- construe v. To analyze, explain, inter- room. pret. See also construction. criminal contempt. An act or omis- consultative privilege Same as delib- sion that is in disrespect of the erative process privilege. See privilege. court and obstructs its administra- tion or procedures. For example, a consumer n. One who purchases or party who shouts insults at a judge leases goods or services for his or her during a trial would be committing own personal, family, household, or an act of criminal contempt. The other nonbusiness use. usual penalty is a fixed fine or term of imprisonment. consumer goods See goods. direct contempt. Contempt that consumer loan See loan. occurs openly in the presence of a judge or immediate vicinity of a consumer protection law n. A state courtroom. or federal law designed to protect con- sumers against improperly described, indirect contempt. See constructive damaged, faulty, and dangerous goods contempt. and services as well as from unfair trade purge[ing] contempt. To comply with and credit practices. court order so as to have sentence contemner (or contemnor) n. A person of contempt lifted. or entity who is guilty of contempt content-based restriction n. In con- before a judicial or legislative body. stitutional law, a restriction on the exer- contemplation of death n. The antici- cise of free speech based upon the pation of one’s own death, whether subject matter or type of speech. Such a imminent or not, as the major cause for restraint is permissible only if it is based transferring property to another. See on a compelling state interest and is so also gift and causa. narrowly worded that it achieves only 06_542109 ch03.qxp 3/28/06 12:16 PM Page 94

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that purpose. For example, a statute contingent fee Same as contingency cannot ban all public demonstrations, fee. See contingency. peaceful or otherwise, on the subject of gun control while allowing demonstra- contingent interest See interest. tions concerning other topics of contro- contingent legacy See legacy. versy. However, a statute can ban all inflammatory speeches, regardless of contingent liability See liability. the topic, that might incite imminent violence. Also called content discrimina- contingent remainder See remain- tion. See also discrimination. der. content discrimination See content- continuance n. The adjournment or based restriction. postponement to another date of a trial or other proceeding. See also adjourn. contiguous adj. 1 Touching at the edge, at a point, or along a boundary. continuation agreement n. An accord 2 Close, nearby, or in close proximity, between business partners that, should but not touching. See adjacent and the partnership dissolve, the business adjoining. will continue without the liquidation that would otherwise occur. See also contingency n. A future event or cir- buy-sell agreement. cumstance whose occurrence is not cer- tain. continuing injury See injury. contingency fee. A fee charged for a continuing jurisdiction See jurisdic- lawyer’s services in an action that is tion. paid only if the client wins his or her lawsuit or receives a payment continuing legal education n. 1 The from an out-of-court settlement. training available to lawyers, usually Usually, the fee is a percentage of through seminars, to continue their legal the amount recovered. Further- education, hone their skills, and keep up more, whatever the result of the with the latest developments within a action, the client will pay the court costs and the other out-of-pocket particular area of the law. Abbreviated expenses (postage, subpoena fees, CLE. 2 The industry of the providers and so on) incurred by the lawyer of seminars, books, and other materials during the course of the action. designed to provide such training to Although contingency fees are fre- lawyers. Abbreviated CLE. quently charged for a lawyer’s serv- ices in a civil action, it is unethical mandatory continuing legal education. to charge this way for services in a Such training to the extent it is criminal action. Also called contin- required by a state or a state bar gent fee. See also attorney’s fees association. In most states, lawyers and champerty. are required to devote a particular number of hours every year, usually contingent adj. 1 Possible, but not by attending seminars, in further- certain to happen. 2 Dependent upon ance of their legal education and in a future event or circumstance that is improving their skills. Abbreviated not certain to happen. See also vested. MCLE. continuing objection objection. contingent beneficiary See beneficiary. See continuing trespass trespass. contingent estate See estate. See 06_542109 ch03.qxp 3/28/06 12:16 PM Page 95

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contra adj. Latin. 1 Against; in contra- aleatory contract. A contract in diction or opposition to; in answer or which the performance promised by reply to. See also precedent. 2 In at least one party depends upon the legal citation, an indication to the reader occurrence of an uncertain future that the cited authority supports a con- event. For example, a contract with trary position. an insurance company for the pay- ment of proceeds in the event that contraband n. 1 Any goods that are an injury is suffered in the future in unlawful to possess, sell or otherwise an automobile accident. distribute or transport, or whose very bilateral contract. A contract existence is illegal. 2 Smuggled goods. wherein each party is obligated to fulfill a promise made to the other contract 1 n. Any legally binding party and is entitled to the comple- agreement voluntarily entered into by tion of a promise made by the other two or more parties that places an obli- party. gation on each party to do or not do something for one or more of the other breach of contract. See breach of parties and that gives each party the contract. right to demand the performance of completely integrated contract. One or whatever is promised to them by the more documents adopted by the other parties. To be valid, all parties parties as expressing the complete must be legally competent to enter a and exclusive statement of all the contract, neither the objective nor any of terms of their contract. Also called the obligations or promised perform- entire agreement of the parties, ances may be illegal, mutuality of the entire contract, or entire contract of agreement and of its obligations must the parties. See also partially inte- grated contract and severable con- exist, and there must be consideration. tract. See also acceptance, offer, privity, ten- der, breach of contract, and bargain. contract implied in fact. See implied- 2 v. To enter into or settle by a contract in-fact contract. or to make a legally binding promise. 3 n. The document containing the terms contract implied in law. See implied- in-law contract. of a contract. contract of adhesion. See adhesion adhesion contract. A contract that is contract. so highly restrictive of one party’s rights and liabilities, but not of the contract under seal. A promise to do or other, that it is doubtful that it is a not do something that is physically truly voluntary and uncoerced delivered to the promisee in a sealed agreement. The concept typically instrument. Under common law, such arises in the context of standard- a promise bound the promisor even if form contracts that are prepared by there was no consideration, but the one party, not subject to negotia- use of such contracts has been modi- tion, and offered on a “take it or fied or eliminated in most states. leave it” basis. If the terms of the Also called covenant and sealed contract are extremely burdensome instrument. or oppressive, the court may not enforce it on the grounds that it is cost-plus contract. A contract in unconscionable. Also called con- which the payment for work done or tract of adhesion. See also boiler supplies provided equal the total plate, fine print, and uncon- costs that the contractor incurs, scionable. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 96

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plus a fixed fee or a percentage of the driver to pay for the gasoline, the profits. Frequently used in even if nothing is said between the transactions with the government. driver and the attendant. Also called contract implied in fact. See divisible contract. See severable con- also implied-in-law contract. tract. implied-in-law contract. A contrac- executed contract. 1 A contract in tual obligation imposed by the law which all the promises owed by the because of the parties’ conduct or a parties have been performed and all special relationship between them the obligations have been dis- or to prevent unjust enrichment. charged. See also executory contract. For example, when someone 2 A signed contract. receives and uses goods that were intended for another, the law will executory contract. A contract in impose an obligation on the recipi- which all or a portion of the prom- ent of the goods to pay for them. ised contained therein have not yet The obligation is imposed even if been performed. See also executed there is opposition or no assent contract. from the party whom the obligation express contract. A contract whose is being imposed upon. Also called terms have been clearly expressed contract implied in law and quasi in words, whether spoken or in writ- contract. See also implied-in-fact con- ing, between the parties. See also tract. oral contract, written contract, and installment contract. 1 A contract in implied contract. which the obligations of one or freedom of contract. See freedom of more parties (for example, the contract. delivery of goods, performance of services, or payment of money) is illusory contract. A contract in which authorized or required to be com- the only consideration given by one pleted in a series of increments over party is an illusory promise. For a period of time. 2 Under the example, “For $500, I will provide Uniform Commercial Code, a con- housekeeping services whenever I tract that authorizes or requires the am available for the next year.” delivery of goods in separate lots Traditionally, such a contract was that will each be separately unenforceable, but in modern court accepted. A severable contract; decisions, a duty to act in good faith each delivery is, in reality, an inde- is often read into the promise and pendent contract. the contract is enforced accordingly. integrated contract. One or more doc- implied contract. 1 See implied-in-fact uments expressing one or more contract. 2 See implied-in-law con- terms of a contract in its final form. tract. See also express contract. See also completely integrated con- tract, partially integrated contract, implied-in-fact contract. A contract and integration. based on the tacit understanding or an assumption of the parties and oral contract. An express contract evidenced by the parties’ conduct. that is not in writing or has not yet For example, if a person drives her been signed by the parties who will vehicle to a service station and be obligated to do or not do some- opens the gasoline tank so that the thing under its terms. See also writ- service attendant can fill it, there is ten contract. an implied promise on the part of 06_542109 ch03.qxp 3/28/06 12:16 PM Page 97

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output contract. A contract in which industry with only a few blank a buyer agrees to purchase at a set spaces to be filled in and with a few price all quantities of a particular predetermined alternate and good or service that the seller can optional clauses to choose from to provide over the duration of the con- accommodate slight additions and tract. See also requirements contract. modifications. partially integrated contract. An inte- subcontract. A contract whereby a grated contract of which one or party procures the performance of a more of its terms is not yet in its part or all of his obligations under final written form. See also com- another contract by hiring another pletely integrated contract. party to perform those obligations for him. privity of contract. See privity. unilateral contract. A one-sided con- quasi contract. 1 See implied-in-law tract in which one party promises to contract. 2 A name for a claim for do or not do something in exchange relief for restitution, especially one for the performance of an act that is for quantum meruit. not promised to be done. For exam- ple, if a reward is offered for the requirements contract. A contract in return of a lost watch, nobody is which a seller agrees to provide at a promising to return the watch, but set price all quantities of a particu- if it is returned, the promisor will be lar good or service that the buyer required to pay the promised needs over the duration of the con- reward. tract and the buyer agrees, during that time, to obtain those goods and void contract. 1 A contract that is services only from the seller. See not legally enforceable. See also also output contract. voidable contract. 2 A contract whose terms have been completely sealed contract. See contract under fulfilled. seal. voidable contract. 1 A contract that severable contract. A contract with can be voided at the will of one or two or more distinct components more parties. The power to void the any one of which, if breached or contract is not necessarily available invalidated, may be considered as to all the parties of the contract. For an independent contract and not example, a person who is under the affect the other components of the age of capacity can reject her rights contract and the parties’ rights and and obligations under a contract obligations thereunder or put the and make it void without any reper- promisor in breach of the entire con- cussions, but until she does so, the tract. For example, a contract to contract is valid. However, an adult purchase an automobile and to have who entered that same contract a radio installed in it before delivery cannot void it, and any attempt to may be regarded as severable if the do so will be a breach of contract radio is not installed when the vehi- and make her liable for damages. cle is delivered. Also called divisible 2 A contract that is void to a wrong- contract. See also installment con- doer, but not to the party who is tract, completely integrated contract, wronged unless the injured party and severability clause. decides to treat the contract as standard-form contract. A contract void. See also void contract. containing set terms that is repeat- written contract. An express contract edly used and usually mass pro- that is written and has been signed duced or preprinted by a party or an by the parties who will be obligated 06_542109 ch03.qxp 3/28/06 12:16 PM Page 98

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to do something or not do some- gations, provided the regulations are thing under its terms. See also oral reasonable and necessary. contract. contributing to the delinquency of a yellow dog contract. An employment minor n. The offense of an adult caus- contract whereby an employee ing or encouraging a minor to become agrees, as a condition of employ- involved in delinquent or illegal activity, ment, not to remain in or to join a to engage in conduct in the presence of union during the course of his a minor that is likely to lead to delin- employment and to quit his job if he quent or illegal activity by the child, or does. Such contracts are unenforce- to otherwise encourage a minor’s disre- able in federal courts and are illegal gard for the law. See also juvenile in most states. delinquent and corruption of a minor. contract, freedom of See freedom of contribution n. 1 The right of a debtor contract. who has paid the entirety of a debt owed by her and others to recover the others’ contractor n. A party to a contract, proportionate share of the debt. 2 The especially one who agrees to provide right of a joint tortfeasor who has paid goods or services to the other parties. more than her proportionate share of a general contractor. A contractor who judgment to recover the amount in agrees to undertake a large project, excess of her share from the other tort- such as the construction of a build- feasors. 3 The right of a joint tortfea- ing, and who hires and coordinates sor to demand that the other tortfeasors subcontractors to complete parts of supply their proportionate share of what the project. Also called a prime con- is required to compensate the injured tractor. party. 4 A payment made by a co- independent contractor. A contractor debtor or joint tortfeasor of her propor- who agrees to provide services to tionate share of what is due. See also another party, but who retains sig- indemnity. nificant or complete control over how the work is done. See also contributory negligence See negli- employee. gence. subcontractor. A person retained by a controlled substance n. Any drug contractor (usually a general con- whose production, possession, importa- tractor or another subcontractor) to tion, and distribution is strictly regu- complete a part or all of the obliga- lated or outlawed. These include tions owed by the contractor under depressants (such as barbiturates), hal- a particular contract or series of lucinogens (LSD, mescaline, and pey- contracts. For example, general ote), marijuana, opiates (heroin, contractors who build houses fre- morphine, and opium), and stimulants quently hire subcontractors to (amphetamines and cocaine). The sub- install the plumbing. stances are listed in five categories, or schedules, according to their character- contracts clause n. A provision in the istics and the type and degree of regula- United States Constitution that pro- tion is determined by the category the hibits states from impairing private con- particular substance is in. tractual obligations. This clause has been interpreted so that the states can controlling authority See precedent. impose regulations governing such obli- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 99

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controversy n. 1 A difference in convict 1 n. One whom a court has views, especially in public, between indi- determined is guilty of an offense, either viduals taking opposite sides on a par- by accepting a valid guilty plea from the ticular issue. 2 In constitutional law, individual or upon a verdict of guilty by a an actual, definite, and concrete dispute judge or jury. 2 v. To prove or officially over legal rights between parties with find a person to be guilty of an offense. adverse interests wherein one party is 3 n. One serving a prison sentence. seeking an adjudication of the dispute and specific relief of a conclusive nature. conviction n. 1 The act or process by Also called case or controversy require- which a judge or jury finds someone ment. See also adversary proceeding. guilty of an offense. See also judgment. 2 A firm belief or opinion. separable controversy. A cause of action or claim that is part of a law- cooperative n. 1 An organization or suit, but is independent and sepa- business enterprise, organized as either rate from the other causes of action an association (cooperative association) and claims in the action and can be or corporation (cooperative corpora- severed and litigated separately tion), owned by those who use its serv- from them. ices. All profits are shared amongst the contumacy n. The willful disobedience cooperative’s members in proportion to of a court’s direction, order, or summons the money or labor each member con- or any other disrespectful or disruptive tributed. 2 A dwelling owned by a conduct that would justify a finding of cooperative whose members lease their contempt. apartments or living quarters from the cooperative. See also condominium. conversion n. In criminal and tort law, the intentional deprivation of another of copy n. 1 A duplicate, imitation, repro- the benefit and use of his property, with- duction, or transcript of an original. 2 out his authorization or lawful justifica- One of multiple originals. tion, by possessing or disposing of the certified copy. A copy of a document property as if it were one’s own or by an to which a statement, usually by the act (such as damaging or destroying it) person who issued or is keeping the that interferes with or is inconsistent original, affirming or swearing that with the owner’s right to sue and pos- the copy and the original have been sess the property. compared and that the copy is an exact reproduction of the original. convertible bond See bond. Also called attested copy or verified copy. convertible security See security. conformed copy. A copy of a docu- convey v. To transfer or deliver prop- ment to which changes or inser- erty or the title thereto or a property tions are made to reflect identical right by a deed or another written changes and insertions made in the instrument other than a will. original. For example, if a judge makes changes to a proposed order conveyance n. The voluntary transfer before signing it, a party would of an interest in property or a property “conform” a copy by adding to it right, usually by means of a written those same changes as well as writ- instrument other than a will. See also ing in the judge’s name where he or alienation and grant. she signed on the original order. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 100

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copyright n. The exclusive statutory corporation n. An entity, usually a right of literary (authors, playwrights, business, created by a legislative act or poets), musical (composers, musicians), by individuals who have agreed upon visual (painters, photographers, sculp- and filed articles of incorporation with tors), and other artists to control the the state government. Ownership in the reproduction, use, and disposition of corporation is typically represented by their work, usually for their lifetime plus shares of stock. Furthermore, a corpora- seventy years. The Copyright Act of tion is legally recognized as an artificial 1976 governs most copyrights in the person whose existence is separate and United States. See also copy and fair distinct from that of its shareholders use. who are not personally responsible for the corporation’s acts and debts. As an coroner n. A public official whose pri- artificial person, a corporation has the mary duty is to investigate the cause power to acquire, own, and convey prop- and circumstances of any deaths within erty, to sue and be sued, and such other his or her jurisdiction that were clearly powers of a natural person that the law not due to natural causes. may confer upon it. Abbreviated corp. charter, corporate, seal. corp. abbr. See corporation. See and brother-sister corporation. See sister corporal punishment See punish- corporations. ment. C corporation. A corporation that corporate adj. Of or relating to a par- pays corporate income taxes on its ticular corporation or to corporations in income rather than having its prof- general. its taxed as the personal income of its shareholders. Any corporation corporate law. The substantive law that is not a S corporation is, by concerning business organizations default, a C corporation. Also called and transactions. subchapter C corporation. See also S corporation. corporate opportunity doctrine. The common law principle that the close corporation. A corporation directors, officers, employees, and owned by a single individual or a agents of a corporation may not use small group of individuals, often all any information obtained in their personally involved in the corpora- corporate capacity to exploit for tion’s business or related to their own personal benefit a busi- another, who frequently conduct the ness opportunity that belongs, or corporation’s business without such should in fairness belong, to the formalities as annual shareholder corporation. meetings, and whose share of stocks cannot be sold to anyone corporate veil. The legal principle outside the group without the prior that a corporation is distinct from permission of the other sharehold- its owners and that the corpora- ers. The rights and privileges of tion’s shareholders are not person- such corporations vary state to ally liable for the corporation’s acts state. Also called closed corpora- and debts. See also alter ego, tion, closely held corporation, or piercing the corporate veil, char- privately held corporation. See also ter, and seal. publicly held corporation. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 101

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domestic corporation. 1 A corpora- parent corporation. Same as parent tion whose articles of incorporation company. See company. have been filed in a particular state. (The corporation is a domestic cor- private corporation. A corporation poration of that state.) See also for- created and owned by private indi- eign corporation. 2 For federal viduals for a nongovernmental, usu- income tax purposes, a corporation ally business or nonprofit, purpose. whose articles of incorporation have See also public corporation. been filed in the United States. professional corporation. A corpora- dummy corporation. A corporation tion owned by a small group of indi- whose sole purpose is to conceal viduals who practice a common the owners’ identities and to protect occupation that requires a profes- them from personal liability. sional license (such are accounting, architecture, law, or medicine). foreign corporation. A corporation Such a corporation has the same, whose articles of incorporation have but not all, of the characteristics of been filed in another state or coun- a private corporation. Abbreviated try. (A corporation whose articles of P.C. Also called P.A. or professional incorporation have been filed in one association. state or country is a foreign corpo- ration in every other state or coun- public corporation. 1 A corporation try.) See also domestic corporation. created by a state or the federal government and, while often finan- municipal corporation. A political cially independent of the govern- entity, such as a county, city, town, ment, engages as a government village, or school district, that is agency in activities that benefit the created by and derives its limited general public. A publicly appointed powers of self-government (includ- board of directors manages such a ing the ability to enter contracts and corporation. See also private corpo- to sue and be sued) from the state ration. 2 See publicly held corpora- legislature. See also immunity. tion. nonprofit corporation. A corporation publicly held corporation. A corpora- organized for a chartable, cultural, tion whose shares of stock are sold educational, religious, or some to, freely traded amongst, and other purpose other than making a owned by a diverse group of share- profit or distributing its income to holders who are members of the its shareholders, officers, or others general public. See also close corpo- similarly affiliated with it. Usually, ration. such corporations are given special treatment under state and federal S corporation. A corporation with a tax laws. Also called not-for-profit small number of shareholders that corporation. has elected, pursuant to Subchapter S of the Internal Revenue Code, to nonstock corporation. A corporation have its income treated as personal in which ownership is conferred by income to its shareholders for a membership charter or agreement income tax purposes rather than that governs the owners’ rights and have the corporation pay the normal liabilities rather than by the owner- corporate income taxes on the ship of shares of stock. For exam- income. Also called subchapter S ple, mutual savings banks and corporation. See also C corporation. fraternal organizations are usually nonstock corporations. shell corporation. A corporation that has no business or ongoing activity (and sometimes no substantial 06_542109 ch03.qxp 3/28/06 12:16 PM Page 102

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assets) of its own and is typically corroborate v. To confirm, ratify, used to conceal another corpora- strengthen, or support, especially by tion’s business activities. additional authority or evidence. sister corporations. Two or more cor- corroborating evidence See evidence. porations that are subsidiaries of the same parent company. Also corruption of a minor 1 n. The called brother-sister corporations. offense of engaging in sexual inter- See also affiliate and company. course or other sexual activity with a subsidiary corporation. A corporation person who is not one’s spouse and who in which a parent company owns is under the age of consent or another enough shares to control its activi- age set by statute, especially if there is ties and the selection of its officers a considerable age difference (usually and directors. Also called a sub- four years or more) between the sidiary. offender and the victim. See also rape. 2 v. In some states, to assist or encour- corpus n. Latin. 1 The main body, age a minor to commit an offense. See mass, or part of something. 2 A col- also contributing to the delinquency of lection of things that, when together, a minor. 3 n. The arousal or encour- can be considered or regarded as a sin- agement of a child’s destructive antiso- gle thing (such as a collection of writing cial behavior by a parent, guardian, or by an author). 3 The capital or princi- other caregiver. See also contributing pal sum (as opposed to income or inter- to the delinquency of a minor. est). 4 The property or subject matter of a trust. cosigner n. One who jointly signs a negotiable instrument with another per- corpus delicti n. Latin. The body of son to assist the other signer to obtain a the crime. The objective evidence that loan and, by doing so, assumes full lia- there has been an injury (physical or bility for the loan should the other otherwise) or loss and that it was signer ever default on the loan contract. caused by the criminal act of some per- Also called a comaker. See also accom- son or thing. modation party and surety. corpus delicti rule n. The legal princi- cost and freight See C & F. ple that the prosecution cannot prove that a crime has been committed from cost basis See basis. the defendant’s confession alone, but cost, insurance, and freight See that the prosecution must prove that C.I.F. corroborating evidence exists that the crime that the defendant has confessed cost of completion n. A measure of to did actually occur. damages in a breach of contract action representing the expense incurred by corpus juris n. Latin. Body of law. The the nonbreaching party to complete the law in general, especially when com- breaching party’s promised performance piled, codified, and published in a single or to have the performance finished by a text or in a series consisting of a collec- third party. See also damages and spe- tion of individual laws. Abbreviated C.J. cific performance. Corpus Juris Secundum n. An author- cost-plus contract See contract. itative legal encyclopedia that provides general background knowledge of the law with footnoted citation to relevant case law. Abbreviated C.J.S. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 103

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costs n. The filing fees, jury fees, class action, the lawyer or law firm court reporter fees, and other expenses, that controls, coordinates, or man- excluding attorneys’ fees, incurred in ages the litigation and represents the prosecution of or defense against a the interests of the parties or class civil suit. When allowed by statute, a as a whole. court may order the losing party in a local counsel. A lawyer licensed to civil action to reimburse the successful practice law in a particular jurisdic- party for his or her costs. Also called tion or before a particular court who court costs. See also bill of costs. assists a lawyer who is not licensed, but who has been given counsel n. One or more lawyers who permission to provide advice and provide advice to or represent a particu- represent a client in an action in lar client. In the singular, also called a that jurisdiction or before that counselor. See also attorney. court, with matters regarding the application and interpretation of the assigned counsel. A lawyer appointed local laws as well as with the local by a court to represent at the gov- court customs, practices, and rules. ernment’s expense a criminal defen- dant who cannot afford to retain his of counsel. 1 A lawyer who assists or her own lawyer. the attorney of record in a trial or appeal with the preparation, man- counsel of record. Same as attorney agement, or presentation of a case. of record. See attorney. 2 A lawyer who is connected to a law firm, such as a retired partner general counsel. A lawyer or law firm who regularly provides advice, but that provides most or all of the legal who is not an associate, member, or advice and representation utilized partner of the firm. by a client, especially by one that is a corporation or engages in busi- special counsel. A lawyer brought in ness activities. to assist another lawyer or a law independent counsel. 1 A lawyer or firm in a matter requiring their spe- law firm retained to provide advice or cial experience, knowledge, or representation on a particular matter skills or to serve as independent when it would be a conflict of inter- counsel. est for the client’s regular lawyers to do so. 2 A lawyer retained to con- counselor See counsel. duct an unbiased investigation, espe- cially one retained by a governmental count n. 1 In a civil action, the state- body to investigate employees or offi- ment of a distinct cause of action in a cers of that body for alleged miscon- complaint or similar pleading. 2 In a duct. See also prosecutor. criminal action, the distinct allegation in an indictment or information that the in-house counsel. One or more defendant committed a crime. lawyers who are employees of a business and provide legal advice multiple counts. Two or more distinct and representation only for that causes of action or allegations that business. the defendant committed an offense contained in a complaint, indictment, lead counsel. When more than one information, or similar pleading. lawyer or law firm is hired to repre- sent a party or parties in an action, separate count. Any of the individual especially in an action involving causes of action or allegations that more than one jurisdiction, or to the defendant committed an offense represent various plaintiffs in a 06_542109 ch03.qxp 3/28/06 12:16 PM Page 104

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in a complaint, indictment, informa- else’s to authenticate, reinforce, or ver- tion, or similar pleading. ify the first signature. counterclaim n. A cause of action or course of business See ordinary claim for relief asserted in opposition to (ordinary course of business). or as a setoff against the plaintiff’s own cause of action or claim for relief and course of dealing n. The pattern of contained in the defendant’s answer to conduct during previous transactions the plaintiff’s complaint. See also cross- between the parties of a more recent claim. transaction from which a dispute has arisen. To resolve the dispute, the compulsory counterclaim. A cause of courts will look to that pattern to deter- action or claim for relief that arises mine how the transaction in dispute was from the same occurrence, transac- intended to be carried out. See also tion, or subject matter as the plain- course of performance usage of tiff’s cause of action or claim for and relief. Generally, the failure to raise trade. such cause of action or claim for course of employment n. 1 relief in the defendant’s answer will The activ- prevent the defendant from bringing ities engaged in, the circumstances that it up in a subsequent action. exist, and the events that occur that are normally part of an employee’s job, permissible counterclaim. A cause of especially those directly related to the action or claim for relief that does work that the employee was hired to do. not arise from the same occurrence, 2 The time that the employee takes to transaction, or subject matter as complete his or her assigned tasks. the plaintiff’s cause or action or claim for relief. The failure to raise course of performance n. The pattern such a cause of action or claim for of completing a recurring obligation relief in the defendant’s answer will under a contract when all parties are not prevent the defendant from aware of the nature of the obligation and bringing them up in a subsequent have had the opportunity in the past to action. object to how it is done. If a dispute later arises regarding the performance counterfeit v. To copy or imitate of that obligation and there was no pre- something without the right to do so and vious objection, the courts will look to with the intent to deceive or defraud by the course of performance to determine representing the copy or imitation to be how the parties intended the obligation the original or to be genuine if no origi- to be completed. See also course of nal ever existed (such as passing off a dealing and usage of trade. painting as a particular work by Claude Monet when, in fact, Monet never court n. 1 A governmental body that painted such a piece of art). adjudicates legal disputes by interpret- ing and applying the law to specific counteroffer n. An offeree’s counter- cases. See also trial. 2 The regular proposal to a contract offer. Such a pro- session of a court. 3 The judge or posal constitutes a rejection of the judges who sit on a court. 4 The build- original offer as well as an offer for the ing or other locale where a judge or original offeree to consider. judges adjudicate legal disputes. countersign v. To sign one’s own appellate court. A court with juris- name next to one’s own or someone diction to hear appeals from trial 06_542109 ch03.qxp 3/28/06 12:16 PM Page 105

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courts, administrative agencies, the trials conducted in those United and, when there is an intermediate States District Courts located within appellate court, lower appellate the states contained in the court’s courts. See also trial court. circuit. (The United States, for the purposes of the Court of Appeals, is Article I court. A quasi-administra- divided into twelve circuits. There is tive, quasi-judicial federal court cre- also the special nationwide Federal ated by Congress under Article I of Circuit, which hears appeals from the United States Constitution to federal courts and administrative settle disputes arising from the agencies other than the District implementation of a statutory Court.) scheme that Congress has estab- lished in the exercise of its legisla- civil court. A court that hears the tri- tive power. For example, pursuant als of noncriminal cases. to its power to impose and collect taxes under the United States constitutional court. A court named Constitution, Congress has estab- or described in a state constitution lished the United States Tax Court or the United States Constitution to hear appeals from taxpayers who that exercises the judicial power of are unsatisfied with the decisions of a state or the federal government. the Internal Revenue Service. See See also Article III court and legisla- also legislative court and Article III tive court. court. county court. A state court with Article III court. A federal court that jurisdiction that encompasses a sin- is part of the judicial branch of the gle county and with powers that are United States government and determined by a state statute or derives its jurisdiction from Article constitution. In some states, a III of the United States Constitution. county court is an administrative, See also constitutional court and rather than a judicial, governmental Article I court. body or is a mixture of both. circuit court. 1 In a state with a court above. An appellate court to judicial system that is divided into which a case may be appealed. geographical units known as cir- cuits for the purpose of holding tri- court below. A trial or intermediate als, a trial court that sits in the appellate court from which a case is circuit over which its geographical appealed. jurisdiction extends. Often, the juris- court en banc. See full court. diction of such courts is limited to more serious matters (for example, court of appeals. 1 Usually a state felonies as opposed to misde- intermediate appellate court. 2 In meanors). If the circuit encom- Maryland and New York, the high- passes more than one county, the est appellate court in those states. court may hold sessions in each county. 2 In a state with a judicial court of assize and nisi prius. See nisi system that is divided into geo- prius court. graphical units known as circuits for the consideration of appeals on the court of chancery. See chancery (or intermediate level, an intermediate chancery court). appellate court that hears appeals from the circuit over which its geo- court of civil appeals. In some states, graphical jurisdiction extends. 3 A an intermediate court of appeal. court of the United States Court of court of claims. See United States Appeals that considers appeals of Court of Federal Claims. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 106

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court of common pleas. 1 In some that are considered may be states, a trial court of general juris- appealed to the United States diction. 2 In some states, an Supreme Court. This court’s deci- intermediate appellate court. sions are also subject to review by the president of the United States. court of criminal appeals. In some states, the court of last resort for Court of Military Review. An inter- criminal actions. mediate appellate court that reviews court-martial decisions. court of equity. A trial court that adjudicates legal disputes primarily court of original jurisdiction. A court by applying the rules and principles in which, by statute or constitu- of equity. Courts of equity have been tional provision, a particular type of merged with courts of law in most action must be initiated and where states. See also court of law. the evidence is heard, the facts determined, and the law applied to court of first instance. See court of those facts for the first time. Also original jurisdiction. called court of first instance and trial court. court of general jurisdiction. A trial court with unlimited or nearly court of record. A court that is unlimited jurisdiction to hear any required to keep a permanent kind of action. See also court of lim- record of all conversations and ited jurisdiction. statements made and non-verbal evidence produced during its pro- court of last resort. The court from ceedings by use of a stenographer which a particular case can be or other means. appealed no further. Usually a state’s highest appellate court or district court. In a state whose judi- the United States Supreme Court. cial system is divided into geo- See also intermediate appellate court. graphical units known as districts for the purpose of holding trials, a court of law. 1 A trial court that trial court that sits in the district adjudicates legal disputes primarily over which its geographical juris- by applying statutes and the rules diction extends. Often, the court’s and principles of the common law. jurisdiction is limited to one county 2 In states where courts of equity and to less serious matters (for and courts of law have been example, misdemeanors as opposed merged, any trial court that adjudi- to felonies). See also circuit court. cates legal disputes. See also court of equity. drug court. A state court with juris- diction to adjudicate lesser offenses court of limited jurisdiction. A court arising from drug use, usually with with jurisdiction to adjudicate only an emphasis on medical treatment specific kinds of legal disputes and supervision rather than punish- (based on either the subject matter ment for the drug user. of the action or the amount of dam- ages sought). See also court of gen- ecclesiastical court. A nongovern- eral jurisdiction. mental court that is part of the structure of an organized religion Court of Military Appeal. An appel- and adjudicates internal church late court that may review decision issues according to church law. For of the Court of Military Review. For centuries, such courts also had those appeals that this court jurisdiction over matters like declines to consider, this is the divorce and wills that are now court of last resort. However, cases 06_542109 ch03.qxp 3/28/06 12:16 PM Page 107

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within the jurisdiction of the civil Netherlands, to provide advisory courts. legal opinions to the United Nations and to adjudicate legal disputes en banc court. See full court. between countries who voluntarily submit cases for the court’s consid- family court. A state court with juris- eration. Abbreviated ICJ. diction to adjudicate family law issues, such as divorce, child cus- International Criminal Court. A per- tody and visitation, child and manent international court, tenta- spousal support, paternity, and tively established by the United domestic violence. Nations in 1998, to investigate and adjudicate the most serious viola- federal court. An Article III court. tions of international law, such as Most actions involving federal law genocide and war crimes, by apply- are tried before one of the United ing, until the adoption of an inter- States District Courts. An appeal of national criminal code, the general a District Court’s decision would principles of international criminal normally be heard first by one of the law. Abbreviated ICC. United States Court of Appeals, and then by the United States Supreme justice court. A state court, presided Court (the court of last resort in the over by a justice of the peace, that federal judiciary). The Supreme has jurisdiction over certain minor Court also considers appeals of civil and criminal actions that arise state court decisions involving outside the city limits of any munic- questions of federal law. There are ipality. See also municipal court. also a few specialized federal courts; see also United States Court juvenile court. A state court with of Federal Claims. jurisdiction over cases involving children under eighteen years of full court. In appellate litigation, a age or another age set by the state session of an appellate court where legislature, especially one concern- all the judges participate, typically ing cases where the child is alleged resulting from a motion to recon- to have committed what would be sider the decision of a three judge an offense if done by an adult. panel. Also known as an en banc hearing. kangaroo court. 1 A court that has no legal authority, is often self- inferior court. A court whose deci- appointed or established by crimi- sion may be appealed to another nals or vigilantes, and where few or court within the same judicial sys- none of the authorized and regular tem, especially a court of limited, judicial procedures are usually fol- special, or statutory jurisdiction, lowed. 2 A lawful court whose such as a family or probate court. procedures are so unauthorized or irregular that its proceedings are intermediate appellate court. In those extremely improper or unfair. 3 A jurisdictions whose appellate court lawful court that followed author- system is divided into two levels, ized and regular procedures, but is the lowest appellate court, the deci- so biased against a party as to ren- sions of which are subject to review der its judgment or verdict unfair. by the jurisdiction’s highest appel- late court. See also court of last legislative court. A court created by a resort. state legislature or the Congress to settle disputes arising from the International Court of Justice. implementation of a statutory The principal judicial body of scheme that the legislature or the United Nations whose fifteen Congress has established in the judges usually meet at The Hague, 06_542109 ch03.qxp 3/28/06 12:16 PM Page 108

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exercise of their legislative powers, the involvement of a court, or out- as opposed to a court authorized by side a courtroom. a state constitution or the United States Constitution as part of the probate court. A state court with government’s judicial branch. See jurisdiction over proceedings also Article I court and constitutional regarding the validity of wills, the court. administration and disposition of estates, and, in some states, the magistrate’s court. A state court adoption of minors and the care, presided over by a magistrate with custody, guardianship, and protec- jurisdiction over minor offenses and tion of minors, incompetent individ- civil actions. uals, and their assets. Also called surrogate court. military court. A court-martial, mili- tary commission, the Court of small claims court. A state or munic- Military Review, and the Court of ipal court that has the jurisdiction Military Justice. These are not to adjudicate civil actions involving Article III courts, but courts estab- very small sums of money while lished by Congress as a part of its using informal courtroom proce- power to raise and maintain a mili- dures without, usually, the presence tary force under the militia clause or participation of lawyers. found in Article I of the United States Constitution. superior court. 1 In some states, a trial court of general jurisdiction. moot court. A fictitious court con- 2 In some states, an intermediate sisting of law professors or lawyers, appellate court. before which law students and other lawyers argue moot or hypo- supreme court. 1 In most states, thetical cases or cases pending the court of last resort. 2 In New before a court to learn or practice York, a court of general jurisdiction oral advocacy skills and trial tech- with trial and appellate divisions. niques. Supreme Court of the United States. municipal court. A city court with The court of last resort in the fed- exclusive jurisdiction over viola- eral judiciary pursuant to Article III tions of city ordinances and some- of the United States Constitution, times jurisdiction over certain with original jurisdiction in all minor civil and criminal cases that cases involving ambassadors and arise within the city limits. See also other public ministers and consuls justice court. as well as in all cases in which a state is a party. The court also has nisi prius court. Same as court of appellate jurisdiction over all cases assize and nisi prius. See nisi prius in federal court as well as those court. cases in state court involving ques- tions of federal law. Unless it is oth- open court. 1 A court that, when in erwise clear, the phrase “Supreme session, the public is allowed to Court” always means this court. attend so long as they are orderly and peaceful. 2 A court that, surrogate court. See probate court. when in session, is attended by all the parties and their lawyers. See tax court. A state court that adju- also ex parte and in camera. dicates disputes between the tax- payer and the state’s tax collection out of court. Accomplished or con- ducted without litigation, without 06_542109 ch03.qxp 3/28/06 12:16 PM Page 109

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agency over the individual’s tax court-martial n. An ad hoc military liabilities. court whose judges are commissioned officers of higher rank than, and of the Tax Court. An Article I court that adjudicates disputes between the same branch of the armed services as, taxpayer and the Internal Revenue the accused. This court is convened to Service over the individual’s tax try a member of the armed services who deficiencies. (Disputes over the tax- is accused of violating the Uniform Code payer’s claim for a refund are con- of Military Justice. sidered by the United States Court of Federal Claims.) general court-martial. The highest military court, comprised of five term of court. A session of court, officers (unless the defendant defined by the court’s schedule; may decides to be tried by only one refer to a single session or a sched- judge) with jurisdiction to try all ule of sessions over a period of time. offenses under the Uniform Code of Military Justice and to impose any trial court. See court of original juris- sanction permitted by the code diction. (including death). United States Court of Appeals. The special court-martial. An intermedi- intermediate appellate court in the ate military court, comprised of federal judiciary that hears appeals three officers (unless the defendant from trials conducted by the United decides to be tried by only one States District Courts and other judge) with jurisdiction to try all lower federal courts and appeals of noncapital offenses under the administrative decisions from some Uniform Code of Military Justice. federal agencies. See also circuit However, the sanctions this court court. can prescribe may be no greater than a dismissal from the armed United States Court of Federal Claims. services or six months imprison- An Article I court with jurisdiction ment. to hear all claims against the United States government that are based summary court-martial. The lowest on the United States Constitution, a military court, comprised of one federal statute or regulation, a con- officer. The type of offenses this tract with the federal government, or other cause of action not involv- court can try and the sanctions it is ing a tort. Formerly called the allowed to impose are very limited. United States Claims Court. Furthermore, the accused may refuse trial by a summary court- United States District Court. A fed- martial, in which case he or she will eral trial court having original juris- be tried by a general or special diction for most criminal offenses court-martial. against the United States and for most of the civil matters described court recorder n. A court reporter in the United States Constitution. who uses electronic recording equip- United States Supreme Court. See ment in his job. Supreme Court of the United States. court reporter n. A person (often cer- court costs See costs. tified) who makes, by stenography, elec- tronic recording devices, or other court en banc Same as full court. See means, a verbatim record of all that is court. said in a trial, deposition, or similar pro- 06_542109 ch03.qxp 3/28/06 12:16 PM Page 110

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ceeding and from which, if requested enforceable for the duration of the (and usually for a fee), a transcript can business relationship between the be prepared. parties, but not afterward except for the period of time, scope, and terri- court reports See advance sheets, torial limits that are deemed rea- reports, and slip opinion. sonable by a court in light of the adequacy of consideration given in court rules n. A regulation, often hav- exchange for the covenant, the ing the force of law, governing the pro- hardship that the enforcement of cedures of a court and how various the covenant or lack thereof would matters pending before court are han- impose upon the parties, and the need of the party seeking to enforce dled and processed. Also called local the covenant to protect trade rules and rules of the court. secrets and the like. Sometimes restrictive covenant. covenant n. 1 A written and legally also called enforceable agreement or promise that covenant not to sue. In a settlement is often a part of a contract or deed, of a claim, dispute, or lawsuit, a especially one to maintain the status quo promise not to assert or pursue in of something or to do or not do some- court a right of action arising from thing during the term of the covenant. the subject of the claim, dispute, or 2 An implied promise that is incidental lawsuit. to a contract or deed. 3 A warranty, covenant of further assurance. A especially one made in connection with covenant of title whereby the the sale or transfer of land. 4 Same as grantor promises to do whatever is contract under seal; see contract. 5 reasonably necessary to give the An action under the common law to grantee full title if the title con- recover damages for the breach of a con- veyed in the deed later proves to be tract under seal. See also assumpsit. imperfect. concurrent covenant. A covenant that covenant of (or for) quiet enjoyment. requires one party to fulfill her 1 A covenant of title, whereby the promise to do or not do something grantor promises that the grantee’s at the same time the other party to unimpaired use and enjoyment of the covenant has to fulfill his prom- the land will not be disturbed by ise. anyone with a lien or superior right to the land. 2 A covenant of title, covenant against encumbrances. A whereby the grantor promises to covenant of title, whereby the indemnify the grantee against any grantor promises that there are no defects in the title to the land con- undisclosed encumbrances (such as veyed or any disturbances of the easements, liens, or mortgages) on unimpaired use and enjoyment of the property. the land. Often considered synony- mous with covenant of warranty. covenant appurtenant. See covenant running with the land. covenant of right to convey. See covenant of seisin. covenant not to compete. A provision, often found in employment, partner- covenant of seisin. A covenant of ship, and sale-of-business con- title, whereby the grantor promises tracts, in which one party agrees that he or she has at the time of the not to conduct any business or pro- grant the full ownership, or the right fessional activity similar to that of to convey, an estate of the quality the other party. Such covenants are and size that they are purporting to 06_542109 ch03.qxp 3/28/06 12:16 PM Page 111

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convey to the grantee. Also called covenant marriage See marriage. covenant of right to convey. covenanter n. One who makes a prom- covenant of (or for) title. A type of ise in a covenant or is bound by it. covenant usually given by a grantor in a warranty deed conveying real cover v. 1 In commercial law, to buy, property to ensure that title is com- or the purchase of, goods on the open plete and secure. Also called war- market that are similar to those that a ranty of title. In the plural, also seller of such goods had promised, but called usual covenants. failed, to deliver. Under the Uniform covenant of warranty. A covenant of Commercial Code, the buyer is entitled title, whereby the grantor promises from the seller the difference between to defend the title against all rea- the cost of the substituted goods and the sonable claims of a superior right to original contract price if the buyer acted the land by a third party and to in good faith and without unreasonable indemnify the grantee against any delay when obtaining the substituted losses arising from the claim. Often goods. 2 In insurance law, to currently considered synonymous with covenant of quiet enjoyment. protect a particular person against loss or to currently protect someone or covenant running with the land. A something against a particular risk. covenant that relates to a particular parcel of land without which the coverture n. Under the common law, land cannot be conveyed and that is the legal condition of a woman, whereby binding for an indefinite time on all her legal existence was largely sub- successor grantees. Also called merged into that of her husband so that covenant appurtenant and running he had almost unlimited control over her covenant. personal and real property and she covenant under seal. See contract could not enter into a legally binding under seal. contract or exercise any power or right over her own property without her hus- racially restrictive covenant. A band’s consent. In every state except covenant that purports to limit all community property states, statutes future transfers of a piece of real have been enacted that have effectively property to successor grantees of, abolished coverture by giving wives or to successor grantees who are not of, a particular race, color, or almost unlimited control over their per- ethnic group. Once very common, sonal and real property free of their hus- these covenants are now unenforce- bands’ authority, claims, or interests. able. credibility n. The quality of something restrictive covenant. 1 A covenant capable of being believed or relied upon that restrict the use, occupancy, or or that is worthy of confidence. See also disposition of real property (such as veracity. specifying the size of lots that the property can be divided into or the credit 1 n. Approval; deference; types of buildings that may be con- respect. See also full faith and credit. structed on the land). 2 See 2 n. Belief; faith; trust. 3 n. The abil- covenant not to compete. ity to borrow money, the amount made available as a loan, or the ability to pur- covenantee n. One to whom a promise chase goods and services without imme- is made in a covenant or has a right to diate payment, based on the creditor’s enforce it. faith in one’s ability and intention to 06_542109 ch03.qxp 3/28/06 12:16 PM Page 112

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repay the loan or to pay for the goods common-law crime. An offense that and services in the future. 4 n. A was a crime under the common law. reduction in an amount owed or an addi- Nearly all crimes, including offenses tion to one’s net worth or revenue. 5 v. that were common-law crimes, are A form of security offered to a seller that now defined by statute and are, thus, statutory crimes. Also, most provides for payment by a bank or finan- states no longer recognize common- cial institution upon certain conditions law crimes. being met, including delivery of goods within specified time and whatever computer crime. A crime, such as other conditions are applicable to the committing fraud over the Internet, transaction. See also letter of credit. that requires the knowledge or uti- lization of computer technology. creditor n. One to whom money is Also called cybercrime. owed or who gives credit to another. See crime against nature. debtor. One of the also three sexual acts (oral sex and anal account creditor. One to whom the sex, whether with a person of the balance of an account is owed. See opposite or same sex, and sex with also debtor. animals) that were considered crimes under the common law and judgment creditor. One who has the that, in some cases, are currently a legal right to collect a specific sum statutory crime. Also called unnatu- because of a judgment entered in ral act. See also bestiality and his or her favor in a civil action. See sodomy. also levy, writ, and debtor. crime of passion. A crime committed secured creditor. A creditor who has in a moment of sudden or extreme been given or pledged collateral to anger or other emotional distur- protect against loss if the debtor bance sufficient enough for a rea- fails to fully pay the debt owed. sonable person to lose control and not reflect on what he or she is unsecured creditor. A creditor who is doing. not a secured creditor. crime of violence. See violent crime. creditor beneficiary See beneficiary. cybercrime. See computer crime. creditor’s bill suit n. (or ) A proceed- hate crime. A crime motivated ing in equity in which a judgment credi- mostly by bias, ill will, or hatred tor seeks to discover and have delivered toward the victim’s actual or per- to him property that cannot be reached ceived race, color, ethnicity, country by the process available at law to of national origin, religion, or sex- enforce a judgment. ual orientation. Many states impose extra penalties if a crime is commit- crime n. An act or omission that ted due to such motivation. Also violates the law and is punishable by a called bias crime. See also freedom sentence of incarceration. See also of speech. felony, misdemeanor, offense, and vio- high crime. lation. A crime whose commis- sion offends the public’s morality. anticipatory crime. See inchoate crime. inchoate crime. One of the three crimes (attempt, conspiracy, solici- bias crime. See hate crime. tation) that are steps toward the 06_542109 ch03.qxp 3/28/06 12:16 PM Page 113

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commission of another crime. Also white-collar crime. Any business or called anticipatory crime, anticipa- financial non-violent crime, such as tory offense, and inchoate offense. bribery, consumer fraud, corruption, infamous crime. 1 Under common embezzlement, and stock manipula- law, any one of the crimes that tion, committed by business execu- were considered particularly dis- tives, professionals, and public honorable and the punishment for officials. which included ineligibility to hold public office, to serve on a jury, or to criminal n. 1 One who has committed testify at a civil or criminal trial. a crime. 2 One who has been convicted These crimes included treason, any of a crime. 3 Constituting, implying, or felony, forgery, and perjury, among involving a crime or an element of a other offenses. 2 Any crime pun- crime. 4 Pertaining to some aspect of ishable by death or by imprisonment the penal code or its administration. of more than one year. See also pun- ishment. career criminal. One who repeatedly commits crimes, especially of the status crime. A crime that is defined same type. See also habitual criminal. by a person’s condition or character rather than by any wrongful act that habitual criminal. One who has been they have done. For example, the convicted of one or more crimes in “crime” of being an alcoholic as the past and, as a result, is subject opposed to being intoxicated in pub- to a more severe sentence under lic or drinking alcohol while driving a vehicle. The United States the habitual offender statute of a Supreme Court has held that to state for any subsequent crime that impose a sanction for such crimes they commit. Also called habitual violates the ban found in the Eighth offender. See also career criminal Amendment to the United States and three-strikes law. Constitution against cruel and unusual punishment. See also criminal conversation n. In tort law, vagrancy. having sexual relations with another person’s spouse, especially the act of a statutory crime. 1 An offense that man having sexual intercourse with was not a crime under the common another man’s wife. This tort has been law, but has been made a crime by a statute. 2 Broadly, any crime that abolished in most states. See also alien- is defined by a statute. See also ation of affections, adultery, fornica- common-law crime. tion, and rape. victimless crime. A crime, such as criminal disenfranchisement n. The drug use, gambling, and a crime loss of the right to vote by a person con- against nature, that directly harms victed of or sentenced to imprisonment no person or property except that of for a felony. See also civil death. the consenting participants. criminal intent See intent. violent crime. Any crime that has as an element the use, attempted use, criminalist n. One who collects and or threatened use of physical force scientifically analyzes the physical evi- against the person or property of dence of crimes, through such tech- another or any felony that entails a niques as ballistic testing and tissue substantial risk that physical force will be used against the person or analysis, to try to determine what hap- property of another. Also called a pened when the crime was committed. crime of violence. See also criminologist. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 114

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criminality n. 1 The state, practice, or cross-examination See examination. quality of being a criminal. 2 The act or series of acts that constitute a crime. cruel and unusual adj. Characteriza- tion of punishment that is unduly harsh criminalize v. 1 To make a particular and goes beyond the recognized pur- conduct or omission a crime and to poses of punishment in a civilized soci- establish penal sanctions for it. 2 To ety. “Cruel and unusual punishment” make a person, or to be the cause of has frequently been asserted in connec- making that person, a criminal. See also tion with attempts to overturn death decriminalization. penalty statutes or forms of execution, e.g., electric chair. criminal law n. The area of law per- taining to the violation of offenses as cruelty n. As a ground for divorce, the well as the investigation, charging, intentional and malicious infliction of prosecution, and punishment of offend- physical or psychological abuse by a ers. See also civil law. married person upon his or her spouse that endangers or severely impairs the criminal negligence See negligence. spouse’s life or physical or mental well- criminal procedure See procedure. being or creates a reasonable apprehen- sion in the spouse’s mind of physical or criminal record See record. mental harm. The extent of abuse that a spouse is expected to tolerate varies criminologist n. One who studies the state to state, but a single act of cruelty biological and sociological causes and is normally not enough to constitute consequences of crime and criminal grounds for divorce. See also abuse. behavior (such as the effects of mental defects and social environment). See culpable adj. Deserving of blame. also criminalist. culpable mental state See mens rea. cross appeal See appeal. cumulative voting See voting. cross-claim n. A cause of action or curable defect defect. claim asserted between co-defendants See or co-plaintiffs against one another and curtesy n. Under the common law, a not against the plaintiff or defendant on husband’s entitlement to a life estate in the opposite side of a civil action. For all the land that his wife possessed at example, a defendant’s assertion of a her death in either fee simple or fee tail, right of contribution from a fellow defen- provided the couple had a living child dant is a cross-claim. See also counter- who was capable of inheriting his or her claim. mother’s estate. This right has been cross-complaint n. 1 A cause of abolished in most states. See also dower. action or claim asserted by a defendant in a civil action against another party in curtesy consummate. The name of a the same action. 2 A cause of action husband’s right of curtesy after his or claim asserted by a defendant in a wife’s death. civil action against one who is not a party to the action that concerns a mat- curtesy initiate. The name of a hus- ter related to the underlying dispute in band’s right of curtesy before his the action. 3 The pleading in which wife’s death, once the right is cre- one asserts a cross-claim. ated upon the birth of the couple’s first child. 06_542109 ch03.qxp 3/28/06 12:16 PM Page 115

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curtilage n. The land immediately sur- although the minor still primarily rounding a dwelling, such as a yard and resides (usually) with only one of outbuildings, where some of the regular the parents. activity of the occupant’s home life takes place, where the occupant has a reason- sole custody. An arrangement able expectation of privacy, and that is ordered by a court or agreed upon usually demarcated, fenced off, or other- by the divorced or separated par- wise clearly protected from public ents of a minor by which only one scrutiny. Such land is regarded as a part parent makes all the decisions and of the dwelling itself and is protected has all the authority and responsi- from warrantless searches under the bilities concerning the care and Fourth Amendment to the United States upbringing of his or her child, to the Constitution. Also called open fields exclusion of the other parent. doctrine or messuage. custom n. A practice, particularly in custodial interrogation See interro- business, that is so old and universal gation. that it has obtained the force of law. custom and usage. See usage of custody n. 1 The immediate control, trade. guarding, or keeping of a thing for its care, inspection, preservation, or secu- customs n. 1 Taxes imposed on rity. 2 Any significant restraint or con- imports and exports; the United States trol over a person’s freedom to ensure Constitution prohibits Congress from his or her presence at a hearing or trial imposing taxes on goods exported from in a criminal action. 3 The restraint a state. Also called duties. 2 The and control over a person who is incar- agency or procedure for collecting such cerated following that person’s convic- taxes, or the place where they are col- tion of an offense. lected. child custody. The physical control cybercrime Same as computer crime. over a minor awarded by a court to See crime. a parent in a divorce or separation proceeding or in a similar action cyberfraud Same as computer fraud. between the unmarried parents of See fraud. the child. Such control usually includes the right to have the child cyberlaw n. The area of law dealing live with the parent who is awarded with the use of computers and the custody, the right to determine the Internet and the exchange of communi- upbringing of the child (including the care, discipline, education, reli- cations and information thereon, includ- gion, and residence of the child), the ing related issues concerning such right to make all legal decisions communications and information as the concerning the child, and the duty protection of to care for and maintain the child. rights, freedom of speech, and public See also visitation rights. access to information. joint custody. An arrangement cyberpiracy See cybersquatting. ordered by a court or agreed upon by the divorced or separated par- cybersquatting n. The registering of a ents of a minor by which the parents domain name on the Internet in the hope share all authority, decisions, and of selling or licensing it at a profit to a responsibilities concerning the care person or entity who wishes to use it. If and upbringing of their child, 06_542109 ch03.qxp 3/28/06 12:16 PM Page 116

cyberstalking 116

the domain name is identical or confus- cy pres n. French. As near as. The ingly similar to a trademark used by that equitable doctrine that a deed or will person or entity, the owner of the trade- whose terms cannot be carried out may mark has a cause of action against who- be modified by a court so that the intent ever registered and is holding on to the of the instrument’s maker can be ful- name. Also called cyberpiracy, domain filled as closely as possible. name grabbing, and domain name piracy. cyberstalking v. 1 Using the Internet, through chat rooms and e-mail, to find, identify, and arrange to meet a person whom one intends to criminally victim- ize. 2 Sending multiple e-mails, often on a systematic basis, to annoy, embar- rass, intimidate, or threaten a person or to make the person fearful that she or a member of her family or household will be harmed. Also called e-mail harass- ment. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 117

speculative damages. Damages claimed for possible future harm. These are considered uncertain or impossible to prove and generally are not awarded. treble damages. A tripling of the actual damages, generally awarded D pursuant to a law or statute; intended to deter bad conduct. damnify v. To harm by causing loss or damage. dangerous weapon See weapon. damages n. pl. Financial compensa- tion demanded by, or directed by a court date rape n. The rape of an individual to be paid to, a claimant as compensa- with whom the perpetrator is tion for a financial loss or injury to per- acquainted, typically during a social son or property. engagement. See also rape. actual or compensatory damages. d/b/a abbr. Doing business as, identi- Damages intended to compensate fying an individual’s trade name; for for a quantifiable loss. example, John James d/b/a James Productions. consequential damages. Damages resulting indirectly from the act dead man’s statute n. An evidentiary complained of. rule at trial that excludes statements incidental damages. Under the made by a deceased person if offered in Uniform Commercial Code, support of a claim against the expenses reasonably incurred by deceased’s estate. either party to a transaction in car- ing for goods after the other party’s death n. The end of life, when physi- breach of the contract. cal functions and vital signs stop. liquidated damages. A contractually brain death. An irreversible end to agreed upon amount to be paid in the functioning of the brain. Often the event of a breach of the con- used as the legal definition of death. tract, in lieu of performance or quantification of actual damages death certificate n. An official docu- sustained. ment setting forth particulars relating to a dead person, including name, date of nominal damages. A small or birth and death, and cause of death, usu- insignificant amount of money ally certified to by a doctor as to the awarded by a court or jury to demonstrate that a defendant is at cause of death. fault, but that the injury sustained death penalty n. The court- ordered was minor or non-existent. imposition of a sentence of execution as punitive damages. Damages awarded punishment for a crime. See also pun- by a court or jury, typically in addi- ishment (capital punishment). tion to actual damages, when the party against whom the award is death warrant n. A warrant signed by made is deemed to have behaved an appropriate official, such as the gov- egregiously; for example, with par- ernor of a state, directing that a sen- ticular recklessness or malice. tence of execution be carried out. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 118

debenture 118

debenture n. A corporate debt declaration n. 1 A statement made in secured by the revenues, reputation, and connection with a case or legal matter, or credit standing of the debtor, and that intended to have a formal status or effect. lacks a security interest in other prop- 2 A written document, synonymous in erty; an instrument that embodies this some jurisdictions with affidavit and in type of debt. others (although antiquated) with com- plaint. 3 A written document govern- debt n. A specific sum of money due ing rights and obligations among as a result of a written or verbal agree- property owners, as in declaration of con- ment or by operation of law. dominium or declaration of covenants debtor n. One who owes a fixed sum and restrictions. of money to another; a person or entity declaration against interest. A state- filing, or becoming the subject of, a ment that is assumed to be truthful bankruptcy action. because it is contrary to the declar- ant’s self-interest when made, and debtor-in-possession. A debtor is therefore admissible in court as allowed by the bankruptcy court to an exception to the hearsay rule. continue operation of the business during the proceedings. dying declaration. A statement that is assumed to be truthful because it joint debtors. Two or more persons both liable for the same debt. is made by an individual aware of impending death (and thus thought judgment debtor. One who owes a to have no incentive to lie), and that sum of money to another by virtue is therefore admissible in court as of a judgment that has previously an exception to the hearsay rule. been rendered. declaratory judgment n. Order ren- decedent n. A person who has died; dered by a court which establishes rights the term is usually used in trusts and between parties where there is uncer- estates and personal injury matters. tainty, usually as to a written contract or document. Does not generally result in deceit n. 1 The intentional imparting award of damages, only determination by of a false impression. 2 A misrepresen- Court as to meaning or obligations. tation of fact, which, when made with the intention that the other party will decree n. A court judgment, espe- rely on it to his detriment, constitutes cially in a court of equity, bankruptcy, the torts of fraud or misrepresentation. admiralty, divorce, or probate. fraud misrepresentation. See also and consent decree. A written settlement decertify v. To cancel or annul a certi- by the parties to a litigation, in the form of a decree signed by the fication, as of a labor union or of a class judge. in a class action. decree absolute. A final decree decision n. The written determination entered by the court, after the wait- of a court or administrative tribunal dis- ing period set in a decree nisi has posing of motions or claims in a case or expired, without the adverse party matter before it. persuading the court to set it aside. declarant n. A person who makes a decree nisi. A proposed final decree verbal statement or signs a written one. by a court, which will not become final until the expiration of a time 07_542109 ch04.qxp 3/28/06 12:16 PM Page 119

119 defeasance

period, during which the adversely deem v. To consider or assume that a affected party is given the opportu- thing has the attributes or qualities of nity to show the court why it should something else; for example, for certain be set aside. legal purposes, a corporation is deemed to be a person. decriminalization n. The legislature’s act of amending laws to permit a previ- deep pocket n. A person or entity that ously illegal act. has significant financial resources and is therefore an attractive target for liti- dedication n. A grant of land, a copy- gation. right, or of some other property, or the right of use in land or other property (an de facto adj. In fact. Description of a easement), for a public purpose. person or action that exists for all inten- tions and purposes, but which lacks offi- deductible n. In an insurance policy, cial legitimacy. the monetary amount of the loss that must be paid by the insured before the defalcation n. The theft or misuse of insurer becomes responsible for any funds, generally refers to improper use reimbursement. of money by government official or pri- vate trustee. deduction n. A monetary amount that a taxpayer is permitted by law or regu- defamation n. The utterance of a lation to subtract from income when false statement that harms the reputa- determining income tax. tion of another. Although most state laws require that a defamatory state- itemized deduction. An expense, such ment be made with knowledge of its as state and local taxes paid, or annual interest on a mortgage, that falsehood, in some jurisdictions a cause is listed on a tax return as a deduc- of action exists for negligent defama- tion. Includes charitable deductions. tion. Libel (involving a written false statement, including statements trans- standard deduction. A dollar amount mitted on the Internet) and slander that a taxpayer is permitted by law (spoken, as opposed to written, false to subtract from taxable income in statements), are both forms of defama- lieu of listing itemized deductions. tion. deed 1 n. A written conveyance of an defamatory adj. Used in reference to interest in real property. 2 v. The act an utterance, to indicate that it is false of granting a deed in property to and harmful to the reputation of another. another. quitclaim deed. A deed conveying the default 1 n. The failure to perform a grantor’s interest in real property, legal or contractual requirement, such as is, including any defects in title, as the payment of a debt by the due and with no warranty that title is date. 2 v. To fail to perform such a valid. requirement. warranty deed. A deed that contains default judgment n. A judgment one or more warranties, such as the entered against a party to a litigation as validity of the grantor’s title, the a result of that party’s failure to appear recipient’s right of “quiet enjoy- or contest the claim. ment” of the property, and the right to resell it free of any encum- defeasance n. The abrogation of an brances; contrast quitclaim deed. interest in real property. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 120

defeasible 120

defeasible adj. Description of a right defense n. Collectively, the attorneys or interest that is capable of being ter- representing a defendant and any minated, or which will terminate upon laypeople assisting them in their efforts, occurrence of a condition subsequent. particularly in a criminal trial. In litiga- tion, generally a factual denial or an defect n. An error or flaw in a process assertion of facts or law that counters or or product, affecting performance and negates a claim made by the other party. potentially causing harm; a shortcoming See also self defense. in a legal document that may lead to its invalidity, or in a pleading that may lead affirmative defense. A statement of to its dismissal. fact in a responsive pleading that, if true, has the effect of canceling or apparent defect. A flaw or error that rendering ineffective a claim of the should have been noticed by a rea- other party. For example, the truth sonably observant individual. Also of an allegedly defamatory state- known as a patent defect. ment is an affirmative defense. design defect. An error or flaw intro- equitable defense. A defense derived duced, or not detected, during the from those historically used in design of the process or product. courts of equity, such as mutual fatal defect. Pertaining to a contract mistake. or a pleading, an error or flaw of deferred compensation n. such gravity that it may invalidate Compen- the document in question. sation that is paid to an employee at a time later than the one at which it was manufacturing defect. An error or earned, with the tax on that compensa- flaw in a product, introduced during tion deferred as well. Often in the form the manufacturing rather than the of stock options in the employer corpo- design phase. ration. marketing defect. The failure either deficiency judgment n. A judgment to inform users of the appropriate for the balance of a debt already partly way to use a product so as to avoid paid, typically through a forced sale of harm, or to disclose an error or flaw personal or real property. in a product that may cause harm to a user. degree n. 1 A step or level in the accomplishment of an act or a duty, or in defective adj. Of a product or process, the determination of a relationship. The that it contains an error or flaw affecting level of an offense, such as murder and performance; of a pleading or document, determining the appropriate punishment that it contains a shortcoming poten- for it. tially causing its invalidity or leading to its dismissal. degree of care. The standard to which a party is responsible for defend v. In litigation, to oppose a exercising a duty or responsibility claimant’s case; to advance or protect in order to avoid an implication of one’s own adverse interests. Also, as an negligence. attorney, to represent the defendant in a 2. criminal case or civil proceeding. In trusts and estates or family law matters, degree pertains to genetic defendant n. In a criminal trial, the proximity (the degree of consanguinity). accused; in a civil proceeding, the per- dehors adj. French son or entity against whom a claim is . Outside or beyond made. the bounds of, as in matters that are 07_542109 ch04.qxp 3/28/06 12:16 PM Page 121

121 deny

dehors the trial record or the pages of a to actual delivery, which is complete written agreement. upon transfer of property, or condi- tional delivery, in which property is del credere adj. Italian. Of belief or delivered but ownership is subject to trust. Used in connection with agents further action, e.g., payment. who guarantee the good faith or finan- cial capability of the persons or entities demand 1 n. A claim for money or on whose behalf they act. See also other relief or the assertion of a legal agent. right. 2 v. To claim money or other relief, or assert a legal right. delegable duty n. A responsibility that can be delegated to another to per- demise n. The conveyance of an inter- form. See also duty. est in real property for a specified time period by will or lease; the death of a delegate 1 n. One who acts on behalf person or cessation of a corporate entity. of one or more others in an official capacity. 2 v. The act of granting demonstrative evidence n. See evi- another the power to act on one’s behalf. dence. delegation n. The act of granting demur v. To deny the legal sufficiency another the power to act on one’s behalf of an adversary’s claim, without admit- in an official capacity; a group of dele- ting or denying the truth of the underly- gates. ing facts, usually on a technical legal basis rather than the merits of the deliberate 1 adj. Intentional and pre- claim; to file a demurrer. meditated, of an act performed with prior planning; with full consideration demurrer n. In a litigation, a pleading and thoroughly, as in “with all deliberate or motion denying the legal sufficiency speed.” 2 v. The process by which of an adversary’s claim. The term is jurors determine the outcome of a case. archaic but is still used in a few juris- dictions, where such a denial would delict n. From the Latin delictum, an either be included in the answer or offense. A breach of criminal or civil law. advanced in a motion to dismiss or pre- liminary objections. delinquency n. 1 A failure, by act or omission, to perform a legal or contrac- denial n. In litigation, a rejection of a tual obligation. 2 an unpaid amount due. claim or request; an assertion in a plead- ing rejecting facts asserted by the other delinquent 1 n. A person who fails to party in its own pleading. perform a legal or contractual obliga- tion, or who is guilty of illegal or disor- general denial. A response that ques- derly behavior. 2 adj. Of a person tions all of the material accusations failing to perform a legal or contractual in a petition or complaint. obligation, or who is engaging in illegal specific denial. A separate response or disorderly behavior. to several of the plaintiff’s charges delivery n. The act of granting legal individually denying them, while possession, custody, or control of some- not denying all of them. thing, to another; the thing so transferred. deny v. Of a court, to reject a party’s Constructive delivery. Absent actual claim for money or other relief; of a liti- delivery of goods or item, an action gant, to reject in a pleading assertions or communication which conveys made by the other party in its own property to another, even if actual pleading. possession is not taken, as opposed 07_542109 ch04.qxp 3/28/06 12:16 PM Page 122

dependent 122

dependent n. A person relying on deposition of corporate designee. The another for financial support; a relative deposition of a person representing for whom a taxpayer may claim an a corporation or entity, in which exemption on his income tax return. that person is held out to have the most knowledge of the subject at deplete v. To draw out in its entirety, hand. Testimony taken in this man- or use up, money or a nonrenewable ner is binding upon the corporation resource such as oil. or entity. depletion n. The act of drawing out in depraved-heart murder n. A murder its entirety, or using up, money or of a resulting from an act of reckless disre- nonrenewable resource such as oil. gard for the safety of others. See also murder. deponent n. A person who, in connec- tion with a litigation, makes a sworn depreciation n. A decline in the value statement, usually orally, in deposition; of an asset over time, due to its increas- occasionally in a writing such as an affi- ing obsolescence or the wear and tear davit. See also affiant. due to its use; a deduction on an income deport v. To expel an illegal alien, or tax return of part of the asset’s cost, someone whose immigration status has transforming its declining value into a expired or been revoked, to a foreign benefit for the taxpayer. country. derelict 1 n. Archaic. An object that deportation n. The act of expelling an has been abandoned by its owner; an illegal alien, or someone whose immi- individual who is homeless, drunk or 2 adj. gration status has expired or been disorderly. Of property, that it is revoked, to a foreign country. abandoned; of a person, that he is remiss in his duties. depose v. To take a person’s deposi- dereliction n. 1 tion; to make a written, sworn state- The committing of a duty. 2 ment, such as an affidavit. breach, typically of a An increase in land caused by the recession deposit n. The act of placing money or of sea, river, or other body of water for- property with another who will hold it in merly covering it. Ownership is a func- trust, or who has a fiduciary duty with tion of how rapidly the water receded. regard to it, or otherwise will hold and See also reliction. manage it for the benefit of the owner; derivative action n. the money or property so placed. Litigation brought by a shareholder on behalf of a corpora- deposition n. In litigation, a proceed- tion against an officer, on the theory ing outside the courtroom in which a that the corporation is powerless to act party or witness gives sworn testimony on its own behalf. under oath before a court reporter, who derivative work n. then creates a written document; the In copyright, a written document created as a result of work that is based on another, in whole such a proceeding. or part, in the same or another medium, such as a sequel to a novel or a live deposition de bene esse. The deposi- musical based on a movie. A derivative tion of a witness who is unlikely to work cannot be published without the be available to appear at the trial. permission of the creator of the original, 07_542109 ch04.qxp 3/28/06 12:16 PM Page 123

123 dictum

or the permission of any successor to detention n. The act of keeping an the creator’s rights. individual imprisoned or in custody. derogation n. In legislation, partially preventive detention. The holding in repealing or limiting the scope of com- custody of an accused criminal or mon law or prior statutes. mentally ill individual who is deemed to be a threat to him- or descendant n. A person’s child, herself or to others, or to represent grandchild, great-grandchild, or other a flight risk. offspring in the direct line of descent. determinate sentence See sentence. descent n. The transfer of real estate determination n. A final ruling by a by inheritance, whether by will or intes- court or agency; the cessation of an tacy. See also distribution and succes- interest in property or of a power sion. granted by law. desecrate v. To harm or insult a determination letter n. A ruling by sacred thing. the Internal Revenue Service issued at desegregate v. The act of removing the request of a taxpayer, seeking assur- laws and policies that provide for a ance as to the tax implications of a par- mandatory separation of the races. ticular transaction. desegregation n. The removal of laws detinue n. At common law, an action and policies enforcing a separation of to recover personal property wrongly the races. held by another. desertion n. The intentional and inde- detrimental reliance See reliance. fensible abandonment of a responsibil- device n. An invention, typically a ity, such as to military service or to a mechanical object; a tactic or con- spouse. trivance for the purpose of committing a design defect See defect. deception or fraud. destructibility n. The capacity of devise n. The act of transferring real being destroyed by an event, a person’s property by will; a clause of a will action, or by law. describing such a transfer; the property disposed of in such a transfer. detainer n. The act of keeping a per- son or thing in one’s custody or posses- devisee n. The individual or entity sion; an order authorizing a prison to receiving real property as the result of a continue holding a prisoner beyond his devise. or her release date, typically while pro- devisor n. The person making a trans- ceedings are commenced in another fer of real property by devise. jurisdiction. unlawful detainer. The illegal holding devolve v. The grant or transfer of of real property by a formerly lawful authority and/or responsibility to tenant beyond the date of legal pos- another. session, as in the holdover of a lease. dictum n. In a court’s decision, a statement of opinion or of a general rule that is explanatory or suggestive only, 07_542109 ch04.qxp 3/28/06 12:16 PM Page 124

digest 124

and not binding on courts in future Typically offered as a defense in partial cases, because it does not form part of mitigation to obtain conviction on a the court’s central argument. For exam- lesser included charge or to receive a ple, a judge’s suggestion as to how she lesser sentence. might decide a related controversy not presently before her would be consid- diplomatic immunity n. An immunity ered dictum. granted by law or treaty to ambassadors and others with diplomatic status. digest 1 n. A book or series in which cases are summarized and indexed by direct v. To order or cause a person or topics, such as legal issues involved in entity to carry out a course of action; the case or statutes on which the court more generally, to govern an enterprise ruled. 2 v. To create a summary of a or activity. Of a judge, the giving of a case. verbal instruction to a witness or jury to behave in a certain way, as in, “the wit- diligence n. The effort required to ness is directed to answer yes or no to carry out a responsibility or to meet a the questions” or “the jury is directed to standard of care. disregard the defendant’s outburst.” due diligence. A thorough review of direct examination n. At trial, the ini- documents, financial statements, tial questioning of a witness by the and other relevant information per- lawyer who called that witness. taining to a proposed corporate Followed by cross examination by the transaction such as an acquisition or merger; lack of due diligence by opposing attorney and, in some cases, one undertaking an examination of redirect examination by the attorney who books and records may give rise to conducted the direct examination. liability of that individual if the entity being acquired has lower director n. Of a corporation, an indi- value than expected. vidual selected to serve on its board of directors and thereby oversee the man- dilution n. 1 Diminution or weaken- agement of its affairs. ing of a shareholder’s interest in a com- pany by the issuance of more shares to disability n. An injury or medical con- other shareholders. 2 Of a trademark, dition that interferes with an individ- by its use as a term of general descrip- ual’s ability to perform one or more of tion or in other derogatory or unautho- the functions of daily life or of work; a rized ways. 3 Of the voting rights of a legal status that prevents an individual particular party or group by reapportion- from exercising one or more of a citi- ment of one or more legislative districts zen’s rights. (see gerrymandering). civil disability. The status of an indi- diminished capacity n. vidual who has had one or more An alteration legal rights (such as the right to to a defendant’s mental state, a reduced vote or to drive) revoked as a result ability to understand, usually the result of the conviction of a crime. of mental retardation, alcohol or drug intoxication, or some other factor, which disbarment n. The act of revoking an exists at the time of the commission of a attorney’s license to practice law, usu- crime, not sufficient to support an ally because he or she has committed a insanity defense, but that raises the crime or violated a legal rule of ethics. issue of whether the defendant was able to form the intent to commit the crime. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 125

125 dismissal

discharge n. A debtor’s release from a discretion n. The freedom of choice debt upon payment in full or upon adju- and of action of a judge, prosecutor, or dication of bankruptcy; the release of an other public official, within the defined inmate from prison; the termination of scope of his or her responsibilities. For an employee; the act of releasing jurors example, in a criminal matter a judge from any further obligation, upon the may have wide discretion to release the giving of a verdict or the settlement or defendant on recognizance or to demand dismissal of the trial in which they bail in any amount, based on the judge’s serve. view of the defendant as a flight risk. discharge in bankruptcy n. The discrimination n. The act of denying release of a debtor from his obligation to rights, benefits, justice, equitable treat- pay all or part of his debts, upon the ment, or access to facilities available to adjudication of a bankruptcy court. all others, to an individual or group of people because of their race, age, gender, disciplinary proceeding n. An admin- handicap or other defining characteris- istrative proceeding considering the sus- tic. See also reverse discrimination. pension or expulsion from a profession of a licensed individual, as the result of disenfranchise v. To take away from a crime for which he or she was con- an individual or group the ability to exer- victed, or of a disciplinary infraction cise a right, such as the right to vote. such as a breach of a code of ethics. disenfranchisement n. The act of tak- disclaimer n. A clause in a contract or ing a right away from an individual or other writing, stating that the producer group. or seller of product, device, or process makes no promises about its quality or dishonor v. To refuse to pay a claim performance and will not be responsible embodied in a written document, such for harm resulting therefrom. as a check or other negotiable instru- ment, when presented; to treat disre- disclosure n. The release of informa- spectfully an object considered to have a tion about a person or entity. Of a corpo- public or sacred nature, such as a flag. ration, the filing of documents and statements required by law; in litigation, disinheritance n. The act of creating the release of documents and other infor- or modifying a will to deprive a potential mation subpoenaed or otherwise sought heir of property or assets that would by the other side. See also discovery. otherwise pass to the heir under a will. discontinuance n. The voluntary ter- disinterested adj. Neutral, impartial; mination of litigation by a plaintiff who lacking a financial interest in, or other has elected not to pursue it or by both predisposition toward, a particular reso- parties pursuant to a settlement. lution of a controversy or issue. discovery n. In litigation, the compul- dismissal n. 1 The termination of a sory release by a party of documents and legal proceeding by the judge, before a other evidence sought by the other trial or hearing, typically on the grant of party, under rules set by the court. a motion to dismiss by the adverse Means of discovery include depositions, party, or because the claimant failed to written interrogatories, requests for proceed with the action or comply with admissions, and requests to produce an order of the court, or because the documents or to inspect property. See claimant has agreed to end the proceed- also disclosure. ing. 2 Of employment, the firing of an employee. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 126

disorderly conduct 126

dismissal without prejudice. A dis- dissolution n. The termination, cessa- missal that allows the claimant to tion, or winding up of a legal entity bring the same claim again at some such as a corporation or partnership; time in the future, within any appli- the consensual or judicially ordered cable period of limitations. undoing of a contract by placing the par- dismissal with prejudice. A dismissal ties back into the positions they held that bars the claimant from bringing before entering into it; the termination the claim again at any time in the of a marriage. future. distinguish v. In a judicial decision, involuntary dismissal. A dismissal of or an argument such as a brief in sup- a claim that the claimant desired to port of a particular legal outcome, to pursue. note or argue that a prior decision of the voluntary dismissal. A dismissal by same or another court is inapplicable as the claimant or with the claimant’s precedent, because of significant differ- consent to withdraw the claim. ences in the facts or in the legal posture of the two cases. disorderly conduct n. An individual distrain v. or group’s pattern of acts that has the To seize personal property effect of creating a public nuisance or of an individual, typically a tenant, to threatening safety. compel the performance of an obliga- tion, such as the payment of rent. See disparage v. To make an untrue state- also distress. ment that harms the reputation of distress n. another’s business or product. The act of distraining another’s property. See also distrain. disparagement n. An untrue state- distributee n. ment that harms the reputation of some- An heir or beneficiary one else’s business or product. entitled to receive payment or personal property from an estate. dispossess 1 v. To evict someone distribution n. from a tenancy in, or the possession of, At common law, the real property. 2 n. A document, such transfer of personal property to the heirs intestate. as a legally required notice, advising of an individual who died someone that an eviction proceeding district n. A geographical subdivision will be commenced if he or she does not of a county, municipality, or similar vacate the premises within a specified entity, for political, judicial, or adminis- time period. trative ends; for example, a court district dispossession n. The act of removing (in which a particular court has jurisdic- someone from a tenancy in, or the pos- tion over certain matters arising within session of, real property. the borders or pertaining to people who live there) or a voting district (where all dissent n. Of a judicial decision, a non the franchised inhabitants are required binding opinion by one or more judges to vote at a particular polling station). who disagree with the majority’s hold- district attorney n. prosecutor ing; a withholding of consent to a deci- A in sion or outcome; the exercise of free the state or municipal court system, speech to express disagreement with a often an elected official. government action or policy. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 127

127 doctor-patient privilege

district court n. A court in the state legal fiction that the marriage never or federal system, typically the lowest existed (with the result that any level trial court serving a particular geo- children of the marriage are then graphical area. See also district. considered illegitimate). diversity jurisdiction n. A form of mail-order divorce. A divorce received federal court jurisdiction over state law through the mail or otherwise with- out the presence of the parties in the disputes, based on the parties’ residence court granting it. Not recognized in in different states (or one party being a the United States because of the noncitizen of the United States). lack of personal jurisdiction. diversity of citizenship n. The state migratory divorce. A divorce obtain- of affairs giving rise to diversity juris- ed by a spouse who moves or diction, when a legal dispute is between travels to another jurisdiction to citizens of two or more states or when obtain it. one party to the dispute is a noncitizen of the United States. no-fault divorce. A divorce granted at the parties’ request without any dividend n. A distribution of shares or adjudication of wrongdoing (such as money made by a corporation to its abandonment, infidelity, or mental shareholders, representing a pro rata cruelty). percentage of the company’s earnings. DNA identification n. A method for divorce 1 n. The termination of a mar- identifying a particular individual as the riage by court order; the state of having source of the deoxyribonucleic acid terminated a marriage. 2 v. To termi- (human genetic material) in a sample nate a marriage to someone by obtaining such as semen, blood, or hair. a court order, usually referred to as a Commonly used to prove the individual’s divorce decree. commission of a crime such as murder or rape. divisible divorce. A proceeding in which the marriage is terminated docket 1 n. A court’s official record, but other issues pertaining to in summary form, of the hearings held, alimony, distribution of assets, or parties’ appearances, and papers filed in custody of children are reserved for a proceeding; a court’s calendar of the another proceeding in another juris- dates on which hearings are to be held diction or under the laws of another state. Also known as a limited or papers filed. 2 v. To enter a case, divorce. hearing, or filed paper in such a record or calendar. divorce a mensa et thoro. (Archaic. Latin.) Divorce from bed and board. Doctor of Juridical Science n. A A proceeding, current in Britain until graduate degree in law, equivalent to a the nineteenth century, that resulted Ph.D., sought by those who already in the parties remaining married but have the basic Juris Doctor degree and living separately. The term is still an L.L.M. used in a few jurisdictions. doctor-patient privilege n. A legal divorce a vinculo matrimonii. (Latin.) privilege, arising from a doctor’s obliga- Common law, meaning, from the bonds of marriage; a form of divorce tion of confidentiality, that forbids the based on grounds that preexisted doctor from disclosing any information the marriage, which resulted in a or testifying about confidential health 07_542109 ch04.qxp 3/28/06 12:16 PM Page 128

doctrine 128

matters or communications from a donor n. The maker of a gift. 2 One patient, unless the patient waives the who creates a trust. See also settlor. privilege. double indemnity n. A clause in an doctrine n. A widely accepted legal insurance policy providing that the pol- tenet. icy’s benefit will be doubled if a loss occurs as the result of a particular document 1 n. Information captured instrumentality or under particular cir- on paper or in electronic format. Under cumstances, typically in the event of an the rules of evidence, the term receives accidental injury or death. the broadest possible interpretation and may include such items as photographs, double jeopardy n. The fact or risk of audiotapes, etc. 2 v. To record some- being prosecuted more than once for the thing, typically in writing, or to produce same (or substantially the same) documents to substantiate an assertion. offense. Double jeopardy is prohibited by the United States Constitution; how- document of title n. Under the ever, separate proceedings under state Uniform Commercial Code, a document and federal law for offenses arising out (such as a bill of lading) giving a speci- of the same incident do not constitute fied individual the right to take custody double jeopardy (for example, a state of and dispose of goods. trial for murder and a federal trial for domain n. Real estate; the ownership deprivation of civil liberties involving of such real estate. In Internet parlance, the same killing). an Internet address (such as dower n. Common law; the right of a www.aol.com) to be registered with the wife to one third of the real property appropriate authorities. owned by her husband at his death, for domestic adj. Pertaining to the inter- the duration of her life. nal affairs or products of a country; draft n. A written order for the pay- relating to matters of the family. ment of a specified sum of money to a domicile n. An individual or corpora- certain individual or to the bearer (for tion’s permanent legal residence, of example, a check). A draft may involve drawer, which there may only be one; for an indi- three parties: the who writes or drawee, vidual or corporation with multiple resi- creates it, the who has custody dences, the primary one, determining of the funds to be paid (for example, a payee, the proper jurisdiction for matters such bank), and the who will receive as taxation, voting, and so on. In the the funds. case of multiple residences, an individ- sight draft. A draft payable upon ual’s domicile is that to which he always receipt. intends to return. time draft. A draft payable as of a dominant estate See estate. certain date. donee n. The recipient of a gift. draw v. To prepare and execute a financial instrument such as a draft or donee beneficiary n. A third party check; to prepare a legal document such who receives the benefit of a gift made as a will or contract; to withdraw funds to a donee. from a bank account. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 129

129 durable power of attorney

drawee n. A person or entity to whom due process n. A Constitutionally a draft is sent, instructing him or it to determined doctrine requiring that any release funds to the payee. legal proceeding or legislation protect or respect certain rights of the persons or drawer n. The maker of a draft or groups involved in the proceedings or check. affected by the legislation. See also fun- driving while intoxicated v. The damental fairness. criminal law offense of operating a vehi- procedural due process. The require- cle after having drunk an amount of ment that a legal proceeding affords alcohol sufficient to raise one’s blood an affected person, such as the alcohol content above a legal limit, com- defendant in a criminal case, cer- monly referred to by the acronym DWI. tain rights such as that of notice of Also known as driving under the influ- the charges or claims, and an ence (DUI), which, in some jurisdictions opportunity to contest them before means that the driver had a lower level a neutral tribunal. These rights are defined by the Fifth and Fourteenth of intoxication than DWI, but was still Amendments to the United States impaired. In some jurisdictions, the Constitution and by court cases term driving while impaired is used. thereunder. drug 1 n. A chemical or organic sub- substantive due process. The stance used to treat a medical or psy- Constitutional requirement that fed- chological condition; such a substance eral, state, and local legislation used illegally to alter consciousness or should not interfere with the rights mood. 2 v. The act of giving someone defined by the Fifth and Fourteenth such a substance, with the implication Amendments, unless such legisla- that it is against the recipient’s will and tion serves a compelling govern- has an adverse effect. See also con- mental interest in the subject trolled substance. matter, and utilizes the least restrictive means to accomplish drug-free zone v. A geographical area that interest. (typically surrounding a school or other place where children are found) in DUI n. abbr. Abbreviation for driving which, under an applicable criminal law, under the influence. See driving while the distribution of illegal drugs is penal- intoxicated. ized with a sentence or fine greater than is applicable elsewhere. dummy corporation See corporation. drug paraphernalia n. Items such as dumping 1 n. The act of selling goods pipes or syringes used for the prepara- at less than fair market value, typically tion or ingestion of illegal drugs. for the purpose of injuring a competitor and gaining market share. 2 The ille- duces tecum n. Latin. To bring along. A gal disposal of pollutants. type of subpoena that requires a witness to bring specified documents when he or durable power of attorney n. A she appears in court or for a deposition. power of attorney that remains in effect after the grantor becomes men- due 1 adj. A proper or appropriate tally incompetent. standard or level, as in due care. 2 adv. Of a debt, draft, or other financial instrument, that it is payable immedi- ately. 07_542109 ch04.qxp 3/28/06 12:16 PM Page 130

duress 130

duress n. The application of force, or delegable duty. A duty that may be the threat of force, to compel another to transferred to another. act against his or her will. Used as a defense in criminal and contractual mat- nondelegable duty. A duty that one ters, for example, that a defendant par- must perform personally, and that ticipated in a crime because held at may not be delegated to another. gunpoint, or signed a contract only DWI See driving while intoxicated. under the threat of physical harm. See also economic duress. dying declaration See declaration. duty n. A legally-defined responsibil- ity to perform certain acts or meet cer- tain standards of performance; an essential element of proof in a tort action is that the defendant had a duty to act in a certain manner, such as the duty to use due care in the operation of a motor vehicle. Duties may be man- dated by law, such as the duty to pay taxes, or may be voluntary, such as those assumed under a contract. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 131

negative easement. An easement that prohibits the property owner from performing some action. prescriptive easement. An easement gained by the uninterrupted occupa- tion of a another person’s land for a statutory period, often equal to that E required for adverse possession. economic duress n. An act of duress involving a threat of financial harm. effective assistance of counsel n. Diligent, competent legal representation earned income n. Income received as in a criminal case that meets the mini- payment for labor or services per- mum standards of due care expected of formed. an attorney. Failure to receive effective earnest money n. A down payment, assistance of counsel is a common basis typically for real estate, that demon- for appeal in serious criminal matters, strates the prospective purchaser’s particularly death penalty cases. intent to proceed with the transaction. effective date n. The date as of which easement n. A right of use of a contract or other instrument, or a law, another’s land for a particular purpose; enters into force. for example, an easement permitting a e.g. abbr. From the Latin term exempli person to cross another’s land to fish in gratia, meaning for example. a pond located there, or use of a com- mon driveway. eggshell skull n. A principle of tort law for which a tortfeasor is responsi- affirmative easement. An easement that grants another the right to per- ble, even for the unforeseeable results of form certain related actions on the his or her wrongful act; the term derives property. from a case in which a light blow to the head killed an individual, thereby sub- easement appurtenant. An easement jecting the hitter to liability, even that benefits another property; for though one would not have expected example, a right to pass across land serious injury or death from the force of to reach a neighboring tract. the blow. easement by necessity. A statutory or eject v. natural encumbrance that occurs in To remove from premises; to situations such as its being neces- push out or cast off. sary to cross another’s land in order ejectment n. to gain access to water or to a road. The removal of a tenant or owner from property he or she occu- easement in gross. An easement that pies; a legal action by which a person benefits an individual who does not removed from property seeks to recover necessarily own any adjoining land; it. for example, an easement permit- ting someone to hunt or fish on the ejusdem generis n. Latin. Of the property. same category. A legal principle stating that a general phrase following a list of implied easement n An easement imposed by law where it is clear specific items refers to an item of the that the parties to a transaction same type as those in the list. intended an easement to exist, even if not specifically stated. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 132

elder law 132

elder law n. A relatively recent body embezzle v. To illegally misappropri- of law dealing with rights and privileges ate property under one’s care, particu- of the elderly, including estate matters, larly property to which one has a public pensions, health issues, and Social trust or fiduciary duty. Security. embezzlement n. The illegal taking of election n. The process by which an property under one’s care, particularly individual is chosen to occupy a public property to which one has a public trust office, or, in some cases, a private one or fiduciary duty. (such as a director serving on a corpo- rate board); in litigation, the making of a embracery n. The act of illegally influ- choice among remedies, whereby the encing or corrupting a juror or an entire selection of one may preclude the use of jury to reach a particular result. others; in estate law, a choice between emendation n. The act of revising a inheriting under a will, and pursuing a document. legal remedy other than as provided in the will. See also elective share. eminent domain n. The government’s right, upon the payment of fair compen- elective share n. In trusts and estates, sation, to seize privately held land for a a share, mandated by law, that a spouse public purpose, such as the widening of or child may elect to take of the estate, in a highway, or the construction of a pub- lieu of inheriting under the will. lic building; the act of exercising such a elector n. A member of the electoral right. college; election; the maker of an a emolument n. A payment or other election. voter eligible to vote in an benefit received as a result of employ- electoral college n. A group of elec- ment or of the holding of a public office. tors, chosen according to the popular emotional distress n. A negative vote in each state, who elect the presi- emotional reaction—which may include dent and the vice president of the United fear, anger, anxiety, and suffering— States. endured/experienced by the victim of a elements of crime n. The required tort, for which monetary damages may facts of a crime, such as intent, to be be awarded. proven in the course of a prosecution. empanel v. The formality of seating a emancipation n. The liberation of an jury following voir dire at the com- individual or a group from a constraint, mencement of a trial. such as the emancipation of slaves; in employee n. A person who works in family law, the process by which a minor the service of another (the employer) child becomes legally and financially subject to a contract for hire, where the independent of his or her parents and employer controls the conditions of receives the legal rights, at least in work performance. See also agent. some respects, of an adult. employee benefit plan n. A benefit Emancipation Proclamation n. Exec- other than salary (such as health insur- utive order issued by President ance or pension) granted by an employer Abraham Lincoln on January 1, 1863, to its employees, subject to a written freeing all slaves held in geographical plan document, the taxable status of areas in rebellion against the United which is governed by the federal States. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 133

133 entry

Employee Retirement Income Secur- enlarge v. To make greater in size, ity Act of 1974. extend; to free from detention. Employee Retirement Income enrolled bill n. A final copy of legisla- Security Act of 1974. n. Federal leg- tion passed by the United States House islation enacted in 1974 that sets forth of Representatives and the Senate, rules for employee benefit plans. which is then sent to the president for Abbreviated ERISA. signature. employment n. The state of working entail n. Archaic. At common law, an for another under a contract of hire that interest in real estate that passed only provides that one’s services are subject to direct issue of the owner and not to to the other’s direction and control. collateral heirs. en banc n. French. On the bench. Of enter v. In real property, to pass upon appeals courts, before a full court, with or into; of litigation, to file or present to all judges present. Federal appeals are the court—for example, to enter an typically heard by a panel of three appearance into the record; of a con- judges, but may be reheard by the full tract, to enter into it means to sign or circuit court of appeals sitting en banc. execute it. encroach v. To unlawfully gain access entice v. To invite someone to commit to or take the property or possessions of a wrongful or illegal act. another, particularly by stealth. entire contract n. A contract that encumbrance n. A financial obliga- must be performed in its entirety; its tion, such as a mortgage, that is parts are not severable from one attached to or burdens a property right another; a description of a contract that and is transferred with that right. is complete. encumbrancer n. The holder of an entirety n. The whole of a thing; encumbrance, such as a mortgagor. something incapable of being divided. endorsement n. A change to an insur- entitlement n. A benefit that must be ance policy. granted to anyone who meets the crite- ria for receiving it. enfranchise v. To grant rights to an individual or group, such as a right to vote entrapment n. Of law enforcement, the or to have personal freedom (for example, act of leading or guiding a suspect into the Emancipation Proclamation enfran- committing a criminal act the suspect chised the slaves). otherwise would not have committed. engross v. Archaic. To prepare a docu- entry n. The act of entering upon real ment, such as a deed or a legislative bill, property; the making of a notation in a for execution or passage. court or business record; in criminal law, the act of intruding into a residence enjoin v. To order or compel to stop or with the intention of committing a prohibit commencement of an activity; of crime. See also enter. a judge: to grant a court order directing a party to cease a particular activity. illegal entry. In immigration law, the act of an alien coming into the coun- enjoy v. To have the undisturbed use try without proper documentation or possession of something, particularly or credentials. real property. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 134

enumerated power 134

enumerated power n. A governmen- equitable distribution n. In divorce tal power that is described in a founda- law, a remedy under which the court tion document such as a constitution. makes a fair (not necessarily equal) dis- tribution of the marital assets. This is environmental impact statement n. the alternative to the community prop- A report required to be filed by entities erty (equal) approach followed in some seeking federal or state monies, analyz- jurisdictions. ing the environmental implications of proposed projects and legislation. equity n. Fair dealing under widely held moral principles, often embodied in environmental law n. A body of law court ; a body of common law intended to protect the environment, by founded on such principles, providing regulating activities that cause pollu- special remedies, such as injunctions, in tion, such as fossil fuel emissions and cases where monetary damages are not the dumping of wastes; by prohibiting available or will not suffice. certain inconsistent uses of land desig- nated as federal parkland; and by pro- ergo conj., adv. Latin. Therefore. viding regimes of protection for endangered species. Erie doctrine n. The legal doctrine requiring a federal court exercising equality before the law n. The doc- diversity jurisdiction over a state law trine that all persons, regardless of issue to apply the substantive (as wealth, social status, or the political opposed to procedural) law of the state power wielded by them, are to be treated where the court is located. the same before the law. ERISA See Employee Retirement eo instante n. Latin. At that moment. Income Security Act of 1974. eo nomine n. Latin. In the name of. error n. A mistake as to facts or law. equal protection n. The constitutional harmless error. A mistake by the guarantee that all persons shall receive judge that does not interfere with a the same protection of the laws as are party’s rights or remedies, and that afforded all other persons under the therefore does not warrant reversal same circumstances. of the decision. plain error. An error that is so obvi- Equal Protection Clause n. The provi- ous and causes such an adverse sion of the Fourteenth Amendment to effect, that an appeals court the United States Constitution that pro- reverses a decision despite the hibits states from denying equal protec- affected party’s failure to object to tion of laws to its citizens. it during trial. equalization n. The act of revising reversible error. A mistake by the assessed values of real property to judge that adversely affects a make tax rates consistent or of amend- party’s rights or remedies, and is, ing the tax rates themselves to achieve therefore, grounds for reversal on consistency among similar taxes. appeal. equitable adj. Fair, under widely held escheat n. The transfer of property to moral principles, often embodied in government ownership when its owner court precedents; or referring to a rem- dies without a will or any heirs; property edy available in a court of equity. that is so transferred. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 135

135 ethical wall

escrow n. An arrangement under contravenes a prior claim or assertion of which something (money, a document, the same party, or if it contradicts the or property) is held in trust by a third factual holding of a court whose decision party until the occurrence of a condition is not directly binding on the parties. allowing its release to a party to an underlying transaction. For example, a collateral estoppel. Estoppel created down payment may be held in escrow, by the findings of another court upon the same facts, even though typically by the realtor or a lawyer, until the other proceeding did not involve the closing of a real estate transaction. all of the same parties or was oth- erwise not directly binding on the estate n. The totality of an individ- current court. ual’s ownership of money, real and per- sonal property. equitable estoppel. At equity, the doctrine that a party who has decedent’s estate. Such assets after caused another harm in reliance on the death of the owner, as involved the party’s promise or statement, in the probate of a will or an intes- may be barred from taking certain tacy proceeding. actions to escape liability for such harm. residuary estate. The remainder of a decedent’s estate after all applica- estoppel by silence. An estoppel cre- ble payments and transfers have ated by the failure to speak of a party been made, including gifts and who had an obligation to do so. taxes. promissory estoppel. A doctrine that contingent estate. From the common prevents a party from pleading lack law. An asset, typically real prop- erty, that vests only upon the occur- of consideration as an affirmative rence of a condition. defense, if that party made a state- ment upon which the other party dominant estate. Real property that foreseeably relied to his or her benefits from an easement on detriment. adjoining property. et al. abbr. Latin. And others; typi- equitable estate. An estate recog- cally used in the caption of court docu- nized under the rules of equity. ments following the first named party, to possessory estate. A right of posses- signify that more than one individual is sion in an estate, which may not aligned on one side of the case. include actual ownership. ethical adj. In accordance with widely servient estate. Real property upon held norms of behavior, or of written which an easement has been standards of conduct adopted by the granted. members of a profession. vested estate. An estate that an indi- ethical wall n. A process for avoiding vidual has a present right to enjoy, conflicts of interest by limiting disclo- or a noncontingent right to do so in sure of information to certain attorneys the future. or individuals within a firm or corpora- tion, thereby building a metaphorical estop v. To stop or prevent from wall between the holders of information occurring. and colleagues who represent interests estoppel n. A doctrine that holds, or hold opinions which conflict. Also under certain circumstances, that a known as a Chinese wall. claim or assertion cannot be made if it 08_542109 ch05.qxp 3/28/06 12:17 PM Page 136

euthanasia 136

euthanasia n. The process of termi- demonstrative evidence. Visual evi- nating the life of another by merciful or dence, such as a chart, image, or painless means, to prevent further suf- model, prepared by attorneys or fering. consultants, that demonstrates or clarifies information relevant to the evict v. To remove a tenant or other trial. occupant from real property. direct evidence. Evidence based on eviction n. The action of removing a the witness’ personal observation of tenant or other occupant from real prop- events. erty. documentary evidence. Documents introduced as evidence. actual eviction. The physical removal of an individual from real property. evidence in chief. Evidence support- ing the basic premises of a party’s constructive eviction. Wrongful acts case. of a landlord that make premises uninhabitable, with the intent or extrinsic evidence. Evidence pertain- result of forcing the tenant to leave. ing to a contract and contradicting or supplementing its terms. Extrinsic retalitory eviction. Eviction in retali- evidence is not permitted where the ation for a tenant’s complaints to or contract is unambiguous. about the landlord with regard to living conditions. If eviction occurs opinion evidence. A witness’ per- within a narrow timeframe follow- sonal opinion about the facts of the ing such complaints, it is presumed dispute. to be retaliatory. Retaliatory evic- real evidence. Tangible evidence tion is illegal under the statutes of directly involved in the underlying most states. events of the case. evidence n. A thing, a document, or rebuttal evidence. Evidence offered the testimony of a person that bears on to contradict the other party’s the truth or falsity of an assertion made assertions. in litigation; the totality of such items introduced in a trial; the legal doctrines evidentiary fact n. A fact that is an pertaining to the admission, use, and indispensable step in determining the evaluation of such items. truth or falsehood of an assertion. character evidence. Evidence attest- ex. adj. Latin. Previous, from. ing to one’s character and moral standing in the community; charac- examination n. In litigation, the ques- ter witnessed to attest to same. See tioning of a witness under oath, either at also reputation witness. trial or in a deposition; the Patent and Trademark Office investigation into the competent evidence. Evidence that validity of a patent application. pertains to the matters being decided by the court and that may cross examination. The questioning be considered by the court under of a witness by a lawyer or other the applicable rules of evidence. party other than the one who called that person, with respect to matters cumulative evidence. Additional evi- about which the witness has testi- dence that tends to prove the same fied during direct examination. assertions as evidence already admitted. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 137

137 executive

direct examination. A witness’s ini- stances and, therefore, an exception to tial questioning by the lawyer who the hearsay rule. See also hearsay. called that person, in order to intro- duce matters of fact in a case. exclusion n. Of taxes, an item that is Leading questions should be not required to be included in gross avoided by the attorney conducting income; of insurance, the occurrences direct examination. that will not receive coverage under the redirect examination. Questioning of policy. a witness by the party who called exclusionary rule n. Of litigation, a that witness, following cross exam- body of rules that provide that evidence ination, to attempt to clarify or may not be introduced if it was obtained rebut any damaging testimony that in violation of a party’s constitutional might have come out during cross rights. examination. Normally, redirect, as it is also known, is limited to the exclusive jurisdiction n. The provi- scope of the subject matter exam- sion, made in the United States ined in cross examination, although Constitution, in legislation, or in a con- the judge may make an exception. tract, that a particular court is the sole forum in which a certain type of case exception n. In litigation, a formal may be brought. statement made by a party indicating to the court that he or she wishes to pre- exculpate v. To clear of suspicion; to serve an issue for appeal. determine the innocence of another. excess insurance n. A secondary excusable neglect n. An act of neg- insurance policy covering a loss in lect that occurs not as a result of a excess of that covered under a primary party’s fault but due to circumstances policy; may be referred to as excess pol- beyond his or her control. icy. excuse n. A defense or justification of excessive force n. In criminal law, an individual’s act or failure to act; a the unjustified use of force, determined defense in criminal law that an individ- by the circumstances. ual’s actions cannot constitute a crime because of coercion, or some other excessive verdict n. Term applied to a cause that places the actions beyond the jury verdict that “shocks the conscience individual’s volition or control. of the court” as being unduly high; gen- erally thought to result from extraneous execute v. To sign a contract, will, or factors such as bias against the defen- other legal document; to carry out a dant or unusually dramatic facts. duty; to recover funds under a judgment; to put a criminal defendant to death. excise n. A tax on income-producing activities or on actions involving goods, executed adj. Of a legal document, such as their manufacture or sale. that it has been signed; of an action, that it has been carried out. excited utterance n. An exclamation made at the moment of an accident or executive n. The branch of govern- other unexpected and disturbing event, ment including the president and those considered under the rules of evidence responsible to him or her for implement- to be likely to be truthful because of the ing the laws of the United States. urgency of the surrounding circum- 08_542109 ch05.qxp 3/28/06 12:17 PM Page 138

executive clemency 138

executive clemency n. The power without satisfactory results. For exam- granted to the governor by most state ple, all state remedies must have been constitutions and vested in the presi- tried before a state prisoner files a writ dent by the United States Constitution of habeas corpus in a federal court. as chief executive officer to pardon or to commute any sentence imposed by a exhibit n. A document or thing intro- court within that officer’s jurisdiction. duced as evidence in court, or attached See also clemency, commutation, par- to a contract or to a motion. don, reprieve. and exigent circumstances n. Events that executive privilege n. A legal privi- justify a departure from usual legal pro- lege, exempting the president of the cedures such as the obtaining of a war- United States and other members of the rant, typically in order to save a life, executive branch from being compelled preserve evidence, or prevent a suspect to disclose information to the public from fleeing. about matters of foreign policy or of exonerate v. To clear of guilt or national security. responsibility, particularly to establish executor n. An individual named in a the innocence of a prisoner on death will who will be responsible for seeing row. See also exculpate. that its bequests and other provisions ex parte adj. A judge’s action in con- are performed. ducting a hearing or conference with executory adj. Something that has one party only, without notice to the not yet been fully performed. other party; typically improper, except under the limited circumstances in exemplar n. A representative exam- which a party is seeking a temporary ple of a type of object or thing. In crimi- restraining order and alleging that nal law, a physical sample, such as a notice to the adverse party will result in fingerprint or hair, taken from the defen- the destruction of evidence or other ille- dant for evidentiary purposes. gal action. Also used as an adverb, such as, “the judge conducted the hearing ex exemplary damages n. See damages parte.” It also refers to a party’s (punitive damages). attempts to make such contact with the exempt adj. Not subject to a responsi- judge. bility held by others. expectancy n. The expectation that exemption n. The state of not being an heir or legatee will acquire property subject to a responsibility held by oth- at another’s death; of real estate, a remainder reversion. ers; in taxes, an amount subtracted from or gross income to determine taxable expert n. An individual of recognized income. knowledge in a particular topic, typi- exhaustion of remedies n. A legal cally confirmed by academic standing principle stating that, before a particu- and publications, who is called upon by lar remedy is sought, all lesser remedies one of the parties to testify in court as to (typically available at a lower or parallel his or her opinion of the underlying level of jurisdiction, or from an adminis- facts. Also referred to as expert witness. trative body) must have been attempted, ex post facto n. Latin. After the fact. 08_542109 ch05.qxp 3/28/06 12:17 PM Page 139

139 eyewitness

ex post facto law n. A law intended to extradition n. The act of transferring apply to crimes or events that took place a captured fugitive to the jurisdiction before its passage. The United States where he or she is sought; the legal Constitution forbids the passage of ex process for such a transfer. post facto criminal laws, on the principle that it is wrong to punish an act which extrajudicial adj. Of an action, that it was not illegal when committed. is of the nature of something that should be accomplished by legal process but express adj. Direct, immediate, clear. has been done outside of the court sys- tem; for example, a statement made out expropriate v. Of government: forcibly of court is an extrajudicial statement. to divest another of a property interest, See also hearsay. as by eminent domain. extralegal adj. Outside of the domain expropriation n. Of government: the of the law. action of forcibly divesting another of a property interest, as by eminent extraordinary remedy See remedy. domain. extraordinary writ n. A writ for an expungement of record 1 n. The extraordinary remedy. eradication of a criminal conviction from official records after a specified period extraterritorial adj. Beyond the of time or upon the happening of a spe- boundaries or reach of a particular juris- cific event. 2 v. the process of remov- diction. See also jurisdiction. ing criminal records from official rolls. extrinsic evidence n. Evidence that extort v. To wrongfully take some- pertains to a contract, but is not con- thing of value from another by the threat tained with the “four corners” of the of force or other coercive measure. contract document; generally offered to contradict or explain the terms of the extortion n. The wrongful taking of written document. Extrinsic evidence is something of value from another by the generally not permitted unless the con- threat of force or other coercive meas- tract is ambiguous on its face. ure. eyewitness n. An individual who saw extradite v. To transfer through legal the occurrence of an event and may be process a captured fugitive to the juris- called upon to testify about it in court. diction where he or she is sought. 09_542109 ch06.qxp 3/28/06 12:17 PM Page 140

tion along with that of making determi- nations of law. fact-finding n. The process of acting as the fact-finder. factor n. One who buys accounts receivable for an amount less than their F face value and collects the full amount, pocketing the difference as his or her commission; one who sells goods received on consignment. factum n. From Latin, meaning a fact face n. The front part of a document or an action. or thing, or the part with writing on it; fail v. To break; not to succeed in the appearance or tendency of a thing, reaching a standard or goal; to perform for example, the face of the evidence. ineptly or faultily; to become bankrupt. facilitation v. Criminal law, the act of failure of consideration n. The doc- assisting another to commit a crime by trine that a contract is unenforceable making it easier. where there is no reciprocity of benefits, fact n. Something that exists or has because one party has given nothing in happened; an irreducible element of real return for what he or she has received; existence or occurrence. the circumstances under which a con- tract becomes unenforceable for such a collateral fact. A fact that is not lack of reciprocity. central to the main issue or contro- versy. failure of issue n. In trusts and estate law, that a decedent had no children to evidentiary fact. A fact that tends to inherit his or her estate. prove, or is a necessary prerequi- site for the proof of, another fact. faint pleader n. A dishonest manner of filing a legal pleading, typically jurisdictional fact. Such a fact as must exist before a court will exer- involving fraud or conspiracy among the cise jurisdiction over a matter; for parties. example, in a diversity case in fed- fair adj. eral court, that the parties are citi- Neutral; balanced; just; zens of different states and that the reasonable. amount in controversy is above a fair comment n. threshold level. A defense to a charge of defamation, that the state- probative fact. See evidentiary fact. ments were based on sincere opinion about a matter of public interest. ultimate fact. An essential fact, arrived at by inference from the evi- fair hearing n. A court or administra- dence and testimony, that causes tive hearing conducted so as to accord the final determination or conclu- each party the due process rights sion of law. required by applicable law. fact-finder n. The person or persons fair market value n. Market value, in a particular trial or proceeding with the price that can be had for property in responsibility for determining the facts. a reasonable commercial marketplace; The jury typically acts as the fact-finder in corporate law, the intrinsic value of in any case where there is one; other- shares of stock, for purposes of deter- wise, the judge will perform that func- mining a buy-out price. 09_542109 ch06.qxp 3/28/06 12:17 PM Page 141

141 Federal Insurance Contributions Act

fair trial n. A trial by a neutral and impact on family relationships, particu- fair court, conducted so as to accord larly adoption, divorce, custody, and each party the due process rights abuse. required by applicable law; of a criminal trial, that the defendant’s constitutional fast-track 1 n. An expedited litigation rights have been respected. or discovery schedule ordered by the court, generally in relation to civil fair use n. Copyright law: the doctrine cases. See also speedy trial. 2 v. to that one may use a small portion of a expedite a case schedule. copyrighted work without the author’s permission, in scholarly works, reviews, fatal adj. Deadly, causing actual or or other contexts where the use is con- metaphorical death; causing the undo- sidered reasonable and limited. ing of a claim, assertion, or legal docu- ment (“a fatal flaw in the pleading”). See fair warning n. Adequate notice in a also fatal defect. law that certain acts constitute criminal behavior. fatal defect n. Pertaining to a con- tract or a pleading, an error or flaw of false advertising n. The act of know- such gravity that it invalidates the docu- ingly advertising a product or service ment in question. that does not exist or does not function as represented. fatal variance n. In criminal proce- dure, a distinction between two asser- false arrest n. An arrest made by a tions or documents that ought to be the person who falsely claims to be a law same, leading to a due process viola- enforcement officer or by a law enforce- tion; frequently, a difference between ment officer who has no legal grounds the language of the indictment and the for making an arrest; restraint of an theory pursued or proof presented at individual’s free movement. See also trial, thereby denying the defendant fair false imprisonment. notice of the charges. false imprisonment n. The act of fault n. A negligent or intentional fail- detaining or restraining another without ure to act reasonably or according to proper legal authority; a false arrest. law or duty; an act or omission giving rise to a criminal indictment or a civil false pretenses n. The act of obtain- tort lawsuit. ing a benefit or property by fraud or mis- representation. federal adj. Pertaining to a system of government such as that adopted in the false statement n. An intentionally United States, in which a national gov- untrue statement made to mislead. ernment oversees a federation of local family n. A group of individuals who governments, with distinctly defined but share ties of blood, marriage, or adop- overlapping responsibilities. tion; a group residing together and con- federal common law See common sisting of parents, children, and other law. relatives by blood or marriage; a group of individuals residing together who Federal Insurance Contributions Act have consented to an arrangement simi- n. A federal law authorizing a Social lar to ties of blood or marriage. Security tax partly withheld from employee paychecks and partly paid family law n. Collectively, those laws directly by employers. dealing with matters of significant 09_542109 ch06.qxp 3/28/06 12:17 PM Page 142

federalism 142

federalism n. Generally, the allocation monly a grant of property to be used of authority and responsibility to the dif- for charitable purposes and that ferent levels of government in a federal reverts if no longer used in this way. system. fee tail n. Archaic. A fee estate federal law n. A body of law at the granted to a particular individual and highest or national level of a federal his or her specified heirs (typically government, consisting of a constitu- direct issue, not collateral heirs) and tion, enacted laws and the court deci- that reverts if the individual dies with- sions pertaining to them. The federal out such heirs. law of the United States consists of the United States Constitution, laws felon n. An individual previously con- enacted by Congress, and decisions of victed of a felony. the Supreme Court and other federal felonious adj. Pertaining to, involv- courts. ing, or of the nature of a felony. federal question n. An issue or case felony n. A grave or serious form of arising under federal law, particularly crime, typically punishable by imprison- the Constitution of the United States or ment for more than a year, as opposed to an Act of Congress; a basis for invoking a misdemeanor. the jurisdiction of federal courts. felony murder n. A murder occurring federal question jurisdiction See during the commission of a felony. jurisdiction. felony murder rule n. Doctrine that a fee n. A payment invoiced or made for death which occurs during the commis- the performance of services; an interest sion of another felony crime, even where fee in or ownership of real estate See the perpetrator did not intend to cause simple. death; for example, during a bank rob- fee simple n. At common law, the bery, shall be punishable as murder. broadest possible ownership interest in fence 1 n. An individual who buys and real estate, inheritable by any heir of the resells stolen goods or receives them on owner. consignment. 2 v. To buy stolen goods fee simple absolute. A fee simple with for resale, or receive them on consign- no conditions placed upon it and ment. that will endure as long as there are descendants of the original owner fertile octogenarian rule n. A legal- to inherit it. fiction, to alleviate the rule against per- petuities, that a woman could become fee simple defeasible. A fee simple pregnant for so long as she is alive. that is terminable despite the exis- tence of heirs, because of the occur- fiduciary 1 n. An individual owing rence of a particular event or another a legal duty of care and good condition. faith in the management of a business, fee simple determinable. A fee simple money, or property; for example, a cor- that terminates and reverts to the porate officer or the executor of a will. grantor upon the occurrence of a 2 adj. Descriptive of a relationship that particular event or condition; com- confers special higher responsibilities. See fiduciary relationship. 09_542109 ch06.qxp 3/28/06 12:17 PM Page 143

143 foreclosure

fiduciary relationship n. A legally fixture n. Personal property that is defined relationship in which one indi- attached to a structure or to land in such vidual acts as a fiduciary protecting the a way as to be considered a part of it. interest of the other (for example, an attorney and client, or a trustee and ben- Trade fixture. Items attached to eficiary). premises by a tenant for purposes of conducting a business; for exam- fighting words n. Speech not pro- ple, ovens in a restaurant. tected by the First Amendment because it is intended to bring about a violent FOIA See Freedom of Information response. Act. file 1 n. A court’s or a lawyer’s record forbearance n. the act of delaying of a case. 2 v. The act of submitting a enforcement of a legal right, as with a document, generally to a court. creditor who grants the debtor exten- sion of time to pay. final judgment See judgment. for cause n. Of an action, such as the finder n. One who brings together two termination of a contract or a relation- or more parties for a business transac- ship of employment, that it is based on a tion, such as a merger or a loan, but who breach, misfeasance, or other inappro- is not usually involved in the negotiation priate action of the other party. or preparation of the details of the trans- action. force n. Power or strength. finder’s fee n. The fee paid to a finder deadly force. Force used which is for his services in bringing about the known or expected, or should be expected to cause death. transaction. in force. Legal validity, as with a law findings of fact n. The conclusions of or regulation that is “in force.” a judge, jury, or administrative tribunal regarding the underlying facts of the force majeure n. French. Greater case under consideration. force; a natural or human-induced disas- ter that causes a contract to fail of per- fine n. An amount of money paid as a formance. penalty for a criminal or civil infraction. forcible detainer See eviction. fine print n. Colloquial. Of a contract, referring to matter within it that is forcible entry. n. The taking of or obscurely phrased and generally adver- entry onto property using unlawful or sarial to the less powerful party’s inter- illegal force, or any entry done without ests, such as disclaimers of liability or consent of occupier or owner. penalties for late payment or perform- ance. Derived from the custom of print- foreclosure n. An action brought by ing the parts of standard form contracts the holder of a security interest in prop- that contain such matter, in tiny, hard- erty to terminate the owner’s interest in to-read print. order to take possession of, or to sell the property, in satisfaction of the secured first-degree murder See murder. debt. first offender n. An individual never previously convicted of a crime. 09_542109 ch06.qxp 3/28/06 12:17 PM Page 144

foreign 144

foreign adj. Relating to another coun- decline jurisdiction of a case, based on try or jurisdiction. factors such as residence of the parties, thus allowing or causing another more forensic adj. Relating to the gather- convenient court to take the case. ing, preparation, or presentation of evi- dence in court. n. the application of forum-selection clause n. A clause in scientific or medical principles to the a contract stating that all disputes will law. be resolved in a particular court and waiving the right to file suit in any other. foreseeability n. Tort law: that which should be anticipated as the natural con- forum shopping n. Colloquial. A sequence of an action or inaction; pre- party’s action of looking for a court or dictable. judge that is deemed likely to render a favorable result. foreseeable adj. Tort law: Of an action or event, that it was predictable foundation n. Of evidence, that it indi- or should be anticipated. cates or leads to the admissibility of other evidence; a nonprofit organization forfeiture n. The loss or compulsory created to fund or promote charitable transfer to another, without compensa- causes. tion, of a right or property interest, usu- ally as a penalty. four corners n. Colloquial. The entirety of a written contract or docu- forgery n. A false banknote, docu- ment, referring to matters that are, or ment, work of art, or other imitation of a are not, found within the document. thing of value, created to be passed off as real; the act of creating such an franchise n. A right granted by or pur- object. suant to legislation, particularly the right to vote; the exclusive right under a form n. A standard legal document licensing agreement to utilize a trade- sold or published to be used as a model, mark and distribute the trademarked or to be prepared by filling in blanks; the products or services in a particular area. outward appearance of something, as opposed to its substance. fraud n. An intentional misrepresen- tation uttered to cause another to rely fornicate v. To have sex with some- on it to his detriment. one to whom one is not married. constructive fraud. A misrepresenta- fornication n. Consensual sex between tion deemed by the law to be fraud two individuals not married to one even though unintentional. another. fraud in the factum. The nature of a forum n. A public place, typically legal document is misrepresented devoted to communication or expres- to a party who is induced to sign it sion; in litigation, a particular court or based on an incorrect understand- jurisdiction. ing of its nature. fraud in the inducement. A party is forum conveniens n. Latin. In litiga- induced to sign a contract by mis- tion: the most appropriate court for the representation, not of the terms of resolution of a particular dispute. the contract itself, but of the level of risk or the surrounding circum- forum nonconveniens n. Latin. In litiga- stances. tion: the doctrine that a court may 09_542109 ch06.qxp 3/28/06 12:17 PM Page 145

145 frolic

mail fraud. A fraudulent act involv- United States Constitution, to communi- ing misrepresentations made cate ideas and opinions without govern- through the United States Postal ment intervention. Service for financial benefit. freedom of the press n. The right, wire fraud. A fraudulent act involv- guaranteed by the First Amendment to ing misrepresentations made via the United States Constitution to pub- telephone or other form of elec- lish and distribute information in books, tronic communications. magazines, and newspapers without fraudulent concealment See conceal- government intervention. ment. freehold n. An ownership estate or fraudulent conveyance n. A transfer possessory interest in land, particularly of real property to another, typically a fee simple or life estate. lacking any or significant consideration, fresh pursuit n. Law enforcement: made for the purposes of protecting the the pursuit of a suspect in flight. A property from a creditor who would oth- police officer may leave his or her juris- erwise seek its sale or forfeiture. diction while in active pursuit, or may freedom of association n. The right, search a building the suspect has protected by the First Amendment to the entered without first obtaining a war- United States Constitution, to gather or rant. associate with others for any purpose that friend of the court n. Litigation: An would be lawful if pursued individually. individual or organization filing an ami- freedom of contract n. The right of cus curiae brief in an action to which he individuals to consent to binding con- or it is not a party. A friend of the court tracts without government intervention. must show a strong interest in the mat- ters under consideration by the court. freedom of expression n. Collectively, See also amicus curiae. the rights, guaranteed by the First Amendment to the United States frisk 1 v. To search another for a Constitution, to engage in freedom of weapon or contraband. 2 n. The speech, freedom of association, freedom search of another for a weapon or con- of the press, and freedom of religion. traband. See also search. Freedom of Information Act n. A frivolous adj. Of a claim or assertion federal law that allows individuals and in litigation, that it lacks merit or sub- organizations to compel the federal gov- stance; often a pejorative term, implying ernment to release copies of documents bad faith or negligence by the pleading it might not otherwise choose to dis- party. close. Abbreviated FOIA. frolic n. In tort law: of an employee, freedom of religion n. The right, that he or she, during business hours, guaranteed by the First Amendment to deviated from the scope of employment the United States Constitution, to choose to the extent that the employer will not religious practices or to abstain from any be held responsible for harm resulting without government intervention. from the employee’s actions. The term typically refers to circumstances in freedom of speech n. The right, guar- which the employee pursued a personal anteed by the First Amendment to the 09_542109 ch06.qxp 3/28/06 12:17 PM Page 146

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interest during the hours of employ- fundamental fairness n. A synonym ment. for due process; the conditions under which due process is obtained. fruit of the poisonous tree n. Constitutional law: otherwise competent fundamental right n. A basic or foun- evidence obtained from an illegal dational right, derived from natural law; search, which will not be admitted at a right deemed by the Supreme Court to trial because of the illegality of the man- receive the highest level of ner in which it was obtained. Constitutional protection against gov- ernment interference. frustration n. Contract law: an inabil- ity to carry out a contract or perform a fungible adj. Of goods or products, term of the contract due to supervening that they are all of a kind, not unique, circumstances beyond the parties’ con- and replaceable by other goods of the trol, such as an event of force majeure. same kind; for example, crops are fungi- ble while a painting by Rembrandt is full age n. The age of majority, when not. an individual can marry, sign contracts, and so on. further assurance n. A clause in a deed in which the transferor of real full court See court. property promises to execute any other full faith and credit n. The require- documents that may be needed to com- ment under the United States plete the transfer or protect the interest Constitution, Article IV, that a state granted to the transferee. respect the laws and court decisions of future interest n. With real property, other states. an ownership or possessory interest full warranty n. Contract law: as that does not presently exist, but will opposed to a limited warranty, a war- come into being upon the occurrence of ranty that completely covers the repair an event or condition. or replacement of any defect in a con- sumer product. 10_542109 ch07.qxp 3/28/06 12:17 PM Page 147

generally accepted accounting princi- ples n. Standards adopted by the accounting profession for the form and content of financial statements. Abbreviated as GAAP. generally accepted auditing standards n. Standards adopted by the accounting G profession governing the audit of corpo- rations and organizations. Abbreviated as GAAS. generation-skipping transfer n. A grant of assets to a grandchild or other GAAP See generally accepted grantee who is more than one genera- accounting principles. tion removed from the grantor. GAAS See generally accepted audit- generation-skipping transfer tax n. ing standards. A tax assessed upon a generation- skipping transfer. gag order n. In litigation, a court’s order to the parties and witnesses not to generation-skipping trust n. A trust speak to the press or public about the created for the purpose of carrying out a case. generation-skipping transfer. gain n. The profit on a sale (the selling generic adj. In trademark law, a term price minus costs). or phrase that is merely descriptive and cannot be trademarked; with pharmaceu- capital gain. In tax law, the taxable ticals or other products, a non-trade- profit realized from the sale or marked equivalent offered in competition exchange of real property, stock, or against a brand-name product. other capital property. generic-drug law n. A law allowing garnish v. To seize a debtor’s prop- pharmacists to offer customers less erty, held by a third party, in order to expensive generic drugs when filling recover a debt; commonly against prescriptions for a brand-name drug. debtor’s earnings from an employer. generic name n. A word or phrase garnishee n. An individual or entity in that cannot be trademarked because it is possession of a debtor’s property or only descriptive of a product or service. monies that a creditor seeks to garnish. genetic mother n. The mother who garnishment n. In litigation, a judi- provided the egg from which an embryo cial process in which a creditor seeks developed and, therefore, contributed to the seizure of a debtor’s property, held in the genetic makeup of the ensuing child. possession by a third party. gentlemen’s agreement n. Colloquial. garnishor n. A creditor who brings an An unwritten agreement, not enforce- action of garnishment. able by law but backed by the parties’ GATT See General Agreement on good faith. Tariffs and Trade. germane adj. Pertaining to the sub- General Agreement on Tariffs and ject matter at hand. Trade n. An international agreement gerrymandering v. Apportioning leg- governing imports and exports; prede- islative districts in a way calculated to cessor to the World Trade Organization. give an undue advantage to a political 10_542109 ch07.qxp 3/28/06 12:17 PM Page 148

gift 148

party, by concentrating its members or good faith exception n. A doctrine separating those of another party from that evidence may be introduced at trial, one another; implies lines drawn in an despite the invalidity of a warrant for its otherwise illogical way. seizure, if the police acted in the good faith belief that the warrant was valid. gift 1 n. Property given as a present. 2 v. The action of making a present of goods n. Items of personal property property. offered or sold in commerce. class gift. A gift made to a group of Good Samaritan doctrine n. The doc- persons, the number of whom is trine that an individual reasonably act- determined at the time of the gift. ing to rescue or aid another shall not be gift causa mortis. (Latin.) A gift held liable for contributory negligence in made by a donor in the expectation causing injury to the person aided. that he or she will die soon after. Good Samaritan law n. A state law gift over. A gift that becomes effec- protecting from lawsuits individuals tive only upon the expiration of a who reasonably attempt to rescue or aid prior transfer (such as a life estate). another; designed to encourage public acts of assistance. inter vivos gift. An irrevocable gift made during the owner’s lifetime. goods and chattels n. Personal prop- testamentary gift. A gift made by erty. will. government n. 1 The political organi- gift tax n. A tax levied on the value of zation by which a state or nation is 2 property given as a gift, imposed upon ruled. In criminal cases, the prose- the donor of the gift. cution is occasionally referred to as the government. give v. To make a gift; to transfer grade n. property to another without payment; to A level of seriousness of a grant something to another. crime, which assists in determining the sentence to be given. going concern n. A business that is grand adj. being actively conducted. An offense that involves an aggravating factor, such as the theft of a good behavior n. In criminal sentenc- larger sum or the use or threat of force, ing law, the conduct by a prisoner that and, therefore, warrants a higher sen- may justify a reduction in his or her sen- tence; for example, grand larceny. tence. grand larceny v. The taking, with good cause n. A necessary showing intent to keep, of property valued above by a litigant to convince a court to issue a certain dollar amount which varies an order favorable to that litigant. from one jurisdiction to another. good faith n. A party’s state of mind grandfather v. To include a person or in acting or carrying out an action or entity in the benefits conferred by a transaction, evincing honesty, fairness, grandfather clause. full communication of any hidden issues grandfather clause n. or information, and an absence of intent A legislative to harm other individuals or parties to provision stating that anyone who has the transaction. previously enjoyed a particular status 10_542109 ch07.qxp 3/28/06 12:17 PM Page 149

149 gun-control law

may continue to do so, despite a change in ance due from the defaulting party. 2 the applicable law or rules denying that v. To promise to make good in the event status to anyone newly applying for it. of a default by a party to a contract by paying the money or providing the per- grant 1 n. A transaction in which a formance due from the defaulting party. grantor transfers a subset of his or her own rights in property; the rights so guarantor n. One who makes a guar- transferred. 2 v. To transfer rights in antee. real or personal property; in litigation, accession by the court to a party’s guaranty See guarantee. request made by motion or pleading. guardian n. An individual designated grantee n. The recipient of a grant. by law to care for another’s person and property because of the former’s incompe- granting clause n. The section of a tence to make his or her own decisions. contract that sets forth the terms of a grant. guardian ad litem n. Representative appointed by a court to protect and rep- grantor n. The individual or entity resent the interests of one incapable of making a grant. acting on own behalf, such as child or incompetent person. grantor trust n. A trust whose maker retains control over the management of guest statute n. A law that bars, or the trust assets and the distribution of strictly limits, a nonpaying guest in a its income. private vehicle from suing the driver for damages resulting from an accident; gravamen n. The substance or core such laws vary from state to state and argument of a legal document or posi- are now rare. tion taken. guilt phase n. In a criminal trial, the green card n. An identification card portion of the trial in which the defen- granted by the United States Immigration dant’s guilt is adjudicated, as opposed to and Naturalization Service to legal, per- the portion in which a sentence is deter- manent residents. mined for a defendant who was found greenmail n. The act of purchasing guilty in the prior phase (the sentencing shares in a publicly traded company that phase). could be used to support a hostile guilty n. The state of being deemed takeover, and then selling them back to responsible for the commission of a the company at a profit. crime, either as a result of a plea or the grievance n. In labor law, a complaint adjudication of a judge or jury. filed with or by a union to challenge an gun-control law n. A statute regulat- employer’s treatment of one or more ing the private ownership of firearms. union members. ground lease n. A lengthy lease of real property (often for 99 years). guarantee 1 n. A commitment by a third party to make good in the event of a default by a party to a contract, by pay- ing the money or providing the perform- 11_542109 ch08.qxp 3/28/06 12:17 PM Page 150

hard labor n. Physical work imposed on prisoners as an aspect of punishment. hardship n. The difficulty or distress resulting to an individual or entity from a court decision, zoning decision, or pas- sage of a law; taken into account as one H factor in an equity proceeding. harmless error n. A mistake by the judge that does not interfere with a party’s rights or remedies and that, therefore, does not warrant reversal of the decision. habeas corpus n. In criminal proce- hate crime crime dure, a process to challenge the deten- See . tion of a prisoner; frequently used as a hate speech n. Speech not protected way to attack a conviction in federal by the First Amendment, because it is court when state appeals have been intended to foster hatred against indi- exhausted. viduals or groups based on race, reli- habendum clause n. In real estate, gion, gender, sexual preference, place of the language in a deed setting forth the national origin, or other improper classi- interest being granted and any limita- fication. tions upon it. headnote n. A note prepared by an habitability n. In real estate, the con- editor and placed in front of the pub- dition of being amenable for occupancy; lished version of a court decision, ana- the absence of conditions that would lyzing or summarizing the facts, interfere significantly with a tenant’s precedents, and legal impact of the deci- ability to occupy the premises. sion. head of household n. halfway house n. A transitional facil- The individual ity to which convicted criminals are providing the primary support for a fam- paroled for some period of time, in ily. advance of full release into the commu- hearing n. 1 In litigation or adminis- nity. trative procedure, any proceeding in hand down v. For a judge or court to which the parties have the opportunity release a decision upon a motion or at to present evidence or testimony to the fact-finder. 2 the resolution of a trial or appeal. court or In legislation, a session at which legislators hear wit- hand up v. For a grand jury to process nesses on the advisability or efficacy of an indictment of an accused. proposed legislation. hanging judge n. Pejorative. A judge hearsay n. An out of court statement who has the reputation of applying offered for the truth of the matter overly harsh sentences in criminal asserted. Testimony of a witness as to cases. statements made by another individual who is not present in the courtroom to harassment n. Unjustifiable conduct, testify; generally not admissible typically persistent and repetitive, because of unreliability (the hearsay aimed at an individual, that causes dis- rule), but there have been many signifi- tress or discomfort. cant exceptions to the rule, where there 11_542109 ch08.qxp 3/28/06 12:17 PM Page 151

151 homicide

are certain indicia of reliability. See also holder in due course n. Under the excited utterance. Uniform Commercial Code, one who has given value in exchange for the posses- heat of passion adj. characterization sion of a negotiable instrument and is of acts done while actor is in state of unaware of any defects in title. extreme stress or explosive anger. See also voluntary manslaughter. hold harmless v. To indemnify another against financial liability arising from a heir n. Colloquially used to refer to transaction. anyone who inherits under a will or oth- erwise. holding n. The decision of a court or judge; the reasoning underlying such a collateral heir. A descendant through decision. an indirect line, such as the issue of a sibling or cousin. See also issue. holding company See company. heirs and assigns. Archaic. A phrase holding period n. The period for formerly necessary for the creation which an asset must be held to be enti- of a fee simple. tled to the more favorable capital-gains lineal heir. An heir who is above or tax rate. below the decedent in the direct line holdover n. The act of staying beyond of descent, such as a parent or the end of a lease. child. holograph n. A handwritten docu- hereditary succession n. Inheritance ment. pursuant to the common-law doctrines of succession. holographic will n. A will set forth completely in handwriting; many states hidden defect n. A defect not discov- do not recognize such documents as erable by a reasonable inspection by the valid, while others recognize the validity purchaser. only if the entire instrument is written hidden tax n. A tax on goods that is in the handwriting of the deceased. passed to the consumer in the form of home rule n. The allocation of power higher prices. to local governments over matters that hijack v. To take over control of a might otherwise be regulated at the vehicle or airplane by use of the threat of state level. force. homestead n. Houses, other build- hit-and-run statute n. A state law ings, and land comprising a residence. requiring a car involved in an accident homicide n. The killing of a human not to leave the scene, pending the being, committed by another. arrival of the authorities. justifiable homicide. The killing of a HLA test n. abbr. A paternity test uti- human excused by the law as appro- lizing genetic material. priate or necessary; for example, in self-defense. holder n. An individual or entity that has ownership or legal possession of a negligent homicide. The killing of negotiable instrument, security, or other another by an act of irresponsibility document of title. or lack of attention to duty, rather than by intentional act. 11_542109 ch08.qxp 3/28/06 12:17 PM Page 152

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vehicular homicide. The killing of hung jury v. For a jury to be dead- another by operation of a motor locked and unable to reach a verdict. vehicle; generally the driver’s acts must be more than just negligent; husband-wife immunity See spousal for example, in a motor vehicle acci- immunity. dent arising from the intoxication of hypothecate v. To grant a security the driver, where another is killed. interest in something as collateral for a horizontal privity See privity. debt. hornbook n. Colloquial. A law text- hypothetical question n. A question, book, often one relied upon as authori- based on assumptions rather than facts, tative in the field. directed to an expert witness intended to elicit an opinion. hornbook law. adj. A term used to char- acterize a proposition of law that is so basic and well-known that it is accepted without further proof or citation. hostile possession n. Possession in derogation of the owner or others who have conflicting rights in property. hostile witness n. A witness who is expected to make assertions that are adverse to those being set forth by the party calling the witness. Because of the adverse nature, the questioning lawyer is given wide latitude to question the hostile witness by way of leading ques- tions, not ordinarily permitted on direct examination. Typically called to estab- lish the truth of matters that cannot be proved through a friendly witness. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 153

immediate cause See cause. immigration n. The act of entering a country with the intention of remaining there permanently. immunity n. 1 An exemption from a duty or penalty. 2 A permanent status, I as for a diplomat, exempting one from being sued or prosecuted for certain actions. 3 A special status, granted by a prosecutor, exempting a witness from being prosecuted for the acts to which he or she testifies. ibid. abbr. Latin. When citing a work, sovereign immunity. The doctrine indicates that the citation is to the same (subject to certain exceptions) that volume and page as the previous cita- a government may not be sued in its tion. own courts or in courts of another nation or level of government; many ICC abbr. See Interstate Commerce limitations on this doctrine apply Commission. and vary from state to state. Sometimes referred to as govern- id. abbr. Latin. Like ibid., indicates mental immunity. that a citation is identical to the imme- diate past one. transactional immunity. A grant of immunity to a witness by a prosecu- identity n. A sameness between two tor that exempts the witness from items or designs such that one violates being prosecuted for the acts about patent rights held by the other. which the witness will testify. ignorantia juris non excusat Latin. use immunity. A grant of immunity Ignorance of the law is no excuse; typi- to a witness by a prosecutor, under cally refers to criminal charges, in which the prosecutor promises not which such ignorance is not a cogniz- to use the witness’ testimony able defense. against him or her, but reserves the right to prosecute the witness for illegally obtained evidence n. Evi- the underlying action. dence obtained in violation of a law or a constitutional requirement. impact rule n. The rule that a plaintiff cannot claim damages for negligent illegitimacy n. The status of being infliction of emotional distress unless born to parents who are not married to there has been some physical impact, one another. such as an assault. Example: a parent of a child injured in an auto accident illegitimate adj. 1 Of a child, that he or cannot recover for his/her own distress she was born to parents not married to in seeing child physically injured, unless one another. 2 Wrongful or unlawful. parent also sustained own physical illusory adj. Deceptive or insubstan- injury. tial. impair v. Of property or a contractual illusory promise. A promise to do right, to interfere in such a way as to something that is unenforceable diminish its value. or meaningless because the promisor has means of avoiding the commitment. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 154

impeachment 154

impeachment n. 1 An attack on the impossibility n. The condition of credibility of a witness for reasons relat- being unable to happen or to be ing to prior inconsistent testimony or achieved. evidence of lying. 2 An administrative procedure, defined in the United States factual impossibility. Of an act that Constitution, under which the president cannot physically be done. or another government official is legal impossibility. In criminal law, a brought up on charges and tried by the defense to charges on the basis that Congress, and, if convicted, is removed the acts committed were not illegal. from office. In civil law, an act which is impos- impertinent matter n. Irrelevant sible by operation of law or rule, material in a pleading. such as an attempt by a minor to enter into a binding contract. impleader n. A procedure under impound v. which one of the parties brings in a third To take personal property party, typically in an attempt to hold the (such as an automobile) into police or third party liable on a claim or counter- judicial custody, pending further pro- claim made against the party who is ceedings. bringing in the third party. impoundment n. The condition of implication n. An inference. being taken into police or judicial cus- tody, pending further proceedings. implied adj. Of something that is improvement n. inferred, rather than plainly expressed. A modification to real estate that increases its value. implied authority n. Authority of an impute v. agent inferred from surrounding circum- To infer or attribute respon- stances, such as the principal’s previous sibility or causation. acquiescence to the exercise of similar imputed income See income. authority. in absentia n. Latin. In the absence implied consent See consent. of. implied contract n. A contract inalienable adj. Of property, that it inferred from the actions of the parties. cannot be sold or assigned; of rights, that they cannot be abrogated. implied easement See easement. in camera n. Latin. implied notice See notice. In the judge’s chambers; implying a private, closed, or implied power n. A political power informal hearing or conference before not expressly named in a constitution the judge. but that is inferred because it is neces- incapacity n. 1 sary to the performance of an enumer- A lack of physical or 2 ated power. mental ability or standing. Inability to take actions that are legally effective, implied warranty See warranty. such as signing a contract, due to age, mental status, or other factors. import 1 n. A product brought in the course of commerce into a country other incendiary n. 1 An arsonist. 2 A than the one in which it originated 2 v. bomb or combination of chemicals used The process of bringing in such products. to start a fire. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 155

155 indecency

inchoate adj. Commenced but not legal capacity to understand the charges completed, partially done, generally against one and to participate in one’s used in contract law to describe an own trial. undertaking which has been agreed upon, but as to which all necessary for- incompetent adj. 1 Of evidence, that malities (for example, signatures on the it is not admissible. 2 Of a witness, document) have not been completed. that he or she is not permitted to testify, on the grounds that his or her testimony income n. Money received for services is not relevant or is subject to some performed, products sold, as interest on other disqualification. investments, as royalties on inventions or creative works, or generally in incompetent evidence n. Evidence exchange for some performance or con- that is not admissible. sideration. inconsistent adj. Of an assertion, that adjusted gross income. Gross income is contradictory or not supported. minus deductions permitted by the Internal Revenue Code. incorporate v. 1 To form a business corporation. 2 To include or merge gross income. Income prior to any something into something else. exemptions, exclusions, or deduc- tions. incorporation n. 1 The process of forming a business corporation. 2 The imputed income. The doctrine that, doctrine that the Bill of Rights is applied under certain circumstances, a tax- payer realizes taxable income as a to the states by inclusion in the result of the use or consumption of Fourteenth Amendment right of due his or her own property. process. income in respect of a decedent. incorporeal adj. Having no tangible Income due to a person before death existence. but not collected until afterward. incorrigible child n. A child who can- net income. Income after all exemp- not be managed by his parents or tions, exclusions, and deductions. guardians. ordinary income. Income from rou- increment n. A measurable or tine or everyday activities, such as metaphorical increase in quantity or the operations of a business or the labor of an individual. quality. taxable income. Same as net income. incriminate v. To reveal someone’s involvement in criminal acts. income statement n. An accounting document setting forth the income and inculpatory evidence n. Evidence expense of a business organization over establishing the guilt of the accused. some period of time. indebtedness n. 1 The condition of income tax n. A tax on the net income owing money to another. 2 The money of an individual or business entity. owed. incompetency n. 1 Absence of legal indecency n. Of speech, the state of capacity to perform certain acts, such as being crude and offensive, typically in a testifying at a trial. 2 Absence of the sexual manner. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 156

indecent 156

indecent adj. Of speech, that it is indictment n. 1 A charge made by a crude and offensive, typically in a sexual grand jury against a defendant. 2 The manner. process of making such a charge. indecent exposure n. Publicly dis- indigency n. 1 A state of poverty. 2 playing portions of one’s body, especially In criminal/constitutional law, the state the genitals, that are usually covered by of not being able to afford an attorney. clothing. indispensable evidence n. Evidence indefeasible adj. Of a right, that it that is necessary for the proof of a par- cannot be cancelled or defeated. ticular assertion. indefinite failure of issue n. indispensable party n. A party who Language used in wills to denote a must be included in the case, due to the descendant’s death without children at inevitablity of his or her interests being any time in the future, with no time lim- affected by the court’s judgment in itation applied. same. in delicto Latin. In the wrong. individual retirement account n. A tax-deferred retirement account estab- indemnify v. To promise to make good lished by federal law. The portion of another’s financial loss or liability annual income contributed to the resulting from a particular event or con- account is not taxed until it is drawn out tingency. after retirement age. Abbreviated IRA. indemnity n. 1 A duty, typically aris- indorsee n. The person to whom a ing from contract, in which one prom- negotiable instrument is assigned by ises to make good another’s financial indorsement. loss or liability, resulting from a particu- lar event or contingency. 2 The act of indorsement n. 1 The act of placing a making good another’s financial loss or signature on the back of a negotiable liability, resulting from the occurrence instrument in order to assign it to an of a particular event or contingency. 3 indorsee. 2 The signature itself. The injured party’s right to claim pay- ment from the party with the duty. accommodation indorsement. A signa- ture by a third party who is neither indenture n. A document such as a the payor or the payee, but is act- mortgage or deed of trust, which pro- ing to guarantee payment by the vides for security for a financial obliga- former. tion, and which sets forth essential blank indorsement. A signature that terms such as interest rate and due date names no payee, thereby making or maturity date. the instrument payable to the bearer. independent contractor n. See con- tractor. restrictive indorsement. An indorse- ment placing special conditions indictable offense n. A level of crime upon the assignment of the instru- for which a defendant must be indicted ment. by a grand jury in order to be prosecuted (typically a felony). 12_542109 ch09.qxp 3/28/06 12:17 PM Page 157

157 injunction

special indorsement. An indorsement information and belief n. In litiga- naming the payee (or, for a transfer tion, language traditionally used in an of goods, the person to whom they affidavit to denote that the deponent has must be delivered). received from others, and believes, the information that he or she is communi- indorser n. A person who assigns a cating. negotiable instrument to another by indorsement. information return n. A tax return intended to communicate information inducement n. In contract law, the about the taxpayer’s activities or status material reason for undertaking certain to the Internal Revenue Service, but obligations. In criminal law, motive or upon which no tax is due. that which leads to the commission of a crime. informed consent See consent. ineffective assistance of counsel n. informer n. One who, privy to the Basis for appeal of criminal conviction, commission of a crime, confidentially on grounds that lawyer did not properly communicates with the police or other represent the defendant. governmental entity about it. in extremis Latin. Upon the point of infra adj./adv. Latin. See below; refer- dying. ring to the placement of a particular citation or assertion in a text. infamous crime See crime. infringement n. Violation of a copy- infancy n. 1 The earliest stage of right, patent, or trademark. childhood. 2 More generally used to describe a person prior to the age of in futuro adv. Latin. In the future. majority. ingress n. 1 The action of entering inference n. A logical conclusion land or premises. 2 Access to land or drawn from available facts; the process premises. of arriving at such a conclusion. inherent power n. A power that must infirmity n. Debility caused by ill be deemed to exist in order for a partic- health or advanced age. ular responsibility to be carried out. informal proceeding n. Any adversar- inherit v. To receive a transfer of ial proceeding designed to be conducted property under intestacy laws, or as a rapidly and with a minimum set of pro- bequest, upon the death of a relative. cedural requirements; for example, a trial in small-claims court. inheritance n. 1 Property received via bequest or intestate succession. 2 The in forma pauperis Latin. In litigation, act of receiving such property. to proceed as an indigent. Abbreviated i.f.p. initiative n. An electoral process available in some states in which citi- information n. A criminal charge, typ- zens vote on proposed legislation. ically for a lesser offense, that is filed by a prosecutor without resorting to a injunction n. A judge’s order to a grand jury. party compelling or prohibiting certain described conduct. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 158

injury 158

mandatory injunction. An injunction in posse adv. Latin. Latent; not cur- compelling a party to perform an rently in existence. action. in praesenti adv. Latin. Currently; at permanent injunction. An injunction present. granted after a trial on the merits, which forms part of the final judg- inquest n. 1 An inquiry into a suspi- ment in the case. cious death conducted by a coroner or 2 preliminary injunction. An injunction medical examiner. An inquiry into a granted before trial, to preserve the particular subject matter by a special 3 status quo pending the court’s final jury. A judge’s determination of determination. Also known as an damages after a defendant’s default. interlocutory injunction. inquest jury n. A jury empanelled to injury n. A violation of rights, or harm investigate the circumstances of a inflicted on an individual, for which death. damages or relief may be sought in in re Latin. In regard to. Used in the court. title of cases involving an interest in in kind adv. Payment made in goods property. or services, rather than in cash. in rem adj. Latin. Pertaining to a in limine adv. A motion presented at thing or to property. Litigation in rem in personam the outset of a case to determine the (as opposed to ) determines admissibility of certain evidence. the respective rights to property that has been brought before the court. in loco parentis adj./adv. Latin. quasi in rem. A type of case initiated Acting in place of a parent. by the seizure of property that is inmate n. within the court’s jurisdiction, as a An individual confined in a step toward obtaining monetary correctional or psychiatric institution. damages against an individual who innuendo n. Latin. 1 is outside the jurisdiction of the An indirect or court. suggestive remark, usually a disparage- ment of someone. 2 A section in a insanity n. A mental disorder that libel pleading explaining the plaintiff’s deprives a criminal defendant of capac- construction of the defendant’s allegedly ity to be tried. libelous utterances. insanity defense n. A defendant’s in pais adv. Archaic. Outside of court. assertion that a mental disorder excuses the defendant from legal in pari delicto adv. Latin. At equal responsibility for a crime. fault. insolvency n. The status of being in pari materia adj. Latin. On the unable to pay one’s debts when due. same topic or pertaining to the same subject matter. inspection n. A detailed examination of objects, such as goods or discovery in perpetuity adv. For eternity; with- materials, to determine qualities such out limit of time. as fitness, relevance, or consistency in personam adj. Latin. Pertaining to with a prior description. a person or personal rights or interests, as opposed to in rem. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 159

159 interest

installment n. A partial payment of a insured n. A person who pays for and debt scheduled to be made at regular receives the prospective benefit of an intervals. insurance policy. installment contract See contract. intangible n. Impalpable; not capable of being touched or otherwise detected installment sale n. A contract for the by the senses. sale of goods such as furniture, in which the purchaser makes periodic payments integration n. 1 The merger of all and the seller retains a security interest agreements and understandings in the goods until paid in full. between parties pertaining to a particu- lar subject matter into a single written instrument n. A written legal docu- agreement. 2 The removal of racial ment defining the parties’ rights and lia- barriers in society, providing equal bilities to one another. access to all public facilities. negotiable instrument. Under the intendment n. The legislature’s inten- Uniform Commercial Code, a writing that reflects an unconditional prom- tion in passing a particular law. ise to pay, such as a check or note, intent n. 1 The perpetrator’s frame of but does not also include security for the payment. mind in committing an criminal act. 2 The wishes and desires of the framers of insufficient evidence n. Evidence so the United States Constitution or of inadequate to prove an assertion that it legislation. will not even support a presumption. original intent. The view that the insurable interest See interest. United States Constitution should be strictly construed in light of the insurance n. An agreement by an framer’s intentions, rather than with insurer to provide compensation or modern values and interpretations. another benefit upon the occurrence of a intentional infliction of emotional dis- specified risk causing harm to property tress v. Intentionally causing another or the person of an insured. person extreme psychological suffering casualty insurance. Insurance for through one’s actions. loss or injury to person or property. inter alia adv. Latin. Among others. indemnity insurance. Insurance which protects against loss, as interest n. 1 Ownership of, or other opposed to insurance against one’s right in, property. 2 Legitimate con- liability to others. cern with the outcome of a case or con- troversy, because of a likelihood that the liability insurance. Insurance which outcome will affect one’s property rights protects against one’s liability to or other rights or privileges. 3 others, as with automobile insur- ance that provides coverage for Compensation for making a loan, plac- accidents in which the policyholder ing money on deposit, or other use of is at fault, or homeowners’ insur- funds, expressed as a percentage of the ance, which provides coverage for principal, calculated and payable on a injury to those who are injured regular schedule. while on the homeowner’s property. compound interest. Interest calcu- life insurance. Insurance for loss of lated both on the principal and on life. previously accrued interest. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 160

interim relief 160

Insurable interest. A legal interest in in terrorem clause n. A provision in a the safety of property or the health contract or will that warns a beneficiary and wellbeing of another person or party not to engage in certain behav- sufficient to permit the purchase of ior, by providing a prospective penalty an insurance policy. for such behavior. interim relief n. Preliminary relief, inter se Latin. Among themselves. such as an injunction, granted by the court to preserve the status quo pending interstate commerce n. Business, trial. including the sale of goods, conducted across state borders. interlocutory adj. Of an order, that it is temporary, pending a trial on the mer- Interstate Commerce Commission its. n. A federal agency, no longer in exis- tence today, that regulated interstate interlocutory order n. A preliminary carriers. order granted by a court pending a trial on the merits. intervening cause n. An event that interrupts the chain of causation by pro- Internal Revenue Service n. A fed- viding an independent cause of the final eral government agency charged with result, possibly relieving the original the collection of income taxes. actors of liability. Abbreviated IRS. intervention n. A procedure under international agreement n. A con- which a nonparty who has a significant tract or treaty signed by two or more interest in the outcome of a case enters sovereign nations. into and becomes a party in the case. International Court of Justice n. A inter vivos adj. Latin. A conveyance tribunal established by the United of property between living parties and Nations to hear cases submitted by the not by bequest. consent of United Nations members. intestate adj. The condition of having international law n. The entire body died without a will. of rights and responsibilities existing between nations, including treaties and intestate succession n. The process customs. used to distribute the property of one who died without a will. interpleader n. 1 An action by the neutral custodian of property to deter- in toto adv. Latin. In entirety. 2 mine its proper owner. One who intoxication n. The condition of being brings such a suit. mentally or physically impaired due to interrogation n. The detailed ques- the ingestion of alcohol or drugs. tioning of a suspect by the police or intrinsic evidence n. Evidence appear- other law-enforcement authorities. ing within a written document. interrogatory n. discovery A form of intrinsic fraud n. Fraud in a party’s involving the submission of written conduct of a prior litigation. questions to the other party. inure v. 1 To be given or to be attrib- in terrorem adj./adv. Latin. A charac- utable to. 2 To become used to. teristic marked by threat or warning. 12_542109 ch09.qxp 3/28/06 12:17 PM Page 161

161 itemized deduction

invalid adj. Legally ineffective; irrelevant adj. With evidence or testi- unfounded. mony, not pertinent to the claims or defenses in the case. invasion of privacy n. 1 An unjustifi- able intrusion into one’s personal affairs irreparable injury n. An injury not and information. capable of being redressed by money damages, and that therefore supports a invest v. 1 To grant authority. 2 To request for injunctive relief. place money in an income-producing opportunity. irresistible impulse test n. A form of insanity defense in which the defendant investment tax credit n. A provision must establish that he or she was inca- of law, now largely repealed, that per- pable of resisting the urge to commit the mitted a portion of the purchase price of crime. capital goods to be utilized as a credit against income taxes. IRS See Internal Revenue Service. invitee n. One who enters upon prem- issue n. 1 A question of law or fact ises with the permission of the owner. disputed by the parties. 2 In estate law, the descendants of a common involuntary adj. Performed against ancestor; offspring. one’s will. collateral issue. Incidental to the involuntary bailment See bailment. central issue in a matter. involuntary confession See confession. material issue. An issue which directly bears on the outcome of a involuntary manslaughter See man- matter; significant to the determi- slaughter. nation of a fact in dispute. ipse dixit Latin. Asserted but itemized deduction n. A deduction unproven. listed separately as a line item on an ipso facto Latin. As a matter of fact. income tax return. IRA See individual retirement account. IRC abbr. Internal Revenue Code. Contains the current federal tax laws and is located in Title 26, United States Code. 13_542109 ch10.qxp 3/28/06 12:18 PM Page 162

joint account n. A bank account in the name of two or more individuals, each of whom has an undivided right to the entire balance. joint and several liability n. Responsibility for a loss that is borne both individually and collectively by a J group of defendants. joint custody See custody. joint enterprise n. 1 In criminal law, a conspiracy or cooperation of two or 2 J. n. abbr. Judge or justice. more individuals to commit a crime. In tort law, a business enterprise con- jail n. A confinement facility whose ducted by several individuals, who each inmates are individuals awaiting trial or share in the liability arising from their convicted of lesser offenses. activities. J.D. n. abbr. Juris Doctor (a law joint liability See liability. degree). joint ownership n. Undivided owner- Jencks material n. Written or ship of the whole of an asset by two or recorded statements by a prosecution more individuals. Upon the death of any witnesses that must be disclosed to the one, his or her rights pass to the surviv- defense. ing owners rather than to the heirs of the decedent. jeopardy n. A defendant’s risk of pun- ishment. joint return n. A tax return filed by a husband and wife, each of whom is indi- JJ. n. abbr. Judges or justices. vidually liable for the entire tax due. joinder n. The combination of sepa- joint-stock company See company. rate parties or claims into a single law- suit. joint tenancy See tenancy. compulsory joinder. The required joint tortfeasors n. Two or more indi- joinder of a party without whom a viduals or entities who contributed dispute cannot be fully resolved. jointly to the harm suffered by the plain- tiff and who may be held individually or misjoinder. The joining of a party who is not properly a part of the collectively responsible. case. jointure n. Archaic. A life estate that nonjoinder. The failure to join a reverts to a wife after her husband’s party who should be part of the death. case. joint venture n. An unincorporated permissive joinder. The optional join- business venture with two or more par- der of parties or claims because of ticipants who share the financial risk an overlap in the issues or interests and gain. involved. journalists’ privilege n. A law or doc- joint adj. An ownership interest or trine, arising out of the First expectation shared by two or more indi- Amendment, that shields reporters from viduals, as in a bank account or an estate. 13_542109 ch10.qxp 3/28/06 12:18 PM Page 163

163 judgment

being compelled to name confidential owes money but do not have judg- sources in court proceedings. ments. Judgment creditors may be entitled to preferential distribution joyriding n. The temporary appropria- of a debtor’s money if there are insuf- tion of another’s vehicle for use, typi- ficient assets to pay all creditors. cally without the intention of selling or destroying it. judgment debtor. A debtor who owes money to a creditor who has J.P. See justice of the peace. obtained a judgment against the debtor in that amount. See judg- judge n. An appointed or elected offi- ment creditor. cial responsible for conducting a court in judgment docket. A roll or listing of which he or she resolves legal contro- judgments maintained by a clerk or versies. administrative office of a court. judge-made law n. Legal doctrine judgment in rem. A judgment that established by court decisions rather disposes of property, or resolves than by statute. competing interests in a piece of property, as opposed to a judgment judgment n. A court’s final resolution that is against a person ordering of the issues before it at trial or upon a payment of money. dispositive motion. judgment lien. A lien against prop- default judgment. A judgment erty that results from a judicial pro- entered due to the failure of the ceeding in which a monetary award defendant to answer or otherwise has been made and has been respond to the claim. reduced to judgment; until payment of the judgment, a lien will be deficiency judgment. A judgment in placed against all real property (and favor of a creditor following a forced some personal property) of the indi- sale of property, for the difference vidual or entity that owes payment between the amount owed and the of the judgment. amount collected as a result of the sale, so as to fully compensate the judgment non obstante veridicto. creditor. Latin. Judgment notwithstanding the verdict. In rare cases, a judge final judgment. A judgment which may enter a judgment in favor of fully ends a case, on its merits (as one party despite a jury’s award opposed to on procedural grounds). against that party; generally in A final judgment is generally neces- cases where the evidence was such sary before a party can file an that no reasonable jury could have appeal. come to the determination that it did. Abbreviated j.n.o.v. foreign judgment. A judgment of a different state or country than the judgment of conviction. The final one in which the judgment is being decision in a criminal case, which challenged or as to which enforce- includes the plea taken by the ment is sought. defendant, the verdict, any court findings, and the ultimate sentence. judgment creditor. A creditor who has obtained, through judicial process, a judgment of dismissal. A judgment judgment against a debtor; com- invalidating or otherwise disposing monly used in bankruptcy proceed- of the plaintiff’s or the prosecutor’s ings to distinguish such a creditor claims prior to a trial. from others to whom the debtor 13_542109 ch10.qxp 3/28/06 12:18 PM Page 164

judgment proof 164

judgment on the merits. A judgment judicial immunity n. The immunity issued after the parties have had a of a judge from civil action for official full chance to present evidence and activities. witnesses at trial. judicial notice n. Regarding evi- judgment on the pleadings. A judg- dence, the court’s acceptance of the ment that is issued on the pleadings alone, either on the basis that the truth of certain universally admitted plaintiff’s pleadings are inadequate facts without the necessity of proof. or that the defendant has failed to judicial restraint n. plead any fact that negates the The doctrine that plaintiff’s claims or raises an affir- cases should be decided on the narrow- mative defense. est possible grounds, without resolving unnecessary issues, especially political personal judgment. A judgment or social controversies. imposing personal liability on a defendant. judicial review n. A court’s power of review of the decisions of lower courts judgment proof adj. Of a defendant, or of the actions of other branches of that he or she has no assets against government. which a judgment may be executed. judiciary n. 1 The court system. 2 judicature n. 1 The administration of The branch of government in which justice via a court system. 2 The judges serve. 3 Collectively, the judges serving in such a court system. judges in a particular court system or in 3 The office and duties of a judge. all court systems. judicial activism n. A usually pejora- jump bail v. See bail jumping. tive phrase implying that a judge is applying his or her own political views, jural adj. Pertaining to law or legal rather than basing decisions on law or matters. prior precedent. jurat n. Latin. A certification at the judicial admission n. An admission bottom of an affidavit or deposition by a made by a party in court as to an oppos- notary public that states the paper was ing party’s assertion, or a failure to for- signed, and thereby sworn to, in his or mally dispute an assertion, resulting in her presence by the individual who that assertion being treated as an incon- signed it. trovertible fact in the remaining court jurisdiction n. 1 The power wielded proceedings. by a government over its subjects, their judicial discretion n. Of matters left property, and the land and natural within the personal choice of a judge, resources within its boundaries. 2 A not to be reviewed or overruled by a court’s authority over persons or prop- higher court. erty brought before or appearing before it. 3 The geographical area within judicial economy n. Efficiency in the which a government’s or a court’s power management of a particular litigation or may be applied. of the courts in general; refers to meas- ures taken to avoid unnecessary effort ancillary jurisdiction. The authority of a court to decide secondary or or expense on the part of the court or subsidiary claims raised by a case the court system. properly before it. 13_542109 ch10.qxp 3/28/06 12:18 PM Page 165

165 jury trial

appellate jurisdiction. An appeals subject matter jurisdiction. A court’s court’s power of review of the deci- authority over particular types of sions of lower courts. cases or of relief. concurrent jurisdiction. The overlap- Juris Doctor n. The law degree con- ping jurisdiction of two or more ferred by most American law schools. courts over the same cause of action. Abbreviated J.D. exclusive jurisdiction. The sole court n. 1 The study of the or forum in which an action may be fundamental structure of a particular heard or tried, as no other courts or legal system or of legal systems in gen- tribunals have authority over the eral. 2 A body of case law serving as person or the subject matter. precedent. federal question jurisdiction. The jurist n. 1. A judge. 2 A legal authority of the federal district scholar. courts to try cases that raise an issue of federal or constitutional juror n. An individual selected and law. sworn in to serve on a jury, deciding fac- in personam jurisdiction. The court’s tual issues in a civil or criminal case. authority over an individual who jury n. A group of individuals selected resides or is found within the court’s geographical area. and sworn in to serve as the finders of fact in a civil or criminal trial, or in the in rem jurisdiction. The court’s case of a grand jury, to decide whether authority to adjudicate rights in real the facts warrant an indictment of the or personal property located within defendant. the court’s geographical area. blue-ribbon jury. A jury for which jurisdictional amount. The minimum only highly educated individuals or maximum amount to invoke a have been selected, because they particular court’s jurisdiction over will be dealing with technical sub- the matter; in some lower courts, ject matter. e.g., small claims court, there may be a limitation above which relief grand jury. A jury selected and must be sought in a higher court; in sworn in by a prosecutor to deter- federal court, a minimum amount in mine whether to issue indictments. controversy is required in certain cases, e.g., diversity cases. petit jury. A jury selected to decide the facts in a trial (effectively, any limited jurisdiction. Jurisdiction over jury other than a grand jury). only certain types of cases, or claims under certain financial limits jury instruction n. An instruction or subject to other restrictions. given by the court to a jury at the con- original jurisdiction. A court’s status clusion of presentation of all evidence in as the first court that has authority a trial, and after the lawyers’ closing to hear a particular claim. arguments, to advise the jury of the law that applies to the facts of the case, and pendent jurisdiction. A court’s the manner in which they should con- authority over claims that would not duct their deliberations. ordinarily be brought before it, but that are secondary or subsidiary to jury trial n. A trial in which a jury will claims properly before it. serve as the finder of fact. 13_542109 ch10.qxp 3/28/06 12:18 PM Page 166

just compensation 166

just compensation See compensation. justiciability n. Of a claim or contro- versy, the condition of being suitable for jus tertii n. Latin. The rights of third adjudication by a particular court. parties affected by a controversy or claim. justifiable homicide See homicide. justice n. The balanced and equitable justification n. A showing of an administration of law. appropriate reason for one’s actions. justice of the peace n. A local offi- juvenile court See court. cial, not necessarily an attorney or judge, with jurisdiction over limited mat- juvenile delinquent n. A minor who ters such as performing weddings has committed criminal acts. or resolving minor civil or criminal complaints. 14_542109 ch11.qxp 3/28/06 12:18 PM Page 167 K

kangaroo court n. Pejorative. Of an unfair court, in which justice cannot be obtained. Keogh plan n. A tax-deferred retire- ment plan available only to the self- employed and their employees. key-number system n. A scheme of numerical classification of cases utilized by West Publishing Company in its legal treatises and case reporters. kickback n. A form of bribery in which a percentage of the revenues from a contract or other financial award is illicitly returned to the person awarding the contract or benefit. kidnapping n. The felony of abducting an individual by force. kin n. A relation, typically by blood; sometimes used to refer to relations by marriage or adoption. knowing adj. Conscious, deliberate, with cognizance of pertinent informa- tion. knowledge n. An awareness of factual information. Includes actual knowledge (positive or definite), personal knowl- edge (based on one’s own observation), and constructive knowledge (based on other circumstances). 15_542109 ch12.qxp 3/28/06 12:18 PM Page 168

land use planning n. Collectively: zoning, real estate permitting, planning and use, and those aspects of environ- mental law as apply to such real estate matters. lapse n. The termination or expiration of a right because it has not been exer- L cised or because of the occurrence or nonoccurrence of some contingency. larceny n. The wrongful appropriation of personal property with the intention of permanently depriving the owner of Labor Management Relations Act its possession and use. n. A 1947 federal law designed to pro- last clear chance doctrine n. The tect employers, employees, and the pub- doctrine that a plaintiff who committed lic. It governs union activities and contributory acts of negligence may provides an arbitration mechanism for nonetheless recover damages against a strikes that cause national emergen- defendant who had the last opportunity cies. Abbreviated LMRA. in time to avoid the damage. Very lim- laches n. Equitable doctrine that pre- ited applicability in most states. cludes or limits relief to one who delays last See will. in acting or bringing a claim. latent ambiguity n. An ambiguity that lame duck adj. Colloquial; often pejo- is not apparent from the wording of a rative. An elected official whose succes- document but is caused by external cir- sor has already been elected, and who is cumstances. serving out the remainder of a term. latent defect n. A hidden flaw that land n. 1 Real property. 2 An area cannot be readily ascertained from mere of ground with defined boundaries, observation. including minerals or resources below the surface and anything growing on or lateral support n. A person (in prop- attached to the surface. erty law) has the right to have his land supported at the sides by his neighbor’s landlord n. The lessor of real prop- land; the principle that an adjoining erty. landowner cannot alter the perimeter of landmark decision n. A decision that his property in such a manner that his is notable and often cited because it sig- neighbor’s land is adversely affected or nificantly changes, consolidates, weakened. updates, or effectively summarizes the law n. 1 The complete body of law on a particular topic. statutes, rules, enforced customs and Landrum-Griffin Act n. A 1959 fed- norms, and court decisions governing eral law regulating labor unions, for the the relations of individuals and corpo- purpose of reducing corruption in rate entities to one another and to the unions. state. 2 The subset of such statutes and other rules and materials dealing Lanham Act n. 1947 federal law that with a particular subject matter. 3 The defines and regulates trademarks. system by which such statutes and rules are administered. 4 The profession of interpreting such statutes and rules. 5 15_542109 ch12.qxp 3/28/06 12:18 PM Page 169

169 legacy

A bill that becomes effective after enact- notice in order to terminate, ment by the legislature and signature depending on local or state law. (or failure to veto) by the executive. net lease. Lease in which tenant lawful adj. Permissible; not contra- pays a rental amount for property, vening a law. plus additional obligations for utili- ties, taxes, etc. law of the case n. In appellate litiga- parol lease. Oral agreement for ten- tion, the doctrine that the decision in an ancy; see parol. earlier appeal is binding on the appeals court considering a later one in the same percentage lease. Business lease case. agreement whereby the amount to be paid is based on a specified per- law of the land n. Colloquial. The laws centage of tenant’s gross or net effective in a particular nation. profits; usually a minimum rental amount is stated. lawsuit n. A litigation or action brought in a court. See also suit. sublease. An agreement under which the lessee of real property conveys lay witness See witness. his rights, or some subset of them, to a third party. leading case n. Synonym for a land- mark decision. leasehold n. Generally, a tenant’s interest in the real property used or pos- leading question n. A question posed sessed pursuant to a lease. to a witness that is phrased so as to sug- gest or elicit a particular answer desired leave no issue adj. To die without by the attorney conducting the examina- children or descendant heirs (spouse is tion. not considered issue). learned treatise n. Book or treatise leave of court n. The court’s permis- regarded as authoritative, generally of sion to perform, or to forego, an act for long-accepted value within a profession which the court’s consent is required. or field of study. legacy n. A grant by will of personal lease n. An agreement in which the property or of money. right of occupancy or use of real prop- erty, or the right to use personal prop- alternate legacy. A legacy in which erty, is conveyed to another for a set the recipient is given a choice period of time in return for considera- among various items. tion, typically in the form of periodic contingent legacy. A legacy that payments. depends on an event that has not yet occurred. gross lease. Lease in which a tenant pays a flat sum inclusive of all utili- demonstrative legacy. A legacy paid ties and other expenses. from a particular source if there are sufficient funds. month-to-month lease. Rental of property without a long term con- general legacy. A legacy from the tractual obligation; in actuality, not assets or proceeds of an estate, a lease. May require one month’s paid in cash or in fungible personal property, such as stock. 15_542109 ch12.qxp 3/28/06 12:18 PM Page 170

legal aid 170

residuary legacy. A bequest of all legal tender n. A nation’s official property not specifically mentioned monetary bills and coinage. in will. legal title See title. specific legacy. A legacy that con- sists of a piece of property that is legatee n. One who receives property clearly distinguishable and separa- via a will. ble from the remainder of the prop- erty that forms the estate of the legislation n. 1 A bill being consid- testator. ered by a legislature that will become law if enacted. 2 The entire body of legal aid n. The free or inexpensive such bills under consideration or services of an attorney, provided to indi- already enacted as law by a legislature. viduals, typically criminal defendants, 3 The process of enacting bills into law. who are not otherwise able to afford an attorney. legislative history n. The legisla- ture’s intentions in enacting a bill into legal assistant n. A paralegal. law, as embodied in an explanatory doc- ument attached to the bill or in the legal capacity to sue adj. Right or record of debates pertaining to the bill’s ability to bring suit, determined by age enactment. and mental status in general. See also capacity. legislative intent n. The legislature’s intentions in enacting a bill into law, fre- legal duty n. A duty created by the quently derived from the legislative his- operation of law or arising from the tory. terms of a contract. See also duty. lend v. To provide something tem- legal entity n. Anything other than a porarily to another, often in exchange person that, by virtue of certain charac- for compensation. teristics, is conferred with a status that it has certain rights or obligations, can lessee n. The tenant of real property, sue or be sued. or holder of personal property, under a lease. legal fiction n. The assumption by the law that a particular assertion is true lesser included offense n. A more (even though it may not be) in order to minor category of criminal act (or one support the functioning of a legal rule. with a lesser penalty), all of the ele- ments of which are included in the more legal heir See heir. serious crime being charged. legal impossibility See impossibility. lessor n. The owner of real or per- sonal property, an interest in which is legal injury n. A harm caused by the granted by lease. infringement of a legal right. let v. 1 To consent to or allow. 2 To legal secretary n. A secretary rent or lease (something). employed by a lawyer or a law firm, whose expertise includes the typing and letter of credit n. A financial instru- filing of contracts, pleadings, or other ment, typically issued by a bank, in which legal documents. the issuing institution commits to pay a draft presented by a third party in a spec- legal separation separation. See ified format or meeting certain criteria. 15_542109 ch12.qxp 3/28/06 12:18 PM Page 171

171 liberal construction

letter of intent n. A non-binding sum- lex loci delicti n. Latin. The law of the mary of the proposed terms of a contract place where a wrong was committed. contemplated by the parties. liability n. 1 A legally enforceable letter ruling n. An advisory statement obligation. 2 More generally, a debt or issued by the Internal Revenue Service other legal obligation to pay an assessed to a taxpayer asking about the tax con- amount (for example, taxes). sequences of a proposed transaction. joint and several liability. Liability letters of administration n. A docu- that is jointly payable by multiple ment issued by a probate court appoint- parties, but that may (or must, ing an administrator for an estate. depending on jurisdiction) be paid in full by one or more of them if the letters of guardianship n. An others are not to be found or are entrustment of care of an incompetent incapable of paying their share. or child unto another, generally a lawyer joint liability. Liability that is jointly or officer of the court. payable by multiple parties, of which none may be required to pay letters rogatory n. Court order or sub- more than his or her share. poena issued in one jurisdiction, seeking to compel citizen of another jurisdiction primary liability. Liability for which to testify in the first jurisdiction; one is directly responsible, without requires court approval in second juris- the claimant being obligated to diction. resort to any other source for pay- ment. letters testamentary n. A document secondary liability. Liability that one issued by a probate court approving the is not obligated to pay unless the executor of a will. party with primary liability fails to make payment. leverage n. 1 Generally, the use of borrowed money to engage in transac- strict liability. In tort law, a financial tions with a high rate of return that will responsibility to compensate a allow repayment of the loan. 2 The harm in the absence of any negli- ratio between a company’s debt and gence; an absolute responsibility to equity. ensure the safe functioning of a dangerous instrumentality. levy n. 1 A tax or penalty. 2 The state’s acting of seizing and selling prop- vicarious liability. The liability of an erty to satisfy a tax or other liability. employer or supervisor for the acts of an employee, based on the lewdness n. Indecent behavior offen- employer-employee or supervisory sive to observers. relationship. See respondeat supe- rior. lex fori n. Law of the jurisdiction where an action is pending. libel n. 1 A false and defamatory statement expressed in writing or in an Lexis n. A computerized legal electronic medium. 2 The first docu- research service. ment or pleading filed in an admiralty action, which is now called a complaint. lex loci contractus n. Latin. The law of the place where a contract was signed liberal construction n. A loose or or is to be performed. expansive interpretation of a statute or writing, as opposed to a strict or literal construction. 15_542109 ch12.qxp 3/28/06 12:18 PM Page 172

liberty 172

liberty n. 1 Freedom from govern- lien theory n. The concept that a ment or private interference or con- mortgage is a form of lien on the prop- straints. 2 The ability to exercise the erty that does not grant the mortgagee rights enumerated by a constitution or any ownership rights until a foreclosure available or under natural law. occurs. license n. 1 The grant by the owner of life estate n. An estate held for the intangible or intellectual property, such duration of life of a person (usually, the as a trademark or software program, of occupant). the rights to make certain uses of the property. 2 A permission granted by life interest n. A property interest government to perform an act or service granted for the duration of a person’s regulated by law (for example, a license life. See life estate. 3 to fish or to practice law). A right life tenant n. The occupant of prop- to enter onto land or property and use erty under a life estate. it, without any ownership rights being conferred. like-kind exchange n. An exchange bare license. A license under which of property for other property of the no property is exchanged, and the same nature. licensee receives the right to not be limine out v. treated as a trespasser. Same as To exclude evidence social guest, or a hotel guest. from trial by the grant of a motion in lim- ine. exclusive license. A right to carry on an activity to the exclusion of all limitation n. 1 A restriction. 2 The others. act of placing a limit or restriction. 3 A condition or restriction placed upon licensee n. The recipient or grantee of real estate. a license; one who uses property sub- limitation of actions. Period of time ject to a license, as opposed to one who during which an action must be has been actually or constructively filed. See statute of limitations. invited onto the property, for the benefit of the owner of the property (invitee). statute of limitations. See statute of limitations. licensor n. One who grants a license. limited jurisdiction See jurisdiction. lie v. Available, to exist. Example: No cause of action will lie for trespass if the limited liability n. Liability upon landowner gave his permission to enter which limits are set by contract or by onto the land. statute. lien n. A security interest, held by a limited partnership See partnership. creditor in a debtor’s property, to secure a loan. lineage n. The overview or totality of the marriage and blood relationships attorney’s lien. See attorney’s lien. within a family, including the ancestors and descendants of a particular individual. mechanic’s lien. A lien against real property to secure payment of lineal adj. Regarding trusts and amounts owing to contractors, serv- estates, of a direct, as opposed to a col- ice people, etc., who performed lateral, descendant. work on the property. 15_542109 ch12.qxp 3/28/06 12:18 PM Page 173

173 long arm statute

lineal heir See heir. individual if he is no longer able to prop- erly communicate such desires. lineup n. A procedure in which the police show a witness a suspect and sev- L.J. n. abbr. Law journal. eral other individuals to see whether the witness can distinguish the suspect L.L.B. n. abbr. The law degree for- from other individuals not involved in merly granted by American law schools, the crime. most of which now confer the J.D. degree. liquidate v. 1 In bankruptcy or insol- vency, to terminate a business by the L.L.M. n. abbr. Master of Laws sale of its assets to pay its liabilities. degree. 2 To pay a debt. 3 To convert hard LMRA See Labor Management assets into cash. 4 To set, by contract Relations Act. or stipulation, a fixed amount for dam- ages resulting from a particular harm. loan n. The giving or granting of something, particularly a sum of money, liquidated amount n. To set by agree- to another, with the expectation that it ment a specific amount or a formula for will be repaid (typically with interest) or calculating such an amount, in compen- returned. sation for the losses resulting from a breach. loan-sharking n. Colloquial. The ille- gal business of lending money at usuri- liquidated damages See damages. ous rates, typically with the threat or lis pendens n. 1 A court’s authority use of violence to ensure repayment. over property resulting from a pending lockdown n. The confinement of pris- lawsuit. 2 A notice filed in a govern- oners to their cells for the duration of a ment office with the title documents per- security alert caused by events or condi- taining to real property, giving notice to tions at the prison. the public that the property is the sub- ject of a litigation. lockout n. An employer’s refusal to allow employees to work, in retaliation listing n. 1 In securities, the action of for union activity or a labor dispute. having a corporation’s securities regis- tered and traded on a particular locus n. Latin. The place or location of exchange. 2 In real estate, the action a thing or event. of registering a house, building, or land with a broker for sale. locus delicti n. Latin. The place where a crime was committed. litigant n. A party to a legal action. locus in quo n. Latin. The place litigation n. A legal action; the where an event allegedly occurred. process of bringing and carrying on a legal action. loitering n. The crime of being in a public place without a valid reason. living will n. A document signed by an individual directing manner in which he long arm adj. Of or pertaining to long wishes to be medically treated if in a arm jurisdiction or statutes. vegetative or terminal state, designed to give guidance to loved ones and health long arm statute n. A law providing care providers as to the desires of an for civil jurisdiction over a nonresident defendant based on his or her contacts with the jurisdiction. 15_542109 ch12.qxp 3/28/06 12:18 PM Page 174

loss 174

loss n. 1 The death of an insured per- lower of cost or market method n. In son or damage to insured property. 2 accounting, an approach under which The amount that the value of personal the value of goods held for sale is set at or real property exceeds the proceeds the lower of acquisition cost or market from its sale. 3 Generally, the com- price. plete or partial diminishment of the value of an asset or of a human life. lump-sum payment n. A payment made once in a single amount, as loss-of-bargain rule n. The concept opposed to smaller payments over time. that damages for breach of contract should put the plaintiff in the position he lying in wait v. The act of waiting in or she would have enjoyed if the con- concealment with the intention of killing tract had been fully performed. or committing serious physical harm upon a prospective victim. lost property n. Property no longer in the owner’s possession, due to accident or negligence, which cannot be located. 16_542109 ch13.qxp 3/28/06 12:18 PM Page 175

together by the majority of the mem- bers, and establishing the formal legal result of the case, as opposed to a dis- senting opinion. maker n. A person who issues a prom- issory note. M malfeasance n. An unlawful act, partic- ularly one committed by a public official. malice n. The state of mind of one intentionally performing a wrongful act. constructive malice. Malice which MACRS See Modified Accelerated can be imputed to the actor because Cost Recovery System. of the nature of the acts committed and the result thereby. magistrate n. A judicial officer of lim- ited jurisdiction or responsibility; collo- malice aforethought n. The requisite quially used as a synonym for judge. state of mind for murder to be charged under the common law, involving an Magnuson-Moss Warranty Act n. A intent to kill or to cause serious physical federal law that requires warranties of harm, depraved indifference to human consumer products to set forth their life, or an intent to commit another seri- terms, including limitations, in plain ous felony that results in a death. English. malicious arrest n. An arrest made mailbox rule n. 1 The rule that the for a dishonest purpose and lacking acceptance of a contract is effective probable cause. upon being mailed, unless the contract provides otherwise. 2 In litigation, the malicious mischief n. The intentional rule that a pleading is served as of the destruction or damaging of another’s date it is mailed. property. maintenance n. 1 Financial support malicious prosecution n. 1 The pur- paid by one ex-spouse to another pur- suit of a criminal proceeding for a dis- suant to a legal separation or divorce. honest purpose and without probable 2 The effort and expense of the upkeep cause. 2 The pursuit of a civil pro- of property. 3 To assist a party to a ceeding for a dishonest motive. lawsuit with which one has no connec- malpractice n. tion by providing financial or other sup- The negligent actions port to enable the party to pursue the of a professional, such as a doctor or matter. lawyer, as evinced by a failure to per- form services consistent with the stan- majority n. 1 The status of having dards of such profession. attained the age of adulthood as set by malum in se n. Latin. law. 2 More than fifty percent of a An act, such as total (usually referring to people in a murder, that is inherently evil or group voting in an election or on a mat- immoral. ter placed before them). malum prohibitum n. Latin. An act majority opinion n. The holding of a that is wrong solely because prohibited malum in se. court consisting of multiple members, by law, as opposed to typically an appellate court, issued 16_542109 ch13.qxp 3/28/06 12:18 PM Page 176

mandamus 176

mandamus n. A writ issued by a court marital communications privilege n. to compel a public official (including the A right not to give testimony concerning judge of a lesser court) to perform a task discussions with one’s spouse that may or duty. be asserted at the option of the witness spouse. See spousal privilege. mandate n. 1 The voters’ show of support, typically greater than a simple marital deduction n. An estate or gift majority, for a particular political candi- tax deduction for the value of property date or party. 2 A court’s order direct- that was assigned or has passed to the ing a lower court or judicial officer to taxpayer’s spouse. perform a particular action. marital property n. All property mandatory injunction n. See injunc- acquired during marriage, regardless of tion. how titled, that will be divided between the spouses in the event of a divorce. mandatory sentence n. See sentence. market price n. Actual price, that manifest weight of the evidence n. A which is available in ordinary course of doctrine under which a verdict will be free trade. overturned only if it is substantially unsupported by the evidence in the case. market value See fair market value. Mann Act n. A federal criminal law marketable title n. A real estate title penalizing the transporting of anyone in that lacks any defect discoverable by a interstate commerce for purposes of reasonable purchaser. prostitution. marriage n. The legal relation of a manslaughter n. The act of killing man and woman as husband and wife. another person without malice afore- thought. common-law marriage. Marital rela- tionship arising not from formal cer- involuntary manslaughter. The acci- emony but from intention to hold dental killing of another during the out as a married couple, combined commission of a crime or as a result with living together for a requisite of criminal negligence. period of years that may be speci- fied by statute; abolished in many voluntary manslaughter. Killing in states. the heat of passion. marshal n. 1 A federal court employee margin n. 1 The difference between with police-like powers who provides the amount of a loan and the market security, guards prisoners, and seizes value of the collateral securing it. 2 property in execution of judgments, Cash or other collateral given or paid to among other functions. 2 A state or a stockbroker to secure him or her local official with responsibilities like against losses incurred extending credit those of a sheriff. 3 Arranging in order of to an investor. 3 The investor’s equity priority or in a logical pattern. in stocks purchased by a broker extend- ing credit to the investor. martial law n. Civil law exerted over citizens by military, generally in times of marital agreement n. An agreement war or emergency. between spouses resolving issues per- taining to their joint and individual prop- Mary Carter agreement n. A device erty during the marriage and/or after for settling cases that involves multiple divorce. defendants, with one or more defendants 16_542109 ch13.qxp 3/28/06 12:18 PM Page 177

177 meeting

paying money to plaintiff in exchange for matter n. An issue under considera- a release from further liability, but with tion in a lawsuit. an ongoing role to participate in the trial of the case, a portion of any monies matter in issue. The crux of a case, received by the plaintiff from other the matter in controversy. defendant(s) is paid to the settling defen- matter of fact. An issue of the truth dant(s). or falsity of a pertinent fact. master n. 1 A special official matter of law. An issue pertaining to appointed by a court to assist it, typi- the applicability or interpretation of cally by making findings or rulings per- a particular law. taining to matters specified by the court, typically, a “master” in divorce or cus- matter of record. Any matter that has tody, or a “master” to render an account- been made a part of the official ing; sometimes referred to as a “special court record. master”. 2 Archaic. One who has mature v. A debt that has become authority over another’s person and payable. services. maxim n. A key principle of law that master and servant n. The relation- has been repeated so often it has ship between an employer or other per- become a commonplace expression. son having authority to direct and control the performance of services; the mayhem n. Violent, disorderly behav- person performing those services. ior. master plan n. In land-use planning, a measure of damages n. A formula for government entity’s plan for the overall determining monetary damages, which utilization of a particular area, including varies among types of actions; for exam- its allocation for residential or manufac- ple, measure of damages in a contract turing uses and the corresponding envi- case is generally the contract price less ronmental impacts. reduction for any incomplete perform- ance by the selling party, while measure material adj. 1 Of evidence, that it is of damages in a tort action is that which important or essential to an adjudication or fairly compensates a plaintiff for her determination. 2 Having a logical con- expenses sustained as a result of the nection to the matters under consideration. tortious act, plus compensation for any material alteration n. A substantial pain and suffering. change in a contract or other document mechanic’s lien See lien. that changes its interpretation or effect. mediation n. A form of conflict reso- material breach See breach. lution in which a neutral individual material witness See witness. attempts to assist the parties to find a compromise acceptable to both. maternal adj. Pertaining to one’s Distinguished from arbitration because mother. it concentrates more on the search for terms acceptable to both parties and less matricide n. 1 The act of killing one’s on the legal resolution of their disputes. mother. 2 A person who has killed his or her mother. meeting n. A gathering of persons for a specific purpose. 16_542109 ch13.qxp 3/28/06 12:18 PM Page 178

meeting of the minds 178

annual meeting. Corporate law, mere licensee n. One who enters yearly gathering of board of direc- property at the will of another. tors to which stockholders are invited. merger n. 1 In contract law, the action of superceding all prior written or oral special meeting. Corporate law, gath- agreements on the same subject matter. ering for a special or limited purpose. 2 In criminal law, the inclusion of a meeting of the minds n. Actual lesser offense within a more serious one, understanding of and agreement to the rather than charging it separately, which double jeopardy. 3 terms of a contract. might cause In lit- igation, the doctrine that all of the plain- Megan’s Law n. A statute that tiff’s prior claims are superceded by the requires sex offenders to register with judgment in the case, which becomes the local authorities and requires publica- plaintiff’s sole means of recovering from tion of information about them (includ- the defendant. 4 The combination ing their residence in the community) to under modern codes of civil procedure of the public. law and equity into a single court. 5 In corporate law, the acquisition of one member n. One part of an organiza- company by another, and their combina- tion or family, one person belonging to a tion into a single legal entity. partnership. merit n. 1 The substantive elements memorandum n. 1 A form of written of a claim or defense. 2 The validity of internal communication utilized in busi- a claim or defense (as in “the defense of nesses and other office environments. impossibility is without merit”). 2 A summary of the terms of an agree- ment (typically one to be drafted later). on the merits. Description of adjudi- 3 A legal brief, typically on a motion or cation of a matter on its substantive elements, not on procedural or tech- other issue arising at the trial level. nical grounds. menacing n. An attempt to commit an mesne adj. Occupying a middle or assault. intermediate position. mensa et thoro n. Latin. Bed and board. metes and bounds n. The objective mens rea n. Latin. The defendant’s measurement of real property from rec- guilty state of mind, as an element in ognized landmarks so as to situate it proving the crime with which he or she precisely in a description to be used in is charged. legal documents, such as deeds. mental cruelty n. Behavior by a mineral lease n. The right given to spouse that threatens the life, bodily use land for purpose of exploration, health, or psychological health of the specifically for minerals, with concom- other spouse. mitent right to remove minerals, if found, for a finite period of time, or merchant n. An individual or entity indefinitely, upon payment of royalties that buys goods and resells them for a to the landowner. profit, and that is assumed to be expert in the particular type of goods. mineral rights n. A right to take min- erals from land or to receive payment merchantable adj. Of goods, that they from the excavation of such minerals. are fit for sale. 16_542109 ch13.qxp 3/28/06 12:18 PM Page 179

179 mistake

minimum contacts n. A defendant’s misfeasance n. 1 Generally, an act of activities within or affecting the state in wrong-doing. 2 An otherwise legal act which a lawsuit is brought, that are con- that is performed in an illegal fashion. sidered legally sufficient to support jurisdiction in that state’s courts. misjoinder n. The improper addition or inclusion of parties or claims in a civil ministerial adj. Of the nature of a rou- case, or of charges in a criminal case. tine or mechanical function performed with a minimum of discretion. mislaid property n. Property that has been left unattended by the owner with minority n. 1 An ethnic, religious, or an intent to return to it later, but that other defined group of people who may can no longer be located. face discrimination from the majority as a result of their differences. 2 The misnomer n. An error in referring to condition of not yet being of legal age. or naming a person, location, or object, 3 A group of less than half of eligible particularly in a contract or other legal voters. document. Miranda rule n. The rule, formed misprision of felony n. The offense of from constitutional law, that suspects covering up of a felony committed by must be advised of certain rights (such another. as the right to remain silent and the misrepresentation n. A false state- right to an attorney) before being ques- ment typically made with the intention tioned by the police. to mislead. See fraud. misadventure n. 1 An accident or mistake n. In contract law, a factual unlucky event. 2 An accidental homi- misunderstanding that may lead to a cide. failure of a meeting of the minds. misapplication n. The illegal misuse mistake of fact. Improper under- of money or property in lawful keeping. standing of a fact that is material to a contract. misappropriation n. The act of taking improperly, including the use of mistake of law. Improper under- another’s property or work. standing of the law as applied to facts as to which a party has a cor- miscarriage of justice n. The unjust rect and full understanding. and inappropriate outcome of a court proceeding. mutual mistake. A mistake in which each party has an incorrect under- misconduct in office n. The unlawful standing of the other’s position, or exercise of public authority. in which both parties share the same mistaken belief, generally a misdelivery n. The delivery of goods basis for canceling the contract. at a time or place or in a manner not meeting contractual requirements. unilateral mistake. A mistake by only one party to a contract as to the misdemeanor n. A crime considered underlying facts of the agreement, to be less serious than a felony, and that not generally a basis for avoiding receives a lesser punishment (typically a the contract. sentence of one year or less). 16_542109 ch13.qxp 3/28/06 12:18 PM Page 180

mistrial 180

mistrial n. A trial that the judge Modified Accelerated Cost Recovery orders ended without a verdict, either System n. An accounting approach for because the jury has deadlocked or the rapid depreciation of assets. because of an incident or mistake preju- Abbreviated MACRS. dicing the outcome. modus operandi n. Latin. A method of mitigating circumstance n. A factual operating. matter argued in defense that may lessen a defendant’s liability or culpabil- moiety n. A portion of something, typ- ity, resulting in lesser damages or a ically half. shorter sentence. money n. An official, government-cre- mitigation-of-damages doctrine n. ated token of value, made of paper or The doctrine that requires a plaintiff to metal, that may be exchanged for goods use reasonable efforts to alleviate the or services. injury caused by the defendant. For money demand n. A claim for a spec- example, a merchant who fails to ified amount of money. receive goods due to the manufacturer’s breach is expected to replace those money judgment n. A judgment for a goods with similar ones from another specified amount of money, awarded as source, and will then be able to sue only damages. for the difference in price between the contracted-for goods and the ones actu- monogamy n. A law or custom per- ally purchased. mitting a person to be married to only one spouse. mixed nuisance n. See nuisance. monopoly n. The domination of a mixed question of law and fact n. An commercial market by only one supplier, issue that can be resolved only by adju- worldwide or in a particular region. dicating facts and deciding relevant legal issues at the same time. month-to-month lease n. A lease without a fixed term, because either it M’Naghten rules n. The insanity never included one or such term is defense as codified in federal law and expired, in which the landlord’s accept- the law of many states, in terms of ance of each monthly rent payment whether a mental disease or defect gives the tenant a right to stay for one interfered either with the defendant’s more month. understanding of the nature of the crim- inal act or the difference between right moot adj. Of an issue, that it is not and wrong. currently a controversy able to be decided, typically because it was m.o. abbr. See modus operandi. resolved or otherwise removed from the court’s purview by an intervening act or model act n. Proposed legislation occurrence. drafted by a national lawyer’s confer- ence for the purpose of providing a moot court n. A law-school competi- model for state laws. tion in which students argue imaginary cases before professors sitting as Model Rules of Professional Conduct judges. n. Ethical guidelines for lawyers drafted by the American Bar Association. 16_542109 ch13.qxp 3/28/06 12:18 PM Page 181

181 movant

moral certainty n. High level of con- deliberative body, a request for proce- viction that causes one to act in accor- dural relief made by a member to the dance therewith; beyond a reasonable chairman or the body at large, under doubt. Robert’s Rules of Order or other appli- cable procedural rules. moral turpitude n. Of conduct, that it is significantly wrong or immoral; used motion for arrest of judgment n. A as a term of special condemnation. motion asking the court to overrule the judgment in a civil or criminal case, on mortgage n. 1 A grant of a security the grounds that it was granted in error. interest in real property to secure a loan, often for the purchase of the prop- motion for judgment as a matter of erty. 2 A loan secured by an interest in law n. A request for relief available to real property. 3 The paperwork a party when there is no disputed fact reflecting such a loan and security inter- issue. est. motion for summary judgment n. In purchase money mortgage. A mort- civil litigation, a written submission gage that secures debt incurred in made to the court following the discov- connection with the property as to ery phase, asking for judgment before which the mortgage is given, for trial on the basis that the undisputed example, a mortgage on one’s home given to secure a loan given in order facts as adduced through discovery enti- to purchase that home. tle the moving party to judgment as a matter of law; if granted, the case is mortgagee n. The lender or creditor over with no need for trial. extending the loan involved in a mort- gage. motion in limine n. A motion to limit the evidence that will be submitted to mortgagor n. The owner of the real the jury, by excluding matters that are property involved in a mortgage. not relevant, are prejudicial, or are oth- erwise inadmissible under applicable mortmain n. Archaic. The permanent rules. holding of lands by an ecclesiastical organization, without the right to dis- motion to dismiss n. In civil litiga- pose of them. tion, a written submission to the court at a preliminary stage of the case, gen- most favored nation clause n. A pro- erally before the defendant answers, vision in treaties according all citizens seeking dismissal of the case on one of of the nations that are parties to the several grounds, including lack of juris- treaty a special status as to other diction over the person or subject mat- nations that are parties to the treaties, ter, and failure of the plaintiff to allege such citizens are afforded all privileges requisite elements of the cause of action available to most favored nations; gen- asserted in the complaint, etc.; may be eral effect of such status is a lowering of granted with or without leave given to duty on trade between such nations. plaintiff to amend his complaint to cor- rect deficiencies. motion n. 1 In litigation, a formal request, usually in writing, to a court for motion to set aside See set aside. specified relief, under applicable proce- dural rules. 2 In a legislature or other movant n. The party making a motion to the court. 16_542109 ch13.qxp 3/28/06 12:18 PM Page 182

move 182

move v. To make a motion; to request murder n. The intentional and mali- relief from a court or a deliberative body. cious killing of a human being. moving expense n. In tax law, an first degree murder. Murder that is expense incurred in connection with the premeditated, or done during the transportation of one’s household commission of certain other effects when changing one’s residence. felonies. murder-suicide. mulct n. 1 2 Act of killing another To levy a fine. To followed by suicide, sometimes car- defraud someone. ried out in a pact, other times with- multifarious adj. out the assent of the murdered Referring or relat- person. ing to the improper joinder of unrelated causes or parties in a lawsuit. second degree murder. An unpremed- itated murder not committed while multipartite adj. Divided into several carrying out another felony. parts. mute n. The act or condition of multiplicity of actions n. Multiple remaining silent when required to enter lawsuits filed by one party involving the a plea. same subject matter, usually against same defendant, generally of a frivolous mutuality of obligation n. The con- nature or attempt to relitigate matter sent by both parties to a contract to pay, that has been unfavorably decided yield, or give up something in return for against the plaintiff. the benefits received. municipal bond n. A bond issued by a mutuality of remedy n. The doctrine city or other municipal entity. that specific performance must be available to both parties to a transaction municipal court n. A city court. in order for either to obtain it. muniments (of title) n. Chain of doc- mutual mistake n. A mistake in uments that indicate title to property, which each party has an incorrect from the beginning to the present. understanding of the other’s position, or in which both parties share the same mistaken belief. 17_542109 ch14.qxp 3/28/06 12:19 PM Page 183

naturalization n. The formal grant of U.S. citizenship to a foreigner. natural law n. A philosophical expla- nation of the origins of law, grounding it in purported external facts (such as biol- ogy, religious conceptions of right and wrong, and so on) rather than in human N custom or practice. natural person n. An actual person, as opposed to one created by a legal fic- tion (such as a corporation). n.b. abbr. Latin. Nota bene; used to naked power n. Power over a person emphasize or call notice to something. or thing unrelated to an interest in the well-being or continuation of that per- Necessary and Proper Clause n. A son or thing. section of the United States Constitution that enables Congress to make the laws named insured n. The covered indi- required for the exercise of its other vidual named in an insurance policy. powers established by the Constitution. narcotic n. A drug that, by law, necessary implication n. An implica- is illegal or designated a controlled sub- tion that is very likely to be true. stance. necessary inference n. A conclusion National Association of Security that flows of necessity from a particular Dealers Automated Quotation system premise. n. An automated national stock exchange. Abbreviated NASDAQ. necessary party n. A party who, because of his or her relationship to or National Labor Relations Act n. A involvement in the underlying facts and federal law governing certain labor issues, should be joined to a case if it all issues and creating the National Labor possible. Relations Board. Abbreviated NLRA. necessity n. A defense to a criminal National Labor Relations Board n. A charge or civil claim, that the party’s federal labor agency that oversees union actions were in response to a superven- elections and other labor issues. ing state of emergency. Abbreviated NLRB. negative averment See averment. National Lawyers Guild n. A lawyer’s association founded in 1937, negative easement See easement. which states as its mission a dedication to the need for basic and progressive negative pregnant n. A limited and change in the structure of the political conditional denial of a part of an asser- and economic system, generally aligned tion that implies that the assertion may with liberal and socially progressive otherwise be true. causes. neglect n. The action or status of fail- natural child n. A biological, as ing to care for or to maintain something. opposed to an adopted, child. negligence n. The failure to use rea- sonable care, resulting in harm to another. 17_542109 ch14.qxp 3/28/06 12:19 PM Page 184

negligent infliction of emotional distress 184

comparative negligence. The plain- negotiation n. Discussions between tiff’s own negligent acts that bring adverse parties, with the goal of resolv- about a pro rata reduction of the ing their differences. damages owed by the defendant, depending on the degree of the net income n. Income after all exemp- plaintiff’s own negligence; compare tions, exclusions, and deductions. contributory negligence. net operating loss n. The amount by concurrent negligence. The negli- which operating expenses exceed rev- gence of two or more parties con- tributing to the ultimate harm. enues. contributory negligence. Any degree new and useful adj. Term used in of negligence on the part of a plain- patent law to define whether an item is tiff, which results in a total bar to patentable. recovery by the plaintiff, even if the defendant was negligent as well. newly discovered evidence n. States are either “comparative” Material evidence bearing on innocence or “contributory” negligence and discovered after the conclusion of a jurisdictions. trial. criminal negligence. Negligence so new matter n. A matter not previ- substantial it is grounds for a crim- ously raised by a party in a litigation. inal prosecution. new trial n. A second or later trial on culpable negligence. Negligent all or part of the merits, ordered by the actions committed with a disregard of the consequences. original trial judge or a court of appeals. gross negligence. Extreme negli- New York Stock Exchange n. A gence, acts committed with utter national exchange operated by an asso- disregard for the consequences, ciation of securities firms based in New punishable by punitive damages. York City. Abbreviated NYSE. negligence per se. Negligence as to next friend n. An attorney or other which there is no disputed fact competent person appointed to appear issue and that may therefore be in a litigation to represent the interests determined by the court without of a minor or incompetent. recourse to a jury. next of kin n. The individual(s) of negligent infliction of emotional dis- closest consanguinity to a decedent. tress n. The act of inflicting emotional distress on another by one’s negligent nisi adj. Latin. Of an ex parte decision act. or ruling, that it is valid unless opposed by the adverse party. negotiable instrument n. In commer- cial law, a writing that meets certain cri- nisi prius n. Latin. Refers to a court in teria, such as that it contains an which a jury is the ultimate finder of unconditional promise to pay a specified fact. amount on demand or at a particular NLRA abbr. See National Labor date to the bearer or a particular person, Relations Act. and it is signed by the person making it. NLRB abbr. See National Labor Relations Board. 17_542109 ch14.qxp 3/28/06 12:19 PM Page 185

185 not guilty

no bill n. A grand jury’s determination non prosequitur n. Latin. A judgment that there is not adequate evidence to against a plaintiff who has abandoned indict someone. the case. no-fault adj. Of claims or controver- nonrecognition provision n. A rule sies, such as divorces or automobile that allows certain items not to be accidents, in which adjudications or included in taxable income. awards are made without reference to the parties’ guilt or blame. nonrecourse adj. Pertaining to an obligation that cannot be enforced nolens volens adj./adv. Latin. Willing against the personal assets of the or not. debtor. nolo contendere n. Latin. A plea non sequitur n. Latin. A conclusion or available in certain jurisdictions in a statement that does not logically fol- which a party declines to contest a low from what preceded it. charge without formally admitting guilt. nonsuit n. 1 The dismissal of a case nominal damages See damages. by the judge for procedural infirmity or lack of any evidence, without reaching a nominal party See party. decision on the merits. 2 A plaintiff’s non compos mentis adj. Latin. voluntary dismissal of a case. Mentally incompetent. nonsupport n. A breadwinner’s fail- noncustodial sentence n. A criminal ure to provide support to a child, sentence served elsewhere than in a spouse, or other dependent. prison (for example, on probation). noscitur a sociis Latin. A rule of nondelegable adj. Of a power, that it interpretation that states that the mean- cannot be assigned or transferred to ing of unclear language in a contract or another to be performed. other legal document should be con- strued in light of the language sur- nonfeasance n. A failure to act in rounding it. derogation of a duty to do so. notary public n. An individual who nonnegotiable adj. 1 Of commercial performs the public functions of wit- paper, that it cannot be transferred. 2 nessing signatures, administering Of a contract term or demand, that the oaths, and comparing documents in party proposing or making it refuses to order to attest to the validity of copies. discuss or make any modification. note n. 1 In commercial law, a writing non obstante veredicto n. Latin. A representing a promise by a maker to judgment notwithstanding the verdict, pay a specified amount of money to a in which a jury verdict is set aside by the payee or to the bearer, on demand or by judge as being factually or legally a specified date. 2 A short article in a invalid. law review, typically written by a law student. nonprofit corporation n. A corpora- tion organized for other than commer- not guilty n. 1 A determination by a cial purposes; for example, for charity or jury that the evidence is insufficient to to advance a viewpoint on policy. convict the defendant beyond a reason- able doubt. 2 A defendant’s plea in court denying the prosecution’s charges. 17_542109 ch14.qxp 3/28/06 12:19 PM Page 186

notice 186

not guilty by reason of insanity. A notice of appeal n. A formal written jury verdict or plea that acknowl- notice, filed with the court and served edges that the defendant committed on the other parties, as required by pro- the crime but states that he or she cedural rules, that a party intends to was not responsible for his or her appeal a judgment or order. actions by reason of a mental dis- ease or defect, and so could not notice of appearance n. 1 A written have formed the requisite mens document filed with the court (or in rea, and therefore, is not guilty. some cases, a verbal representation notice n. 1 A state of awareness of a made in court) to notify it and the other fact or thing, as required by law or con- parties that a party wishes to appear in tract. 2 A communication seeking to or receive notice of the proceedings. 2 make its recipient aware of a fact or An attorney’s written or verbal notice to thing, as required by law or contract. the court that he or she represents one of the parties. actual notice. Notice personally received by the person for whom it notice of dishonor n. Notice that pay- was intended. ment of a note or other commercial paper is being refused. constructive notice. Notice deemed to have been received by a party, due notice of motion n. A party’s written to publicly known facts or events of notice, under applicable procedural which that party had a duty to be rules, that it is requesting the court’s aware. determination on an issue pertaining to implied notice. Notice deemed to a pending litigation. Motions are typi- have been received by a party, due cally used to resolve procedural issues to his or her knowledge of other such as discovery disputes or issues of information that should have led the excludability of evidence, but may that party to become aware of the also seek dismissal of the case on the matter in question. grounds that the pleadings do not state inquiry notice. Notice deemed to have a cause of action, or summary judgment been received by a party, due to the on the grounds that there is no disputed party’s knowledge of other informa- fact issue on which the other party could tion that would have caused a rea- prevail. sonable person to inquire further. notice to quit n. A landlord’s written judicial notice. Notice taken by a notice to a tenant to vacate the premises court that a fact is so obvious, well- for nonpayment or other material breach known or commonly accepted that of a lease. no proof is required to establish that fact; for example, judicial notorious possession n. Use or notice may be taken of the fact that inhabitance of real property that is open many people died during the events and obvious to neighbors, leading to a of September 11, 2001, without proof being necessary as to the presumption that the owner has notice actual death of such persons. of it. See also adverse possession. personal notice. Actual notice novation n. In contract law, the received directly by the person for replacement of an old obligation with a whom it was intended. new one. 17_542109 ch14.qxp 3/28/06 12:19 PM Page 187

187 NYSE

novelty n. an element required to nullification n. The act or condition of obtain a patent. See new and useful. negating the existence of a law, per- formed by individuals acting in a public NSF abbr. A banking term meaning capacity (for example, a jury) or by one “not sufficient funds.” level of government opposing the laws nudum pactum n. Latin. A bare or of another. scant agreement that is not enforceable jury nullification. A jury’s verdict of because consideration is lacking. “not guilty” despite overwhelming evidence of guilt, often in the face of nugatory adj. Of a law or a contract, the jury’s collective belief of this that it is unenforceable. guilt, because of its perception that the law is being immorally or nuisance n. An ongoing act or a con- improperly applied to the defen- dition that interferes with another’s use dant; in other words, the jury nulli- or inhabitation of real property. fies the law because it believes the defendant has been unfairly treated. abatable nuisance. A nuisance that may easily be repaired or avoided. nullity adj. Legally nonexistent; with- out force or effect. attractive nuisance. A potentially dangerous element or entity on real nunc pro tunc adj. Latin. Of an order property that may attract people, or decision, that it has a retroactive especially children, to use it to their own harm; for example, a swimming effect. pool. nuncupative will n. A verbal will attractive nuisance doctrine. See made in contemplation of oncoming attractive nuisance doctrine. death from a wound or injury. Not valid in most states. mixed nuisance. A nuisance that affects both public and private inter- NYSE abbr. See New York Stock ests. Exchange. nuisance per se. A nuisance that is very dangerous, or in some other way beyond conventional bounds of acceptability and risk, one that has certainty. private nuisance. A nuisance that affects private ownership interests. public nuisance. A nuisance that interferes with public interests, including those in health, safety, and transportation. 18_542109 ch15.qxp 3/28/06 12:19 PM Page 188

oblige v. 1 To legally or morally bind; to obligate. 2 To bind someone by per- forming a service for that person. obligee n. The person who is owed an obligation, generally a sum of money or a service. O obligor n. The person owing the money, service, or goods. See also obligee. obloquy n. Abusive language; blame; disgrace or cause to be in ill repute; calumny. Obloquy may go to the extent oath n. A solemn swearing to the where it constitutes defamation. See truth of statements delivered orally also defamation and slander. and/or in written form. Making of false statements while under oath may result obscene adj. Exceptionally repugnant in prosecution for perjury. An affidavit to the contemporary standards of is a written oath. See also affirmation. decency and morality within the commu- oath of office. A sworn promise to nity; grossly obnoxious to the notions of carry out the duties and responsi- acceptable behavior. bilities of a position, diligently and as required by law. obscene material n. According to a Supreme Court decision, material is obiter dicta adv. Latin. “By the way . . obscene, and hence not protected by the . .” A passing statement reached in a free-speech provision of the First court opinion that is irrelevant to the Amendment if it has three elements: It outcome of the case. See also dictum. must have prurient appeal, as decided by the average person applying the stan- objection n. A statement opposing dards of the community; it must portray something that is about to occur in a sexual conduct in an offensive way; and courtroom, or has already occurred, as it must be lacking in serious artistic, lit- being improper, out of order, or against erary, scientific, or political value. procedural rules. It is up to the judge to rule on the objection’s validity, or to obscenity See obscene material. overrule it. A timely objection that is entered into the trial record, along with obsolescence n. 1 A process or condi- appropriate argument on its validity, tion of becoming useless or obsolete. may form the basis for an appeal to a 2 A diminishing of a property’s value or higher court. See also challenge and usefulness, especially because of inno- motion in limine. vations in technology, as distinguished from physical decay. See also deprecia- obligation n. 1 A moral or legal duty tion. to perform or to not perform some action. 2 A binding, formal arrange- obstruction of justice n. Delaying or ment or an agreement to a liability to impeding the timely and orderly adminis- pay a specified amount or to do a certain tration of the legal system in some way, thing for a person or group of persons. such as by giving false or misleading infor- See also duty and liability. mation, withholding information from legal authorities, or attempting to influ- obligation, mutuality of See mutual- ence a witness or a juror. A criminal act in ity of obligation. most jurisdictions. 18_542109 ch15.qxp 3/28/06 12:19 PM Page 189

189 officer

obviate v. 1 To anticipate and prevent issues citations for businesses that are something from happening; to dispose of in violation of its standards. The agency something. 2 To make something no is a part of the Department of Labor. longer necessary. Abbreviated OSHA. occupancy n. 1 The condition or act of occurrence n. An event of happening. possessing or living in a dwelling or on some property. 2 The period of time odious adj. Disgusting, disgraceful, during which one rents, owns, or in hateful, vile, loathsome, scandalous. some way possesses property. 3 See also odium. Having actual possession of a place that odium n. 1 Hatred or distaste for, has no owner so as to acquire legal accompanied by contempt or disgust. rights to ownership. See also adverse 2 A condition of disgrace, usually as the possession. result of some form of vile conduct. occupant n. One who inhabits or exer- offense n. Any violation of the law for cises direct control over a certain piece which the judicial code demands there of property or premises, as distin- be a penalty, including misdemeanors guished from the one who has owner- and felonies. See also crime. ship of the property, although the same person(s) may do both. offer n. 1 The act of presenting some- thing, such as a bargain, with the under- occupational disease (or injury) n. A standing that should the other party disease or injury contracted as a result of agree, that bargain will be complete. prolonged exposure to unsafe substances 2 A promise by one party to do some- or conditions in the natural course of thing in exchange for something else one’s employment, where the risk of such being done by the second party. 3 An condition or injury is greater than that act demonstrating a willingness to enter prevalent in the general population. into a contract in such a way that a rea- occupational hazard n. A risk pecu- sonable person would recognize that liar to the specific occupation or place of acceptance of the terms will conclude in employment and that arises in normal a binding agreement. See also accept- work at such a job or workplace. ance. Occupational hazards include the likeli- offer of proof n. 1 A presenting of evi- hood of accidental injuries and diseases. dence for the record, but outside of the Occupational Safety and Health Act presence of the jury (usually following a n. A federal law enacted in 1970, setting judge’s ruling that such evidence is forth workplace rules and regulations to inadmissible) for purposes of preserving promote safety of workers; administered the evidence on the record for use in an by the Occupational Safety and Health appeal. 2 Such a presentation is an Administration. attempt to persuade the judge to allow the item’s or testimony’s introduction Occupational Safety and Health before the jury. Administration n. An agency of the federal government established by Act officer n. A person who holds a posi- of Congress in 1970 that creates and tion (office) of trust, command, or enforces rules governing the safety of authority. In public affairs, the term usu- workers in the workplace. The agency ally applies to a person who holds a gov- routinely inspects workplaces and ernment position and is authorized to perform certain functions. In corporate 18_542109 ch15.qxp 3/28/06 12:19 PM Page 190

officious intermeddler 190

law, it is a person appointed or elected omission n. 1 Something left out or by the company’s board of directors. The left undone. 2 The act of neglecting to term usually implies some form of do something required by law; especially tenure, duration, and emolument. one’s duty. 3 The state of having been left out or undone. 4 The act of leaving officer of the court. Generally, a something out or not done. An omission lawyer, in connection with his deal- ings with and in a court, is said to may be deliberate or unintentional. be an officer of the court as a result omnibus adj. Having many purposes of his special relationship to the court and the trust placed in a or treating with numerous things at the lawyer by the court. same time; including many things. officious intermeddler n. A person omnibus clause n. 1 A portion of a who acts to benefit a person without writing that confers rights or duties having been asked to do so and without upon one not specifically named, or having had a contractual or legally rec- property not specifically mentioned, as ognized interest in doing so, and then in: an automobile insurance policy provi- seeks compensation or restitution for sion that extends the policy’s coverage the act from the beneficiary, even to any persons operating the motor vehi- though he has no legal grounds to do so. cle, provided that the operator had the named insured’s permission, or a clause offset 1 v. To pay for or compensate in a will that bequeaths all unspecified for; to calculate against: “The debtor property, or property not known at the is entitled to an offset against the time of testation. amount due to the contractor for the amounts that are alleged to be prop- on account n. Partial payment. erly deducted for poor workmanship.” on all fours adj. Colloquial. Legal 2 n. Something that balances something precedent or case law that is precisely else; for example, “The offset for the on point with respect to the case at amount she spent was the house’s hand. improved appearance.” on demand n. When presented or of record adj. 1 Matter that appears asked for. Bills or notes that are payable in official written documents, such as when requested are known as demand testimony taken by the court stenogra- notes. When the bank receives a pher and filed deeds and mortgages. 2 demand note, it pays it, regardless of Documented, as in the attorney of who the bearer may be. record or the court of record. one person (man), one vote n. A of the essence, time is See time is of 1964 decision in Reynolds v. Sims the essence. affirmed the principle (based on the oligopoly n. An industry that is domi- Equal Protection Clause) that each leg- nated by a small number of companies islative district should have, as closely that manufacture substantially identical as possible, the same number of voters. products. The American automobile See also apportionment. industry and the tobacco industry are on or about n. An expression popular two examples. An oligopoly is far less in legal documents to indicate an competitive than one with many manu- approximate time or location. facturers, but slightly more competitive than a monopoly. 18_542109 ch15.qxp 3/28/06 12:19 PM Page 191

191 opinion

on the brief n. The identification of all opening statement n. Introductory attorneys and other persons who partic- remarks made by an attorney at the ipated in preparing an appellate brief, commencement of a trial, in which he usually listed on the brief’s front cover. outlines the evidence that is expected to be proven. Although sometimes referred on the merits adj. Said of a judgment to as an “opening argument,” this term delivered after all the evidence in the is a misnomer, as the lawyers are not case and the arguments of the parties permitted to argue any points that have have been heard. The judgment is ren- not yet been introduced into evidence. dered based upon the essential facts of the case, rather than on any technical or open shop n. A business that employs procedural rule, such as the failure of workers regardless of whether or not proper service. they are members of a labor union. on the pleadings adj. Said of a judg- operation of law adj. Description of ment found after reading or hearing the an event that comes about automatically complaint and the answer, and without by virtue of application of law to a set of waiting to hear or evaluate the evidence facts. or the attorneys’ arguments. See also summary judgment. operative adj. Description of words in a document that bring about the open adj. 1 Free from concealment; result of transaction. readily viewable by the public; unob- structed. 2 Apparent; notorious. 3 opinion n. The court’s statement of Not closed, or final; still under consider- its decision, usually written by a single ation. judge, citing the facts, points of law, rationale, and decision or verdict. See open account n. 1 An as yet unsettled also decision, judgment and verdict. account. 2 A series of transactions that result in a single liability. See also concurring opinion. In appellate account. cases, a joining in by one or more judges to the principal opinion in open and notorious Known by the the case, but for differing reasons public, and at odds with the commu- or basis. nity’s accepted moral values. See also dissenting opinion. An opinion writ- notorious possession. ten by one or more judges that dis- agrees with the one reached by the open court n. A functioning court majority of the court. attended by all interested parties and admitting the public, presided over by a majority opinion. The opinion reached judge. The term usually implies that all by the majority of the court; usually of the business of the court is done in a known simply as the opinion. public judicial proceeding, rather than in per curiam opinion. (Latin.) By the a judge’s office or chamber(s). court; an opinion reached by an open end adj. 1 Having room for appeals court and handed down future modifications or additions. 2 without identifying its writer by Issuing or redeeming stocks or other name. shares on demand on a continuous, ongoing basis, at whatever their current net values happen to be. 18_542109 ch15.qxp 3/28/06 12:19 PM Page 192

option 192

option 1 n. The power or right to ordinary adj. 1 Occurring in the usual make a choice. 2 n. A contract to keep course of events; usual and normal. 2 an offer open for a specified period of When applied to a judge, having juris- time so that the person making the offer diction by virtue of office rather than by cannot suddenly withdraw it during that being assigned same. 3 When applied period. 3 n. The right carried by that to a jurisdiction, immediate and original; contract. 4 n. The right to sell or buy a not delegated or devolved to. certain number of stocks or bond at a set price within a specified time period. ordinary care. See care (reasonable care 5 v. To give or take an option on some- ). thing. ordinary course of business. Conduct oral adj. Spoken or uttered, as dis- of business under usual circum- tinct from written or hand-signaled. stances, going about business in everyday manner. oral argument n. The spoken legal ordinary income income. presentation by the attorneys before a See court, in an effort to persuade same to organic law n. The body of laws that decide in favor of his or her side. are fundamental to defining and creat- oral deposition n. See deposition. ing a government and its legal system, whether written (such as a constitution) order n. A command, instruction, or or unwritten. direction by the court or by a judge organization expense n. intended to adjudicate some point or to A deduction direct some step in a legal proceeding. allowed to a newly formed corporation or partnership incurred establishing final order. An order that disposes of that company, which may be spread over the entire case, but may be a period of not more than five years. appealed to a higher court. See also judgment. organized crime n. 1 A widespread group of professional criminals who rely interlocutory order. An order relating on illegal activities as a way of life and to only a portion of the case, but not whose activities are coordinated and a final disposition. controlled through some form of central- restraining order. See restraining ized syndicate. order. original jurisdiction n. The ability show-cause order. An order requiring and authority to decide cases based on a person to appear in court and hearing testimony and viewing evi- explain why certain relief should dence, rather than on appeal. The dis- not be granted. tinction separates trial courts from appellate courts. When an appellate order to show cause See order (show- court tries a case de novo on appeal, it cause order). is said to be exercising its original juris- diction rather than its appellate jurisdic- ordinance n. A local law, usually on tion. State-and-county level trial courts the municipality level, that, when fully have original jurisdiction. The federal enacted, has the same effect and force courts have original jurisdiction in cer- as a statute within that municipality. tain matters, as Congress expressly provides. See federal question and diversity jurisdiction. 18_542109 ch15.qxp 3/28/06 12:19 PM Page 193

193 oyez

OSHA See Occupational Safety and overbreadth adj. A term used to Health Administration. describe a statute that prohibits certain behavior, but in so doing also restricts ostensible authority (or agency) n. or inhibits behavior that is constitution- A relationship between two parties that ally guaranteed. See also chilling reasonably leads a third party to believe effect. that one is the agent of the other; for example, an emergency room physician overreaching n. In commercial law, who may be employed by an outside con- abusing one’s superior bargaining power tractor, not the hospital, may nonethe- to take unfair advantage of another less be deemed the “ostensible agent” of through fraudulent practices. the hospital. Synonymous with fraud. ouster n. 1 The wrongful exclusion of overrule v. 1 To void the findings of a person from property or dispossession another court; overturn; set aside. 2 of same. 2 The removing from office of As a judge, to reject or rule against a a public or corporate official. courtroom objection. out-of-court adj. Done outside a judi- overt adj. Unconcealed; open and cial proceeding, such as an out-of-court observable; not secret. settlement. overt act n. An open act; an act indi- out-of-pocket expenses n. Costs for cating an intent to commit a crime. necessary items, usually made in cash, and reimbursable at a later time. owner n. A proprietor; the one who has legal right to possess, use, and/or out-of-pocket rule n. The principle convey property to another. that the damages in a breach of contract or warranty case should constitute the ownership n. The total body of rights difference between what was paid for to use and enjoy a property, to pass it on the goods or services and what their to someone else as an inheritance, or to actual value is. See also benefit-of-the- convey it by sale. Ownership implies the bargain rule. right to possess property, regardless of whether or not the owner personally output contract See contract. makes constructive use of it. outstanding issue n. The total num- oyez v. French. Literally, hear! An ber of shares actually sold to sharehold- exclamation used to bring a court to ers less treasury stock; must be less order, or to gain attention for an official than the authorized issue (the amount proclamation to be publicly made. A cus- permitted by the company’s charter). tomary greeting uttered by a court bailiff to signify that court is in session. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 194

paper n. Any written or printed docu- ment; any negotiable document or instrument evidencing the existence of a debt; stocks and bonds; securities. See negotiable instrument, bearer, com- mercial paper. par/par value n. Equality between P face value and actual selling price. paralegal 1 n. A person not licensed to practice law, who assists a lawyer in a variety of tasks associated with a law office. 2 adj. As in “The assistant per- P.A. abbr. Professional association. formed paralegal activities.” See also corporation. paramount title n. Real estate, title pain and suffering n. Compensable that is senior or superior to the title to results, whether physical or mental, which it is compared. from a wrong either suffered or commit- pardon clemency reprieve. ted. The loss of the ability to work due See and to emotional suffering, mental suffering, parens patriae n. Latin. Parent of his or physical pain are all appropriate ele- or her country. The state, in its role of ments of damage. provider of protection to people unable palimony n. A court-mandated pay- to care for themselves; a doctrine giving ment by one of a former unmarried cou- the government standing to sue on ple, who cohabited, to the other. The behalf of a citizen who is unable to pur- term originated in the reportage of sue an action due to a legal disability. Marvin v. Marvin, a 1976 California case. parental liability n. The doctrine that A portmanteau word, constructed from parents are responsible for willful dam- pal and alimony. age done to another’s person or property palm(ing) off v. Acting in a fraudulent by their minor children. All states have manner, to pass something off as some- statutes to that effect, but most limit the thing other than what it is. amount to a few thousand dollars per tort. pander v. To pimp; to cater to others’ parent corporation company lust. See panderer. See and corporation. panderer 1 n. A manager, in the sex- pari delicto in pari delicto. for-money sense, of prostitutes; a per- See son who causes a female to become a pari materia See in pari materia. prostitute. 2 v. The act of selling obscene literature, movies, and/or other parimutuel adj. Of equal betting or materials that appeal to one’s prurient wagering. interest. See also pander. parole 1 n. A conditional release from panel n. 1 A list of persons summoned a criminal sentence that permits the to be potential jurors. 2 The actual convict to serve the remainder of his or group of potential jurors, see also her term outside the confines of the venire. 3 A group of judges selected prison as long as he abides scrupulously from a larger group to hear a case. 4 by certain preset conditions. 2 v. To Those sitting on an appellate bench. effect what is described in the meaning of the noun. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 195

195 passive

parole board n. A group of individuals have been negatively affected by the charged with assessing, as a group, the actions of another or by a court’s risks of granting early release to prisoners. ruling. See also aggrieved. parole evidence rule n. The principle indispensible party. See indispensi- that a preexisting commitment cannot ble party. be used as evidence to contradict or in necessary party. A party whose inter- any way modify the terms of a written ests will be affected by his or her agreement. See also integration and close connection to the case and merger. who should be included if feasible, but whose absence would not partial breach See breach of contract. require the proceedings’ dismissal. partially disclosed principal See nominal party. A party who appears principal. on the record because of the techni- cal rules of pleading, but who does particulars, bill of See bill of partic- not necessarily have any real inter- ulars. est in the outcome of the case. partition 1 n. A separator of one party to be charged. Contract law, the space from another; a separation by a party against whom enforcement of court of real estate owned jointly into the agreement is sought. two or more separately owned parcels, party wall. Real property, a common so that each of the former joint owners support structure between two sep- may enjoy having his or her own estate. arately owned pieces of property. 2 v. to separate a single parcel into two. prevailing party. The party in whose partnership n. A voluntary joining of favor a judgment is rendered, two or more persons to jointly carry on regardless of its magnitude or and profit from a single business. A part- extent. nership is presumed to exist if the persons proper party. A party not essential to have agreed to proportionally share the the proceeding, but who may be losses and profits from that enterprise. joined in the case because of judi- cial economy or an interest in the limited partnership. A partnership subject matter of the litigation. comprised of one or more people in charge of the business who are per- real party in interest. A person who sonally responsible for the debts of generally but not necessarily bene- the partnership (known as general fits from the suit’s final outcome, partners) and one or more people and who is entitled under law to who provide capital and share in the enforce the right the suit is based profits but who do not manage the upon. business and are responsible only for the amount of their contribution third party. A designation of any (known as limited partners). person not directly involved in a transaction or lawsuit. part-performance See statute of frauds. passion See heat of passion. party n. A person taking part in a passive n. Not involving active partic- transaction or contract; a person or ipation, especially an enterprise in entity directly involved in a lawsuit. which an investor has no control what- aggrieved party. A party whose pecu- soever in its income-producing activity. niary, personal, or property rights 19_542109 ch16.qxp 3/28/06 12:19 PM Page 196

passive concealment 196

passive concealment See concealment. patronage n. The giving of protection or support; sponsorship; all of the patent adj. Obvious; manifest; appar- clients or customers of a business; clien- ent; clear; evident, as in “the contract tele; political favors, such as appointing had a patent ambiguity.” See also latent to governmental positions in exchange ambiguity. Pronounced PAY-tint. for political support. patent defect See defect. pauper n. Someone who is unable to Patent and Trademark Office n. A fed- provide for his own support; a monetar- eral agency under the auspices of the ily very poor person; an indigent person. Department of Commerce, which grants Paupers are excused from paying court and regulates patents and trademarks. fees under the United States Constitution’s Equal Protection Clause, patent (of invention) n. The granting so that they may avail themselves of of a right or authority by the federal gov- equal access to the courts. See also in ernment; the document granting that forma pauperis. right or authority; an exclusive right to pawn 1 n. make, use, or sell an invention granted to An item of personal prop- the inventor of a unique device or process erty given to secure a monetary loan; for a specified period of time (usually 20 something held as security against a 2 v. years). See new and useful. monetary loan. To borrow money against a piece of personal property that design patent. Patent granted for a is held by the lender as security. new appearance to an existing item. payables See account. plant patent. Patent granted for a new variety of plant, granted to per- payable to bearer See bearer. son who discovers and reproduces payable to order n. To be paid only to same. a specific payee. patent pending n. A designation payee n. Any person to whom a debt is attached to a product while the Patent to be paid; one to whose order a check Office is considering the patent applica- or other negotiable instrument is made tion. Such a designation imparts no pro- out. tection against infringement unless the actual patent is eventually granted. payer (or payor) n. A person who pays Abbreviated pat. pending. a debt or who is obliged to pay a debt by some written instrument. paternity n. Fatherhood, the relation- ship of father to a child. payment n. Delivery of funds in settle- ment of a claim or debt; fulfillment of a paternity suit n. A proceeding initi- monetary obligation. ated to determine the father of a child born out of wedlock, in order to provide payment in due course n. The pay- for support for that child. ment of a negotiable instrument to the holder on or after its due date in good pat. pending abbr. patent pend- See faith by the payer and with no notice of ing. any defect in title. See also holder in patricide n. The act of killing one’s due course. own father; a person who has killed his or her father. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 197

197 pen register

payment into court n. The payment of penal action n. A suit brought to money or other property by a party to a recover a statutory penalty as punish- proceeding into the care of the court for ment for an offense against the public. later distribution in accordance with the suit’s settlement or the court’s judg- penal code n. The body of penal law ment. See also interpleader. as a whole. payor See payer. penal institution n. Any jail or other place of confinement including work P.C. abbr. Personal computer; politi- camps, jails, reformatories, peniten- cally correct. See also probable cause, tiaries, and correctional institutions. professional corporation, and protec- tive custody. penal law n. Statute enacted to pro- scribe a certain offense against the pub- PCR abbr. Stands for polymerase chain lic at large or against another person; reaction, the newest (at this writing) imposing a penalty for violation of same. method of DNA analysis. Using PCR technique, it is possible to analyze a bio- penalties n. 1 Punishment in the form logical specimen that is one-tenth the of fines or prison terms imposed on size of that required for the older RFLP wrongdoers. Although normally applied method. It also gives quicker results, in criminal cases, there are some cases but the analysis is not as discriminating of civil misdeeds for which a penalty (as as RFLP. distinct from a remedy) may be imposed. 2 Damages imposed by a PCR actions See post-conviction contract for failing to meet a certain relief proceedings. obligation, such as completion by the agreed-upon date. P.D. abbr. Police department; also pub- lic defender. penalty clause n. A provision in a con- tract that stipulates an excessive pecu- peaceable possession n. A continu- niary charge against a defaulting party. ous possession of property that is unin- Courts do not generally enforce such a terrupted by legal suits or other action clause, but will enforce liquidated dam- intended to oust the possessor from the age clauses when they represent a legit- property. Peaceable possession does not imate approximation of actual damages. preclude there being adverse claims See also damages (liquidated damages). against the possessor, so long as no actual attempt has been made to dispos- pendente lite n. Latin. While the law- sess him or her. suit is pending; contingent on the out- come of the legal action or litigation. peculation n. 1 The fraudulent misuse See also lis pendens. of funds by one to whom they have been entrusted for purposes for which those pendent jurisdiction See jurisdiction. funds were not intended, especially the misuser’s own benefit. 2 Embezzle- penitentiary n. A penal institution that ment, especially when done by a public is intended for long-term confinement of official. convicted criminals. See also jail. pecuniary adj. Having to do with, or pen register n. A device that records relating to, money. dialed telephone numbers. Pen registers have been deemed by federal authorities to be beyond the scope of wiretapping 19_542109 ch16.qxp 3/28/06 12:19 PM Page 198

peonage 198

restrictions, because they do not inter- perfect (a lien) v. to take certain cept, hear, or monitor conversations. actions or follow certain procedures Some legislatures, however have ruled required by law in order to create a that their citizens are entitled to a security interest that is enforceable. higher degree of privacy. perfected adj. A claim is said to be peonage n. Involuntary and illegal perfected if all steps required to put a servitude to pay off a debt. Forbidden by claim right, or in final conformity with the Thirteenth Amendment to the statutes, have been taken, and the liti- United States Constitution. gant can proceed to an appellate court. per annum adv. Latin. By or through performance n. 1 The successful ful- the year; yearly or annually; calculated fillment of a contractual obligation. 2. one year at a time; at annual intervals. May be a promise of future payment in exchange for a contractual obligation’s per autre vie Latin/French. “For the being done. life of another,” term often used in bequeathing a right (but not title) in part performance. Partial fulfillment property. of obligations under a contract. per capita adj. Latin. By or through performance clause. A distinct sec- the head. According to the head count, tion or provision of a legal docu- or number of individuals; that is, divided ment or piece of legislation. equally among everyone involved. specific performance. The require- per curiam adv. Latin. By the court. ment of performance of obligations See opinion. as stated in the terms of an agree- ment, according to the exact per diem adv. Latin. By or through the requirements, on theory that com- day. Daily pay or daily expense pensation in damages would be in- allowance. adequate to give recipient of the performance the “benefit of the bar- peremptory adj. Final; conclusive; gain.” Generally required in situa- positive; incontrovertible. In a jury tions of unique services or goods. selection, each side is permitted a cer- tain number of peremptory challenges peril n. Risk of exposure to injury or for which no explanation is necessary. A damage, such as that protected against peremptory trial date may be set so as to in an insurance policy. See also insur- assure a speedy trial. ance. peremptory challenge See challenge. periodic tenancy See tenancy. peremptory plea See plea. perjury n. The criminal offense of making false statements under oath, peremptory writ n. Archaic. A com- especially in a legal document or during mon law document directing the sheriff a legal proceeding. to assure the defendant’s appearance in court, as long as the plaintiff has pre- permanent injunction See injunction. sented the former with security for the permission n. An authorization or prosecution. In current practice, the peremptory writ has been replaced by license to do something; being allowed. the summons. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 199

199 petit larceny

permissive counterclaim See coun- tency, or infancy of the principal party, terclaim. as in the executor of a will or guardian ad litem. permissive joinder See joinder. personal service n. Actual delivery of permissive waste See waste. a document into the hands of the person perpetuity See in perpetuity. for whom it is intended; a delivery of some salable service of manual or intel- per quod adj./adv. Latin. Whereby. lectual endeavor without charge, as a Having meaning only by reference to favor. outside facts, such as on proof of injury or some sort of compensable damages. personalty See personal property. The opposite of per se. per stirpes adj./adv. Latin. By or per se adj./adv. Latin. By or through through roots and stocks. A propor- itself. Standing alone; on its own merits; tional division of the estate among ben- without need for reference to outside eficiaries according to the share of facts. The opposite of per quod. descent from their deceased ancestor. Essentially, each beneficiary gets shares person n. An entity, such as an indi- of stock in the estate based upon the vidual, or, under law, an incorporated closeness of relationship to the group with certain legal rights and deceased. Distinct from per capita. responsibilities; a human being; the live body of a human being. See also natural persuasion burden See burden. person. petition n. A formal written request personal holding company See com- for something to be done or not to be pany. done, delivered to a court or other offi- cial body. personal judgment See judgment. petitioner n. The person presenting a personal notice See notice. petition to a court or other body in order to institute an equity hearing or to personal property n. Property that is appeal from a judgment. The opponent movable, unlike real estate or things in such a proceeding is known as the attached to the real estate. However, respondent. things attached to real estate may be con- sidered as personal property, also known petit adj. French. Little, minor. Also as personalty, if they can be relocated spelled petty. without doing irrevocable damage—a shed, perhaps, or even a mobile home. petit jury See jury. Personal property encompasses tangible petit larceny n. Originally distin- and intangible non-real property. guished from grand larceny as a matter personal recognizance See release of degree. A theft of something valued at on own recognizance. 12 pence or less was considered petty larceny, and the death penalty was not personal representative n. A person invoked. Today, the amount differentiat- whose job it is to manage the affairs of ing between petty and grand larceny is another under authority of a power of in dollars and varies from state to state. attorney, or due to the death, incompe- See also larceny and grand larceny. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 200

petty jury 200

petty jury See jury. plain view n. The exception to the requirement for a search warrant to pro- petty larceny n. See petit (petty) lar- tect one’s rights against unreasonable ceny. search and seizure. If an officer has picketing n. A common practice in legal justification for being in a place labor disputes, in which employees and she spots something that is clearly patrol with signs on their fronts and suspect or proscribed, that object may backs (sandwich signs) or on wooden be seized and introduced in a courtroom stakes held over their shoulders. proceeding. Similarly, if the officer over- Peaceful picketing is protected as free hears something because it was uttered expression, except where considered a out loud so that it was overheard by an threat to public safety or when spread- officer using normal hearing senses, ing false propaganda. that may be testified to by the officer. Additionally, use of a flashlight to make piercing the corporate veil v. it easier to spot an object is acceptable, Charging normally immune corporate because it is a usual thing to do. Use of officers, shareholders, and so on with an X-ray machine, on the other hand, is personal liability for the corporation’s unusual and, therefore, not permissible wrongdoing. See also corporate (corpo- without a warrant. rate veil). plat n. A small map showing the loca- pimp v. Slang. See pander and prosti- tion of a piece of property in the context tution. of adjoining lots, roads, and landmarks; a small piece of land. Also known as piracy n. 1 Robbery, kidnapping, or plot. other criminal activity at sea. 2 Hijacking. 3 Illegal and unauthorized plea n. 1 An accused person’s formal copying or distributing materials pro- reply to a charge in a criminal court, the tected under copyright, trademark, or choices being guilty, not guilty, and patent law. See also infringement. nolo contendere (no contest). 2 An answer in an equity case telling why a plagiarism n. Copying or stealing suit should be barred, delayed, or dis- someone else’s words or ideas and missed. 3 A pleading. claiming or presenting them as if they were your own. See also infringement. affirmative plea. One intent on estab- lishing a fact not in the bill that, if plain error (rule) See error. established, negates the merit of the complainant’s case. plain meaning (rule) n. A rule that states if a written provision is in writing dilatory plea. One that contests the grounds of a plaintiff’s case, other and appears on reading to be unambigu- than its merits, such as wrong juris- ous, its meaning must be determined diction, wrong defendant, or other from the writing itself without resorting defects in the procedure. to outside evidence. double plea. One having two or more plaintiff n. The party in a civil law distinct and independent grounds of case who brings the action in a court of complaint for the same issue and law. See also defendant. requiring each one of those grounds to be answered separately. plaintiff in error. Archaic. See appel- lant. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 201

201 police power

peremptory plea. One directly supplemental pleading. One that responding to the particulars of the asserts a claim or defense based on plaintiff’s charges. events that occurred after the origi- nal pleading was filed, or which cor- plea in abatement. A dilatory plea rects defects in the original objecting to the time, method or pleadings. place of the plaintiff’s assertion, but not addressing any of that asser- pleading the Fifth Amendment See tion’s underlying merits. self-incrimination, privilege against. plea bargaining n. A negotiation pledge n. an item of property given as between prosecutor and defendant in a security for a debt or performance. criminal case in an attempt to reach a mutually satisfactory middle ground plurality opinion See opinion. and, therefore, obviate the need for a trial. Usually it consists of the defen- pocket veto n. Under the United dant’s pleading guilty to a lesser charge States Constitution, if the president in exchange for a lesser sentence than does not sign a congressionally passed he might receive had he been convicted bill within ten days after receiving it, the on the original charge(s). bill becomes law, even without his or her signature. However, if the president nei- plead v. To make a plea of “guilty” or ther signs nor vetoes the bill and “not guilty” in court in response to a Congress adjourns within that ten-day criminal charge; to file a pleading; to period, the legislation will become law answer a plaintiff’s common law decla- only if the president signs it. Therefore, ration. by not signing it, the bill is effectively killed. pleadings n. Formal, written declara- tion in legal form of logical statements point of law n. An individual legal setting forth the facts of the plaintiff’s issue or proposition at the heart of a allegations or the defendant’s case. responses, and or the reasons why each party believes that she is in the right reserved point of law. A holding of a difficult legal issue that the judge (that is, the grounds). holds in abeyance so that further amended pleading. One submitted to testimony in the case may proceed. the court later than the original pleadings, correcting or adding to police power n. The inherent power them. and obligation of a state government or sovereign, usually delegated in part to defective pleading. One that either in municipalities, to make whatever laws form or substance fails to meet min- are appropriate and necessary to main- imum standards of sufficiency or tain public safety and security, morality, accuracy. health, and propriety, which can neither pleading in the alternative. One in be surrendered by the legislature nor which there are two or more inde- transferred in toto away from the state. pendent claims or defenses that are Such power is conferred by the Tenth not necessarily consistent, such as Amendment to the United States negligently inflicting pain and suf- Constitution, and is subject to and fering, and intentionally causing bound by considerations of due process. property damage. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 202

polling the jury 202

polling the jury v. After a jury’s ver- possession n. Exercising dominion dict has been rendered, asking each over property; having custody and con- individual member of a jury to confirm trol of property. See also custody and his or her vote, in order to ascertain ownership. unanimity, if requested by the defense. actual possession. Immediate physi- poll tax n. A per capita tax of a fixed cal control, and, therefore, occu- amount charged each person to register pancy, of real property. to vote, or to vote. Such a charge is pro- adverse possession. See adverse hibited in federal elections by the possession. Twenty-Fourth Amendment to the United States Constitution. State laws constructive possession. Having the requiring such fees have been ruled to power and intention of exercising violate the equal protection clause of the control and dominion of real prop- Fourteenth Amendment. erty, but lacking actual presence on or direct control of same. polygamy n. The condition of having criminal possession. Unlawful pos- more than a single spouse at one time. session of proscribed articles, such pornography n. as drugs, assault weapons, and so Media or photographs on, or being in possession of some- showing erotic or sexual behavior in a thing that individual is proscribed way designed to cause sexual arousal. from possessing. Pornography is protected by the free speech provision of the First Amendment hostile possession. See hostile pos- to the United States Constitution, unless session. it is found to be obscene. See also notorious possession. See notorious obscenity. possession. portfolio n. The total of the securities peaceable possession. See peaceable (consisting of stocks, bonds, certificates possession. of deposit, and so on) held by an individ- ual at any one time. possessory action n. A lawsuit under- taken to gain physical possession of a positive law n. The body of laws that premises or other real property, but not have been enacted in a particular com- to take title to it. A possessory action munity and that are upheld by the courts may be instituted to evict a tenant who of that community, as distinct from nat- overstays a lease’s term, or who is ural law. behind in payments. positivism n. The view that true possessory interest n. The right to knowledge comes from studying observ- control a property and to exclude others able traits and actions rather than for the present, exercised by one who is through reasoning or speculating. not necessarily the owner. A current or posse See in posse. future exclusive right to possession and use of a property. posse comitatus n. Latin. Power of the county. 1 A sheriff may summon possibility n. The chance of some- citizens to assist him in making an thing’s happening, regardless of arrest; hence posse in the traditional whether or not it actually occurs; a con- Old West sense. 2 A federal statute tingent interest in property, whether prohibiting the Army and Air Force from real or personal. direct participation in civilian law- enforcement activities. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 203

203 preamble

possibility of reverter n. A future pourover n. A statement in a will interest retained by a grantor of an directing that certain money or property estate so that the grantee’s right to the should be placed into an already exist- estate would terminate and pass back to ing trust. the grantor, should a certain pre-speci- fied event or act actually occur. power, enumerated See enumerated power. post v. Latin. After. After in time, order, or position; behind. See also ante. power, implied See implied power. post-conviction relief proceedings power, inherent See inherent power. n. Federal or state procedure whereby a power of appointment n. A donee’s convicted criminal can request that a power, once authorized by the donor, to conviction or sentence be corrected or name the beneficiaries of the donor’s vacated. Also called PCR actions. property or income. The donee may not post facto See ex post facto. select anyone other than him- or herself. The donor may create this power by Post hoc ergo propter hoc Latin. deed or by will, and it may be vested in After this; therefore because of this. An any adult individual, or the donor may illogical notion that because one thing reserve the power for his or her self. occurred after another, it must have been caused by the first thing. power of attorney n. 1 A written instrument whereby someone is granted posthumous child n. Child born after the right to perform certain acts as the death of one of its parents. agent of the grantor; that is, acting in the grantor’s behalf. 2 The actual posting n. A form of substitute authority granted in this way. process service by which the document is displayed in a prominent place, in practice 1 n. The rules and proce- order to assure public notice. It is usu- dures that cover all aspects of the pro- ally used as a last resort, when all other ceedings of a court of law. 2 n. A law attempts at service have failed. A practice. 3 v. The practice of law. 4 n. method of publishing an ordinance by a habit. affixing it to the courthouse door. praecipe n. Latin. 1 Command, order. post mortem adv./n. Latin. After A written order or request to the clerk of death. Generally used to refer to the the court. 2 A written court order examination of a corpse by the coroner commanding a party to do something or to ascertain the cause of death. to show cause why it has not been already done. postnuptial agreement n. An agree- ment between a husband and wife stat- prayer n. A request attached to the ing the rights of each party in the event end of a pleading asking for specific of the other’s death, or in the case of a damages or relief to which the plaintiff divorce, generally made at a time when believes he is entitled. neither eventuality is deemed to be imminent. preamble n. An opening statement in a document that declares the docu- pot n. Slang. Marijuana. See also con- ment’s purpose. It is commonly found at trolled substance. the beginning of a constitution, statute, or other legal document. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 204

precatory 204

precatory adj. Expressing a desire for, determine whether there is enough evi- requesting, or advising action, but usu- dence to issue an indictment against a ally in a nonbinding way, such as, “it is person or to warrant that person’s being my desire and wish to . . . .” Precatory held in custody. words are often used in wills and similar documents. preliminary injunction See injunction. precedent adj. Something that came premeditation n. An intention to act before, hence preceded the event cur- in a certain manner prior to so acting, as rently in question, such as a previously in “premeditated murder,” meaning the decided case. It may serve as a model act of killing after contemplation and for the interpretation of a law, or dispo- intent to do so. sition as a case. premise n. A prior statement upon preclusion of issue See estoppel. which a conclusion is deduced. preemption n. 1 In law, the doctrine premises n. 1 Property and the struc- coming from the Supremacy Clause of the tures that are on that property. 2 United States Constitution asserting that Preliminary statements in a document in legislation on the same subject, federal upon which later ones are predicated. legislation takes supremacy over state or premium n. 1 Money paid to an 2 local laws. The right to buy something insurer in exchange for coverage. 2 3 before anybody else. An earlier Money paid by a buyer for an option to seizure of some property, real or personal. buy stock or property. 3 A reward for preemptive right n. The right to the a job after it has been done. first opportunity to claim land subject to premium, unearned n. Insurance, being preempted; the right of existing portion collected that must be returned shareholders in a corporation to have to insured if policy is cancelled. the first opportunity to buy new shares when issued. prenuptial agreement n. An agree- ment made before marriage by two peo- preferred stock n. Stock that has a ple intending to marry, in order to set higher value than common stock in forth the issues of property rights and terms of deriving dividends or income. support in the case of divorce or death. preference n. A debtor’s transferring See also postnuptial agreement. of property to a creditor in advance of fil- preponderance n. Superiority in ing a bankruptcy petition, so that the importance, influence, or weight. creditor receives more than would have been received under bankruptcy, to the preponderance of the evidence n. A detriment of other creditors. more convincing amount of evidence than the other side has; the general prejudice n. A leaning toward one standard for finding for one side in a side in a lawsuit; an opinion held favor- civil case; enough proof to convince the ing one side without having heard the judge that something is more likely to case; a predisposition or bias. See also have occurred than not to have dismissal dismissal with prejudice ( ) and occurred. (dismissal without prejudice). prescription n. The role that the pas- preliminary hearing n. A criminal sage of time plays in the making and hearing, usually before a magistrate, to ending of certain rights. A way to 19_542109 ch16.qxp 3/28/06 12:19 PM Page 205

205 pre-trial detention

acquire an easement on or in real prop- conclusive (non-rebuttable) presump- erty belonging to another by occupying tion. A presumption that no amount it continuously for a prescribed period of of evidence or argument is strong time. See also adverse possession. enough to overcome. prescriptive easement See easement. rebuttable presumption. A presumption that is strong enough to make a prima presentence hearing n. A proceeding facie case, but that is subject to being following a criminal conviction at which overcome by the presentation of a jury or judge examines all particulars stronger evidence to the contrary. relevant to the criminal and his or her offense, before passing sentence. presumption of innocence n. A basic tenet of criminal law that a person is to presentence hearing report n. A be presumed to be innocent until he is report usually prepared by the probation proven guilty beyond a reasonable department enumerating the convicted doubt. The burden of proving the person person’s prior criminal record, aand edu- guilty falls completely on the justice cational, family, employment, and social system, with the accused bearing no background; intended to assist the court burden of proving his or her innocence. at the pre-sentence hearing. The presumption of innocence is not a determination of innocence, but rather a presentment n. 1 A formal written placing of the burden of proof entirely document of accusation returned by a upon the justice system. grand jury on its own, without the pros- ecutor’s having submitted a prior presumptive evidence n. Evidence request for indictment. It is signed by all that is treated as sufficient for a guilty members of the grand jury, as distinct verdict unless contradicted and out- from an indictment, which is signed weighed by presentation of rebuttal evi- only by the foreman. Presentments are dence. See also presumption. obsolete in federal courts. 2 The pro- duction of a formal negotiable docu- pretermitted heir n. An heir who was ment, such as a promissory note, for born after a decedent’s will was drafted, payment. 3 The delivery to a court of a but before the death of same. Because formal document about a legal matter to that heir was not alive for and is as a be dealt with. result unmentioned by the will, she gen- erally would take nothing under the present sense impression n. A per- will; however, most states have laws son’s impression of an event either while allowing a pretermitted heir of the dece- or immediately after its occurrence. dent to take whatever a child’s share Such impression is admissible evidence, would have been had the decedent died even if it is hearsay. intestate. presumption n. A legal assumption pre-trial conference n. An informal that something is a fact based upon conference among opposing attorneys another proven fact or set thereof. The and the judge in which the issues are nar- presumption is given sufficient weight, rowly spelled out, and that, in civil cases, once established, that an even greater allows the judge to encourage both par- amount of evidence to the contrary ties toward reaching a settlement. would be needed in order to contravene it. It has the effect of shifting the burden pre-trial detention n. The detaining of of proof or that of producing evidence to an accused person in a criminal case the opposing party. See inference. before the trial has taken place, either 19_542109 ch16.qxp 3/28/06 12:19 PM Page 206

pre-trial discovery 206

because of a failure to post bail or due to privilege to include marriage counselors denial of release under a pre-trial deten- as well as those giving counsel for other tion statute. difficulties. pre-trial discovery See disclosure prima facie adv. Latin. At first sight. and discovery. Not in need of further support to estab- lish credibility or existence; obvious, prevailing party See party. unless disproved. prevarication n. A lie; deceitful or dis- prima facie case n. A case supported honest behavior; equivocation. by at least the minimal amount of evi- preventive detention n. A confine- dence needed to meet the requirement ment of an accused person pending trial, for trying it; adequate to be able to avoid under terms of a statute authorizing a directed verdict or a motion to dis- denial of bail to defendants charged with miss. having committed certain offenses primary liability See liability. and/or are considered to be a danger to themselves or to the public at large. primogeniture n. Latin. First born. An ancient rule of descent by which the price discrimination n. The illegal firstborn son inherits all the property of charging of different prices to different his deceased father, usually to the persons for the identical or substantially exclusion of all his siblings. The pur- similar goods or services. A violation of pose of primogeniture was to keep the the Sherman Antitrust Act, price dis- estate (real property), the ownership of crimination is also specifically which implied power, from being subdi- addressed by the Clayton Act. vided into smaller and smaller parcels of price fixing n. Artificially setting land. prices at a certain level, in exception to principal 1 adj. Of greatest impor- the workings of a free market, or con- tance. 2 n. One who authorizes spiring to do same. The test is whether another to act in his or her behalf as an such actions or agreements restrain free agent; any person involved in the com- traders’ ability to sell according to those mission of a criminal act. traders’ judgment. disclosed. A principal whose identity horizontal price fixing. Price fixing is shared by his or her agent with by competitors on the same level, the third party. such as all supermarkets selling cereal for the same price. principal in the first degree. The actual perpetrator of a crime. vertical price fixing. Price fixing between or among parties at differ- principal in the second degree. ent levels of distribution, such as Someone who assists in some way manufacturers and distributors try- the principal in the first degree. ing to control retail price. undisclosed. A principal whose iden- priest-penitent privilege n. Disclosures tity is kept secret by his agent. Both made to clergy members while in active the undisclosed principal and the practice of their clerical duties as spiri- authorized agent are liable for ful- tual advisors are protected from disclo- filling the provisions of a contract. sure. Some states have broadened this 19_542109 ch16.qxp 3/28/06 12:19 PM Page 207

207 privy

prior inconsistent statement n. A privileges and immunities The witness’s statement made out of court phrase used in Fourteenth Amendment that differs from his or her testimony in to the United States Constitution court. Even though the prior statement describing rights that citizens have that may have been hearsay, it may be used derive from the existence of the federal for purposes of impeaching the witness. government, and include but are not lim- ited to the right to travel, the right to priority n. A condition of being higher vote in federal elections, the right to dis- in rank, or degree, or having occurred at cuss national legislation, and immunity an earlier time; taking precedence, espe- of the citizens of any state to be dis- cially a creditor’s right to receive pay- criminated against by the laws of ment from a debtor before others are another state. paid; the initiating court’s exercising the jurisdiction in a case in which more than privity n. A legally recognized rela- one court is involved. tionship of interest of two parties, be it in a transaction, a piece of property, or a prior restraint n. An unconstitutional proceeding. prohibition in advance of a publication or communication before such communica- horizontal privity. The legal rela- tion or publication occurred. Prior tionship between two parties in a restraint violated the First Amendment distribution chain who are on equal of the United States Constitution, except level, as between two consumers. in cases of obscenity, defamation, or its See also vertical privity. representing “a clear and present dan- privity of contract. The relationship ger” (Oliver Wendall Holmes, Jr.), and between the two parties to a con- even in such cases, it is rarely upheld. tract that confers a right to take action on the contract; largely abro- prison n. See penal institution, jail, gated by enactment of warranty and penitentiary. laws, permitting suits by users of products despite lack of privity with privacy, right of n. The right to be left manufacturers. alone, generally derived from federal statutes assuring the right to be free privity of estate. A joint or succes- from unwarranted publicity. It is usually sive relationship to a property recognized as being inherent in the right involving transfer of possession by contract, judgment, or descent, as to liberty. between landlord and tenant, or life private corporation See corporation. tenant and remainderman. private necessity n. A necessity that vertical privity. 1 The legal rela- includes only the personal interest of tionship between links in a prod- the defendant and, therefore, confers uct’s distribution chain. 2 The only a limited privilege or justification. privity between a person who signs a contract containing a restrictive private nuisance See nuisance. clause and the person acquiring the property that is so restricted. privilege n. An advantage that is not enjoyed by everyone; a special exemption, privy n. Persons having a mutual immunity, or legal right granted to a per- interest in the same thing or who are son or a class of persons; an exception. connected by some relation other than contract. privileged communications See com- munication. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 208

probable cause 208

probable cause n. A necessary ele- criminal procedure. The process by ment of a legitimate arrest or legal which the government imposes search and seizure; a reasonable ground penalties for criminal behavior to believe that someone is committing or through the devices of arrest, trial, has committed an offense. It must and punishment of the convicted amount to more than just suspicion, but criminal. need not rise to the level of evidence jus- tifying conviction, according to Fourth proceeds n. Money or a thing of value Amendment to the United States that derives from a sale. Constitution. proceeding n. The orderly sequence of probate n. A judicial procedure by events that constitute the progression of which a will or other instrument is ruled a lawsuit or judicial procedure from the to be valid according to legal require- time of commencement, through all acts ments; the proving of the validity of a and occurrences, until and including the will or such to the court. execution of the final judgment. probation n. A procedure following collateral proceeding. 1 One brought to deal with an issue not conviction that permits the party found directly germane to the issue. 2 guilty to be released without doing One instituted for the purpose of prison time, subject to conditions that modifying the result of a judgment are placed upon him or her by the court. while not nullifying it. Violation of any of those conditions can lead to probation being revoked and the informal proceeding. See informal person being remanded to confinement. proceeding. probative adj. Tending to persuade summary proceeding. See summary one or to prove that a certain proposi- proceeding. tion or allegation is true. Relevant evi- process n. 1 A summons in writing to dence may be excluded by a court if its compel the appearance or response of a probative value is outweighed by the person before a court; the proceedings threat of prejudicing a matter unfairly. in a civil or a criminal case; the proce- pro bono publico adj./adv. Latin. For dure by which a disobedient or recalci- the public good. Used to refer to the tak- trant defendant is made to plead. 2 ing of cases by attorneys without expec- Patent law, the method used to produce tation of compensation. Also called pro a thing or result. bono. abuse of process. Improper use of procedural due process due process after it has been issued; See the wrong is not in the obtaining of process. process, but in the manner in which procedure n. A specific course of it is used. action; the machinery by which a suit is procuring cause n. Proximate cause. carried on; the mechanics of the legal process; written rules for legal proceed- produce v. To provide or put forward. ings, whether criminal or civil, codified in rule books such as the Federal Rules Request to produce. Method of written of Civil Procedure. discovery used to obtain documents or things from opposing party. civil procedure. A procedure to deter- mine the rights of the parties, as dis- product See work product. tinguished from a criminal procedure. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 209

209 promissory note

product liability n. The legal obliga- referring to an attorney who normally tion of a manufacturer to pay financial could not practice in a certain jurisdic- compensation for any harm caused by a tion, but is allowed to just for one case. product brought to market to a con- sumer who had the right to expect that prohibition n. 1 A statute or order for- the product was safe to use as bought; a bidding a particular action. 2 The time similar obligation of one who sells such from 1920 to 1933 when alcoholic bev- a product. erages were banned by the Eighteenth Amendment (which was repealed by the production n. Response to a request Twenty-First Amendment) to the United to produce in which items requested are States Constitution. put forth or given to opposing party. prolixity n. Any unnecessary or super- professional association See corpo- fluous language or facts in evidence or ration. in pleadings. proffer v. A preliminary offering, promise n. An avowal to do something specifically with regard to testimony or or to refrain from doing something, con- evidence, a preview of what will be said veyed in such a way as to assure or shown. Also known as an offer of another that it will be done, and that can proof. be considered binding. profit n. The amount of money gratuitous promise. A promise made received for goods and services minus without expectation of compensa- the amount spent on same; excess rev- tion; one not supported by consider- enue. See also profit à prendre. ation. profit à prendre n. French. Profit to illusory promise. An agreement take. The right to take minerals, soil, cloaked in terms that make it trees, animals, or the like from the land appear to be a promise, but not of another. actually committing anything to anybody; for example, “I’ll back you pro forma adj. Latin. For form. 1 Done up as long as it’s in my interest to as a formality, rather than because of do so.” The person who made that conviction, in order to make possible promise is not obligated to do any- further proceedings. 2 In accounting thing. procedures, done in advance to provide a what-if statement, predict results, or to promisee n. The person to whom a convince. For example, a balance sheet promise is made, he who is to receive showing combined figures of two compa- the benefit of a promise. nies in case of a merger. promisor n. The person making a progressive tax n. A tax that promise to another, the one who is to increases in rate as the amount of perform under the terms of the promise. money being taxed increases; for exam- promissory estoppel n. Principle that ple, $20,000 is taxed at 5 percent, one who has brought about certain $20,001 to $45,000 is taxed at 10 per- actions or expectations by another cent, and so on. because of promises made shall be pro hac vice Latin. For this one pur- estopped from acting or failing to act in pose or occasion. The allowing of some- contravention of his promises. thing not usually allowed, usually promissory note See note. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 210

proof 210

proof n. An establishment by evidence piece of paper, but which indicates of the truth or falseness of an alleged ownership of stock. Something of fact; evidence upon which a court’s judi- value. cial ruling is based. intangible property. Property that burden of proof. The responsibility has no physical existence, such as placed on one party to bring forward stock options or goodwill. evidence in support of his cause; as intellectual property. to a plaintiff (in a civil case) or a Property having prosecutor (in a criminal case), the to do with patents or trademarks. requirement of bringing forth suffi- personal property. See personal cient evidence to support a finding property. in favor of plaintiff or the state. public property. Community or state standard of proof. Level of proof owned property that is not required to sustain certain actions; restricted to use by an individual or varying levels of proof required a select few, and over which the include “beyond a reasonable state or community has dominion doubt” (criminal cases), “by a pre- and control. ponderance of the evidence” (most real property. Land, real estate. civil cases), “clear and convincing evidence” (certain civil and some tangible property. Property with criminal cases, including fraud). physical form and extent. proof of loss n. Evidence given by an proponent n. Party advancing a insured to insurer to support claim, both cause or position. as to fact of loss having occurred, and as to amount of the loss. proprietary adj. Held by a single par- ticular person. Trade secret laws hold proper See Necessary and Proper that the person who developed informa- Clause. tion or knowledge has ownership and property rights to her/his proprietary proper lookout n. The obligation of material. That right is usually protected the driver of a vehicle to be cautious so by contract rather than by patent. as not to hit another vehicle or a pedes- trian. pro rata adj. Latin. According to the rate; in proportion. If a lawyer charges proper party See party. $100 per hour, and she works a quarter property n. All of the rights of owner- of an hour, her pro rata fee would be ship, including the rights of possession, $100/4, or $25. to enjoy, to use, and to dispose of a chat- pro se adj/adv. Latin. For himself; on tel or a piece of land. one’s own behalf; on one’s own. common property. Property held Characterization of one who represents jointly by two or or more persons, or himself/herself in an action without the property that belongs to all citizens. assistance of an attorney at law and See also community property. who acts as his/her own attorney of record. incorporeal property. Property with- out tangible value, but that repre- prosecution n. A pursuing of a lawsuit sents something of value, such as a or a criminal trial; the party pursuing a stock certificate, which is just a 19_542109 ch16.qxp 3/28/06 12:19 PM Page 211

211 public defender

criminal prosecution; the carrying out of pro tempore adj./adv./n. Latin. For the any activity or plan. time being. A temporary position or appointment. Also called pro tem. prosecutor n. The person or persons who prepare for and conduct the state’s protest n. A formal objection to some- case in a criminal trial; the state’s attor- thing that is, will be, or has been done. ney, district attorney, or in the case of a federal case, the United States Attorney. provisional remedy See remedy. prosecutorial discretion n. A prose- proviso n. A condition or limitation that cuting attorney’s option to make choices may determine the applicability of a docu- with regard to charges, plea bargaining, ment to certain conditions or persons. sentence recommendation, and so on. proximate cause See cause. prosecutorial misconduct n. An ille- proxy n. 1 One who receives the gal act or failing to act, on the part of a authority to speak for or act for another. prosecutor, especially an attempt to A proxy is often allowed to vote in place sway the jury to wrongly convict a of a corporation’s stockholder(s) at a defendant or to impose a harsher than periodic meeting. 2 The authority appropriate punishment. itself. prospective adj. Effective in the prudent adj. Cautious or judicious in future. Newly enacted laws and consti- manner and/or actions. tutional decisions are almost always applied prospectively. prurient adj. Characterized by shame- ful or inordinate sexual arousal or prospectus n. Written document extraordinary sexual urges. See also issued by corporation, describing shares obscene. of stock and offering same for sale. psychotherapist-patient privilege n. prostitution n. 1 Engaging in sexual The same as priest-penitent privilege activity for compensation. 2 Lowering but applying to the relationship between in value, dignity, class, and so on. a mental health giver in the practice of pro tanto adj./adv. Latin. To such counseling and a patient. extreme; as far as it goes; for just so publication 1 v. Announcing or declar- much. Often, a partial payment made for ing to the public; the distribution of a invoking eminent domain. book, pamphlet, or other work to the protect v. To keep safe; to preserve public. 2 n. in libel, the act of communi- something that already exists, as in pro- cation of the libelous matter. tecting trade and protecting consumers. public corporation See corporation. protective custody n. State-mandated public defender n. An attorney hired confinement of an individual to protect the by the government for the purpose of person being harmed by self or others. defending anyone who is accused of a protective order n. A court order crime but who is unable to afford to hire intended to protect a party from annoy- an attorney. The right to such a defense ance, undue burden, or expense due to is guaranteed by the Sixth and an abuse of the legal system; a restrain- Fourteenth Amendments to the United ing order. States Constitution. 19_542109 ch16.qxp 3/28/06 12:19 PM Page 212

public domain 212

public domain n. Government-owned pur autre vie See per autre vie. land; all publications, processes, and inventions that are not protected by purchase n. The acquiring of property patent or copyright. in exchange for money or other valuable consideration. See also descent and dis- public figure n. A person who is tribution. famous or notorious or who has will- ingly become involved with a public purchase money security interest See issue or controversy, security interest. public interest n. The people’s gen- purchaser n. One who receives prop- eral welfare and well being; something erty in exchange for money or valuable in which the populace as a whole has a consideration. stake. bona fide purchaser. One who pur- public necessity n. chases property for value, without A complete justifi- notice of any defects in title. cation for a normally unacceptable act, if it were the lesser of two evils and pure plea See plea. done in the public’s interest. See also public interest. purge(ing) contempt See contempt. public nuisance See nuisance. pursuit of happiness n. An inalien- able right enumerated in the Declaration public property See property. of Independence, in addition to life and liberty; the right to pursue any legal public purpose n. A governmental activity as long as it does not infringe on action or direction that purports to ben- the rights of others. efit the populace as a whole. purview n. The main part of a statute, public utility n. A company such as an as distinguished from its preamble or electric company or gas company, the post script; scope; area of operation. nature of which is to be a monopoly in a particular region. Because no free-mar- putative adj. Supposed rather than ket forces can exist in this situation, real; believed; reputed. governmental regulation of such compa- nies is the norm. puts and calls n. Stock market terms; a “put” is a privilege of delivery or non- publish n. To make generally known delivery of the subject matter of a sale; to the public; to make known to people a “call” is the privilege as it relates to who might or would have not known calling for or not calling for it. without the person’s having so acted. pyramiding n. An illegal scheme in puffing n. Extravagant claims made which paper profits are used to finance by sellers to try to attract buyers for the purchase of additional investments, their wares. Such talk cannot be legally or the offering of the opportunity to a construed to be a guarantee or be used participant to be paid for the chance to as the grounds for charging fraud. introduce new persons to the scheme who will each pay for the opportunity to punishment n. Sanctions such as fine, introduce new persons, and so on. confinement, or loss of rights to prop- erty administered to a person convicted of a crime. 20_542109 ch17.qxp 3/28/06 12:19 PM Page 213

quantum valebant Latin. 1 The rea- sonable worth of goods or services, used to compute fair and reasonable dam- ages; the market value. 2 A common- law action of assumpsit for items sold and delivered, in order to recover proper and appropriate payment for same. Q quare clausum fregit Latin. An early form of trespass onto someone else’s land, whether or not that land actually had a physical fence around it. The plaintiff would argue that because the defendant had broken the boundary Q abbr. The abbreviation used in trial “with force and arms,” the former was transcripts and depositions to mark due damages. each question asked. quash v. 1 To suppress a legal docu- QDRO abbr. See qualified domestic ment, particularly a subpoena, for rea- relations order. sons based on defect in manner of service or for other procedural or sub- quaere v. Latin. To query or inquire. stantive reasons that invalidate the doc- Used in law textbooks to indicate that a ument; to void or terminate; to vacate a point was dubious or questionable. judicial decision. 2 To suppress, as in qualified disclaimer n. A disclaimer quashing an uprising or revolt. stating that the taxpayer has no inter- quasi Latin. Alike in some sense, but est, for federal unified estate tax pur- not in actuality; resembling something poses, in the disclaimed property. but not really being it; nearly; almost qualified domestic relations order n. like. Any decree, judgment, or order that rec- quasi contracts. See contract. ognizes the right of one person (the alter- nate payee) to participate either totally or quasi criminal. A proceeding similar partially in the pension of another (the in nature to a criminal trial in that participant). The alternate payee must be the defendant, if he loses, will be a dependent child, spouse, or former subject to penalties such as fine, loss of job, or confinement, yet it is spouse of the participant. This is an not a criminal trial presided over by exception to the ERISA rule, proscribing a judge. A parole hearing or a pro- the assignment of plan benefits. bation hearing are two examples of Abbreviated QDRO. such. quantum Latin. An amount; the nec- quasi in rem. See in rem. essary or desired portion; the required or needed amount or share. question, federal See federal question. quantum meruit Latin. Equitable for- question, leading See leading question. mula for determining how much to award to one who has provided goods or question of fact n. An issue in dispute services to another who has not paid, that is left to the jury to resolve, because based on the reasonable value of the it is not clearly covered by any law. A goods or services; the equitable princi- judge then rules on what the law says ple that one who has received the bene- must be done. Questions of fact are usu- fit of a bargain should not be permitted ally decided in lower courts rather than to be unjustly enriched. on appeal. See also fact-finder. 20_542109 ch17.qxp 3/28/06 12:19 PM Page 214

question of law 214

question of law n. The legal signifi- quitclaim deed n. An instrument cance of the question of fact; a disputed which transfers all of the right, title and legal question, left to a judge to deter- interest that the conveyor has in a piece mine. Appellate courts usually make of property, but with no warranty or their determinations based upon ques- assurances that the conveyor has good tions of law rather than questions of and legal title; risk of liens or encum- fact. brances pass to the transferee. quia timet n. Latin. A legal remedy quorum n. The number of persons sought in an equity court to enjoin some- who must be present in a group for offi- one from doing an anticipated damage. cial action to be taken, e.g., a “quorum” Such a remedy may be granted if the of the board of directors must be present petitioner can show imminent and in order to take a vote; the number of irreparable harm would be done. individuals constituting a quorum may vary from body to body. quid pro quo n. Latin. Something exchanged for another thing of approxi- quotation n. 1 A passage, from an mately equal value, not necessarily in a authority, that is quoted, cited, and monetary sense. attributed to its source. 2 The state- ment of the price of a stock or other quiet enjoyment n. To have the undis- financial instrument. turbed use or possession of something, particularly conveyed or leased prop- quotient verdict n. An improper ver- erty. Often expressed in a lease by a dict that a jury may arrive at by taking covenant of quiet enjoyment. See also the arithmetic mean of what each juror eviction. believes to be an appropriate award. quit v. to leave or surrender possession. quo warranto Latin. 1 A common law writ inquiring into the authority by qui tam Latin. An action that grants which a public official claims his/her the plaintiff a portion of the recovered office. 2 A state action with the intent penalty and gives the rest of it to the of revoking the charter of a corporation state. The plaintiff is said to be suing for that has abused or for a long period the state as well as his or herself. failed to exercise its franchise. quitclaim n. A formal renouncement of one’s right to or interest in some- thing. See also deed. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 215

against her will; unlawful sexual act with an unwilling other, and usually involving threat of violence. 2 v. to commit the act of forcible sexual inter- course. date rape. Rape committed by the victim’s escort to a social event, R also known as acquaintance rape or relationship rape. statutory rape. Sexual intercourse with an individual who is a minor or under the age of consent (today, usually 18), by an adult. Neither Racketeer Influenced and Corrupt consent of the minor, nor ignorance Organizations Act n. This law, of the minor’s age, can be used as a enacted in 1970, is designed to fight defense. activity by organized crime and to pre- serve the integrity of the interstate and rap sheet n. Slang. A person’s crimi- international marketplace by investigat- nal record. ing and prosecuting individuals conspir- ing to participate or actually participating ratable 1 n. Taxable property; a rat- in racketeering. Note that it has no force able distribution is a pro rata share of in intrastate commerce. Abbreviated the assets of a bankruptcy. 2 adj. RICO. See also racketeering. Capable of being appraised or appor- tioned. racketeering n. A system of organ- ized criminal extortion of money or rate n. A fixed or stated price for a favors from businesses through the use specified unit of a commodity or service, of violence, intimidating, or other illegal such as $2 per pound or $9 per hour; a means; a pattern of illegal activity car- percentage of an amount, such as 5 per- ried out by a criminal group or syndi- cent interest on capital; a relative or pro- cate, including but not limited to fraud, portional value. murder, extortion, and bribery. See also bribe, bribery, extort, extortion, and ratification n. Affirmation or approval; fraud. adoption of an action that was done on one’s behalf and treating that action as if raised check See check. it had been authorized by that person before the fact of it having been done. By ransom 1 n. The money paid to secure ratifying an act or action, a person the release of a person held captive, becomes responsible for the conse- whether as a result of having been kid- quences of that act or action. napped or captured in some other way; Ratification by a two-thirds vote of the release of a captured person in Congress is needed to propose a consti- exchange for money or other considera- tutional amendment, which must then tion. 2 v. To gain the release of a cap- be ratified by three fourths of the states tive by paying the price demanded; to for it to take effect. hold a person captive and insist on pay- ment as the condition of release. ratify v. To affirm or approve, usually after the fact. rape 1 n. In common law, the felony of a man having illegal sexual intercourse ratiocination n. Reasoning; the with a woman other than his wife, by process of exact, rational, reasoning force or with threat of violence and something through. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 216

ratio decidende 216

ratio decidende adj. Latin. The reason reapportionment n. The altering of for deciding. The rule of law or principle the boundaries of a legislative district in on which the court’s decision is based. order to reflect shifts in population dis- See also obiter dicta. tribution. See also gerrymandering. rational basis test n. A principle of reargument n. The bringing of a analysis under the due process or the court’s attention to some substantive equal protection clause, which may be principle that was overlooked or misrep- used to either uphold or void a law resented during the initial arguments based upon the law’s serving to reason- before that court, usually occurring ably attain some legitimate governmen- before the court reaches its decision. tal objective. If violation of a specific See also rehearing. right is charged, such as a restriction based upon color, religion, and so on, reasonable adj. A standard for what is the law must be tested by strict fair and appropriate under usual and scrutiny, a more stringent test. ordinary circumstances; that which is according to reason; the way a rational ravish v. To take by force or seize is and just person would have acted. the literal meaning of the word. It is generally synonymous with rape. reasonable care See care. Traditionally, an indictment for rape reasonable diligence See diligence. demanded inclusion of the word rav- ished, which implied use of force and or reasonable doubt n. The amount of violence by the man and resistance by doubt that would cause one to believe the female. that the defendant might not actually be guilty of the charged offense(s). real estate n. Land and any perma- “Beyond a reasonable doubt” is the nent structures attached thereto; any amount of certainty that a juror must real property. interest in same. See also have in order to find a criminal defen- real evidence n. Objects produced for dant guilty as charged. See also moral inspection at trial. See also evidence. certainty and preponderance of the evidence. realization n. A transformation of non-monetary assets into cash; a trans- reasonable man (or person) n. An action such as a property sale that imaginary person who is used as the impacts upon the taxpayer’s wealth to legal measuring stick against which to the extent that it may trigger the impo- determine whether or not a defendant sition of an income tax. If the tax is, in exercised appropriate caution in an fact, imposed, the transaction is said to undertaking, or whether he exhibited be recognized. See also recognition. negligence by not taking the precautions that the hypothetical reasonable person real party in interest See party. may have taken under the given circum- stances, or by doing something that a real property n. Land, including what- reasonable person would not have done. ever is attached to its surface, such as buildings, trees, and so on; everything reasonable time n. The subjectively beneath its surface, such as minerals; determined amount of time that should and the air space above it. This is dis- be needed to complete what a contract tinct from personal property, which is requires to be done; how long the movable. See also chattel and property. Uniform Commercial Code provides for 21_542109 ch18.qxp 3/28/06 12:20 PM Page 217

217 recognition

an offer or goods to be accepted or reciprocal agreement n. Obligations rejected by a buyer or for substitute assumed and imposed by two parties as goods to be provided by the seller before mutual and conditional upon the other one or the other becomes in default. party assuming same obgliations. rebuttable presumption See pre- reciprocal wills n. Wills prepared and sumption. signed close in time, with mutual and interchangeable bequests, generally rebuttal evidence See evidence. between spouses. rebutter n. Someone who rebuts; a reciprocity n. An agreement or rela- common law defendant’s pleading in tionship between states, or localities, response to the plaintiff’s surrejoinder. where special advantages are bestowed recall n. 1 A removal of a public offi- upon citizens of A by B in exchange for cial from office by means of a popular similar advantages being bestowed on vote to prematurely end his or her term citizens of B by A. For example, State A of service.2 A product manufacturer’s may allow attorneys who are properly requesting the public to return faulty licensed in State B to become licensed products for replacement or repair, in State A without taking a bar exami- required by the Consumer Safety Act. nation, if State B affords the same priv- ilege to lawyers who are properly receivables See account receivable. licensed in State A. receiver n. 1 A disinterested party recital n. Formal statement(s) in a chosen by a corporation or by a court to written document that sets forth certain collect and protect property that is the facts that form a basis or reason for the subject of diverse claims. A receiver is agreement or transaction which follows; often appointed in proceedings concern- generally prefaced with the term ing insolvency. 2 In criminal law, a “whereas,” as in “Whereas, the parties receiver is one who accepts or obtains intend by this agreement to set forth possession of goods that are known to their agreement to divide all their mari- be stolen, and as such is in turn a viola- tal property in anticipation of divorce.” tor of the law. See also liquidate and fence. reckless disregard n. An act of pro- ceeding to do something with a con- receivership n. The situation of being scious awareness of danger, while in the control of a receiver; functioning ignoring any potential consequences of as a corporate- or court-appointed so doing. Reckless disregard, while not receiver; the proceeding at which a necessarily suggesting an intent to receiver is appointed by the court. See cause harm, is a harsher condition than also bankruptcy. ordinary negligence. Proving a defen- dant’s “reckless disregard for the truth” receiving stolen property See is the standard for success of a plaintiff receiver and fence. in a suit for libel. recidivist n. One who commits a sec- recognition n. Acknowledgement that ond (or higher numbered) crime; a something was authorized to be done; repeat offender; a habitual criminal. the acknowledgement of someone’s or Such a person is usually subject to something’s rank or status, especially extended confinement under habitual the diplomatic recognition of another criminal statutes. See also criminal. country; a subjecting to income tax, under the federal income tax laws. See also realization. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 218

recognizance 218

recognizance n. A bond made to a recoupment n. A recovery of expenses; court, and recorded, of an obligation to a reduction or withholding for legitimate do something, which if the person so reasons, of part or all of an owed bound fails to do will require the pay- amount; a defendant’s right to have part ment of a preset sum of money. Most of the plaintiff’s claim reduced as the often, a recognizance is in the form of a result of a breach of contract by same in bail bond that guarantees an unimpris- the course of the same deal. oned criminal defendant’s appearance for trial. See also bail, bond, and recourse n. A course of action for release on own recognizance. enforcing a claim; the right of the holder of a note to demand full payment of that recognizance, one’s own See release note if the terms are not fully honored; on own recognizance. the right to be repaid from the bor- rower’s or cosigner’s personal assets in record 1 n. A documentation of things excess of the collateral. past in writing; often the exact history of a legal proceeding; information stored recover v. To get back the full or an in electronic form on some medium such equivalent amount; to obtain through a as computer drive, CD, or DVD; the offi- legal judgment; to be awarded damages. cial transcript of a trial or proceeding that contains its word-by-word docu- recovery n. The getting back of some- mentation. 2 v. the act of filing a docu- thing that was taken away; the amount ment with a court or official office, as in awarded by a decree or judgment; the “to record a deed.” establishment by a court of a right to something by decree or judgment of a record on appeal. A presentation to court. an appellate court of all the testi- mony and items introduced into evi- recusal n. A judge’s removing him- or dence in the lower court, plus the herself from a trial or hearing, because compiled pleadings, briefs, motions, of bias, prejudice, or an interest in the and other papers filed with the infe- matter being decided. rior court. recuse v. To remove as a judge from a record, public. Any document affect- trial or hearing, because of bias, preju- ing real property, such as a deed or dice, or an interest in the matter being a mortgage concerning land within decided; to object to or challenge the a particular jurisdiction of the gov- qualifications of a judge to hear a case ernment keeping that record. due to a possible conflict of interest. record date n. The date by which a cor- redemption n. A reclaiming or rebuy- porate shareholder must be registered in ing something by virtue of paying off a order to be eligible to receive dividends or debt or settling some other predeter- to vote on company business. mined condition of ownership; a buying recording acts n. Statutes that affect back of its outstanding stock by a corpo- the recording of deeds or other interests rate entity; the right of a debtor to buy in real property. They are designed to back property from someone who bought protect bona fide owners from previous it at a creditor-initiated forced sale. unrecorded interests. red herring n. A topic that may or may record owner n. The owner of real not have general significance, factual or property and stocks, bonds, and other legal, but that is of absolutely no rele- financial instruments as shown by pub- vance to the question or matter at hand. lic records. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 219

219 registered representative

re-direct examination See examination. fraud. Reformation is considered to be an equitable remedy. redlining n. An unlawful discrimina- tion in granting credit practiced by some refusal n. Rejection of goods or denial financial institutions, based upon the of services to which a person is entitled; prospective borrower’s living in a so- not completing a contract by either non- called “undesirable” or “bad” neighbor- acceptance or nonpayment for goods or hood. services; a chance to accept or reject something before any one else is offered redress n. Relief, restitution, or dam- that chance; the privilege of being ages.; a way of seeking remedy once the afforded such a chance, also known as statute of limitations has expired. See the right of first refusal. also relief, remedy, recovery, and resti- tution. register v. To formally enter in a pub- lic list (as in register to vote); to make a reductio ad absurdum n. Latin. record of (the defense registered an Reduction to the absurd. In logic, dis- objection); to file a stock with the proving an argument by demonstrating Securities and Exchange Commission, that it leads to a ridiculous conclusion. which is required before it can be reentry n. The resumption of posses- offered for sale. sion of a parcel of land by one who had registered (coupon) bond n. A long- formerly possessed it and who reserved term, interest-bearing instrument, in the the right to resume same when the new form of a certificate, issued to the public holder released it; the right of a landlord by a corporate or governmental entity as to repossess a leased premises after a a way to borrow money and registered tenant has defaulted on the terms of its on the books of the issuer. The obligor lease. promises to repay the money on or referee n. A quasijudicial master before a specific date and makes regular appointed by a court to assist with a spe- interest payments until then. The owner cific matter, and who in certain jurisdic- of the bond is not a stockholder and has tions is permitted to take testimony and no ownership interest in the entity, but determine factual issues that, eventu- is only a creditor and the debt is often ally, are reported back to the court for secured by a lien on the entity’s prop- judgment. See also master. erty. Interest is paid by redeeming a coupon. See also bond and debenture. referendum n. A passing of responsi- bility for a piece of legislation, a consti- registered representative n. A tutional amendment or some other trained securities salesperson author- public issue to the public at large to vote ized to take orders for securities from upon; the vote in such an issue. See also the general public and paid a commis- initiative. sion on what she sells. After six months or more of training and after having reformation n. A rewriting of a deed passed tests prepared by the National or contract that does not express what Association and Securities Dealers and was actually agreed upon, only when it the New York Stock Exchange, that per- can be demonstrated in a clear and con- son is registered with the various stock vincing manner that a mutual mistake exchanges, and licensed by the state(s) was made. There will be no rewriting if in which she plans to do business. the mistake was made by one party only, unless it was caused by the other party’s 21_542109 ch18.qxp 3/28/06 12:20 PM Page 220

registered trademark 220

registered trademark n. A mark filed rehearing n. A second hearing or in the United States Patent and retrial before the same court that Trademark Office, with a precise descrip- already ruled to reconsider the issue on tion of the mark, including drawing or the grounds that there was an error or photograph if appropriate; a registered omission during the first time around. trademark confers upon its owner the The pleadings and evidence already sole right of use, with protection against introduced in the first trial will remain infringements or use by others. in evidence. registrar n. An official record keeper, rejoinder n. A pleading in common such as the one who at a university law, made by the defendant to answer a keeps the academic records, or the replication by the plaintiff. agent of a corporation who records and keeps records of the names of stock and relation back n. The principle that an bond holders. act committed at a later time is consid- ered as having occurred at the time of regulation n. A rule issued by an an earlier event; a judge’s application of administrative agency or a local govern- that principle. mental body prescribing conditions or authorizations that must be followed by relative n. A person who is akin to the public or by public utilities; the another by virtue of blood; that is a process of controlling by restrictions or blood relation, such as sister, brother, rules. aunt, uncle, parent, child, and so on. regulatory offense n. A crime that is relator n. Individual who reports or not inherently wrong, but that is illegal gives information upon whose word cer- because it is prohibited by legislation. tain legal documents may be given. Some examples of regulatory offenses release n. 1 Freeing from an obliga- are exceeding the speed limit; public tion or commitment. 2 Liberating one intoxication; and hunting, fishing, or from a duty or claim that she could have driving without the appropriate license. been held legally liable for. 3 Also known as a statutory offense. See Surrendering of a right or title. 4 A crime. also written permission to publish or to rehabilitation n. A restoration of repu- quote in print, given to a newspaper or tation and character, the term has many book publisher by the quote’s legal context-sensitive meanings. In penology, owner. 5 A discharge from custody, it is the process of improving the confinement, or imprisonment, whether inmate’s character so he will become a with certain provisos or unconditionally. productive member of society. At a trial, release on own recognizance n. A it is the restoration of a witness’s credi- pretrial release of an arrested person bility after it has been impeached under without bail, on that person’s promise to cross examination. In the context of appear for trial when it is appropriate to bankruptcy, it is restoring a corpora- do so. Abbreviated ROR. tion’s solvency by satisfying the credi- tors’ claims with future earnings, so that relevancy n. A test regarding the the corporation may continue to do busi- admissibility of evidence into a court of ness. See also mitigating circumstance. law, based upon the logical relationship of the prospective evidence and the fact that it is intended to establish. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 221

221 remitter

reliance n. Dependence; trust; confi- vested remainder. One going to a per- dence in the support of someone or son in existence and without pre- something. ceding condition for immediate possession, but then passed along detrimental reliance. The relying by to another. In the preceding exam- one party on the representations of another to the detriment of the first ple, Erica has a vested remainder party’s position or welfare. It may upon the death of Bob. be a cause for bringing an action for recovery of damages due to fraud. remainderman n. One who holds an See estoppel. interest in a remainder, whether contin- gent or vested, and who will become its reliction n. A gradual shifting of a possessor at some future time. river’s course, causing it to withdraw from its banks and/or to lower its level. remand v. 1 To send back for further The newly created dry land, if the consideration; an appeals court may retreat is permanent, becomes the prop- remand a case back to the lower court erty of the owner of the adjoining prop- for further action or for a new trial; 2 erty; the changing of a property’s To send a prisoner back to custody after boundary line by the erosion of land by a denying a plea for bail. river or stream. See also accretion, remedy n. The way a right is enforced avulsion, and dereliction. or an injury is redressed—most relief n. 1 Assistance or help given to commonly by imposition of monetary those who are in need; especially finan- damages. cial assistance provided by the state. extraordinary remedy. A type of rem- 2 The benefit or redress awarded to a edy that is not usually available, but claimant by a court, or claimed in a that is used when it is shown that it court, especially that which is equitable is necessary in order to preserve in nature, such as an injunction against one’s rights. Writs of mandamus, future harm, as distinct from monetary prohibition, and habeas corpus are damages. examples of such. relinquishment n. Abandonment of a provisional remedy. A temporary right or thing. See also abstention. remedy that is incidental to a regu- lar legal proceeding, but that is remainder n. The part of a decedent’s needed to preserve the claimant’s estate that is not otherwise specifically rights or to keep same from suffer- bequeathed in a will; a future interest ing irreparable harm pending the vested in a third person, and intended to action’s conclusion. Temporary occur after the termination of the pre- restraining orders, injunctions, ceding estate(s). For instance if a grant attachment, or appointment of is made “to Bob for life, and then to receivers are examples of provi- Erica,” Erica’s interest upon the death of sional remedies. Bob is the remainder. remedy, mutuality of See mutuality contingent (executory) remainder. A of remedy. remainder given to a person only if certain conditions are met; one remitter n. 1 The principle by which a given to a person not yet born; or person holding two titles to property one left to a living person whose and enters upon it by the lesser, or more identity is yet to be determined. defective, title is restored to the earlier or better title. 2 Someone who sends a payment to another. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 222

remittitur 222

remittitur n. Latin. It is sent back. A repeal 1 n. The annullment of an court’s order that reduces what it deems existing law by the enactment of a new to be excessive damages awarded by a law. If the new law declares the old law jury; the process by which the court pro- to be revoked, the repeal is express. If poses to reduce or actually reduces the new law has provisions that contra- damages without the jury’s consent. See dict the old law so that both cannot log- also additur. ically exist together, the new law takes precedence and the repeal is implied. remote cause See cause. 2 v. The act of annulling a law. removal n. 1 An altering or moving of replevin n. An action taken to recover a person or thing from one location to wrongfully taken property, rather than another. 2 The taking of an action recovering only the value of that prop- from a state court and transferring it to erty from the defendant; a court order a federal court. 3 A petition made by a authorizing the return of the plaintiff’s defendant to have a case moved from wrongfully taken property. one court to another, usually as in the second definition. replevy v. The recovery of goods pur- suant to a writ of replevin; to get deliv- render v. To formally announce a ver- ery of goods that had been kept from the dict, either by announcing it in court or rightful owner; to recover chattels as a by filing a memorandum with the clerk; result of replevin. to deliver or transmit; to pay (render an account); to provide (render a service). replication n. The plaintiff’s or com- plainant’s reply to the defendant’s plea renounce v. To formally give up title or answer. to; to abandon (renounce title); to decline recognition of (renounce one’s reply 1 n. A plaintiff’s response to a duty to serve). defendant’s answer or counterclaim in a civil case; a plaintiff’s response (with rent n. Compensation (usually mone- the court’s permission) to a charge from tary) paid for the occupancy or use of a third party; in common law, the (usually real) property. answer of the plaintiff to the answer or renunciation n. Abandonment of a pleading of the defendant; the reply may right, whether open or tacit, without be followed by a rejoinder by the defen- 2 v. transferring it to someone else; in crim- dant. the act of responding to a pleading inal law, the total voluntary abandon- of an opposing party. ment of a criminal activity before it is reporter See court reporter. committed with the purpose of foiling that activity. reports n. Formal written or vocal pre- sentations of facts; written records of a reorganization 1 n. In bankruptcy, court proceeding prepared by the court the restructuring of a business that per- reporter and filed with the clerk; bound mits the continuation of the business volumes of judicial decisions by a cer- even after partial discharge of debts. 2 tain court or group thereof. n. In tax law, a corporate restructuring that involves merger with another cor- representation n. A statement of fact poration, or acquisition of one corpora- made with the purpose of getting some- tion by another. 3 v. The act of one to become party to a transaction or organizing in a new fashion. contract. See also misrepresentation. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 223

223 reserved point

representative n. Agent; someone rescission n. The termination of a who is authorized to act in place of and contract unilaterally by a party for sub- on behalf of someone else, by that other stantive legal reasons, such as the fail- person for some special purpose. A rep- ure of the other party to perform its resentative is entitled to certain rights obligations; or, the mutual termination based upon her or his status, including of a contract, with the result that both the right to bargain on behalf of employ- parties are restored to the status quo ees, or to discovery of trial preparation ante (see also rescind); a remedy that materials. See also personal represen- one may seek in a court of equity that tative and registered representative. results in a termination of the contract as though it had never existed. reprieve n. A temporary suspension of a criminal sentence (usually the death rescript n. Written order by a judge penalty) for a certain period of time, explaining to a court clerk how to dis- usually for the purpose of examining pose of a case; the written direction of new information or permitting an appeal an appellate court to a lower one to to take place. A reprieve cannot prevent enter a decree in accordance with the the ultimate carrying out of the judg- direction. ment. See also clemency, commuta- tion, pardon, and executive clemency. rescue n. The aiding of someone who is in immediate and serious peril; the republication n. An affirmative action unlawful release (usually by force) of a to publish anew an instrument, such as person who is legally imprisoned or a will, that had been previously revoked under arrest. or repudiated. The revocation of a sub- sequent will cannot revive an earlier one rescue doctrine n. The principle in without such an affirmation or use of a torts that a wrongdoer who endangers a codicil. person by negligence is liable for any injuries sustained by someone who repudiation n. Words or actions of a acted reasonably in attempting to res- party to a contract that indicate the cue the endangered person. See also intention of that person to fail to carry Good Samaritan doctrine. out the contract in the future; a threat to breach a contract. reservation n. A right held back or given to the grantor, such as some right, reputation evidence n. Same as char- profit, or interest in the estate or prop- acter evidence; see evidence. erty that is being granted; a delayed decision by a court or other body on a requirements contract See contract. point of law; a preservation of the right res n. Latin. The thing. The subject of to dispute a point of contract by a party the matter—that is, an action concern- nevertheless performing same (such as, ing an object or property, rather than a performing under reservation). See also person,; the status of individuals. under protest. rescind v. To cancel a contract, reserve n. An amount of money or whether unilaterally or by mutual agree- assets set aside against future unreal- ment and restore both parties to status ized risks; monies set aside by insur- quo ante (the positions they would have ance companies to pay losses that have been in if the contract had never not yet been asserted or finalized. existed). See also rescission. reserved point n. See point of law. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 224

res gestae 224

res gestae n. Latin. Things done. res ipsa loquitur n. Latin. The thing Either the events at issue or other speaks for itself. An evidentiary rule in things, such as utterances, that are con- torts that the very fact that an accident temporaneous with the res gestae; spon- occurred is enough to provide a prima taneous statements or exclamations facie case of negligent behavior. Rear- made by the participants, perpetrators, ending another automobile is an exam- victims, or onlookers at or immediately ple, showing failure to maintain a safe following the event, be it criminal or the distance on the part of the rear-ender. subject of litigation. As present-sense impressions, they are excluded from the resisting arrest n. Physically oppos- hearsay rule. See excited utterance. ing or obstructing a police officer who is attempting to make a legal arrest. The residence n. A place of abode with resistance is deemed to be an assault some permanence; residence requires and battery upon the arresting officer, bodily presence and is distinct from and in no case can be regarded as self domicile, which requires both bodily defense. presence and intent to make it one’s home. A person may have many places res judicata n. Latin. A thing decided. of residence, but only one domicile; a A doctrine whereby the court’s decision house or apartment; the place where a is binding upon the parties in any and all corporation does business, or is regis- subsequent litigation concerning the tered to do business. See also domicile. same case. In effect, it bars the litigants from seeking to take the same case to resident n. One who lives in a particu- another court in hopes of a different out- lar place. A resident is not necessarily a come, or of raising new issues that were citizen. not raised at the first trial. resident alien See alien. respite n. A delay or postponement of a sentence, or one granted to a jury or residual adj. A leftover; remainder; a court for further consideration or delib- residue. eration. In all cases, it is temporary. residuary adj. Relating to a residual. respondeat superior n. Latin. Let the residuary clause n. A clause in a will superior respond. The doctrine that an that gives all the remainder of the employer is held liable for all wrongful estate, once the specific bequests and acts or any harm caused by an employee devises are taken care of, to one or more or agent acting within the scope of his scope of of the beneficiaries. employment or duties. See also employment. residuary estate See estate. respondent n. The party against residuary legacy n. The remaining whom a civil complaint is brought; the estate after all claims against the estate defendant in an equity case, as well as and specific legacies, except those the person who is the subject of an authorized by the residuary clause, appeal. have been satisfied. responsibility n. The liability for an residuum n. What remains after act and the obligation to repair any dam- something has been taken away; age caused by that act; in criminal law, residue. a person’s mental capacity to under- stand and answer in court for her or his actions; guilt. See also competent and capacity. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 225

225 retraction

Restatement n. A treatise by the sold to a particular person or group, or American Law Institutes that attempts of its being sold in a certain way, such as to describe general common law, incor- at auction; a trust provision that does porating its growth as the result of vari- the preceding. ous legal decisions. Restatements have been issued in relation to agency, con- Restriction Fragment Length Poly- flict of laws, contracts, foreign relations, morphism n. The older and more dis- judgments, restitution, security, torts, criminating form of DNA testing. trusts, and unfair competition. Although Restriction Fragment Length Poly- frequently cited in cases and commen- morphism is a process that breaks DNA taries, restatements are not binding on strands into tiny fragments at specific the courts. points on the DNA chain. Also known as HLA DQ Alpha, or simply DQ Alpha. restitution n. A making good for loss, Abbreviated RFLP. See also PCR and damages, or injury, by indemnifying the DNA. damaged party; return or restoring something to its lawful owner. Useful in restrictive indorsement See indorse- both torts and contract law, restitution ment. is sometimes used in criminal law as a resulting trust See trust. condition of probation. resulting use n. A use of real property restraining order n. A temporary brought about by implication and restraining order (T.R.O.); a restraining remaining with the conveyor when noth- order is always temporary, because it is ing of value is given in exchange by the ordered without a hearing. This distin- grantee. guishes it from an injunction. A court order issued to prevent a family member retainer n. A sum of money paid in or other party from harassing, threaten- advance to a professional in order to ing, harming, seizing the property of, secure services in a particular case; a and sometimes even approaching or hav- client’s authorization for a lawyer’s rep- ing any kind of contact with another; a resentation in a case. See also attor- court order issued to temporarily pre- ney’s fees. vent a transfer of property, pending a hearing. retaliatory eviction See eviction. restraint n. Limitation or confinement retire v. Applying to drafts, to redeem as in constraint on free assembly; for- by paying out a sum of money; to with- bearance; a holding back or prohibiting draw from the market by buying back; a from doing something. voluntary leaving of public office, or other form of employment; a leaving the restraint, judicial See judicial courtroom by the jury to consider the restraint. case, or by the judge to her chambers. restraint on alienation n. A restric- retirement n. The voluntary termina- tion on a person’s right to transfer or to tion of employment upon reaching a cer- sell real property, usually contained in a tain age. See retire. deed, and stating that should the grantee attempt to violate the condition, retraction n. The act of taking back or the land would pass back to the estate of withdrawing (a statement, a plea, an the grantor or to some other party. It accusation, or a condition of a contract); may restrict how the person may dis- the withdrawing or taking back of a pose of the land, prohibiting its being renunciation. See also renunciation. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 226

retreat (duty to), rule 226

retreat (duty to), rule n. A doctrine in rev. rul. abbr. See revenue ruling. criminal law found in some jurisdictions requiring that, unless at home, at his or revenue n. Synonymous with income, her place of business, or in a situation derived from whatever source(s); that where the assailant is a person the vic- which comes back as a return on an tim is attempting to arrest, the victim in investment. See also income. a murderous assault must attempt to revenue bill See bill. retreat safely rather than resorting to using deadly force in self-defense. In revenue procedure See revenue rul- tort law, failure to exercise retreat may ing. result in liability’s being attached to the party who could have retreated. revenue ruling n. A published deci- sion by the IRS, printed in the Internal retrial n. A new trial of an already lit- Revenue Bulletin, dictating how the fed- igated issue by the same court for some eral tax code applies to a particular sit- substantive reason, such as a recogni- uation. Unlike private rulings, taxpayers tion of procedural errors in the first may rely upon revenue rulings to calcu- trial, that made it unfair or improper. late the tax consequences for them in See also mistrial. similar situations. retroactive adj. Referring to a law, a private ruling. An IRS determination ruling, and so on affecting matters that of tax consequences of a certain occurred beforehand; affecting past hap- transaction issued to and at the penings. See also prospective. request of a private taxpayer only, and may not be relied upon by tax- retroactive law n. A statute that payers at large. treats with facts or occurrences some- thing that took place before the statute revenue procedure. An official IRS was enacted. While unusual, a retroac- statement spelling out the adminis- tive law is only unconstitutional if it trative practices used by the IRS. impairs vested rights, interferes with For example, methods for obtaining obligations under contracts (such as a private ruling are often spelled creating new obligations or attaching out. Abbreviated rev. proc. new disabilities), has the effect of an ex reversal n. The setting aside or over- post facto law or bill of attainder, or is turning of a lower court’s decision by an prohibited by the United States appellate court; a turning around of the Constitution. Certain decisions granting short-term market price trend of a secu- new rights to criminal defendants under rity, either from downward to upward, or constitutional law have been given full the other way around. retroactive effect. While others have been held to be effective only from the reverse discrimination n. A term time of enactment forward. See also ex used to refer to the exclusion of a mem- post facto and bill of attainder. ber of a majority class not commonly discriminated against, to compensate retrospective See retroactive. for the traditional discrimination return n. 1 An officer of the court’s against a minority member. For exam- bringing back a court-issued document, ple, management positions traditionally such as a writ, and reporting how the filled by members of the white race officer had done or why he had not done would be filled by African Americans, what that document had ordered. 2 An Asians, or Hispanics to the exclusion of income tax return. any white candidates, even if the latter 21_542109 ch18.qxp 3/28/06 12:20 PM Page 227

227 right

had seniority or were better qualified by one, most jurisdictions require its repub- reason of education, expertise, or tem- lication or some other affirmation. perament. It has been contended that such treatment, broadly known as affir- revocable n. Capable of being abro- mative action, is in violation of the equal gated at the discretion of the maker. See protection clause of the Fourteenth also revocation. Amendment of the United States revocation n. An annulment or with- Constitution, as well as Title VII of the drawal of a conferred power or of a Civil Rights Act of 1964. statute; a withdrawal of an offer by the reversible error See error. one doing the offering; invalidation by the testator of a will, either by super- reversion n. A future interest in land seding it with a new one, or by destroy- created by operation of law by a con- ing it. veyance of property for a specified period of time without transfer of title to revolving credit n. A renewable line said land. Upon expiration of the period of credit over a certain period of time, of the lease, the land reverts to the lease usually synonymous with credit card grantor or his or her heirs. Additionally, account. The borrowed amount is repaid reversion may refer to the part of an to a merchant or bank over a length of estate that the grantor retains upon con- time in installments, consisting of part veyance of the rest of it. See also principal and part interest. Generally, remainder and reservation. the amount of interest a creditor can charge is limited by state usury laws. reverter See possibility of reverter. Often more expensive than other forms of credit. revest v. To vest anew; to return title to the possession of the original propri- rev. stat. See revised statutes. etor or of the donor. RFLP abbr. See Restriction review n. A judicial reexamination of a Fragment Length Polymorphism. court’s proceedings, or a reconsideration by the same court of its earlier decision. RICO abbr. See Racketeer Influenced The term is often used to describe an and Corrupt Organizations Act. appellate court’s examination of a lower rider n. An addition or change to a court’s proceeding. See also judicial written document by way of a supple- review. mental writing; for example, a rider to revised statutes n. Laws that have an insurance policy may modify or been changed, altered, amended, or expand the conditions of the original reenacted by a legislative body. A reen- policy, or may change amounts of cover- actment is generally thought of as hav- age, or may delete certain risks. ing the effect of a repeal and right n. What is proper and correct replacement of the former law. under the law, ethics, and/or moral revival n. A reinstitution of a former code; something owed a person because will or deed that had been revoked by of a just claim; a protected and recog- virtue of a later document. Of course, nized interest; a negotiable option to buy that later document must be destroyed a new issue of stock at less than market or cancelled. Although some jurisdic- pricing; a claim or interest in tangible or tions automatically recognize the earlier intangible things. will upon the cancellation of the later 21_542109 ch18.qxp 3/28/06 12:20 PM Page 228

right of action 228

right of entry. The right to go upon right to die n. The right of a termi- land or into a dwelling. nally ill person to refuse to have her or his life extended by artificial or heroic right of redemption. The right to reclaim property previously sold or means and often called passive euthana- encumbered, by paying full value sia; the withdrawal of feeding tubes and plus any interest and costs. other artificial means of life support from a terminally ill person. See also right of way. The right of one vehicle advance directive. to pass before another, as in “the car to the right at a four-way stop right-to-know act n. A federal law sign has the right of way”; the right (augmented by some state statutes) that to pass over the property of another, requires businesses that produce haz- see easement; a piece of land upon ardous materials to inform the commu- which a railroad may construct its nity in which it manufactures or stores tracks. those materials, and the employees who riparian rights. As to owners of land may handle them, about the possible adjacent to waterways, the right to hazards. use of the water, the soil under the right to remain silent n. This right water, and its neighboring land must be given to a suspect in a criminal structures, such as banks. case before interrogation begins. It Generally refers to the right of a grows out of the Fifth Amendment’s property owner whose land includes guarantee against self-incrimination, a natural waterway to use that por- which coupled with the Sixth tion of the waterway as may pass Amendment’s right to counsel give us through his land, in whatever way the Miranda rule. Once informed of the property owner chooses to. these rights, the subject has the option right of action n. The right to bring a of waiving them. particular case before a court; a legally right to work laws n. A law in many cause of enforceable right. See also states preventing arrangements action claim for relief. and between labor and management to right of election n. A spousal right to require that a person must join a union elect to receive the gifts bequeathed by in order to be employed by the business. the deceased’s will, or to instead elect to See also open shop. receive a share of the estate as put forth ripe for judgment n. The time when a by statute. Also known as widow’s elec- case has proceeded no further than, but dower. tion. See also far enough, for all the facts to have been right of first refusal See refusal. developed to the point where an intelli- gent judgment should be able to be right of privacy See privacy, right of. reached. right of subscription See subscrip- ripeness doctrine n. The requirement tion rights. that a case be ripe for judgment before a court will decide the controversy. right to counsel n. The right of a criminal defendant to be represented by risk n. 1 Peril, danger, the chance of a court-appointed attorney if the defen- loss or injury. 2 Liability for injury, dant cannot afford to hire one. This is a loss, or damage, by statute placed upon constitutional right guaranteed by the the manufacturer rather than the con- Sixth Amendment. sumer, should it happen from normal use of a product. 21_542109 ch18.qxp 3/28/06 12:20 PM Page 229

229 rule in Wild’s Case

risk management n. The process of share of the profit derived from real assessing risk and acting in such a man- property that is reserved for the owner ner, or prescribing policies and proce- in exchange for granting a lessee, who dures, so as to avoid or minimize loss is going to mine or drill the mineral associated with such risk. rights on that land. risk of loss n. A financial risk of being R.S. abbr. See revised statutes. responsible for destruction or damage or the inability to locate property that a rule n. An established or prescribed party may get stuck with when a trans- standard for action; an authoritative fer of property is occurring. According to principal; the general norm for conduct the Uniform Commercial Code, the risk in a specific kind of situation; a princi- is borne by the seller until some con- ple, standard, or regulation that governs tractual event occurs, at which point the the internal workings of a court or an risk shifts to the buyer. The phrase is agency. also used in insurance contracts to rule v. 1 To exercise control; for denote the hazards that are covered by example, Diane’s parents rule with an the insurance policy. iron fist. 2 Deciding a legal point or robbery n. The illegal stealing or tak- question; for example, the judge ruled ing of another’s property from that person the question was admissible. or another by violence or by threat of vio- rule against perpetuities n. The com- lence; aggravated larceny. The personal mon law principle that prohibits threat of violence and implicit fear on the granting of an estate that will not part of the victim are essential in order to vest within 21 years of that granting, distinguish robbery from burglary. that is, within 21 years of the death of armed robbery. Robbery committed the person who created the interest. Its by a felon carrying a dangerous purpose is to limit the amount of time weapon, whether or not that that title to a property could be sus- weapon is actually used or even pended and thereby keep the property shown. The crime is tried as any from becoming available in the market. robbery would be in most states, but the weapon serves to bump up the rule in Shelley’s Case n. This rule severity of the crime. governing property dates from 1324 and states that if a property is bequeathed to ROR abbr. See release on own recog- a person and a remainder to his heirs, nizance. the remainder is considered to belong to Roth IRA n. A special form of individ- the person named in the bequeathal so ual retirement account, in which contri- that the person has a fee simple butions are not tax deductible when absolute. See also fee simple. made, but that compensates by making rule in Wild’s Case n. A property law the gains distributable tax free upon the 1 rule of construction that considers a owner’s reaching age 70 ⁄2. See also indi- property granted to A and A’s children vidual retirement account and Keogh as a fee tail if A has no children as of Plan. the effective date of the grant, but as a royalty n. 1 A payment made to the joint tenancy if A does have children at creator of an intellectual property that time. (author, inventor, and so on) for each copy of the property that is sold. 2 A 21_542109 ch18.qxp 3/28/06 12:20 PM Page 230

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rule of capture n. 1 Acquiring the running with the land adj. Description ownership of property where there pre- of any right or responsibility which viously was no ownership; thereby, any passes with the transfer of land, often wild animals captured belong to the per- with reference to easements or son who captures them, regardless of covenants. For example, where one whose property they were upon previ- driveway serves as an entrance to two ously. 2 If the recipient of property homes, but is owned by only one of the displays an intent to take full control of homeowners, the right to use the drive- that property and not just pass it on to way may be considered to “run with the another, that person captures full rights land” upon sale of the home to another to that property including the ability to party. pass it on to his or her heirs. rule of law n. A substantive legal prin- ciple; the prevailing of regular power rather than arbitrary power; the princi- ple that all citizens are subject to the judicial decisions in their states as well as those of the courts of the United States, and that such decisions are the result of constitutional principles. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 231

tax sale. A forced sale of assets of a taxpayer to satisfy tax obligations that have not been paid. sale on approval n. A transaction (usually involving goods) in which the buyer is permitted to use goods for a period, and then return them if they do S not meet the buyer’s needs or expecta- tion, even though the goods are not defective. If the goods were delivered for resale, the transaction is a sale and return or a consignment.

salable n. In such a condition as to be sale or exchange n. A tax law phrase appropriate for sale in the marketplace describing a voluntary exchange of for the ordinary selling price, legal to property for other property as distinct sell, and free from any noticeable flaws. from a gift or a contribution, and for Same as merchantable. which a federally taxable gain or loss may attach. salary, fixed n. An agreed-upon amount of money in exchange for serv- sales tax n. A percent of the con- ices that may be set at a fixed hourly sumer-paid sales price of certain goods rate, but that is usually figured on a in certain states and municipalities. yearly basis and does not vary with the salvage n. In general, it is the value of amount of goods the employer sells. See a piece of equipment or other property also commission. after it has been functionally rendered sale n. A transfer of property or title useless for the purpose for which it was thereto in exchange for a sum of money; intended. In the case of a totally the agreement or contract by which wrecked automobile, for example, it is such a transfer takes place. A sale the depreciated value of whatever requires a free offer in exchange for a usable parts that can be resold in used freely agreed-upon purchase price condition, plus the value per pound of between two individuals who are compe- the remaining scrap metal; in maritime tent to contract with each other, and law it’s compensation for a service vol- who have mutually agreed to the deal. untarily given to a vessel in peril that An actual exchange or promised removes it from danger by the sea; in exchange of money is required. Finally, insurance law, the first definition the object, parcel, or title being sold applies, with the proviso that the must be capable of being transferred by amount of salvage is deducted from the seller. what is paid to the insured. conditional sale. A sale subject to salvage value n. An asset’s value certain events occurring, for exam- after it has become useless to the ple, a transaction to sell one’s owner. It is often figured through some home, conditioned upon the sale by means of depreciation and must be sub- buyer of his own home. Also known tracted from the basis. as contingent sale. sanction 1 n. A penalty imposed for sheriff’s sale. A forced sale of prop- violating accepted social norms. A sanc- erty for which full payment has not been made; proceeds of such sale tion may be civil or criminal in nature. are remitted to the creditor in full or Criminal sanctions are either fine, impris- partial satisfaction of the debt. onment, or both. 2 n. Authorization 22_542109 ch19.qxp 3/28/06 12:20 PM Page 232

sandbagging 232

and/or approval by someone in a position scalping 1 n. The sale of something of authority; for example, 3 v. the act (especially a ticket for a popular show of imposing a penalty. or sporting event) at a price far in excess of its face value and usually just sandbagging n. A practice by a trial before the event’s beginning; the buying lawyer of noticing but not mentioning a of a security by someone with inside possible error during a trial in hopes of knowledge, such as a broker, before rec- using it as a basis for appeal if the court ommending that security for purchase to fails to correct it. Because objections his/her client(s). Both the foregoing are must be made in a timely manner, sand- considered unethical, and the first is bagging usually doesn’t keep the issue illegal in many jurisdictions. 2 v. The alive. act of selling items at a price far in sane n. The condition of having a excess of face value. sound and rational mind; being mentally scandalous matter n. Immoral or healthy and having the ability to distin- indecent content; in legal pleadings, guish right from wrong. In all jurisdic- content that is impertinent or highly tions, being sane is presumed, and it is irrelevant and therefore subject to being up to the defense to prove the contrary stricken as improper. to be true. Synonymous with sanity. See also insanity and insanity defense. scienter n. Latin. Knowingly. 1 A knowledge beforehand of the conse- sanity hearing. 1 An examination quences of an action or failure to act of one’s mental competency to see whether one is mentally equipped to that makes a person legally responsible stand trial. 2 A court proceeding, for those consequences. Such advance held to determine whether a per- knowledge may make the person subject son’s mental health dictates institu- to civil or criminal punishment. 2 An tionalization. intention to deceive or defraud (usually applied to stock fraud). See also know- satisfaction n. A giving of something ing and mens rea. in order to release oneself from, or to satisfy, some outstanding obligation, be scope of authority n. In the law of it legal or moral. Satisfaction requires agency, whatever amount of authority the giving of one thing for another and an agent has been delegated or might should be distinguished from perform- reasonably be expected to be delegated ance, which requires only the promising in order to carry out his/her principal’s to give something. Also, payment in full, business. See also respondeat superior done to fulfill a contractual obligation or and scope of employment. debt. scope of employment n. The com- savings and loan association See plete range of activities an employee bank. might reasonably be expected to per- form while carrying out the business of savings bank See bank. the employer. saving clause n. A provision in a S corporation See corporation. statute or contract that if any clause is determined to be unenforceable, the scrip dividend See dividend. remainder of the statute or contract will remain intact and enforceable. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 233

233 secondary

scrivener n. A writer; refers to a pro- have an expectation of privacy, in order to fessional drafter of contracts or other find incriminating evidence. For a search legal documents. It is also applied to to be legal, there must be probable cause, someone who is an agent for another because the Fourth Amendment to the and who, for a fee, manages that per- United States Constitution prohibits son’s money, property, and/or securities. unreasonable search and seizure. 2 v. Term used commonly in Europe. To look for, as in the case of looking for evidence. See also frisk. scrivener’s error n. Mistake by pre- parer of a document that results in search and seizure n. The same as intent of the parties being thwarted; search, with the added provision of basis for not enforcing the document or retention of any contraband or evidence reforming it. See mutual mistake. of criminal activity that is found. Generally, a warrant is required, and seal 1 n. In common law, an impres- the scope of that warrant will be very sion in wax, wafer, or other substance limited, due to Fourth Amendment con- put on a document and attesting to its straints. There are, however, certain cir- authenticity; a similar impression placed cumstances in which a warrant is not over the edge of an envelope, its unbro- needed, including seizure of abandoned ken condition indicating that the enve- items, a hidden weapon, or contraband lope is unopened, hence its contents are items that are in plain view. untampered with. A corporation’s seal is at times called a common seal. 2 v. the search engine n. An online tool that act of placing an impression upon an permits a researcher to type in key- envelope or document to designate that words and returns a selection of it is undisturbed, the act of closing. Internet sources for information on that keyword (known as hits). There are two sealed instrument n. A document that main search engines for legal research, has been signed and to which a seal has and both are based upon subscription been affixed. Under common law and by for fees: Lexis and Westlaw. some statutes, that is recognized as con- vincing evidence that the obligation on search of title See title search. the signer is binding. The Uniform Commercial Code holds that laws apply- search warrant n. A written order by ing to sealed instruments are not valid a judge authorizing the examination of a with regard to the sale of goods or nego- specified place and the seizing of evi- tiable papers. See also contract. dence found there. See also warrant. sealing of records n. The customary seasonable adj. In a timely manner; closing of criminal records of youthful within the time agreed upon; within a offenders, mandated in some states by reasonable amount of time. law, so that they can be viewed only by seasonably adv. Used synonymously persons obtaining a court order to do so; with reasonably. the same as the first definition with regard to certain other cases. See also S.E.C. See Securities and Exchange expungement of record. Commission. search 1 n. A police examination of a secondary adj. Subordinate; not of pri- person’s physical body, property, abode, mary importance; subsequent. or other area where the person would 22_542109 ch19.qxp 3/28/06 12:20 PM Page 234

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secondary boycott See boycott. to the security being offered, so that potential investors are able to make secondary distribution n. An organ- informed decisions about whether or not ized offering of a block of stock by a to invest. large share holder of a stock that has already been issued, typically by corpo- Securities and Exchange Commission rate founders or major investors. n. The federal administrative agency established by the Securities Exchange secondary liability See liability. Act of 1934, in order to supervise and second-degree See murder and prin- regulate the issuing and trading of secu- cipal. rities and to eliminate fraudulent or unfair practices. It is a regulating secretary n. An officer of a corpora- agency and is not judicial in nature, tion charged with responsibility for although it may pursue judicial reme- keeping records and taking minutes. dies in federal court. Abbreviated SEC. secrets of trade n. See trade secrets. Securities Exchange Act of 1934 n. A federal law designed to regulate post- section n. A definable portion of a issuance trading of securities by regu- town, county, or other geographic region; lating security brokers and exchanges. a land unit equal to one square mile. State regulations are allowed to con- tinue to govern intrastate transactions, secured creditor n. A creditor who is as long as they do not conflict with the holding security in the form of a lien suf- federal law. The act established the ficient to cover the amount that the Securities and Exchange Commission. debtor owes, as in a security interest in an automobile by the lender that security n. 1 Safety; the condition of financed its purchase. being protected against harm. 2 Collateral given or promised to guaran- secured transaction n. Any business tee the repayment of a debt. 3 A docu- transaction involving the title to prop- ment that is evidence of ownership in a erty as collateral for the borrowing of corporation (for example, a stock or money. share), or a creditor’s being owed securities n. Stocks, bonds, and the money by a corporation or government like; any instrument of secured indebt- (for example, a bond). edness or of a right to participate in the security deposit n. Money held by a profits or assets of a profit making con- landlord to ensure that the tenant cern. Traditionally, securities have been abides by the lease agreement and does a major area of investment and specula- no damage to the property above nor- tion by individuals and banks. mal-use wear. It is a fund from which securities acts n. A federal or state the landlord may draw to make repairs, law governing the issuance, registra- if necessary, upon termination of the tion, offering, and trading of securities lease; any pledge of property or money in order to protect the public by assuring of a debtor to acquire an obligation. See against fraudulent practices. also obligation. Securities Act of 1933 n. A federal security interest n. An interest in law governing mainly the issuance, reg- property created by the operation of law istration, and distribution of securities or by agreement to repay a loan; a lien by the issuer. The objective of the act is on personal property created by an to give full disclosure of all facts related agreement. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 235

235 sentence

purchase-money security interest. self-help n. A person’s attempt to Interest taken by the collateral’s remedy a wrong perceived done to him seller, such as an automobile. It is a by that person’s own actions, rather purchase-money security interest, than through the legal system. Under created by a bank, allowing one to the Uniform Commercial Code, a credi- pay off the cost of a car on an installment basis while enjoying its tor may take possession of a debtor’s use. The bank retains the title until collateral upon default, if it can be done the full amount (along with inter- without breaching the peace. est) has been paid. self-incrimination, privilege against sedition n. An activity or communica- n. A privilege granted by the Fifth tion aimed at overthrowing governmen- Amendment to the United States tal authority. Sedition acts were passed Constitution, which bars the federal gov- in the United States as early as 1798 ernment from forcing a criminal defen- and as recently as World War I. The dant to give testimony against him- or United States Supreme Court ruled in herself. Through the due process clause 1919 that communications urging sedi- of Fourteenth Amendment, this privi- tion could only be punished if there was lege has become applicable to state pro- a clear and present danger. Otherwise, it ceedings, whether criminal or civil, and was a contradiction of the First is often referred to simply as, “pleading Amendment’s guarantee of free speech. the Fifth.” The rule does not apply to self-incrimination by non-testimonial seisin n. Ownership of land; used in means; therefore, the individual is not early British law, because ownership of protected against fingerprinting or DNA the land belonged to the sovereign. It evidence being compelled. referred to the person in possession of a freehold estate. See also covenant. seller n. A vendor; one who sells or initiates contracts to sell goods; the one seizure n. The act of confiscating a who transfers property as a result of a person’s property by legal process; a sales contract. forcible taking of property into custody by a court. senile dementia See senility. self-dealing n. Participating in a senility n. A mental feebleness or transaction for one’s own personal bene- insanity that results from old age and is fit rather than for the one owed a fiduci- both incurable and progressive. A per- ary duty; for example, a trustee using son so afflicted is not capable of enter- property held in trust for her own bene- ing into a binding contract or of fit. Many states have laws prohibiting executing a will. See also competent such action, and there are federal and incompetent. statutes that do so under certain cir- cumstances. sentence 1 n. The pronouncement of punishment by a court following a crim- self defense adj. Description of inal defendant having been found guilty actions taken to protect oneself, as in a of a crime. 2 v. The handing down of shooting of a perpetrator by a police offi- a term of punishment by a court. cer upon whom the perpetrator has cumulative sentences. See consecu- pulled a gun. tive sentences. self-executing adj. That which takes concurrent sentences. Two or more effect without further action, as with a periods of incarceration time that statute or court order. are to be served simultaneously. Concurrent sentences have the 22_542109 ch19.qxp 3/28/06 12:20 PM Page 236

separable 236

effect of being a single period of split sentence. A sentence in which confinement, with the longer one there is enough of a period of con- being the limit; for example, a per- finement to give the wrongdoer a son sentenced to serve concurrent taste of imprisonment, followed by sentences of ten and twelve years a period of probation, with the sec- concurrently will serve a maximum ond usually being the longer part of of twelve years. the term. conditional discharge sentence. The suspended sentence. See conditional person is given no confinement, as discharge sentence. long as she performs or does not perform certain specified acts. separable adj. Capable of being split Failure to follow sentencing provi- or divided into its component parts. sions may result in confinement after a hearing. See also probation. separable controversy n. A claim that is independent from, and capable of consecutive sentences. Two or more periods of incarceration time that are being separated out from the other to be served in succession. claims in a lawsuit. It is used most often Consecutive sentences have the effect if a part of a larger suit can stand alone of being the sum of the periods of con- as a suit in a federal court, in which finement named, so a person sen- case, the whole suit is statutorily tenced to serve consecutive sentences removable to a federal court. of ten and twelve years will serve a maximum of twenty-two years. separate but equal n. The once- argued doctrine that all races are deferred sentence. A sentence that treated fairly when substantially equal will not be imposed unless the facilities are made available to all, even defendant fails to fulfill the condi- tions of probation. though the races—meaning especially African Americans and Caucasians—are determinate sentence. A sentence of restricted to separate facilities. It was confinement for a specific length of the argument of segregationists during time rather than for an unspecified the civil-rights controversy in the 1950s period. and ‘60s and was ultimately ruled to be extended sentence. An infliction of a in violation of the equal protection more severe period of confinement clause of the Fourteenth Amendment. than is normal for an offense The doctrine was established in Plessy v. because the perpetrator is a repeat Ferguson (1896) and overturned in or habitual offender, or where there Brown v. Board of Education (1954). It is a perception that the offender was found that separate is inherently represents a continuing danger to unequal, and that segregation of whites society. from blacks in schools created a sense indeterminate sentence. A sentence of of inferiority that tended to impede edu- an unspecified duration, such as cational and mental development of from 10 to 25 years, or one that a African-American children. parole board can reduce after the statutory minimum has been separation n. 1 The condition of a served. husband and wife who remain married but who live apart, whether by mutual mandatory sentence. A sentence agreement or by decree of a court. See spelled out by law and over which also divorce. 2 Termination of an the judge has no discretionary employment contact. power to tailor to the person being sentenced. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 237

237 servitude, equitable

separation agreement n. A written serve v. 1 To deliver a legal document, agreement between husband and wife in especially a process or notice; to pres- contemplation of divorce detailing how ent a legal notice or subpoena to a per- their property is to divided, how alimony son as required by law. 2 To spend or child support is to be paid and in what time in the armed forces or in some uni- amount by whom to the other, and cus- formed service (police, fire, and so on). todial arrangements for children. Such a See also service. paper is legally enforceable and may have income-tax implications if the cou- service n. 1 The formal delivery of a ple has physically separate domiciles. subpoena, writ, or other legal notice or process. 2 The doing of something separation of powers n. The separa- useful or helpful for another individual tion of the power of the states from that or for a company in exchange for a fee. of the federal government and the divi- 3 The time spent in the military, as in, sion of the federal government into three “in the service of one’s country.” branches (executive, legislative, and judicial), each of which has specific pow- service by publication. A publication ers upon which neither of the others can of a notice in a newspaper or other publication in lieu of personal serv- usurp. These checks and balances are ice. In some jurisdictions, the mail- given large credit for the prevention of a ing of the news clipping to the last tyrant ever seizing power in this country. known address of the person is required. sequester v. To isolate or keep apart from all others, as in sequestering cer- substituted service by. A presenting tain funds or sequestering a jury. See of service to a recognized agent of also sequestration. the party or by mailing notice to that party or any other way permit- sequestration n. 1 The isolation of ted by law other than personal serv- a trial jury in the custody of the court for ice. the duration of a trial in order to prevent tampering or their hearing outside testi- services of process n. A communica- mony; keeping witnesses apart from one tion of the court papers or process to the another and outside the courtroom; 2 defendant in a timely manner, so that the placement of an item or monies in the defendant has the opportunity to dispute with an independent party pend- prepare a defense and to appear and ing resolution of litigation between two state his/her case. making claim to the item or monies. servient adj. Denoting an estate sub- serial bond See bond. ject to an easement or servitude. See also estate and easement. seriatim adv. Latin. In sequence. Successively; in successive order, one by servient estate See estate and ease- one; in due order; sequentially, one at a ment. time. servitude n. 1 A right to use another’s series bond See bond. property without ownership. See ease- ment, license, profit. 2 A condition servant n. One who is employed to of enforced compulsory service. work under the immediate control and instruction of the employer. servitude, equitable n. An easement by necessity. See easement. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 238

session 238

session n. The number of hours within settlor n. Someone who creates a a day that a given body is performing its trust by making a settlement of prop- duties; a meeting of a court or a legisla- erty, real or personal. See also donor tive body for the purpose of performing and trustor. its business. severable contract See contract. session laws n. A bound volume of the statutes enacted by a legislative severable statute n. A law with parts body during a single annual or biennial that are independent of one another, session; a collection of all of those afore- such that each part is capable of enforce- mentioned statutes. ment even if remaining part or parts are stricken or found unconstitutional. set-aside n. Something, such as an amount of money, that is reserved for several adj. More than one but fewer some particular later use. than many (said of persons, places, or things); separate or distinct, but not req- set aside v. To void or annul a judicial uisitely independent (said of liability); decision, order, and so on, usually on a various or differing (said of things). See motion to set aside by the party that is also joint and several liability. affected detrimentally and based upon some irregularity in the original pro- severalty n. A condition of individual- ceeding. ity in the holding of land. A tenant in severalty is the exclusive holder of the setback n. The minimum distance land for the duration of his or her estate, from the property line to where a struc- as distinct from holding a joint tenancy. ture may be built, as regulated by zoning statutes or restrictions in the deeds in severance n. 1 A severing or cutting various locales. Meant to keep houses off; in criminal law the process of bring- from being built so close to each other ing a particular charge out of many so that they cut off the light to and ventila- that only one issue, or a few closely tion from a neighbor’s home. Setback related ones, is before the jury at a time, also applies to how close a structure while reserving the right to bring other may be built to a road. charges later; the separating of the claims of two or more parties for any of setoff n. A counterclaim against the a number of reasons; the ending of a plaintiff by the defendant arising from a joint tenancy. 2 The removal of some- cause of action other than that she is thing attached to real property, such as being sued for; a reduction in the crops or minerals, so that it becomes amount of a settlement by the amount personal property instead of a part of the debtor is owed by the creditor. See the land. also counterclaim and cross-claim. sex offender n. A person convicted of settlement n. An agreement achieved a sexual offense, such as rape, sexual between the adversaries before judg- assault, or lewdness. Some states ment in a trial, or before the trial begins, require sexual offenders to be registered thereby obviating the need for it; com- for life. Sexual activity between con- pleted payment of a debt or contractual senting adults of the same sex is an obligation; a closing on a house; the offense in certain states. completion by the executor of an estate of its distribution. sexual abuse See abuse. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 239

239 show cause order

sexual assault n. See assault. price-fixing per se. It was amended in 1914 by the Clayton Act, which outlaws sexual harassment n. A harassment interlocking directorates and deals with of a sexual nature, usually in one’s place acquisitions that aim to restrain or elim- of employment. See also harassment. inate competition. sham 1 n. A counterfeit; something shield laws n. 1 A law that protects that is not what it seems or appears to journalists from being compelled to be; a fake; a person pretending to be reveal confidential sources. 2 A law something or someone other than who limiting or prohibiting the introduction she really is. 2 adj. Deceitful or dishon- of evidence about the previous sexual est. activities of the victim in sexual assault sham pleading n. A civil pleading that and rape cases. appears to have merit, but for which no shifting the burden of proof n. supporting facts exist, and that has Removing the burden of proof from one brought for no purpose but to vex or to party, which has presented a prima facie harass the defendant. case, and shifting it to the other side to sham transaction See transaction. rebut that case. See also burden and burden of proof. share n. A certain predetermined por- tion—for example, each partner’s share shifting use n. Of real property, the of the expenses; one of many equal parts conferring of legal ownership of prop- of a joint-stock company or corporation. erty to another, with the expectation of grantor that he will continue to have full share v. To split something up into use and enjoyment of the property. portions; to enjoy or participate in a cer- tain right, privilege, and so on. shipment contract See tender. share and share alike v. To take shop n. A place of business or employ- equal parts. ment; a factory, office, or other business establishment. A shop may be open, share certificate n. A document closed, or union. evincing stock ownership. closed shop. A shop where working shareholder n. A person who owns conditions are covered by a collec- one or more shares of stock in a joint- tive bargaining agreement between management and a labor union. stock company or a corporation. Union membership is required as a Synonymous with stockholder. condition of working there. Shelley’s Case, rule in See rule in open shop. A shop where union Shelley’s Case. membership is not a precondition of employment. Union members and Sherman Antitrust Act n. The defini- nonunion members may work side tive antitrust statute, passed by by side. Congress in 1890, that prohibits monop- olies or unreasonable combinations of union shop. A shop in which all companies to restrict or in any way con- workers are members of a union. trol interstate commerce. Specifically Nonunion members may be allowed outlawed is two or more persons engag- to work there, provided that they ing in monopolistic practices, such as agree to join the union. price fixing, although it does not outlaw show cause order See order. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 240

show up 240

show up n. An identification proce- cumstance. 2 In property law, inherit- dure that takes place before a trial and able by the heirs of the owner without at which a witness to or victim of a reservation; in contract law, not under crime meets face to face with the sus- seal. See also sealed instrument. pect. It differs from a lineup in that it is a direct confrontation, one-on-one. simple contract See simple. sidebar n. A position at the side of the simpliciter adv. Latin. Simple. In a judge’s bench where the attorneys and direct or summary manner; without con- judge can confer during a trial, out of dition; summarily; per se. the hearing of the witness or the jury; Simultaneous Death Act n. A the conference alluded to in; such con- Uniform Simultaneous Death Act is a ferences are recorded by the court ste- uniform law suggested in 1940, revised nographer, and become part of the trial in 1993, and subsequently adopted by record for use at appeal; an afterthought almost every state, whereby if two per- or side topic in a book or article that is sons who are mutual beneficiaries die set off apart from the main text or is in within 120 hours of each other, each is some other way distinguished from the presumed to have died before the other, main text or article. Also spelled side- so that half the property of each passes bar. to the estate of the other. sight draft draft. See sine die Latin. Without day. With no signature n. A person’s mark or name, day being assigned for the next meeting handwritten by that person or at the or for resumption of meeting. direction of the person for purposes of sine qua non n. Latin. Without which authentication of a document. It may not. Something that is indispensable also be a facsimile signature, affixed by and upon which something else relies. a special machine at the owner’s order, or a unique digital code that is neces- sinking fund n. A fund with regular sary for e-commerce. deposits made to it that is kept to pay off corporate or governmental debt. silent partner n. An investor in a busi- ness who takes a share of the profits, skiptracing n. The locating of missing but who plays no active role in the day- persons, such as heirs, witnesses, by-day activity of that business. It is not assets, debtors, or stockholders, usually unusual for a silent partner’s name to be performed by a special skiptracing kept off the public record. agency or by a private detective. silver platter doctrine n. In criminal S.L. abbr. Session laws or statute law, this was a doctrine that a federal laws. See also session laws. court could introduce illegally or improperly state-seized evidence, as slander n. Falsely spoken words that long as federal officers had played no tend to damage another person’s reputa- role in obtaining it. The doctrine was tion; defamation. The truth of such declared unconstitutional in 1960 words is an absolute defense against (Elkins v. United States). slander. Unlike libel, unless the slander is defamatory per se, damages caused simple adj. 1 In criminal law, uncom- by slander must be proven by the plain- plicated by aggravating circumstances. tiff. See also libel. See also aggravated and mitigating cir- 22_542109 ch19.qxp 3/28/06 12:20 PM Page 241

241 solicitor(s) general

slander per quod. A form of slander and to survivors. The act also gives that does not qualify as slander per assistance in the form of aid to families se, thereby requiring the plaintiff to with dependent children. prove special damages. sodomy n. Anal or oral copulation slander per se. A form of slander that between two persons, especially when need not be proven to qualify for they are of the same sex; oral or anal damage, because its meaning is copulation between a human and a non- apparent on the face of the state- human. See also buggery, bestiality ment and involves moral turpitude, and crime. a sexually transmitted disease, con- duct adversely impacting one’s pro- solemnity of contract n. A concept fession or business, or lack of that it is all right for two people to enter chastity (especially when applied to into a contract for anything they wish women). to, and as long as the proper formalities are observed and no defenses exist slander of goods n. A false statement, against it, that contract is enforceable written or oral, that casts doubt on a and should be respected. person’s ownership of property. See also bait and switch and disparagement. sole proprietorship n. A business that is carried on by a single person and slight care See care. that is not a corporation or a trust. It dif- slight negligence n. Failure to exer- fers from a corporation in that the busi- cise great care that an extraordinarily ness is not a separate entity, and its attentive person would have exercised. taxes are paid directly by the proprietor. See also negligence. solicitation n. A request or petition slip opinion n. A single judicial deci- intended to obtain something; criminally sion that is published as an individual urging, advising, or ordering someone to paper following its issuance and in commit a crime; offering to pay for sex advance of its being incorporated into a or requesting money in exchange for volume of decisions. It is, unlike an sex; an attempt to increase the number unpublished opinion, ordinarily citable of one’s actual or potential clientele. as precedent. See also advance sheets solicitor n. In England, the lawyer and reports. who prepares a case for the trial lawyer small claims court See court. (known as the barrister) and who set- tles cases out of court. One who social guest n. A holder of a bare attempts to get business or contribu- license. See also license. tions from others; an agent or represen- tative who conducts business on behalf Social Security n. A federal program of someone else; the foremost officer of established by the Social Security Act in the law in a municipality or a state; an 1935 in response to the Great Attorney General. In some jurisdic- Depression, it is a form of universal tions, the prosecuting attorney. insurance contributed to by all workers and administered by the Social Security solicitor(s) general n. The number- Administration that distributes benefits two legal officer in a government, out- to retired workers when they be come ranked only by the Attorney General. eligible, by virtue of age or disability, Especially the chief trial attorney for the executive branch of the government. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 242

solvency 242

solvency n. The ability to pay one’s specific intent See intent. debts as they come due or as they mature. Implied is the ownership of specific legacy See legacy. property of adequate value to secure specific performance n. An equitable those debts, should the need arise. See court-ordered remedy that mandates insolvency. also precise fulfillment of a legal or contrac- sound adj. In good health, both physi- tual obligation, when pecuniary dam- cally and mentally (sound of body and ages would be inappropriate or mind); marketable (property); undam- inadequate, such as in the sale of a rare aged, form taken by a document, as in article or a unique piece of real estate. “the complaint sounds in negligence.” The decree of specific performance requires that the person so directed per- sovereign n. A person, state, or group form as directed or face imprisonment. that is preeminent and independent of the will of others; the ruler of an auto- speech, freedom of See freedom of cratic state. See also sovereignty. speech. sovereign immunity See immunity. speedy trial n. Guaranteed by the Sixth Amendment to the United States sovereignty n. Supreme dominion or Constitution, a trial conducted without authority; the total and supreme power arbitrary and vexatious delays, begun of an independent state. promptly and conducted with reason- able expedience. special appearance See appearance. spending power n. The power granted special demurrer See demurrer. to a government body to spend money, special indorsement See indorsement. especially the power of Congress to spend money in order to provide for the special master See master. defense of the United States and to pro- mote the general welfare. Since 1936, special power of appointment See that power has been expanded to power of appointment. include Social Security, environmental crises, and other concerns, such as special prosecutor See prosecutor. desegregation and affirmative action. special traverse See traverse. spendthrift trust n. Trust benefiting specialty n. Unique property, such as an individual who is financially irrespon- a church, that is not marketable under sible; grantor of the trust may establish the principle of eminent domain. See limitations on use of money to pay debts, contract. or may provide for direct payment to creditors, completely bypassing the ben- specie n. Money that has an intrinsic eficiary. Some states permit a spend- value, such as silver or gold coins, thrift trust to state as part of its terms minted in different denominations and in that creditors may not invade the trust to different degrees of fineness, and usu- satisfy the debts of the beneficiary. ally displaying government markings. split gift See gift. specific bequest See bequest. split sentence See sentence. specific denial See denial. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 243

243 state action

splitting a cause of action n. phone calls, computer communications, Pursuing a cause piecemeal by bringing letter-writing, etc. See also cyberstalk- an action for only part of a claim, while ing and harassment. reserving another part or other parts for separate lawsuits. The practice has standard deduction See deduction. been long deemed impermissible. standard of care n. The degree of pru- spoliation n. 1 The intentional dence that a reasonable man (or per- destruction, mutilation, concealment, or son) may be expected to exercise when alteration of (usually documentary) evi- caring for something. See also care and dence. If proven, spoliation may help to negligence. establish that the evidence was detri- standing n. A party’s legal right to mental to the party responsible for it. challenge the conduct of another party 2 Pillaging or destroying real or per- in a legal proceeding. In order to have sonal property by violence. 3 The tak- standing in a federal court, a litigant ing of a profit or other gain that properly must show that 1) the conduct being should go to another. challenged caused the party real injury, spousal immunity n. The doctrine and 2) the concern the litigant is seek- that spouses cannot sue one another for ing to have protected is within the scope personal injury; abrogated in many of interests intended to be regulated by states. the statute or other guarantee in ques- tion. spousal privilege n. The right to not disclose confidential marital communi- standing mute n. A defendant’s refus- cations; may be asserted as a basis for ing to enter a plea in a criminal trial, not answering a question under oath. which is treated as if it were a pleading of not guilty; raising no objections. springing use n. A use that comes to one with the occurrence of some future stare decisis n. Latin. To stand by event; for example, B has a springing what was decided. The doctrine of com- use in A’s estate, which will pass to her mon law under which courts follow the when she marries A. earlier judicial decisions made on the same points of litigation; following stakeholder n. A disinterested party precedent. Stare decisis is not invio- who is entrusted to withhold contested lable, but precedent will be overturned money or property while the arguments only for good cause. The doctrine, how- are being adjudicated or worked out; the ever, is essentially useless in constitu- third party who is holding the stakes in tional law. See also precedent and res a wager between two or more parties; a judicata. person with an interest in a business or enterprise of some sort, but is not nec- state action n. Any action taken by a essarily an owner. government, especially an intrusion on one’s civil rights by a governmental stalking n. A form of harassment gen- agency, or a requirement that can be erally comprised of repeated persistent enforced only through governmental following with no legitimate reason and action, such as correcting a policy of with the intention of harming, or so as to sexual or racial discrimination that arouse anxiety or fear of harm in the requires judicial action to enforce. person being followed. Stalking may also take the form of harassing tele- 22_542109 ch19.qxp 3/28/06 12:20 PM Page 244

statement 244

statement n. A declaration of fact or the injury suffered by the plaintiff an allegation by a witness; a piece of occurred after the period had lapsed. sworn testimony. See also closing statement, evidence, and opening statutory construction n. The statement. process by which courts interpret the meaning of statutes, or the actual status crime See crime. process or act of interpreting a statute’s meaning. See construction. status quo n. Latin. The situation as it currently exists. statutory offense See crime. status quo ante n. Latin. The situa- statutory rape See rape. tion as it existed before. As things were before whatever happened or is being stay n. A judicial order forbidding or discussed took place. For example, sta- holding in abeyance some action until tus quo ante bellum is the situation as it some particular event occurs, or until existed before the war. the court lifts the stay. A single justice of the United States Supreme Court has statute n. A law that has been enacted the power to stay an injunction’s being by a legislative body. enforced pending an appeal to the full Court. See also injunction and restrain- statute of frauds n. A statutory ing order. requirement that certain contracts must be written and signed to be enforceable, stay of execution. A procedure to most often applicable to contracts for prevent the carrying out of a judg- real estate and contracts whose purpose ment for a specified period of time; spans more than one year. in the case of death penalty, an order from a higher court or execu- part performance. Exception to tive branch of a state to halt the statute of frauds; if all or part of the execution, usually pending further goods have been delivered and appeals. accepted, or all or part of the pur- chase price has been paid, no writ- stipulation n. A factual condition or ten evidence is needed. requirement incorporated as a term of a contract; an agreement between oppos- statute of limitations n. Law govern- ing parties as to a procedure, as in a ing time permitted for filing various “stipulation to extend time to respond,” types of lawsuits, differing from state to or a fact, as in “a stipulation as to liabil- state and as to type of matters; for ity.” A stipulation made by a party to a example, states’ statutes of limitations pending court case or made by the for filing a negligence action may vary party’s lawyer with respect to the case from one to three years, a claim for is always binding. breach of contract may have a statutory limit of some other amount of time; in all stirps n. Latin. A branch of a family or cases, statutes of limitations are specif- of the family tree. See also per stirpes. ically set forth and are strictly enforced; stock securities. failure to comply by even one day will See result in dismissal of lawsuit. stolen property n. Property obtained by larceny, by stealing, by robbing, by statute of repose n. A statute barring a suit a fixed number of years after the theft; something unlawfully taken from defendant had acted (usually by design- its rightful owner. ing or manufacturing an item), even if 22_542109 ch19.qxp 3/28/06 12:20 PM Page 245

245 submit

stop and frisk n. A police action to sua sponte 1 v. Regarding a judge or momentarily detain and search the body court, to raise an issue or take an action of a person. Under judicial interpretation independently of any request or sugges- of the Fourth Amendment to the United tion made by the parties or lawyers; 2 States Constitution, such a search may adj. Description of action taken by court be conducted only under circumstances in absence of any party urging such where the officer believes that the per- action to be taken. son is armed and dangerous to the offi- cer’s person, or that the person has just subcontractor See contractor. committed or is about to commit an subdivision n. A reduction in area of a unlawful act. piece of land by dividing it up into two or straight-line method n. A method for more smaller parcels. figuring depreciation of an asset by sub- subjacent support n. In property law, tracting the anticipated salvage value, and the support of the surface of the land by then dividing the remainder by the esti- the earth’s underlying strata. See also mated number of years of its usefulness. lateral support. straw person (or man) n. A third subject matter n. Whatever is in dis- party used as a temporary transferee in pute; the actual cause of the law suit; order to allow the principal parties to the issue about which a right or obliga- accomplish a transfer that might not be tion has been asserted or denied. directly allowable. subject matter jurisdiction See juris- strict construction See construction. diction. strict liability See liability. subject to open n. Used to describe strict scrutiny n. The standard used the future interests in real estate or in a to determine whether a classification of trust when the number of persons in a group of persons (such as a racial that class is liable or likely to change group) or a fundamental right (such as over time. the right to vote) violates due process sub judice adv. Latin. Under a judge. and equal protection rights under the A case that is before the bar for deter- United States Constitution. Strict mination, rather than one being settled scrutiny is used to establish whether out of court. there is a compelling need that justifies the law being enacted. See also com- sublease n. A lease held by a lessee pelling interest test. who has, in turn, leased part or all of the leased property to another sublessee; strike n. 1 An organized stoppage of the original lease may require approval labor by employees in order to compel by landlord before subleasing. the employer to meet their demands. 2 The dismissal of a prospective juror sublet v. The act of transferring one’s from the panel, whether for cause or lease to another, generally with all peremptorily. 3 A negative mark on rights and obligations passing to the one’s record (as in, three strikes and sublessee. you’re out). submit v. To give in to the will or strike suit n. A suit brought without authority of another; to agree to allow legitimate claim (usually by a share- mediators or arbitrators to settle a dis- holder in the name of the company) in pute. hopes of an inflated settlement. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 246

subordination 246

subordination n. A giving of lower and when such are issued by the corpo- ranking, class, or priority to one claim ration, before that stock is offered to the or debt with respect to another claim or general public. See also preemptive debt. right. suborn v. To cause a person to do an subsidiary See corporation. illegal or immoral act, especially in a secretive or underhanded fashion; to sub silentio Latin. Under silence. cause a person to perjure his or herself; Without notice being taken. If a case is to get perjured testimony from someone. decided against precedent, the newer case is said to have over-ruled the previ- subornation of perjury n. The crime ous decision sub silentio. of inducing or persuading a person to commit perjury; sometimes shortened to substantial capacity test n. A test simply the first word of the phrase. established by the Model Penal Code for the insanity defense, including ele- subpoena 1 n. Latin. Under penalty. A ments of the McNaughten rules and the writ issued by a court commanding a test of irresistible impulse by allowing person to appear, with penalties that the court to consider both awareness of attach for failure to comply. 2 v. The wrongdoing and involuntary compul- act of sending a subpoena to a witness sion. Since 1984, many jurisdictions, or other person to secure his attendance including federal courts, have stiffened and testimony at trial or other proceed- the rules due to the acquittal by reason ing (such as deposition); generally, sub- of insanity of attempted presidential poenas are obtained and sent out by the assassin John Hinkley. lawyers, rather than directly by the court. substantial compliance See substan- tial performance (compliance). subpoena ad testificandum. The most common type of subpoena, ordering substantial performance (compliance) a witness to testify. n. A doctrine in equity that if a good faith attempt was made to perform the subpoena duces tecum. Issued at the requirements of a contract, but failed to request of one of the parties to a exactly meet the specifics, and if the lawsuit, ordering a witness to essential aim of the contract has been appear and bring relevant docu- met, the agreement will still be consid- ments to the hearing. ered as having been completed. Minimal subrogation n. 1 A paying of or an damages for the impreciseness may be per- assumption of the debt of one person by permitted by the court. See also formance. another. 2 The passing of rights from one party to another by virtue of the sec- substantive due process See due ond’s assumption of a debt on behalf of process. the first party; 3 In insurance, the right of an insurer to recover from a third substantive law n. The law that gov- party all amounts paid out on behalf of erns the merits of a matter or transac- its insured. tion, as opposed to procedural law; for instance, laws relating to manslaughter subscription rights n. The contrac- are “substantive,” while laws pertaining tual right of a shareholder in a corpora- to speedy trial, use of confessions, etc., tion to buy additional shares of stock of are procedural. the same kind that she currently holds if 22_542109 ch19.qxp 3/28/06 12:20 PM Page 247

247 summons

substituted basis See basis. suicide, attempted n. An unsuccess- ful try at taking one’s own life. There is substituted service See service. also no unanimity as to whether this is a substitution n. The selection of an criminal act. individual or a thing to take the place of sui generis Latin. Of its own kind. another; the process of one thing taking Unique; of its own particular type; in a another’s place or one person acting in class of its own. lieu of another. sui juris Latin. Of one’s own right. succession n. The taking over of a Used to describe one who is no longer a previous official’s office, rank, or duties dependent; having reached majority and by a new person; the process by which a having full civil and social rights. See decedent’s property or rights passes to also emancipation and incompetency. the inheritors thereof, under the laws of descent and distribution. See also suit n. Any proceeding brought by one descent. or more parties against another one or more parties in a court of law. See also intestate succession. State laws gov- action and litigation. erning inheritance of property belonging to individual who dies class suit. See action. without a will. suitor n. A plaintiff or petitioner in a successor n. A person who takes over lawsuit; the party that brings the suit; a the rank, office, duties, or privileges of person or a corporation seeking to take another; a corporation that through over another company. merger, buy-out, or other means acquires the duties, stock, rights, and sum certain n. Any fixed, settled- debts of another corporation, known as upon, precise amount. It may be a com- the predecessor. mercial instrument with a fixed amount specified on its face. See also liquidated sue out v. To petition a court and to damages and unliquidated. obtain the issuance of a court order or a writ of some sort. summary judgment See motion for summary judgment. sufferance See tenancy. summary proceeding n. A proceeding sufficient consideration See consid- in a lower court, usually as to a minor eration. offense or claim, generally fast-tracked. suicide n. The voluntary and inten- Although certain legal rights are over- tional act of taking one’s own life. It was looked or minimized during a summary a felony under common law, but is some- proceeding, the rights to notice and to what murky in today’s criminal courts. be heard are preserved. There is also no unanimity on whether summons n. A written notice for a either assisted suicide or attempted sui- person to appear before a court under cide are criminal acts. penalty of having a judgment entered suicide, assisted n. An intentional against that person for failing to appear; providing of a person with the medical a written notice to a person to appear knowledge or the means to commit sui- for jury duty; a written notice to appear cide. Synonymous with euthanasia. in court to testify as a witness in a case. Split among states as to whether legal Synonymous with subpoena. or illegal. 22_542109 ch19.qxp 3/28/06 12:20 PM Page 248

sunshine laws 248

sunshine laws n. Statutes that sive). 2 n. A court fine imposed on a require governmental and municipal fiduciary for failure of duty. bodies to conduct public proceedings, and to submit records to examination by surety n. The person immediately the public. responsible for the debt of another, in the event that the principal fails to meet superior court See court. his responsibility. supersedeas n. Latin. You shall for- surrebuttal n. A rebuttal by the defen- bear or desist. A writ suspending or dant to the plaintiff’s rebuttal; in trials, staying a proceeding in order to main- the order of presentation is: plaintiff’s tain the status quo, pending appeal. It case, the defense, plaintiff’s rebuttal, usually stays a creditor’s taking posses- defendant’s surrebuttal. sion of property pursuant to a lower court’s ruling. surrejoinder n. A rejoinder by the plaintiff to the rejoinder by the defen- superseding cause See cause. dant (in common law pleadings). See replication. suppress v. To end, prohibit, or keep something from being known, heard, surrender n. Delivery into the posses- discussed, or seen. sion of another, such as vacating of property by the tenant before the lease suppression of evidence n. A trial has terminated so that the landlord may judge’s preclusion of evidence that was consider termination to have occurred; obtained in an unlawful manner; the the giving up of a claim or a right; yield- withholding of evidence by the prosecu- ing to the control or power of another; tion in a criminal trial when such evi- the return of an estate to the one who dence might be helpful to the defense has a reversion so as to merge the supra adv. Latin. Above; superior to. estate into a larger one. surrogate n. Supremacy Clause n. The clause in A person appointed in United States Constitution’s Article VI, place of another, especially a judicial offi- stating that all laws made furthering the cer who administers things concerning Constitution and all treaties made under incompetents or decedents, and in cer- the authority of the United States are tain instances, adoptions; any stand-in. the “supreme law of the land.” Chief surrogate mother n. A woman who Justice John Marshall interpreted the bears a child for a couple that is unable clause to mean that the states may not to have children. Upon the child’s birth, interfere with the functioning of the fed- the surrogate mother gives up all rights eral government and that federal law and responsibilities to the child. prevails over an inconsistent state law. Surrogate parenting contracts were in supreme court See court. earlier times held to be illegal under laws that forbade selling of babies; still Supreme Court of the United States strictly regulated. See court. surrogate parent n. One who stands supreme judicial court n. The highest in the place of a child’s parent, but who state court in Maine and Massachusetts. is not that parent. Either by virtue of voluntary or court-appointed status, surcharge 1 v. To impose an addi- tional cost or burden (usually exces- 22_542109 ch19.qxp 3/28/06 12:20 PM Page 249

249 syndicate

that person assumes all rights, duties suspect classification n. A classifica- and responsibilities of the child’s parent. tion by racial group, national origin, sex, or citizenship, subject to strict scrutiny. surrogate’s court n. Synonymous with probate court. See court. suspended sentence See sentence. surtax See tax. sustain v. To support or adequately maintain over a long period of time; (in surveillance n. A legal investigative court) to uphold; to rule in favor of; to process entailing a close observing or corroborate. See also overrule. listening to a person in effort to gather evidentiary information about the com- symbolic speech A form of speech mission of a crime, or lesser improper that expresses an idea or emotion with- behavior (as with surveillance of way- out use of words, such as burning one’s ward spouse in domestic relations pro- draft card, bra, or flag, or picketing. ceedings). Wiretapping, eavesdropping, Such activities are protected by the First shadowing, tailing, and electronic obser- Amendment to the United States vation are all examples of this law- Constitution. enforcement technique. syndicate 1 n. A group of corporations survival statute n. A statute that per- that band together for a single enter- mits survivors to seek damages for prise that each alone would be unwilling claims that the decedent would have or incapable of performing. For example, had, but for his death, as with a claim it took a syndicate of motor vehicle mak- for pain and suffering between time of ers and aircraft companies to produce injury and death; the claim becomes an America’s warplanes of World War II. In asset of the estate. the negative sense it is used to denote organized crime. 2 v. To organize into survivorship n. The right whereby a syndicate or to sell shares in. someone who has an interest in a prop- erty becomes entitled to the entire prop- erty by virtue of outliving all others with an interest in that property. It is one of the features of joint tenancy. Also, the condition of the one person out of two or more to remain alive after the others die. suspect 1 n. A person believed to have committed a crime and who is, there- fore, being investigated by the police. 2 v. Having a slight belief or a vague idea but not a knowledge that something happened or that someone did some- thing. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 250

tangible adj. 1 Exhibiting physical, touchable form; capable of being per- ceived by sight and by touch. 2 Comprehensible to the human mind. tangible property See property. target n. The focus of an investiga- T tion, as in grand jury target; in corpo- rate law, the focus of a takeover bid. target corporation See corporation. target letter n. Correspondence sent to one who is scheduled to testify tacit adj. Something implied but not before a grand jury, so as to provide actually named, for example, there background or comment on subject of was a tacit understanding that if she investigation. testified against her co-conspirator, she would not have to spend any time tariff n. 1 Term is most frequently in prison. used to refer to a customs duty imposed on imported and exported tacking n. An adding together of merchandise. See also customs. 2 A consecutive times of occupation or public document that enumerates the possession by different persons, and services offered by a public utility or treating those periods as a single con- carrier (freight company), along with tinuous one, especially the uniting of the rates charged for those services. consecutive terms of land possession by persons other than its owner in Gatt (General Agreement on Tariffs order to establish a continuous period and Trade). The 1977 international of adverse possession for the agreement, signed by all of the required statutory period, so as to major industrial nations and most establish ownership. See also adverse other nations of the world, the purpose of which was to promote possession. expansion of trade by eliminating tail See fee tail. tariffs and other trade impedi- ments and by establishing certain tail, estate in See fee tail. regulations promoting fairness. It has since been superseded by the tainted evidence See fruit of the establishment of the World Trade poisonous tree. Organization. takeover (bid) n. An attempt to tax 1 n. A charge assessed on an assume control or management of a individual or on property for the pur- corporation by another corporation, pose of supporting the functioning of generally by purchase of all outstand- the government. Such charges may be ing stock. imposed on sale of property or goods, imports, exports, wages and income, taking the Fifth v. Slang. Allusion to privileges, and just about anything a person asserting his right under the else that one can think of. Although Fifth Amendment to the United States usually thought of as being monetary Constitution to not give testimony or in nature, it is not necessarily so. 2 produce evidence that might be self- v. The act of imposing a charge upon incriminating. See also self-incrimina- individuals or property by a govern- tion, privilege against. ment or other taxing authority; to strain or place weight upon. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 251

251 tax

abatement of taxes. See abate. property tax. An ad valorem tax upon (usually) real property, usually ad valorem tax. Latin. In proportion imposed by states and municipali- to its value; a proportional tax ties in order to support local and imposed upon something’s value, state services, such as schooling rather than on its quantity (espe- and policing. cially on real property). regressive tax. A tax that creates a alternative minimum tax. A flat tax greater burden on those less well originally imposed upon corpora- off than on those with a higher tions or individuals with high income. The structure of most sales incomes in the event that they taxes make them regressive in wrote off all their income through nature. See also progressive tax. use of deductions, credits, and con- tributions. It was enacted to make sales tax. A tax on the selling price sure that these parties paid at least of goods and some services levied some income tax, but it also can by some states and some municipal- affect middle-income families. ities. Those goods and services taxed varies from state to state, as capital gains tax. See gain. does the rate of taxation. The tax is usually a fixed percentage of the estate tax. A tax imposed on the price and is tacked onto that price. property of a decedent that dimin- See also flat tax. ishes the value of the total estate to the inheritor. See also inheritance surtax. An amount tacked onto an tax. already taxed article, or onto the tax itself; a surcharge. See also sur- estimated tax. A quarterly amount charge. paid by persons whose income is not subject to witholding tax, in transfer tax. Same as an estate tax. anticipation of what that person’s income tax liability will be come unified estate and gift tax. A federal April 15 of the following year. law that imposes a tax on the net worth of an estate and on gifts of flat tax. A tax that remains a con- and above a certain amount. Both stant percentage regardless of the estates and lifetime gifts are size of the amount being taxed. treated the same way, with the Most state sales taxes are flat transferror being responsible for taxes. the payment of the tax, but with the responsibility passing to the trans- gift tax. See gift tax. feree in the event that the former hidden tax. See hidden tax. fails to pay it. Also known as the unified transfer tax. income tax. See income tax. use tax. A tax imposed by some inheritance tax. A tax imposed upon jurisdictions on goods bought out- the inheritor of property, sometimes side that jurisdiction, and so not known as a succession tax. There is subject to that jurisdiction’s sales no federal inheritance tax, but many tax. It is usally set at the same rate states have statutes imposing such as the sales tax and is meant to dis- taxes. See also estate tax. courage shopping outside the juris- diction. See also sales tax. poll tax. See poll tax. progressive tax. See progressive tax. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 252

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value added tax. A tax imposed at tax court, United States n. An appel- each step in the production or con- late court to which taxpayers may struction of a manufactured good appeal adverse IRS decisions and levies. based upon the difference between Created in 1942, it replaced the Board of the cost of producing the item and Tax Appeals. its selling price. Abbreviated V.A.T. tax credit n. An amount counted witholding tax. The amount of directly dollar-for-dollar to reduce one’s income tax that is witheld from the tax liability, rather than a reduction in paychecks of employees and sent gross income. See also tax deduction. directly to the government by the employer. It is counted as a credit investment tax credit. A credit toward that individual’s tax liability allowed for investments in personal when tax returns are filed. property that is exclusively used for business or is income-producing taxable adj. Something that is subject (applicable through tax years before to being taxed, such as property or 1986). earned income; the amount or portion on which a tax is assessed. tax deduction n. A reduction in gross income in order to reduce one’s income taxable estate See estate. tax liability. It is worth a percentage of what a tax credit is worth. See deduc- taxable gift n. The part of a gift that, tion. See also tax credit. after allowable deductions are made, is subjected to the unified estate and gift tax evasion n. This term is generally tax. used to designate criminal tax fraud, in which the taxpayer intentionally and taxable income See income. deliberately understates her income or overstates her deductions and/or credits tax avoidance n. The act of taking for the purpose of underpayment of tax advantage of legal tax-planning opportu- liability. Contrast tax avoidance, the nities and shelters in order to minimize legal minimization of tax liability by tax one’s income tax liability. See also aggressive interpretation of tax law. evasion, which is not legal. tax exempt adj. Not subject to tax. tax benefit doctrine n. The principle This term is usually descriptive of inter- that if a loss was suffered in a previous est on municipal and state government year and taken as an income reduction bonds, which (since 1913) have been for tax purposes, and an insurance reim- exempt from federal income taxes. This bursement for that loss is received in is viewed as a form of federal revenue the current year, that reimbursement sharing. must be counted as part of gross income for the current year, at least in the tax lien n. Encumbrance placed upon amount of the reduction previously property or assets following nonpay- taken. ment of taxes. tax court n. 1 The United States tax taxpayer n. The one who bears the tax court. 2 A court in some states that liability for any particular transaction. hears appeals in non-federal cases and Even though a partnership may receive that has the power to modify assess- income, each individual partner is liable ments, valuations, tax classification, or for the taxes on that income. appeals. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 253

253 tenancy

tax-preference items n. Those arti- general is any right to hold property, but cles that, even though taken as deduc- in a more limited sense it is holding that tions or credits on one’s tax return, must property in subordination to someone nonetheless be considered when com- else’s title, as in a landlord-tenant rela- puting the taxpayer’s alternative mini- tionship. The many types of tenancy mum tax. include the following: tax rate n. A percentage of net income cotenancy. An occupancy or posses- used to compute one’s income tax liabil- sion held by two or more persons ity. Currently, there are three brackets who have unity of possession. See for computing federal income tax. The also unities. percentage one pays increases, as holdover tenancy. See tenancy at suf- income increases, enough to move one ference. from one bracket into a higher one of those three. See also tax. joint tenancy. A tenancy with two or more tenants having identical inter- tax return n. A form issued by the fed- ests and who take over simultane- eral government, many state govern- ously by the same instrument and ments, and some municipalities on having the same right of posses- which a person reports income, deduc- sion, along with the right of sur- tions, exemptions, and credits and then vivorship to the share of the other. In some states, that must be uses those figures to calculate income- expressly conveyed. See also uni- tax liability. ties. tax shelter n. A transaction or invest- periodic tenancy. A tenancy that ment by which a taxpayer shelters some automatically continues for or all income from tax liability because repeated consecutive periods of of tax credits or applicable deductions. time, be it month to month or year Abuses of tax shelters resulted in exten- to year, unless notice of termination sive reform of the Internal Revenue is given at the end of a period. This Code, restricting loss from a business or is typified in a metropolitan apart- an investment to only the capital that is ment building’s lease. at risk. This greatly reduced the avail- tenancy at sufference (holdover ten- ability of tax shelters. ancy). This tenancy arises when one who had lawful possession of prop- temporary adj. Something that will erty remains wrongfully and contin- last for only a limited period of time; ues to occupy that property after transitory. Temporary is meaningless her legal term has expired. This with regard to the duration of the length usually takes the form of a periodic of time that it will last; however, it is tenancy or a tenancy at will. See also used to designate absence of perma- holdover. nence. tenancy at will. A tenancy where no temporary restraining order See formal terms for rent or duration exist, but the person holds posses- restraining order. sion with the landlord’s consent. tenancy n. 1 The occupancy or pos- This type of tenancy may be termi- nated by either tenant or landlord session of land under the terms of a upon fair notice being given. lease; an interest in real estate by virtue of a leasehold. 2 The period of such tenancy by the entirety. The joint occupancy or possession. 3 Tenancy in ownership of property by husband 23_542109 ch20.qxp 3/28/06 12:20 PM Page 254

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and wife when a single instrument sors to corporate takeover moves. The conveys the property to both; an Williams Act of 1968 was passed by indivisible interest in real property Congress to regulate tender offers so held by a married couple. that shareholders can make an informed tenancy for a term. A tenancy whose decision about whether or not to tender duration is specified in days, weeks, their shares for sale. months, or years from its creation. tenement n. 1 Any building, struc- 2 tenant n. 1 The possessor or occupier ture, or house attached to the land. 3 of land by virtue of any kind of title or Any property held by freehold. A right. See tenancy. 2 One who pays building used as a residence. See also tenement house. rent in order to temporarily occupy or possess someone else’s land under the dominant tenement. Property that terms of a lease or similar document. carries with it the right to use part See lessee. of an adjoining property. life tenant. a person with the right to servient tenement. Property that con- use property for life, with no ability tains features used by occupier of to bequeath same to own heirs. adjoining property, as with an ease- tenantable repair n. A repair that is ment. necessary to render a premises fit for tenement house n. An apartment current human habitation. See habit- building, especially a dilapidated low- ability. rent building that meets, at best, mini- tender n. 1 An unconditional offer of mal conditions of sanitation and safety. performance in order to satisfy a debt. It tenure n. 1 An ancient hierarchical may be offered to save the party making system of land possession or holding in the tender from a penalty for nonpay- subordination to a superior. 2 The sta- ment or lack of performance. On the tus afforded teachers and professors, other hand, if the other party should long considered a cornerstone of aca- refuse the tender without a justifiable demic freedom of protection against dis- reason, that party may be placed in missal without adequate cause. 3 A default. 2 Something offered in order general legal protection of a long-term to settle a debt or obligation. 3 An relationship, such as employment. offer put forward in hope of acceptance. 4 Something that serves as a means of tenurial ownership See tenure. payment, such as banknotes or coin (as in, legal tender). terminable interest n. An interest in property that will end upon the passage tender of delivery. The placement by of time, the occurrence of an event, or a seller at the disposal of the buyer, the failure of an event to occur. It that is, arranging delivery of those applies to a class of property that usu- paid for goods in a timely manner. ally does not qualify for a marital deduc- tender offer n. A corporate law offer tion under the federal estate and gift tax to buy all shares of a corporation’s stock regulations. up to a certain number by shareholders term of art n. Slang. A word specific at a fixed price (usually higher than to a specific discipline and having a spe- market value) within a certain period of cial meaning within that discipline other time. Tender offers are usually precur- than what it is understood to mean in 23_542109 ch20.qxp 3/28/06 12:20 PM Page 255

255 theocracy

common usage. For example, in com- test case (action) See case. puter jargon, “to burn” is to record a CD, and “to rip” is to record a DVD. testify v. 1 To tell a court what perti- nent information to a case one has, territorial court n. A court created by while under oath, and while the defen- Congress under Article IV of the dant is present. 2 To bear witness. Constitution of the United States that endows Congress with the power to testimonial immunity See immunity. make rules and regulations respecting testimony n. Statements made by the territory or other property of the competent witnesses, who have been United States. sworn in at a trial or deposition or in an territorial jurisdiction n. The geo- affidavit. Although frequently used syn- graphical area over which a government onymously with evidence, the latter is or governmental subdivision has power. the broader term and encompasses both testimony and physical evidence. territorial waters n. All inland water- ways and all waters on a country’s expert testimony. Testimony given by coastline within three geographical an individual with special qualifica- tions or credentials that enable him miles of that coastline. to provide information to the fact- terrorism n. The threat or actual use finder to assist with resolving the ultimate facts in issue. Also known of violence in order to intimidate or cre- as “opinion testimony,” because, as ate panic, especially when utilized as a opposed to “fact witnesses,” expert means of attempting to influence politi- witnesses are permitted to give cal conduct. their opinions. testacy n. The condition of having left theft n. 1 Larceny; the unlawful expro- or leaving a valid will at the time of priation of someone else’s property with one’s death, rather than intestacy. See the intent of keeping it from its rightful also intestate. owner. 2 In its broadest sense, any example or act of stealing, which testament n. A document disposing of includes burglary, embezzlement, false a person’s personal property upon his or pretenses, fraud, and larceny. While lar- her death, distinct from a will, which is ceny is generally categorized as petty or a devise of real estate. grand depending on the value of the testamentary capacity See capacity. goods taken, theft is generally catego- rized by the type of property stolen. testamentary intent n. A testator’s intention that a document should func- identity theft. The misappropriation of another’s confidential and per- tion as his last will and testament, the sonal information such that the one determination of which is up to probate taking such data can use such infor- court. See also testator (testatrix). mation to pass as the other by sub- mission of credit documents, testamentary trust See trust. forging of identification cards, etc. testator (testatrix) n. One who makes theocracy n. 1 A country or state a will, especially one who dies and whose government derives its power leaves a will. Because testator has come directly from God or another divine to be applied to both sexes, the use of spirit. 2 A country or state in which the feminine testatrix has become obso- government powers are vested in the lete. See also intestate, testacy, and clergy. testament. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 256

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third party n. Someone who is not a time is of the essence n. Contractual party to a lawsuit, agreement, or other provision that requires prompt and interaction, but is in some way involved timely fulfillment of obligations under or affected by it; someone other than the the contract; failure to complete per- principles to an agreement or a lawsuit. formance under time constraints set forth in the document may constitute a third-party beneficiary See beneficiary. breach. Example: “Time is of the third-party plaintiff n. A defendant essence in the completion of this con- who files a pleading attempting to bring tract.” a third party into the lawsuit. See also timeshare 1 n. A form of joint owner- action and complaint. ship of property under which as many as threat n. A declaring of one’s intention 52 owners, either singly or severally, to cause harm or loss to another’s per- receives the use of the property, condo- son or property or to limit one’s freedom minium, or other property for a specified to act in a lawful voluntary manner (a period each year, such as one or more threat to kidnap). A threat may be made weeks. The term is also used to refer to by innuendo or suggestion, as well as by the shared use of computer equipment. 2 v. explicit language, and may be the basis To occupy by time-sharing. of criminal or civil liability. Mere words, title n. Ownership; the legal right to however, have been held not to consti- possess and to dispose of property. See tute an assault. See also coercion, also ownership, possession, tenancy. extortion, and fighting words. 2 Legal evidence of a person’s right of three-strikes law n. This type of law ownership of property; a deed or similar has been enacted in about half the instrument that evidences ownership. states and is a statute that requires a adverse title. A title that has been person convicted of a third felony get an acquired as a result of adverse pos- extended sentence, often lifetime session. imprisonment. bad title. A title that cannot legally thrift institution n. A catch-all term convey the applicable property to a that includes savings banks and savings new owner, usually because of one and loan associations. See also bank. or more conflicting claims to that property. An unmarketable title is not tide land n. Land that is between the necessarily a bad title, but a bad extremes of the normal high and low title is always an unmarketable tides, and which is covered by high tide, one. but exposed at low tide. The limit of clear title. 1 A title that is free tideland is usually set at the arithmetic from any burdens, such as encum- mean high tide. See also avulsion and brances or other limitations. 2 A reliction. marketable title. See marketable title. time n. A measure of continuity, or duration. 2 A certain point in a given defective title. See bad title. duration when something is said to have equitable title. A title indicating that occurred. 3 Slang. The period of incar- its holder has a favorable interest in ceration of a convicted criminal. See the property and entitles its holder also reasonable time. to acquire formal title to it. time draft See draft. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 257

257 totality of the circumstances test

good title. A title that is legally in toll v. 1 To bar, or take away; to effect and is valid. See also clear defeat. 2 To stop from running (said of title and marketable title. a statutory period of time). 3 To marketable title. A title that would be charge for the use of another’s property, acceptable to a reasonable buyer, in hence toll roads, toll bridges, and so on. that it appears to cover all the prop- erty that the seller is offering and it tort n. 1 A private or civil wrong for lacks any defect or limitation. which a remedy may be sought, usually in the form of monetary damages; a paramount title. A title that super- breach of duty that exists under societal sedes any and all other titles or expectations regarding interaction claims against the same property. It among equals in a transaction, rather signifies immediate right to posses- than arising from a specific contract. sion and may be the basis for evic- 2 The branch of the legal system or tion of a tenant. legal code that deals with such wrongs. unmarketable title. A title that a rea- Tort Claims Act n. A law passed by sonable buyer would fail to accept, the federal government and by most due to pending litigation or some state governments waiving sovereign other unresolved conflicts over the immunity from liability in torts for injury property. or loss of property. The Federal Tort title insurance n. Insurance taken at Claims Act of 1946 confers exclusive time of purchasing property to protect jurisdiction on the United States District against defects in chain of title. courts to hear claims against the federal government. title search n. A search of the public records to determine the status of a tortfeasor n. A person who commits a title, including any encumbrances, liens, tort; a wrongdoer. mortgages, and future interests affect- tortious adj. Being a tort; wrongful; in ing the property. Doing a title search is the nature of a tort. the way in which the chain of title is established. Normally, a title search is total adj. 1 Complete; entire; undi- conducted by a real estate attorney or by vided. 2 Absolute; supreme. a title company at the request of a prospective buyer or mortgagee. total disability n. As interpreted in the insurance industry, the inability of a title theory n. A property-law doctrine person to perform the needed duties of that a mortgage transfers title to a prop- the occupation for which he is qualified erty to the mortgagee, who holds it until by training or experience. Total help- the mortgage has been paid off, at which lessness or absolute physical disability time title passes to the mortgagor. Only is not requisite for being classified as a few American states have adopted this totally disabled. theory, and they are known as title states or title theory jurisdictions. totality of the circumstances test n. Compare lien theory, applicable in most A test originally formulated to evaluate jurisdictions, which provides that a whether a defendant’s constitutional mortgagee of property holds only a lien, rights were violated in the eliciting of a not title, to the property until such time confession. It concentrates on looking as the mortgage is fully paid, at which at all the circumstances surrounding the time the lien is removed. alleged violation rather than only one or 23_542109 ch20.qxp 3/28/06 12:20 PM Page 258

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two aspects, as had been the case trade secrets n. Formulas, devices, or before. It had been used as a measure of other manufacturing or business pat- whether a defendant’s privilege against tern, and so on that are kept confidential self incrimination had been violated, but in order to continue an advantage over since the advent of the Miranda rule the competition. Whatever the secrets (1966), that use has become obsolete. It are, they are not protected by patent, so is now used to determine whether a their owner holds no formal protection. defendant consented to a warrantless Once a trade secret is leaked or discov- search, and whether probable cause ered by analysis, the discoverer is free to exists for the issuing of a search warrant. use it to his or her own advantage. total loss n. An insurance contract trade usage See usage of trade. concept that is said to exist if property is destroyed to the extent as to be no traditionary evidence n. Statements longer useful for the purpose for which of fact based on longstanding tradition it was intended, or that renders it use- and reputation derived from a deceased less and of no value to its owner. person. It may be used to prove ancient boundaries, ancestry, or similar facts, to wit adv. Archaic. That is to say; especially when there are no living wit- namely. Sometimes spelled “to-wit,” or nesses to testify to something. “towit.” transaction n. 1 An act of carrying tract index n. An index usually kept out some form of business between two in the county recorder’s office and list- persons. 2 A business agreement or ing each parcel of land according to its exchange. 3 Any activity in which two location, along with all transactions or more persons are involved. involving it. See also abstract of title and chain of title. closed transaction. A transaction that is complete, so that the actual trademark n. 1 Any phrase, name, realized gain may be calculated for word, or graphic logo used by one man- tax purposes. ufacturer or marketer to distinguish its open transaction. A transaction in products from those of all others. A which all the events have not yet trademark’s main purpose is to assure occurred, and so the computation of the genuineness of an article, and it is taxes on that transaction is not yet roughly equivalent to a commercial sig- possible. nature. For a trademark to be eligible for federal protection, it must be distinc- sham transaction. A transaction that tive, attached to a product that is actu- will be disregarded for tax purposes ally marketed, and registered with the because it has no real substance. United States Patent and Trademark transactional immunity See immunity. Office. 2 The body of law that is con- cerned with how businesses uniquely transaction or occurrence test n. differentiate their products. test used under federal law to determine whether a particular claim should have tradename n. The name under which been filed as a counterclaim and will be a company or person does business. Note barred from future filing as a separate that a tradename (or commercial name) claim. The four separate suggested applies to a business and its good will, as tests are: 1) Are factual and legal claims distinct from a trademark, which applies raised by claim and counterclaim really only to a marketable commodity. the same? 2) Would a later suit be 23_542109 ch20.qxp 3/28/06 12:20 PM Page 259

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barred by res judicata if it weren’t for kind of criminal punishment, whereby a the compulsory counterclaim rule? 3) convicted criminal is sent out of the Will essentially the same evidence sup- country to an offshore penal colony for a port or refute both the plaintiff’s claim specified period of time. See also deport and the counterclaim? 4) Are claim and and deportation. counterclaim largely related? traveler’s check n. An instrument transcript n. A certified copy of the with a monetary face value that can be proceedings that occurred in a court or redeemed at locations other than one’s at a deposition, usually prepared by the own financial institution. Generally court reporter from notes made during accepted in all countries, a traveler’s the proceeding. It is most frequently check must be countersigned in presence used at appeal hearings when the of one who is accepting the traveler’s court’s proceedings are checked for check as payment. errors. traverse n. A pleading in common law transfer 1 n. Any and every method of denying an allegation of fact in an adver- removing something from one person or sary’s pleading or contesting that the place to another; specifically, the hand- adversary lacked adequate knowledge ing over of possession or control of to make such an allegation in the first assets or title. Transfer may be affected place. See also denial. by assignment, by delivery, by indorse- ment, and by operation of law. 2 v. the general traverse. A flat denial of all act of handing over possession or con- of the allegations in the pleadings of one’s adversary. trol. special traverse. A denial of one transfer agent n. An individual or alleged fact that is not absolute, but business that keeps a record of all that seeks to explain it away or shareholders in a corporation by name, qualify it by virtue of special cir- address, and number of shares owned. cumstances, such as an inducement Not every stock transaction results in a that can be verified. transfer, because a considerable share of most issues is held in the street name in treason n. An attempt to overthrow order to support margin or for the the government of the state or nation to owner’s convenience. See also registrar. which one owes allegiance, by making war against that government or by giv- transferred intent n. A doctrine in ing material support to the enemies of both criminal and tort law that holds that government. In order to be con- that if one intends to harm Party A, but victed of treason, a person must confess accidentally (or for some other reason) in open court or there must be testimony harms Party B, the harm will be treated to overt acts by two witnesses. See also as if Party B were the intended victim. sedition. This is a legal fiction designed to bring about the desired outcome, which is for treasure trove n. French. Treasure the person to be held responsible for and found. Valuables found, secreted in the prosecuted for an act of intent, and is ground or other hiding place, usually most frequently applied in cases where gold or silver, that is of unknown own- there is a homicide involved. ership. The finder of such, under com- mon law, is afforded title to the treasure transportation n. 1 The movement by trove against all except the actual a carrier of either people, goods, or prod- owner. ucts from one location to another. 2 A 23_542109 ch20.qxp 3/28/06 12:20 PM Page 260

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treasury n. The branch of any govern- treasury securities n. A security ment or corporation that is in charge of issued by governmental unit. its financial dealings. See also Treasury Department, United States. treasury stock n. Shares of stock issued by a corporation, and then repur- treasury bill n. A short-term promis- chased by it. sory note issued by the federal govern- ment with a maturity of 3 months, 6 treaty n. An agreement or compact months, or one year. Treasury bills are between two or more sovereign nations sold at a discounted rate and attain full for the benefit of those nations. In the face value upon maturity. See also case of the United States, that agree- treasury bond and treasury note. ment must address external interests of the country, as distinguished from those treasury bond n. A long-term promis- of a purely internal kind. The president sory note issued by the United States of the United States has the sole power government for terms of 10 to 30 years to make treaties with the advice and and backed by the full faith of the United consent of the Senate. Individual states States government. Because they are are prohibited from making treaties, and considered to be risk-free, they carry the once a treaty is ratified by the Senate, it lowest taxable yield of any bonds. They becomes binding on all of the states are sold at a discounted rate and attain under the supremacy clause. See also full face value upon maturity. See also treaty clause. treasury bill and treasury note. treaty clause n. The provision of the Treasury Department, United States United State Constitution that vests the n. The United States Treasury power to make treaties in the President Department’s basic functions are to with the advice and consent of the develop and propose national and inter- Senate, and a concurrence of two-thirds national monetary policies, and to serve of that body. as the financial agent of the government to collect taxes, manage the public debt, treble damages See damages. disburse funds, mint coins, and print trespass 1 n. An illegal act committed currency. As part of the executive against another’s person or property; branch of government, it is also respon- especially entering upon another’s land sible for enforcing certain laws. Toward without the owner’s permission. 2 n. that end, the Treasury Department In common law, a legal suit for injuries includes the Bureau of Alcohol, resulting from an instance of the first Tobacco, and Firearms (ATF), the definition. 3 v. To enter upon property United States Customs Service, the without permission, either actual or con- Internal Revenue Service (IRS), and the structive. Secret Service. trespass on the case. A common-law treasury note n. An intermediate-term precursor to today’s negligence, promissory note issued by the federal nuisance, and business torts, it was government for a period of two to five a suit to remedy injury to person or years. As with all other debt instru- property not resulting directly from ments of the federal government, they the defendant’s conduct but a later carry no risk, and so pay the lowest consequence of same. interest rate of all instruments of simi- trespass quare clausem fregit. See lar term. See also treasury bill and quare clausem fregit. treasury bond. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 261

261 trust

trespass vi et armis. Latin. With force T.R.O. abbr. Temporary restraining and arms. An immediate injury, order. See restraining order. such as an assault to another’s per- son or property, accompanied by trover n. A common-law tort action to force or violence. recover damages for personal property that was wrongly converted or for recov- trespasser n. One who, without per- ery of actual possession of that property. mission of the owner or privileges, See also detinue and replevin. enters onto another’s property intention- ally. Under tort law, such a person is true bill See bill. owed no consideration by the landowner trust n. Property that is held by one for any ills that may befall him or her. party, the trustee, for the benefit of See also invitee. another, the beneficiary. The one who trial n. 1 A formal judicial examina- supplied the property or consideration tion of issues of law or fact between par- for the trust is the settlor. Trust also ties by a court with jurisdiction in such encompasses any relationship in which cases. 2 A formal adversarial proceed- one acts as a fiduciary or guardian for ing to hear evidence and decide legal another. issues and claims. Trials are covered by blind trust. A trust whereby the set- established rules of courtroom proce- tlor places all financial interests dure as well as rules of evidence. under the control of an independent trustee for a period of time, most bench trial. A trial held in front of a often in order to avoid the appear- judge, but without the presence of a ance of a conflict of interest. jury. Both parties must waive their constitutional rights to a trial by constructive (involuntary) trust. A jury. The judge then gets to decide trust that is imposed by a court matters of fact as well as matters of against one who has acquired prop- law. erty by wrongful means, in order to prevent the holder of that property’s trial by jury. See jury trial. being unjustly enriched and for the trial de novo. A new trial, usually benefit of the rightful owner. No fiduciary relationship is created by ordered by an appellate court that this type of trust. retries both matters of fact and law and proceeds as if the original trial discretionary trust. A trust in which had never taken place. See also the settlor has granted the trustee mistrial and retrial. the discretion to pay to the benefici- ary as much of the income or princi- trial court See court. pal as the trustee sees fit. This is the type of trust most often used in tribunal n. 1 An officer or body with estate planning. the authority to pronounce judgment on a matter based upon the evidence. 2 A express (direct) trust. A trust set up court or other judicial body. 3 The with an affirmative expression by the settlor (usually in writing) of bench or seat where the judge sits while the purpose of the trust. This is an presiding over a hearing or trial. ordinary trust as distinct from a resulting or constructive one. tripartite adj. Composed of or having three parts; divided into three parts or fixed investment trust. See nondis- elements. cretionary trust. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 262

trust company 262

generation skipping trust. A trust set trust company n. A financial organi- up to transfer property to a benefi- zation that specializes in providing serv- ciary more than one generation ices such as acting as a trustee, removed from the settlor, such as a fiduciary, or agent for individuals and grandchild. companies. Trust companies typically grantor trust. In this type of trust, provide transfer agents to administer the settlor retains so much control funds and manage investments. Trust over the property in trust and/or its companies are regulated by the govern- income that the settlor is responsi- ment and often provide banking services. ble for taxes on that property. trustee n. Someone who holds title in inter vivos trust. A trust created and trust for the benefit of another person takes effect during the lifetime of and who owes fiduciary responsibility to the grantor. that beneficiary. Also used loosely to pourover trust. An intervivos trust refer to anyone acting as guardian or that receives money from another fiduciary with respect to another per- trust or other source or that distrib- son. utes receipts to another trust. bankruptcy trustee. A court officer precatory trust. Trusts created by a appointed by a judge or elected by will by use of precatory words such creditors to act as the representa- as “wish” or some other entreaty tive of a bankruptcy estate. rather than specific direction. See also precatory. trustor n. The person who created the trust, also known as the donor or the resulting trust. A trust brought about grantor, but most frequently called the by law when the circumstances in settlor. which property is transferred that suggest that it was not the intention truth n. A completely accurate of the transferor to give beneficial account of the facts; an affirmative interest in the property to the trans- defense in a suit for defamation. feree. Truth-in-Lending Act n. testamentary trust. A trust created A federal by a will and that comes into statute that requires commercial existence upon the death of the lenders to provide accurate information grantor. relating to the cost of borrowing, in lan- guage that a normally intelligent person Totten trust. A bank account created could be expected to understand. by the depositor in trust for another. Lenders must furnish the dollar amount It is often used to name a successor of the interest charges, as well as the to an account without the need to write a will. It is also fully revoca- annual rate of interest. Borrowers ble. pledging real property as collateral must be given a three-day cooling-off voting trust. The combination of vot- period, during which they may change ing rights among a group of stock- their minds. holders to exert a higher degree of influence or control within the cor- try v. To judiciously examine both poration, or to bring about a specific sides of a dispute and to come to an result. equitable solution by virtue of a trial. 23_542109 ch20.qxp 3/28/06 12:20 PM Page 263

263 tying arrangement

try title n. Submitting the legitimacy tying arrangement n. An antitrust of the title to property to the scrutiny of practice of one seller agreeing to sell a court. one product or service to a buyer only if the buyer agrees to buy another product turntable doctrine See attractive or service. Such an arrangement may be nuisance doctrine. deemed illegal under the Sherman turpitude See moral turpitude. Antitrust Act. 24_542109 ch21.qxp 3/28/06 12:20 PM Page 264

unconscionable adj. So harmful to the interests of one of the parties to an agreement or contract as to make that paper unenforceable and, therefore, null and void. unconstitutional adj. In conflict with the letter or intent of the United States U Constitution. When a statute is found to be unconstitutional, all obligations aris- ing from it are unlawful, and no person can be held accountable for having failed to live up to his or her obligations under that statute, nor is the statute U3C See Uniform Consumer Credit enforceable. Code. uncontrollable impulse n. An UCC See Uniform Commercial Code. impulse so overwhelming that it cannot be resisted. See also irresistible UCCC See Uniform Consumer Credit impulse test and insanity. Code. under protest n. Complying with an ultimate facts See fact. obligation while asserting an objection to ultimatum n. The final offer in negoti- the obligation. For instance, when paying ating an agreement, carrying with it the a disputed debt, the payor may note that implication that if it is not accepted, bar- it is being paid “under protest,” thereby gaining will cease. preserving any claim he may have for subsequent repayment. ultra vires adj. Latin. In excess of, or outside of powers; that which is beyond under the influence See driving a corporation’s or an agency’s author- while intoxicated. ized power. A corporation’s ultra vires undisclosed principal See principal. activity may lead to its forfeiting its charter of incorporation. undue influence n. A persuasive power sufficient to sway the free will of unavoidable accident n. See acci- a donor or testator. Such influence con- dent. stitutes just cause for a court to nullify unclean hands n. The doctrine that a a will or invalidate a donor’s gift. A con- party seeking damages or redress in a tract may not be binding if one party has suit cannot have done anything illegal undue influence over the other; for or dishonest himself in the transaction example, one between an employer and with which the suit is concerned; an an employee or between a priest and a equitable principle stemming from the penitent. concept that one who has done wrong unethical adj. Not in accordance with should not recover from another who the moral standards customarily fol- may also have done wrong. See also lowed in a business or professional rela- clean hands. tionship. See also conflict of interest unconditional discharge n. 1 A and Model Rules of Professional release from a debt with no further obli- Conduct. gations to fulfill. 2 A release from con- unfair competition n. Misrepresent- finement without the requirement of ing the reputation, name, or good will of spending time on parole. a company or person as that of another; 24_542109 ch21.qxp 3/28/06 12:20 PM Page 265

265 United States Attorney

untrue or misleading advertising that method for setting up a trust as a gift to causes a consumer to be misled; unethi- minors. The gift is made by setting up a cal business practices. Unfair competi- trust in the name of the custodian or tion is a tort and a fraud, for which legal registering the property in the name of remedy and redress may be sought. the custodian “as custodian for . . . .” The statute also sets forth the terms unfair labor practice n. An act of an under which the custodian may make employer against an employee that has withdrawals to be used for the benefit of been prohibited under the National Labor the minor. Unless otherwise specified by Relations Act, particularly those relating the donor, the custody of the trust goes to an employee’s efforts to form or join a to the minor upon reaching age 18. union, or the refusal of an employer to Otherwise, custody passes at age 21. collectively bargain with a group of employees or their representatives. uniform laws n. An unofficial set of laws proposed for all states to adopt as unfit adj. In products law, not quali- written, for the purpose of their being fied or unsuitable for a particular use or more uniformity of laws from state to purpose. state. Uniform laws have been put forth unfit parent n. A parent with suspect by Commissioners on Uniform State morality, or one who may engage in ille- Laws. Some of the uniform laws have gal or excessively unhealthy habits, been adopted by a few states only, after such as habitual drinking to the point of making minor or major changes, while inebriation, or use of illicit drugs. others have been universally adopted, e.g. Uniform Child Custody and Jurisdiction unified estate and gift tax n. A tax Act; Uniform Power of Attorney Act; imposed on property transfer, especially Uniform Anatomical Donations Act; and by inheritance, by will, or as a gift. The Uniform Arbitration Act. federal tax laws treat lifetime gifts and death gifts equally. Sometimes referred unilateral adj. Literally, one-sided; to as the federal transfer tax or the uni- relating to only one of two or more peo- fied transfer tax. ple or things. Uniform Commercial Code n. A law unilateral contract See contract. governing the sale of goods, commodi- unilateral mistake See mistake. ties, and bank transactions. With some modifications, this law has been adopted union shop n. A place of employment by all 50 states and in the District of that hires only unionized workers. Columbia and the U.S. Virgin Islands. United States Attorney n. An attor- Uniform Consumer Credit Code n. ney appointed by the President of the One of several uniform codes that states United States to plead the United States may or may not adopt. It was intended government’s case in civil and criminal to give consumers a better understand- cases in a federal district court. A ing of all aspects of credit transactions United States attorney works under the and to help encourage sound consumer direction of the Attorney General of the credit practices. Also known as United States; each federal judicial dis- U.C.C.C., U3C, and UCCC. trict has one United States Attorney, with an office composed of multiple Uniform Gifts to Minors Act n. A law Assistant United States Attorneys. See adopted by every state that creates a also district attorney. 24_542109 ch21.qxp 3/28/06 12:20 PM Page 266

United States Claims Court 266

United States Claims Court See unjust enrichment n. 1 The keeping court. of a benefit bestowed or performed by another without offering appropriate United States Code n. The official, compensation, in circumstances where bound codification of federal law; this compensation is appropriate. 2 A ben- multi-volume set is issued anew every efit conferred by another and neither six years and updated by supplements in intended as a gift nor legally appropri- the intervening years. The supplement ate, for which the recipient must make is called the United States Code restitution or payment. 3 The portion Congressional and Administrative of the law that treats unjustifiable News. enrichment of either of the foregoing United States courts See court. types. adj. United States magistrate n. unlawful 1 Not authorized by law; 2 Appointed by U.S. district court judges, illegal. Punishable under criminal 3 U.S. magistrates are judicial officials law. Characterized by moral corrup- with broad powers to conduct pre-trial tion. hearings and conferences in both civil unlawful act n. Behavior that is not and criminal cases. With consent of the authorized by law; commission of or par- parties, Magistrate Judges may preside ticipation in an activity that violates over trials in civil cases as well as crim- criminal or civil law. inal misdemeanor cases. unlawful assembly See assembly. unities n. A legal fiction left over from common law—a creation of a unity for unlawful detainer See detainer. joint tenancy or ownership. The four unities are interest, possession, time, unlawful entry n. An entering onto and title. See also joint tenancy. someone’s property without that per- son’s consent, by force or fraudulent unity of interest. Requires that each pretense. Unlawful entry is distinct from and every joint tenant’s interests burglary, which entails the breaking are identical in kind, breadth, and and entering into someone’s dwelling time. with criminal intent. unity of possession. The necessity unlawful force n. that each joint tenant must be enti- Power or violence tled to possess the whole property that is directed against a person without in its entirety. that person’s consent. Such an act is punishable as an offense or actionable unity of time. The necessity that all tort. joint tenants’ individual interests must vest simultaneously. unliquidated adj. Not previously determined or specified (left to be deter- unity of title. Requires that all joint mined by the court). tenants acquire their interests by means of a single document. unreasonable adj. 1 Not determined by reason; capricious; arbitrary; irra- universal agent n. One who by tional. 2 Unsupported by a valid mutual consent is authorized to carry exception to requirements of a warrant; out all business of every kind for for example, unreasonable search and another. seizure. 24_542109 ch21.qxp 3/28/06 12:20 PM Page 267

267 uxor

unreasonable search and seizure n. use immunity See immunity. An inspection or examination without legal authority (warrant) of a person’s usurious contract n. A contract that self, papers, or belongings, with a hope imposes an illegally high interest rate toward recovering stolen or illicit prop- on the repayment of a debt. See also erty or gathering incriminating evidence usury and loan-sharking. to be used against that person; the usury n. 1 Archaic. Charging interest actual taking of that property into pos- on borrowed money. 2 The charging of session. Both the Sixth and Fourteenth an illegally high rate of return, typical of Amendments to the United States a loan shark. 3 An illegally high inter- Constitution protect individuals from est rate. unreasonable search and seizure. utility n. 1 Some society-benefiting upzoning See zoning. quality. 2 The ability to form some usage of trade n. A trade practice function. 3 A business that forms an that is so common in a particular region essential public service and that is often or vocation that an expectation of its government regulated, such as a public- being followed in a given transaction is service utility, electric company, and so justified; a usual and customary practice on. or set of practices connected with a par- utter 1 adj. Total, complete, absolute. ticular type of business or trade; for 2 v. To speak or publish. 3 v. To use a example, in mortgage loan transactions forged check or instrument; to put it it is customary for the borrower to pay into circulation, as opposed to just cre- for an appraisal of the value of the prop- ating the forged document. erty. ux. See uxor. use n. 1 The right to enjoy the benefits derived from ownership of property, both uxor n. Latin. Wife. real and personal. 2 A habitual prac- tice, such as drug use. 3 A purpose or an end served; for example, a screw- driver’s use is tightening or loosening screws. 4 The purpose for which some- thing is adapted; for example, neighbors complaining of the owner’s use of the building to give trumpet lessons. useful life n. An estimation of the amount of time that exhaustible prop- erty will generate income. It is used to calculate depreciation and amortization. 25_542109 ch22.qxp 3/28/06 12:21 PM Page 268

contractual consideration. See also fair market value. value-added tax See tax. vandalism n. Deliberate defacing or destruction of property; ignorant defac- ing of anything beautiful or treasured, V such as a work of art, architecture, or a valued building. Ignorance or malice is usually inferred. variance n. 1 A discrepancy between two documents or statements that should agree; especially in a criminal vacate v. 1 To set aside or make void; trial, a disparity between what is alleged to nullify; to vacate a judgment. 2 To in the charges and what is presented at physically leave, as in “to vacate the trial as proof. 2 In zoning law, an building. See also abandonment and exception to a specified zoning regula- overrule. tion that may be granted by a zoning vagrancy n. A vague, poorly delin- board or authority; for example, reduc- eated set of minor offenses (dating from ing the number of required parking the downfall of feudalism in England, spaces for a business below the number when there was an acute shortage of set forth in zoning regulations as being laborers), such as being in a condition of required for a business of that size or unemployment, wandering from place to type. place with no apparent purpose, and vend v. To sell for money or other having no visible means of support. valuable consideration. (The term is not More recently, the police have utilized usually used to refer to real property, vagrancy statutes for arresting persons although its other forms, vendor and thought to have committed a crime, vendee, are.) when lack of probable cause for the per- son’s arrest is lacking. Vagrancy vendee n. A purchaser, especially in a statutes have not been well received by contract to purchase real estate; a the courts, due to their abuse, and have buyer. often been declared unconstitutional due to their vagueness, and their ignor- vendor n. The person selling, espe- ing of due process. cially in the case of real property. The term seller is more frequently used vagueness See void for vagueness. when referring to transactions involving personal property. valid adj. 1 Legally binding, such as a valid agreement. 2 Having merit, as vendor’s lien. A lien on real property in, “given the facts presented in this held by the seller until the purchaer case, it is valid to conclude that she did has made full payment. what she was charged with having done.” venire n. Latin. A panel of jury duty selectees, from among whom the actual valuable consideration See consid- jury will be chosen. eration. venire de novo. A calling of a new value n. 1 What something is worth in jury panel for the purpose of hold- monetary terms, or in money; a thing’s ing a second trial, in cases where a market worth. 2 The usefulness or first trial has failed to render a ver- dict. desirability of something. 3 Adequate 25_542109 ch22.qxp 3/28/06 12:21 PM Page 269

269 veto

venue n. Usually, the locality within special verdict. A jury verdict that which the trial or suit will take place, as sets forth findings on the merits of sometimes there may be several places each factual issue posed by the where jurisdiction could be established. court, then used by the court in Venue is often a matter of convenience applying the law to the facts that to the parties in a civil suit. In a criminal were found to have merit. When suit, where it may be difficult to applied in a criminal case, where empanel an impartial jury (due to exten- the judge directs the jury to render sive publicity or other considerations), a special verdicts on specific charges change of venue may be sought. See also in a case, such action has been forum nonconveniens. declared to be unconstitutional, as the defendant is entitled to a gen- veracity n. 1 Honesty; credibility; eral verdict. truthfulness, as in, “the witness’s previ- ous criminal record brings into question verification n. A statement attesting his veracity.” 2 The accuracy of an to the truth, correctness, or authenticity account of an event. of the things avowed in a written state- ment; an affidavit attached to a written verdict n. The conclusion of a jury, or statement affirming its truthfulness. of a judge in a non-jury case, of what the facts are or were. A verdict, being a find- vertical price fixing See price fixing. ing of fact, is different from a judgment or a judicial decision. The trial court vertical privity See privity. may choose to accept or to disregard the vested n. An unconditional right of verdict in determining judgment. current or future enjoyment of title to compromise verdict. A verdict and actual possession of property, achieved by some juror giving in on whether personal or real. See also one of his or her misgivings in contingent. exchange for another juror’s doing the same, in order to avoid a dead- vested estate. See estate. lock or extended period of delibera- tion. Such an exchange, although vested interest. A current right or considered improper, happens often. title to possess a thing, even though the actual possession may not take general verdict. A verdict that simply place until sometime in the future. declares which side wins, without finding any special facts to be true. vested remainder. A property in the estate of a deceased that is limited partial verdict. A verdict in a crimi- to a certain specified person, whose nal case that finds the defendant enjoyment of same may be deferred guilty of some charges but innocent to some future time. of others. veto 1 n. The power of one branch of quotient verdict. An improper verdict in a damage case, whereby the government to prohibit a certain action jurors find the arithmetic mean of by another; for example, the chief exec- what they think are appropriate utive’s right to refuse to sign a legisla- damages; that is, the total of what ture-passed bill into law. 2 v. The act each juror believes should be of refusing or canceling the act of awarded, divided by the number of another or the passage of a law. jurors to arrive at the amount of the award. 25_542109 ch22.qxp 3/28/06 12:21 PM Page 270

vexatious litigation 270

pocket veto. As to a chief executive violation of probation See probation. of a governmental body, such as the President of the United States, the violence n. The use of physical force, failure to approve a proposed leg- especially physical force utilized with islative act, thereby resulting in the malice and/or the attempt to harm proposed law not being passed, and someone. Some courts have ruled that therefore “vetoed.” in labor disputes, violence includes pick- vexatious litigation n. A civil suit that eting with false information on the plac- can be shown to have been brought mali- ards, in an attempt to harm a business. ciously and in the absence of reasonable vir n. Latin. Man. cause. See malicious prosecution. virtual representation n. A bringing vicarious adj. Suffered, performed, or of an action on behalf of a party or par- experienced by one person as a substi- ties unnamed, as in the case of a class tute for another; indirect; in surrogate. action where a number of people have vicarious liability See liability. an interest similar to the named party, and upon whom the court’s judgment vice crimes n. Activities that are will be binding. It is often preferable to made illegal because they offend the have a guardian ad litem appointed to moral standards of the community ban- protect the interests of the nonparties. ning them. Gambling, pornography, and visitation rights n. prostitution are the big three of vice The right of the crimes in most states and communities. non-custodial parent, granted by the divorce or family court, to visit with the vicinage n. The vicinity or neighbor- child on some sort of scheduled or regu- hood in which a criminal activity has lar basis. been perpetrated, or in which a trial is vis major n. Latin. being held; the community from which A superior force; the jurors are being called. the term is used in civil cases to denote an act of God. A loss vis major results videlicet See viz. from natural causes, such as a hurri- cane, tornado, or earthquake, and with- view n. 1 An unobstructed look out of out the intervention of human beings. It the windows of a dwelling. 2 An urban is a loss that could not have been pre- encumbrance prohibiting the building of vented by diligence or by having taken anything that would obstruct a person’s precautions. See also force majeure. view from his or her window. 3 A jury’s trip to a crime scene or other loca- vitiate v. 1 To interfere with; to tion thought necessary to see the physi- impair; to render null and void; to cause cal particulars of the case before it that to have no effect. 2 To invalidate might not be capable of being observed either partially or completely. 3 To in the courtroom. 4 A lineup. See also corrupt morally. lineup. viz. abbr. Latin. Namely; to wit; that is violation n. 1 A breaking of the law; to say. Used to elaborate on what has an infraction; a transgression. 2 The already been said in more particular or act of breaching the law; contravening a precise language. duty or right. 3 An offense against the public welfare. 25_542109 ch22.qxp 3/28/06 12:21 PM Page 271

271 voting right

voice exemplar n. A sample of one’s qualify them or cause their selection to voice for the purpose of comparing to be challenged, other than peremptorily. the actual person’s voice, or a recording During a trial, a voir dire examination of same, used for identification. refers to one outside the hearing of the jury concerning some issue of fact or void n. Of no legal effect; empty; law that requires the court to rule. unenforceable; those provisions having no effect whatsoever. volenti non fit injuria n. Latin. The volunteer suffers no wrong; a person voidable n. Able to be later voided or cannot usually sue for damages when he nullified; a valid act that may achieve consented in the first place to whatever what its purpose was until its fatal flaw it was that caused the damages. is discovered or takes effect and causes it to be voided. For example, a minor voluntary appearance See appear- may enter into an agreement with a ance. book club and not buy the number of books she contracts to. When the book voluntary manslaughter n. An act of club tries to recover the remaining part murder reduced to a charge of of the contract, the minor repudiates it manslaughter due to extenuating cir- and it becomes void, because a minor cumstances, such as diminished capac- may not make a valid contract. ity or being provoked in the heat of passion. voidable preference. Bankruptcy term referring to a payment or transfer voluntary waste See waste. made by the debtor to a creditor within a certain period of time voting n. The casting of ballots to before declaration of bankruptcy is decide an issue; usually used to refer to made, to the disadvantage of other the casting of votes in order to elect offi- creditors seeking a share of remain- cials or to decide a question on the bal- ing assets of the debtor; such pay- lot. ments may be set aside. voting trust. Entrustment by a group void for vagueness n. When it of stockholders in a corporation of becomes necessary for a person of aver- their votes to a trustee, who shall age intelligence to guess at the meaning be empowered to act on their of a law or how that law is to be applied, behalf, without the stockholders the statute is constitutionally void for retaining control to direct the vagueness. A criminal statute may be trustee’s actions. vague for how it is to be applied, to voting right n. 1 In corporate law, the whom it applies, what conduct is forbid- right of a shareholder to cast a vote in den, or what the punishment is for vio- the election of corporate officers and to lating it. vote at meetings to decide corporate pol- voir dire n. French. Literally to see, to icy or transactions. 2 In constitutional speak; hence, idiomatically, to speak the law, the right to vote may not be denied truth. The usual reference is to an exam- to an individual based on race, sex, ination by the attorneys and/or the court color, or previous condition of servitude. of prospective jurors to determine In addition, in federal elections it is not whether reasons exist that might dis- permissible to charge a poll tax. 25_542109 ch22.qxp 3/28/06 12:21 PM Page 272

Voting Rights Act 272

Voting Rights Act n. A federal law passed in 1965 that states that no vot- ing qualification, prerequisite, or stan- dard practice or procedure shall be imposed or implied by any state or polit- ical subdivision to deny or abridge the right of any citizen of the United States to vote because of race or color. Specifically proscribed by the law is use of intimidation. In 1973, the act was expanded to prohibit restrictions based on literacy or education. 26_542109 ch23.qxp 3/28/06 12:21 PM Page 273

waive v. 1 To voluntarily give up, abandon, or surrender a right, privilege or claim. Usually, a right may only be waived if the person so doing has full knowledge of what the consequences might be. 2 To abstain from insisting on a formality, such as an extradition W hearing prior to extradition. waiver n. 1 A voluntary relinquishing of a right or privilege. Although a waiver may result from an explicit surrender or by circumstances, courts frown on accepting waivers of constitutional W-2 form n. A federal tax form, rights. The party waiving a right must copies of which are provided by the have knowledge of that right and the employer to employees and to the IRS, informed intention of surrendering it. stating total earnings; federal, state, 2 The paper by which a person surren- and municipal taxes withheld; FICA ders his or her rights; for example, when taxes; and various other deductions the courier delivered the package, the including contributions to retirement recipient may sign a waiver relieving the accounts, unemployment insurance (in former of any further responsibility. some states), and health insurance (in certain states). express waiver. A deliberate and vol- untary waiver. W-4 form n. A federal tax form, on implied waiver. which the employee indicates the num- A waiver of certain rights based upon the action of the ber of personal exemptions she will be waiving party. For example, if a per- claiming so that the employer can calcu- son tells a courier he does not care late the amount of federal income tax what condition a package is in as to be withheld from that employee’s long as it arrives by a certain time, paycheck. that person has waived the right to require the courier to treat the par- wage n. The payment to an employee, cel with the normally expected care. usually based on hours worked or quan- tity of goods or services produced. prospective waiver. A waiver of some- thing that may occur in the future; wager n. 1 Money or other considera- for example, the right to participate tion put at risk on a gamble, a bet, or in an award from a future, antici- some other uncertain occurrence. 2 pated law suit. Prospective waivers Money promised if a certain event are often deemed to be unenforce- should occur. able, as the party giving up a right cannot, by definition, know the waiting period n. The amount of time parameters of what is being given that must pass before a right is given, up. as, for example, registration of a hand- gun, or grant of a marriage license; in want of consideration n. The lack of insurance policies, the period of time consideration in exchange for goods or during which a policyholder must wait services, may form the basis for a con- before starting to collect benefits, e.g., tract to be unenforceable. See also con- as with a 90 day wait after disability sideration. commences before disability benefits will start to be paid by the insurance company. 26_542109 ch23.qxp 3/28/06 12:21 PM Page 274

want of prosecution 274

want of prosecution n. The failure of general warrant. A warrant used by a litigant to pursue a case in a timely the government to search a manner, sometimes resulting in dis- described premises and seize any missal of the case. proscribed substances not described in the warrant. This type wanton adj. Reckless; extremely of warrant has been held unconsti- careless; acting with utter disregard for tutional by the Supreme Court as others; implies conduct that is beyond violating the Fourth Amendment of the United States Constitution, mere negligence. In criminal law, mali- except in cases where the seized cious or malevolent intent. items are in plain sight. ward n. 1 A person for whom a stock warrant. A certificate entitling guardian has legal responsibility, or one the bearer to buy a certain number over whose property a guardian has of shares of stock at a specified responsibility. Title to legal property time for a set price. remains with the ward, although he or she may not enter into any contracts warranty n. The attesting of one party involving same. 2 A division of a town to a contract to the other of reliable for electoral or educational purposes. facts so that the second party does not need to ascertain such facts for him or wardship n. 1 The position of herself. Such assurance carries with it a guardian usually, but not necessarily, promise to indemnify the second party over a minor. 2 The situation or condi- for any loss should the particulars of the tion of being a ward. warranty prove not to be factual. Such a warrant n. 1 An order in writing from warranty may be express or implied. a competent authority instructing that a express warranty. A warranty cre- certain act be carried out. 2 In com- ated by the specific words of the mercial and property law, a warrant also warrantor promising the purchaser refers to a guarantee that a property of goods that the merchandise being being sold or transferred meets certain sold possesses or lacks certain specified criteria. qualities. arrest warrant. A court order direct- implied warranty. A warranty arising ing that a certain person be taken from the existence of certain laws into custody by the sheriff or other governing the conditions under law officer and made to appear which a certain thing may be trans- before the court to answer a com- ferred, rather than from the words plaint, or for some other reason. of the seller. bench warrant. An arrest warrant limited warranty. Warranty limited issued specifically by a judge for a as to period of time or scope, e.g., a person who has failed to appear warranty for an automobile may be before a court after previously hav- for only certain components of the ing been summoned to do so, or who car, or for a specified number of has been indicted for an offense or miles or months. found to be in contempt of court. warranty of fitness for a certain pur- death warrant. A warrant issued by a pose. A warranty that the merchan- governor or other person with dise is suited for use for the special authority, commanding that a pris- purpose for which the buyer is oner under sentence of death be put acquiring it, rather than merely fit to death at a certain time and in a for general use. certain manner. 26_542109 ch23.qxp 3/28/06 12:21 PM Page 275

275 weight of the evidence

warranty of habitability. A landlord’s permissive waste. Damage done by a promise that from the start of the tenant’s failure to make reasonable lease there are no hidden difficul- repairs that he might normally be ties or defects that might affect the expected to see to, such as allowing use of the premises for residential water to accumulate in a leaky purposes, and that the premises will basement over the course of years. remain habitable for the lease’s duration. voluntary waste. Damage directly caused to the property by a volun- warranty of merchantability. An tary act of the tenant, such as filling implied guarantee on the part of a in drainage ditches or punching a merchant that the merchandise he hole in the roof. sells is suitable for the general pur- pose that it is sold. For example, if wasting property n. Ownership, right the merchant sells house paint, it is to, or interest in a wasting asset. implied that that paint will adhere to walls. wasting asset. An asset that will be consumed through normal use, warranty deed See deed. such as the gold in a gold mine, oil in an oil well, or a copyright. waste n. Permanent harm done to real property by a person or persons in legal weapon n. An implement used or possession of that property (such as a designed to be used to kill or injure a tenant), such that the property’s value person. See also gun-control law. to its actual owner or future inheritor is concealed weapon. A weapon that is diminished. The legal possession part is carried by someone but is not visi- critical in distinguishing waste from ble to the ordinary observer’s eye. trespass. dangerous weapon. An implement or ameliorating waste. An unauthorized device that is capable of causing physical change of an occupied serious bodily harm or death; not to structure by a tenant that, while be confused with a deadly weapon. technically waste, actually increases A dangerous weapon may be deadly; the value of the property, such as a deadly weapon must be danger- tearing out old carpeting and put- ous. ting in new, better quality carpeting. Such an act is rarely considered deadly weapon. Any firearm or other grounds for liability. device (crossbow, longbow, bomb, grenade, and so on), substance (poi- equitable waste. Damage done by a son), or material (dagger, cutlass), lifelong tenant who normally would that, when used in the manner it be unchallengeable, but who may be enjoined by the court using the was intended to be used, will be standard of variance from what a likely to cause death. prudent man would do with his own property. weight of the evidence n. The rela- tive value of the total evidence pre- hazardous waste. By-product of cer- sented by one side of a judicial tain industries or activities, deter- proceeding when compared to the evi- mined to be of unusually dangerous dence presented by the other. The nature, e.g., radioactive waste, gen- phrase refers to the persuasiveness of erally subject to special rules of dis- the testimony of witnesses and the posable and/or recycling. physical evidence combined. See also burden of proof. 26_542109 ch23.qxp 3/28/06 12:21 PM Page 276

Westlaw 276

Westlaw n. An online legal research last will and testament. Phrase com- service for legal and law-related materi- monly used to refer to the latest als and services, including searches of (most recent) instrument directing United States and international legal the disposition of the personal prop- materials, federal and state statutes, erty of the signer(s). and legal periodicals; maintained by the mutual wills. See reciprocal will. West Group of Thomson Learning, Inc. nuncupative will. An oral will dic- white-collar crime n. A phrase denot- tated by the testator just before ing a variety of nonviolent crimes and death, before a certain number of commercial offenses committed by busi- witnesses (depending on state law), ness people, public officials, and con and put in written form after death; artists. Consumer fraud, bribery, stock generally invalid in most states. manipulation, and embezzlement are willful adj. 1 among the improprieties in this cate- In civil law, intentional, gory. voluntary, knowing; distinguished from accidental, but not necessarily mali- wilful See willful. cious. 2 In criminal law, an act done stubbornly or with an evil intent. will n. 1 Desire, intent, choice, as in, “she exercised her own free will.” 2 A winding up v. The process of dissolv- document spelling out what is to be ing a partnership or corporation by col- done with the person’s (testator’s) lecting all assets and outstanding belongings after she has died. Such doc- income, satisfying all the creditors ument has no force while the person is claims, and distributing whatever alive and may be altered or revoked at remains (the net assets). These may be any time, but becomes applicable at the distributed as cash or in kind, first to time of the testator’s death to whatever preferred stockholders, if any, and then the conditions of the estate are at the to remaining shareholders, if any, pro time of death. The difference between a rata. Winding up is in anticipation of a deed and a will is that a deed passes an company’s dissolution. See also liqui- interest upon delivery, while a will is date. effective only on death. wiretap 1 n. The listening in of any estate at will. The right of a grantee wire or oral communication by use of to use and possess land by mutual electronic or mechanical means; gener- agreement (or will) with the ally illegal where both parties to the grantor; the right to use the prop- communication are unaware of the wire- erty terminates when the will of tap. Unauthorized use or possession of either party ends. wiretap devices is prohibited under holographic will. See holographic state and federal law. 2 v. The act of will. placing an electronic device to listen in on oral communications. See also bug- joint and mutual will. One will exe- ging, and pen register. cuted by two or more persons with reciprocating provisions of consid- withholding n. 1 The portion of eration of each to the other. earned wages that an employer deducts joint will. A single will signed by to cover income tax purposes and for- two or more persons but that is not wards to the government. 2 The necessarily reciprocating or mutual. process by which the employer makes the deduction. See also W-2 form and W-4 form. 26_542109 ch23.qxp 3/28/06 12:21 PM Page 277

277 writ of assistance

withholding tax See tax. workhouse n. A jail for criminals who have committed minor offenses and who witness 1 n. A person who gives testi- will not be serving lengthy terms. mony under oath and penalty of perjury in a court of law 2 v. To observe the exe- work product n. That work done for a cution of a legal document and to authen- client by an attorney representing the ticate it by affixing one’s name to it. client and generally considered protected from discovery. It includes statements adverse witness. See hostile wit- written and spoken, as well as tactics, ness. opinions, and thoughts that are protected character witness. One who testifies by the attorney-client privilege. to the reputation of another as a reliable, reputable member of the work release program n. A program community. Character witnesses allowing a prisoner to voluntarily partic- may be used to support or impugn ipate in a training program away from the testimony of a key party. the prison, or to work at a paying job in the community, while continuing to expert witness. See expert. serve as a prisoner at a penal institu- hostile witness. One whose adverse tion. State prisoners in such a program relationship to a party may preju- may not be involuntarily removed from dice his or her testimony against that program without due process show- that party. A person declared to be a ing that he or she is a threat to the com- hostile witness may be asked lead- munity. See also halfway house. ing questions and may be cross- examined by the party who called worth n. 1 The value of something, him or her. expressed in monetary terms; all of a thing’s qualities that make it useful and lay witness. A witness other than an expert witness. valuable, expressed in terms of a medium of exchange. 2 The total mon- material witness. A witness called to etary value of a person. 3 The senti- testify about an important or essen- mental value of something; emotional tial matter, or a matter having a log- value. ical and necessary connection to the facts under consideration. writ n. The written order of a court in the name of the state or other legal w.o.p. See want of prosecution. authority ordering the person addressed to either do something or restrain from words of limitation n. Words in a doing something. deed or will that are conventional, but non-literal. As an example, the phrase, writ of assistance n. 1 Archaic. One “to B and her heirs,” by longstanding of the most hated abuses of common law convention of property laws, gives an in colonial America, it was a general interest in land to B, but nothing to her warrant for an officer of the crown to heirs. search wherever he pleased for goods imported without paying British tariffs. words of purchase n. Language in a They were greatly abused and led to the deed or will conveying to whom the constitutional ban against unreasonable grant is going. The words designate the search and seizure. 2 In current prac- nature of the estate granted, for exam- tice, a writ of assistance is a remedy for ple, “to B and his heirs” might be inter- the transfer of property when the title preted the grant goes to B, and then to has been previously decided by a pro- his heirs as long as the family line exists. 26_542109 ch23.qxp 3/28/06 12:21 PM Page 278

writ of certiorari 278

ceeding, and is issued to enforce the wrongful-death action n. A lawsuit prior judgment or decree. brought alleging damages from a wrong- ful act, default, or negligent behavior writ of certiorari See certiorari. that resulted in the aforementioned’s writ of error n. An order from an demise. Such action may be brought by appellate court to a lower one to deliver the executor or administrator of the a case’s records for the purpose of decedent’s estate, as well as his or her reviewing them. surviving family, claiming deprivation of economic benefit that would have been writ of habeas corpus See habeas had in the way of income or services had corpus. the decedent survived. Wrongful-death laws are different from survival writ of mandamus See mandamus. statutes, which provide for legal action to sue for mental anguish, medical writ of possession See writ of assis- expenses, pain and suffering, or lost tance. wages springing from the act leading to writ, peremptory See peremptory the death. Both statutes, however, cir- writ. cumvent the common law rule that death extinguishes civil law suits. There written instrument n. Anything is a wrongful death statute in every expressed in writing; a contract or state in the United States. agreement contained in the writing. Many statutes are required to be wrongful-life action n. A legal action expressed in writing in order for them to on behalf of a child with birth defects, take effect. alleging that the parents would not have conceived the child or would have wrong 1 n. A violation of another per- aborted the fetus if the doctor-defendant son’s legal rights; an illegal act. 2 v. had informed them of the congenital To violate another person’s rights or to defects to be expected, in order to avoid do harm. See also tort. the pain and suffering resulting from the child’s defects. Most jurisdictions reject wrongful act n. Any act that will dam- these actions. age the rights of another, unless it is done in the exercise of another equal or wrongful-pregnancy action n. A law- superior right. For that reason, the suit brought against a doctor by a parent scope of wrongful acts is not limited to for damages resulting from a pregnancy illegal acts, but includes acts that are after a failed procedure to sterilize. immoral, anti social, or libel to result in a civil suit. wrongful-birth action n. A legal suit brought by parents against a doctor who failed to inform them of the risks of hav- ing a child with prospective birth defects. See also wrongful-life action. wrongful conduct See wrongful act. 27_542109 ch24.qxp 3/28/06 12:21 PM Page 279

yellow dog contract n. A document required of an employee by the employer, as a condition of employment, in which the employee promises not to join a labor union, with penalty for breach being the termination of employ- XYZ ment. Federal laws, including the National Labor Relations Act, have made such contracts illegal. yield 1 v. To let go of or forego some- thing 2 n. The monetary return from an investment.

x n. A mark or indication utilized as a signature by an illiterate person who is 8 unable to sign his or her name. zoning n. The creation by a legisla- 8 ture of geographical sectors within a municipality or other geographical entity, in which different uses of or year and a day rule n. The rule of com- activities upon property are permitted or mon law that in order for homicide to forbidden. have been committed, the victim’s death must occur within a year and a day after the act that allegedly caused it. years, estate for n. An interest in land for a specific and predetermined period of time. 27_542109 ch24.qxp 3/28/06 12:21 PM Page 280 28_542109 pt02.qxp 3/28/06 12:21 PM Page 281

Part II APPENDICES 28_542109 pt02.qxp 3/28/06 12:21 PM Page 282 29_542109 appa.qxp 3/28/06 12:22 PM Page 283

Abbreviations aff’g Affirming. A.G. Attorney General. The chief legal AAA American Arbitration Associa- officer of the United States or of a state, tion. A national organization that pro- who advises the federal or state govern- motes the use of arbitration to resolve ment on legal matters, represents the commercial and labor disputes. It also federal or state government in litigation, maintains a panel of arbitrators for and heads the United States Department those who wish to utilize their services. of Justice or a state’s legal department. AALS Association of American Law a.k.a. Also known as. Phrase used Schools. A national organization of law before a list of names used by a specific schools that have each graduated at individual in order to avoid confusion least three classes of students and have about the person’s true identity or by offered instruction for at least five years. others when referring to the individual. ABA American Bar Association. The ALI American Law Institute. A largest national organization of lawyers, national organization of attorneys, it promotes improvements and reform judges, and legal scholars who seek to in the administration of justice and in promote consistency, clarity, and simpli- the provision of legal services to the fication in the law through such projects public. as the Restatements of the Law and the ACLU American Civil Liberties Union. Model Penal Code. A national organization of lawyers and ALJ Administration law judge. others who are interested in enforcing and preserving the individual rights and AMEX American Stock Exchange. civil liberties guaranteed by the federal The second largest stock exchange in and state constitutions. the United States. Located in New York City, it frequently engages in the trading ADA Americans with Disabilities Act. of stock of small or new companies Federal law enacted in 1990 to protect because of its less rigid listing require- individuals with physical or mental ments. disabilities from intentional or unin- tentional discrimination in housing, AMT Alternative minimum tax. A flat employment, education, access to public tax originally imposed upon corpora- services, etc. tions or individuals with high incomes in the event that they wrote off all their ADEA Age Discrimination in income through use of deductions, cred- Employment Act. Federal statute that its, and contributions. It was enacted to protects most employees between 40 make sure that these parties paid at and 70 years of age from age discrimi- least some income tax, but it also can nation in the workforce. Other federal affect middle-income families. and local laws provide other protections against age discrimination in such areas APA Administrative Procedure Act. A as housing. federal statute governing the rule-mak- ing and administrative proceedings of ADR Alternative dispute resolution. federal administrative agencies by pro- Formal methods of settling disputes viding guidelines for rule-making and other than by court action, collectively adjudicative hearings, judicial review, referred to as alternative dispute resolu- and public access. Most states have sim- tion or ADR. ilar statutes governing their state aff’d Affirmed. administrative agencies.

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APR Annual percentage rate. the requirement that all teachers in a parochial school be Catholic, even ASE See AMEX though they teach subjects that do not require Catholic background). AWOL Absent without leave. The act of being away from one’s military duties BFP Bona fide purchaser. One who or post without permission but with no receives property in exchange for money intent of deserting. or valuable consideration. BAC Blood alcohol content. The B/L Bill of lading. A document issued amount of alcohol in an individual’s by a carrier or by a shipper’s agent that bloodstream expressed as a percentage identifies the goods received for ship- of the total composition of one’s blood. ment, where the goods are to be deliv- The percentage is used to determine ered, and who is entitled to receive the whether the person is legally drunk, shipment. especially in regard to laws prohibiting the driving of vehicles while under the C & F Cost and freight. Both the ini- influence of alcohol. tials and phrase are used in offers and contracts for the sale of goods to indi- B and E (or B & E) Breaking and cate that the quoted price includes the entering. Two of the elements constitut- cost of the freight to a named destina- ing the crime of burglary. Under the com- tion as well as the cost of the goods. mon law, forcible entry into a building (however slight) without permission C.D. Certificate of deposit. 1 A certifi- used to be required, but many state laws cate from a bank acknowledging the now only require one to enter (for exam- receipt of money and a promise to repay ple, through an unlocked door or open it at a specified time and with interest window) or remain on the premises (for determined at a specified rate. 2 A example, hiding in a closet until no one bank document evidencing a time else is left in the building) without deposit. authorization. cert. From Latin certiorari. To be more BFOQ Bona fide occupational qualifi- fully informed. A writ issued at the dis- cation. Employment practices that cretion of an appellate court directing a would constitute discrimination as to lower court to certify and deliver the certain individuals of a particular reli- record of a case that is not appealable as gion, gender, national origin, or age of right to the appellate court for possi- range (but not race or color) when the ble review. See also appeal and writ of otherwise illegal discrimination is a error. bona fide qualification that is reasonably necessary for the normal performance of cf. Compare. In legal citation, a direc- the duties of that particular occupation. tion to the reader to review a cited For example, a designer of women’s authority in which an explanatory or an clothes by necessity is permitted to hire analogous (but supportive) proposition only female models to show off new might be found. designs. Such practices are not illegal but cf. In legal citation, a direction under federal law. In addition, religious to the reader to review a cited organizations and schools are allowed to authority in which a analogous (but hire only members of that religion even contradictory) proposition might be if religion is not a bona fide occupational found. qualification for that position (such as 29_542109 appa.qxp 3/28/06 12:22 PM Page 285

285 Abbreviations

C.F. See C & F months following the entry of the divorce decree, provided that the spouse C.F.I. See C.I.F. was covered by the employee’s health insurance during the marriage. C.I.F. Cost, insurance, and freight. Obligation for payment of the health Phrase used in an offer or a contract for insurance premium is borne by the ter- the sale of goods indicating that the minated employee or, in the event of quoted price includes the combined cost divorce, by the party designated in the of the goods, insurance, and the freight divorce papers, but in no event by the to a named destination. employer. C.F.R. Code of Federal Regulations. corp. Corporation. An entity, usually a The official annual compilation of all business, created by a legislative act or regulations and rules promulgated dur- by individuals who have agreed upon ing the previous year by the agencies of and filed articles of incorporation with the United States government, combined the state government. Ownership in the with all the previously issued regula- corporation is typically represented by tions and rules of those agencies that shares of stock. Furthermore, a corpora- are still in effect. tion is legally recognized as an artificial C.J. 1 Chief justice. 2 Chief judge. person whose existence is separate and 3 Circuit judge. 4 Corpus juris distinct from that of its shareholders who are not personally responsible for C.J.S. Corpus Juris Secundum. An the corporation’s acts and debts. As an authoritative legal encyclopedia that artificial person, a corporation has the provides general background knowledge power to acquire, own, and convey prop- of the law with footnoted citation to rel- erty, to sue and be sued, and such other evant case law. powers of a natural person that the law may confer upon it. d/b/a Doing business as, identifying CLE Continuing legal education. an individual’s trade name; for example, 1 The training available to lawyers, usu- John James d/b/a James Productions. ally through seminars, to continue their legal education, hone their skills, and DUI See DWI. keep up with the latest developments within a particular area of the law. DWI Driving while intoxicated. The 2 The industry of the providers of semi- criminal law offense of operating a vehi- nars, books, and other materials cle after having drunk an amount of designed to provide such training to alcohol sufficient to raise one’s blood lawyers. alcohol content above a legal limit, com- monly referred to by the acronym DWI. COBRA Consolidated Omnibus Also known as driving under the influ- Budget Reconciliation Act of 1985. A ence (DUI), which, in some jurisdictions federal statute requiring employers who means that the driver had a lower level provide a group health insurance plan of intoxication than DWI, but was still for their employees to continue provid- impaired. In some jurisdictions, the ing coverage to an employee for 18 term driving while impaired is used. months following termination or firing, or to a spouse of an employee in the e.g. From the Latin, exempli gratia, event of divorce, for a period of 36 meaning, for example. 29_542109 appa.qxp 3/28/06 12:22 PM Page 286

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ERISA Employee Retirement Income IRA Individual retirement account. A Security Act of 1974. Federal legislation tax-deferred retirement account estab- enacted in 1974 that sets forth rules for lished by federal law. The portion of employee benefit plans. annual income contributed to the account is not taxed until it is drawn out et al. From Latin et alii or et alia. And after retirement age. others; typically used in the caption of court documents following the first IRC Internal Revenue Code. Contains named party, to signify that more than the current federal tax laws and is one individual is aligned on one side of located in Title 26 of the United States the case. Code. ex. Latin. Previous, from. IRS Internal Revenue Service. A fed- eral government agency charged with FOIA Freedom of Information Act. A the collection of income taxes. federal law that allows individuals and organizations to compel the federal gov- J. Judge or justice. ernment to release copies of documents it might not otherwise choose to dis- J.D. Juris Doctor. The law degree con- close. ferred by most American law schools. GAAP Generally accepted accounting JJ. Judges or justices. principles. Standards adopted by the j.n.o.v. From Latin judgment non accounting profession for the form and obstante veridicto. Judgment notwith- content of financial statements standing the verdict. In rare cases, a GAAS Generally accepted auditing judge may enter a judgment in favor of standards. Standards adopted by the one party despite a jury’s award against accounting profession governing the that party; generally in cases where the audit of corporations and organizations. evidence was such that no reasonable jury could have come to the determina- GATT General Agreement on Tariffs tion that it did. and Trade. An international agreement governing imports and exports; prede- J.P. Justice of the peace. A local offi- cessor to the World Trade Organization. cial, not necessarily an attorney or judge, with jurisdiction over limited mat- HLA test Human-leukocyte-antigen ters such as performing weddings or test. A paternity test utilizing genetic resolving minor civil or criminal com- material. plaints. ICC Interstate Commerce Commission. L.J. Law journal. A federal agency, no longer in existence today, that regulated interstate carriers. L.L.B. The law degree formerly granted by American law schools, most id. Latin. Like ibid., indicates that a of which now confer the J.D. degree. citation is identical to the immediate past one. LLC Limited liability company. An entity that blends features of a corpora- i.f.p. From Latin in forma pauperis. In tion and a partnership, but is neither; litigation, to proceed as an indigent. owners are called “members” and may consist of one or more individuals, cor- 29_542109 appa.qxp 3/28/06 12:22 PM Page 287

287 Abbreviations

porations, or even other LLCs. Members ciation of securities firms based in New have some of the same protection as York City. stockholders in a corporation, espe- cially, no personal liability. OSHA Occupational Safety and Health Administration. An agency of the fed- L.L.M. Master of Laws degree. eral government established by Act of Congress in 1970 that creates and LMRA Labor Management Relations enforces rules governing the safety of Act. A 1947 federal law designed to pro- workers in the workplace. The agency tect employers, employees and the pub- routinely inspects workplaces and lic. It governs union activities and issues citations for businesses that are provides an arbitration mechanism for in violation of its standards. The agency strikes that cause national emergencies. is a part of the Department of Labor. MACRS Modified Accelerated Cost P.A. Professional association. Recovery System. An accounting approach for the rapid depreciation of pat. pending A designation attached assets. to a product while the Patent Office is considering the patent application. Such m.o. Modus operandi. Latin. A method a designation imparts no protection of operating. against infringement unless the actual patent is eventually granted. NASDAQ National Association of Security Dealers Automated Quotation P.C. Personal computer; politically system. An automated national stock correct; probable cause; professional exchange. corporation; and protective custody. n.b. Latin. Nota bene; used to empha- PCR Stands for polymerase chain size or call notice to something. reaction, the newest (at this writing) method of DNA analysis. Using PCR NLRA National Labor Relations Act. technique, it is possible to analyze a bio- A federal law governing certain labor logical specimen that is one-tenth the issues and creating the National Labor size of that required for the older RFLP Relations Board. method. It also gives quicker results, NLRB National Labor Relations but the analysis is not as discriminating Board. A federal labor agency that over- as RFLP. sees union elections and other labor PCR actions Post-conviction relief issues. proceedings. Federal or state procedure NSF A banking term meaning “not whereby a convicted criminal can sufficient funds.” request that a conviction or sentence be corrected or vacated. NSF check. Not sufficient funds check. A check that a drawee bank P.D. Police department; also public may not pay because the drawer has defender. insufficient funds on deposit to PSA Property settlement agreement. cover it when it is presented for pay- ment. Q The abbreviation used in trial tran- scripts and depositions to mark each NYSE New York Stock Exchange. A question asked. national exchange operated by an asso- 29_542109 appa.qxp 3/28/06 12:22 PM Page 288

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QDRO Qualified domestic relations R.S. Revised statutes. Laws that have order. Any decree, judgment, or order been changed, altered, amended, or that recognizes the right of one person reenacted by a legislative body. A reen- (the alternate payee) to participate actment is generally thought of as hav- either totally or partially in the pension ing the effect of a repeal and replacement of another (the participant). The alter- of the former law. nate payee must be a dependent child, spouse, or former spouse of the partici- S.E.C. Securities and Exchange pant. This is an exception to the ERISA Commission. The federal administrative rule, proscribing the assignment of plan agency established by the Securities benefits. Exchange Act of 1934, in order to super- vise and regulate the issuing and trading rev. proc. Revenue procedure. An offi- of securities and to eliminate fraudulent cial IRS statement spelling out the or unfair practices. It is a regulating administrative practices used by the agency and is not judicial in nature, IRS. For example, methods for obtaining although it may pursue judicial remedies a private ruling are often spelled out. in federal court. rev. stat. Revised statutes. Laws that S.L. Session laws or statute laws. See have been changed, altered, amended, or also session laws. A bound volume of reenacted by a legislative body. A reen- the statutes enacted by a legislative actment is generally thought of as hav- body during a single annual or biennial ing the effect of a repeal and session; a collection of all of those afore- replacement of the former law. mentioned statutes. RFLP Restriction Fragment Length T.R.O. Temporary restraining order. A Polymorphism. The older and more restraining order is always temporary, discriminating form of DNA testing. because it is ordered without a hearing. Restriction Fragment Length Poly- This distinguishes it from an injunction. morphism is a process that breaks DNA A court order issued to prevent a family strands into tiny fragments at specific member or other party from harassing, points on the DNA chain. Also known as threatening, harming, seizing the prop- HLA DQ Alpha, or simply DQ Alpha. erty of, and sometimes even approach- ing or having any kind of contact with RICO Racketeer Influenced and another; a court order issued to tem- Corrupt Organizations Act. This law, porarily prevent a transfer of property, enacted in 1970, is designed to fight pending a hearing. activity by organized crime and to pre- serve the integrity of the interstate and U3C See UCC international marketplace by investigat- ing and prosecuting individuals conspir- UCC Uniform Commercial Code. A law ing to participate or actually participating governing the sale of goods, commodi- in racketeering. Note that it has no force ties, and bank transactions. With some in intrastate commerce. modifications, this law has been adopted by all 50 states and in the District of ROR Release on own recognizance. A Columbia and the U.S. Virgin Islands. pretrial release of an arrested person without bail, on that person’s promise to UCCC See UCC appear for trial when it is appropriate to do so. 29_542109 appa.qxp 3/28/06 12:22 PM Page 289

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value-added tax A tax imposed at each step in the production or construc- tion of a manufactured good based upon the difference between the cost of pro- ducing the item and its selling price. viz. From Latin videlicit. Namely; to wit; that is to say. Used to elaborate on what has already been said in more par- ticular or precise language. w.o.p. Want of prosecution. The lack of consideration in exchange for goods or services; may form the basis for a contract to be unenforceable. 29_542109 appa.qxp 3/28/06 12:22 PM Page 290 30_542109 appb.qxp 3/28/06 12:22 PM Page 291

Foreign Words and rather than on its quantity (espe- Phrases cially on real property). a fortiori adv. Latin. “By the stronger ab initio adv. Latin. “From the first (reason).” To draw an inference that act.” From the beginning; back to one’s when one proposition is true, then a sec- creation or inception. ond proposition must also be true, espe- actus reus n. Latin. “Criminal act” or cially if the second is included in the first. “guilty act.” The voluntary and wrongful For example, if a 19 year old is legally an act or omission that constitutes the adult, then a 20 year old is, too. physical components of a crime. alter ego n. Latin. “The other self.” A Because a person cannot be punished doctrine allowing a court to ignore the for bad thoughts alone, there can be no limited personal liability of a person criminal liability without actus reus. who acts in a corporate capacity and ad damnum n. Latin. “To the damage.” impose personal liability for the corpo- The amount of money sought as dam- ration’s wrongful acts when it is shown ages by the plaintiff in a civil action. that the individual was using the corpo- ration to conduct personal business and additur n. Latin. “It is added to.” A that there was no real separation trial court’s order to increase the dam- between the individual’s and the corpo- ages awarded by a jury. It is done to pre- ration’s identity. See also corporate vent the plaintiff from appealing on the (corporate veil). grounds that inadequate damages were awarded, but the court cannot issue the a mensa et thoro Latin. “From board order without the defendant’s consent. and hearth.” The term may also refer to the increase divorce a mensa et thoro. (Archaic. itself, the procedure by which it is done, Latin) Divorce from bed and board. and the court’s power to issue the order. A proceeding, current in Britain ad hoc adj. Latin. “For this; for a par- until the 19th century, that resulted ticular purpose.” For example, ad hoc in the parties remaining married but committees are often created to accom- living separately. The term is still plish a particular purpose. used in a few jurisdictions. ad hominem adj. Latin. “To the per- amicus curiae n. Latin. “Friend of the son.” Appealing to personal prejudices court.” One who is not a party to an instead of reason; attacking one’s char- action but petitions the court or is acter rather than his arguments. invited by the court to provide informa- tion or submit her views because she ad litem Latin. “For the suit.” For the has a strong interest in the case at hand purposes of, or pending, the particular or a perspective that may not be ade- lawsuit. quately presented by the parties. ad testificandum Latin. “For testify- animus adj. Latin. “Purposefully; ing.” See subpoena (subpoena ad testifi- intentionally.” 1 Animosity; hostility; candum). See also habeas corpus. ill will; strong dislike; hate. 2 The ani- mating thought, intention, or purpose of ad valorem Latin. “In proportion to its an act. value.” ante Latin. “Before.” Before in time, ad valorem tax. A proportional tax order, or position; in front of. See also imposed upon something’s value, post.

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a posteriori adv. Latin. “From what autrefois convict French. “Formerly comes after.” Inductive; empirical; rea- convicted.” A plea by a person indicted soning or the ascertaining of truth by for a crime for which he or she had pre- actual experience or observation. See viously been tried and convicted. See also a priori. also double jeopardy and autrefois acquit. a priori adv. Latin. “From what is before.” Deductive reasoning or the autre (or auter) vie n. French. ascertaining of truth by proceeding from “Another’s life.” See estate. an assumption to its logical conclusion rather than by actual experience or a vinculo matrimonii Latin. “From the observation. For example, one who bond of marriage.” walks by a store when its alarm is divorce a vinculo matrimonii. (Latin) sounding and sees that its window is Common law, meaning, “from the broken can deduce that a burglary has bonds of marriage”; a form of occurred without having watched the divorce based on grounds that pre- burglars commit the actual crime. existed the marriage, which arguendo adv. Latin. “In arguing.” 1 resulted in a legal fiction that the Hypothetically; for the purpose or sake marriage never existed (with the of argument. A term used to assume a result that any children of the mar- fact without waiving the right to ques- riage are then considered illegiti- tion it later on. For example, a defense mate). attorney may state to the judge: bona fide adj./adv. Latin. “In good “Assuming arguendo that the defendant faith.” Acting, being, carried out, or committed the crime, the statute of lim- made in good faith; authentic; genuine; itations prevents the state from prose- sincere. cuting him for it.” 2 During the course of an argument or a conversation. For casus omissus n. Latin. “Case omit- example, “Mr. Smith mentioned ted.” A legal issue or situation not gov- arguendo that his client had three prior erned by statutory or administrative law convictions.” or by the terms of a contract. The reso- lution of any legal dispute arising from assumpsit n. Latin. “He undertook.” such an issue or situation is governed by 1 An enforceable promise or undertak- the case law or, if it is a case of first 2 ing that is not under seal. An action impression, by whatever guidance the for expectation damages caused by the court finds in the common law. breach of a promise or a contract not under seal. causa Latin. “Case, cause.” See cause. autre or auter French. “Other, another.” causa mortis Latin. “Because of See also estate. death.” Something done or made by a person in anticipation of his own immi- autrefois acquit French. “Formerly nent death. See also gift. acquitted.” A plea by a person indicted for a crime for which he or she had pre- causa proxima Latin. “The nearest viously been tried and acquitted. See cause.” See also cause. also double jeopardy and autrefois convict. causa sine qua non Latin. “A cause without which not.” Same as but-for cause. See cause. 30_542109 appb.qxp 3/28/06 12:22 PM Page 293

293 Foreign Words and Phrases

caveat n. Latin. “Let him or her corpus delicti n. Latin. “Body of the beware.” 1 An admonition, caution, or crime.” The objective evidence that warning. 2 A formal notice or warning there has been an injury (physical or given by a party to a judge or other court otherwise) or loss and that it was officer concerning his or her behavior caused by the criminal act of some per- and requesting a suspension of the pro- son or thing. ceeding until the merits of the notice or warning are determined. 3 A formal corpus juris n. Latin. “Body of law.” notice to a court or public official that The law in general, especially when the notifier has an interest in a matter or compiled, codified, and published in a property and requests the suspension of single text or in a series consisting of a some procedure or proceeding concern- collection of individual laws. Abbrevi- ing the matter or property until the noti- ated c.j. fier is given a hearing. cy pres French. “As near as.” The equi- caveat emptor n. Latin. “Let the buyer table doctrine that a deed or will whose beware.” The legal principle that, unless terms cannot be carried out may be mod- the quality of a product is guaranteed in ified by a court so that the intent of the a warranty, the buyer purchases the instrument’s maker can be fulfilled as product as it is and cannot hold another closely as possible. liable for any defects. Statutes and court dehors French. “Outside” or “beyond decisions concerning products liability the bounds of,” as in matters that are and implied warranties have substan- dehors the trial record or the pages of a tially altered this rule. written agreement. certiorari n. Latin. “To be more fully del credere adj. Italian. “Of belief or informed.” A writ issued at the discre- trust.” Used in connection with agents tion of an appellate court directing a who guarantee the good faith or finan- lower court to certify and deliver the cial capability of the persons or entities as record of a case that is not appealable on whose behalf they act. See also of right to the appellate court for possi- agent. ble review. See also appeal and writ of error. delict n. From the Latin delictum, “an offense.” A breach of criminal or civil cognovit n. Latin. “He has conceded.” law. An acknowledgment of a debt or liability in the form of the debtor’s written con- duces tecum Latin. “To bring along.” sent to a judgment taken against the A type of subpoena that requires a wit- debtor by the creditor, if a particular ness to bring specified documents when event does or does not occur. he or she appears in court or for a depo- sition. corpus n. Latin. “Body.” 1 The main body, mass, or part of something. 2 A ejusdem generis Latin. “Of the same collection of things that, when together, category.” A legal principle stating that can be considered or regarded as a sin- a general phrase following a list of spe- gle thing (such as a collection of writing cific items refers to an item of the same by an author). 3 The capital or princi- type as those in the list. pal sum (as opposed to income or inter- est). 4 The property or subject matter of a trust. 30_542109 appb.qxp 3/28/06 12:22 PM Page 294

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en banc adj/adv. French. “On the forum nonconveniens Latin. “Unsuit- bench.” Of appeals courts, before a full able forum.” Litigation: the doctrine that court, with all judges present. Federal a court may decline jurisdiction of a appeals are typically heard by a panel of case, based on factors such as residence three judges, but may be reheard by the of the parties, thus allowing or causing full circuit court of appeals sitting en another more convenient court to take banc. the case. eo instante Latin. “At that moment.” habeas corpus Latin. “You have the body.” In criminal procedure, a process eo nomine Latin. “In the name of.” to challenge the detention of a prisoner; ergo conj., adv. Latin. “Therefore.” frequently used as a way to attack a con- viction in federal court when state et al. abbr. Latin. “And others”; typi- appeals have been exhausted. cally used in the caption of court docu- ibid. abbr. Latin. ibedem. ments following the first named party, to ( “In the same signify that more than one individual is place”). When citing a work, indicates aligned on one side of the case. that the citation is to the same volume and page as the previous citation. ex. Latin. “Previous, from.” id. abbr. Latin. (idem. “The same.”) ex parte adv. Latin. “In behalf of.” A Like ibid., indicates that a citation is judge’s action in conducting a hearing or identical to the immediate past one. conference with one party only, without ignorantia juris non excusat Latin. notice to the other party; typically improper, except under the limited cir- “Ignorance of the law is no excuse”; typ- cumstances in which a party is seeking ically refers to criminal charges, in a temporary restraining order and alleg- which such ignorance is not a cognizable ing that notice to the adverse party will defense. result in the destruction of evidence or in absentia Latin. “In the absence of.” other illegal action. Also used as an adverb, such as, “the judge conducted in camera Latin. “In a chamber.” In the hearing ex parte”. It also refers to a the judge’s chambers; implying a pri- party’s attempts to make such contact vate, closed, or informal hearing or con- with the judge. ference before the judge. ex post facto adv. Latin. “After the in delicto Latin. “In the wrong.” fact.” in extremis Latin. “In extremity.” Upon factum n. Latin. “Fact.” A fact or an the point of dying. action. in forma pauperis Latin. “In the man- force majeure n. French. “Greater ner of a pauper.” In litigation, to proceed force”; a natural or human-induced dis- as an indigent. aster that causes a contract to fail of performance. infra adj./adv. Latin. “Below.” See below; referring to the placement of a forum conveniens Latin. “Suitable particular citation or assertion in a text. forum.” Litigation: the most appropriate court for the resolution of a particular in futuro adv. Latin. “In the future.” dispute. 30_542109 appb.qxp 3/28/06 12:22 PM Page 295

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in limine adv. Latin. “At the outset.” within the court’s jurisdiction, as a step toward obtaining monetary motion in limine. A motion to limit damages against an individual who the evidence that will be submitted is outside the jurisdiction of the to the jury, by excluding matters court. that are not relevant, are prejudi- cial, or are otherwise inadmissible inter alia adv. Latin. “Among others.” under applicable rules. in terrorem adj./adv. Latin. “In ter- in loco parentis Latin. “In the place of ror.” A characteristic marked by threat a parent.” Acting in place of a parent. or warning. innuendo n. Latin. “By nodding to” or in terrorem clause. A provision in a “by hinting.” 1 An indirect or suggestive contract or will that warns a benefi- remark, usually a disparagement of ciary or party not to engage in cer- someone. 2 A section in a libel plead- tain behavior, by providing a ing explaining the plaintiff’s construc- prospective penalty for such behav- tion of the defendant’s allegedly libelous ior. utterances. inter se Latin. “Among themselves.” in pais French. “In the country.” Archaic. Outside of court. inter vivos adj. Latin. “Between the living.”A conveyance of property in pari delicto Latin. “At equal fault.” between living parties and not by bequest. in pari materia Latin. “In the same matter.” On the same topic or pertaining in toto adv. Latin. “In entirety.” to the same subject matter. ipse dixit Latin. “He himself said it.” in personam adj. Latin. “Against the Asserted but unproven. person.” Pertaining to a person or per- sonal rights or interests, as opposed to ipso facto Latin. “By the fact itself.” in rem. As a matter of fact. in posse Latin. “In possibility.” Latent; jurat n. Latin. From jurare, “to swear.” not currently in existence. A certification at the bottom of an affi- davit or deposition by a notary public in praesenti Latin. “Currently; at that states the paper was signed, and present.” thereby sworn to, in his or her presence by the individual who signed it. in re Latin. “In regard to.” Used in the title of cases involving an interest in jus tertii n. Latin. “The right of a third property. party.” The rights of third parties affected by a controversy or claim. in rem adj. Latin. “Against a thing.” Pertaining to a thing or to property. laches French. “Lax; negligent.” Litigation in rem (as opposed to in per- Equitable doctrine that precludes or lim- sonam) determines the respective rights its relief to one who delays in acting or to property that has been brought before bringing a claim. the court. lex fori n. Latin. “The law of the quasi in rem. A type of case initiated forum.” Law of the jurisdiction where an by the seizure of property that is action is pending. 30_542109 appb.qxp 3/28/06 12:22 PM Page 296

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lex loci contractus n. Latin. The law nisi prius n. Latin. “Unless before of the place where a contract was signed then.” Refers to a court in which a jury or is to be performed. is the ultimate finder of fact. lex loci delicti n. Latin. The law of the nolens volens adj./adv. Latin. “Willing place where a wrong was committed. or unwilling.” Willing or not. lis pendens n. Latin. “A pending law- nolo contendere Latin. “I do not wish suit.” 1 A court’s authority over property to contest.”A plea available in certain resulting from a pending lawsuit. 2 A jurisdictions in which a party declines to notice filed in a government office with contest a charge without formally admit- the title documents pertaining to real ting guilt. property, giving notice to the public that the property is the subject of a litigation. non compos mentis adj. Latin. “Not of sound mind.” Mentally incompetent. locus n. Latin. “Place.” The place or location of a thing or event. non obstante veredicto n. Latin. “Not withstanding the verdict.” A judgment locus delicti n. Latin. “Place of the notwithstanding the verdict, in which a wrong.” The place where a crime was jury verdict is set aside by the judge as committed. being factually or legally invalid. locus in quo n. Latin. “Place in which judgment non obstante veridicto or where.” The place where an event (j.n.o.v.). Judgment notwithstanding allegedly occurred. the verdict. In rare cases, a judge may enter a judgment in favor of malum in se n. Latin. “Evil in itself.” one party despite a jury’s award An act, such as murder, that is inher- against that party; generally in ently evil or immoral. cases where the evidence was such malum prohibitum n. Latin. “Prohib- that no reasonable jury could have ited evil.” An act that is wrong solely come to the determination that it because prohibited by law, as opposed to did. malum in se. non prosequitur Latin. “He does not mandamus n. Latin. “We command.” prosecute.” A judgment against a plain- A writ issued by a court to compel a pub- tiff who has abandoned the case. lic official (including the judge of a non sequitur n. Latin. “It does not fol- lesser court) to perform a task or duty. low.” A conclusion or a statement that mensa et thoro Latin. “Bed and does not logically follow from what pre- board.” ceded it. noscitur a sociis Latin. mens rea Latin. “Guilty mind.” The “It is known defendant’s guilty state of mind, as an by its associates.” A rule of interpreta- element in proving the crime with which tion that states that the meaning of he or she is charged. unclear language in a contract or other legal document should be construed in modus operandi n. Latin. A method of light of the language surrounding it. operating. nudum pactum n. Latin. “Bare agree- nisi adj. Latin. “Unless.” Of an ex ment.” A bare or scant agreement that is parte decision or ruling, that it is valid not enforceable because consideration unless opposed by the adverse party. is lacking. 30_542109 appb.qxp 3/28/06 12:22 PM Page 297

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nunc pro tunc adj. Latin. “Now for per diem n. Latin. “By or through the then.” Of an order or decision, that it has day.” Daily pay or daily expense a retroactive effect. allowance. obiter dicta Latin. “By the way . . . .” per quod adj./adv. Latin. “Whereby.” A passing statement reached in a court Having meaning only by reference to opinion that is irrelevant to the outcome outside facts, such as on proof of injury of the case. See also dictum. or some sort of compensable damages. The opposite of per se. oyez v. French. Literally, “hear!” An exclamation used to bring a court to slander per quod. A form of slander order, or to gain attention for an official that does not qualify as slander per proclamation to be publicly made. A cus- se, thereby requiring the plaintiff to tomary greeting uttered by a court bailiff prove special damages. to signify that court is in session. per se adj./adv. Latin. “By or through parens patriae n. Latin. “Parent of his itself.” Standing alone; on its own mer- [or her] country.” The state, in its role of its; without need for reference to outside provider of protection to people unable facts. The opposite of per quod. to care for themselves; a doctrine giving the government standing to sue on slander per se. A form of slander that behalf of a citizen who is unable to pur- need not be proven to qualify for sue an action due to a legal disability. damage, because its meaning is apparent on the face of the state- pari delicto adj. Latin. Equally at ment and involves moral turpitude, fault. a sexually transmitted disease, con- duct adversely impacting one’s pro- pari materia adj. Latin. Of equal mat- fession or business, or lack of ter, on the same subject. chastity (especially when applied to pendente lite adv. Latin. “While the women). action is pending.” While the lawsuit is per stirpes adj./adv. Latin. “By or pending; contingent on the outcome of through roots and stocks.” A propor- the legal action or litigation. See also lis tional division of the estate among bene- pendens. ficiaries according to the share of per annum adv. Latin. “By or through descent from their deceased ancestor. the year”; yearly or annually; calculated Essentially, each beneficiary gets shares one year at a time; at annual intervals. of stock in the estate based upon the closeness of relationship to the per autre vie Latin/French. “For the deceased. Distinct from per capita. life of another,” term often used in petit adj. French. bequeathing a right (but not title) in “Little, minor.” Also . property. spelled petty posse comitatus n. Latin. per capita adj. Latin. “By or through “Power of 1 the head.” According to the head count, the county.” A sheriff may summon or number of individuals; that is, divided citizens to assist him in making an equally among everyone involved. arrest; hence posse in the traditional Old West sense. 2 A federal statute pro- per curiam adv. Latin. “By the court.” hibiting the Army and Air Force from See opinion. direct participation in civilian law- enforcement activities. 30_542109 appb.qxp 3/28/06 12:22 PM Page 298

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post Latin. “After.” After in time, procedures, done in advance to provide a order, or position; behind. See also ante. what-if statement, predict results, or to convince. For example, a balance sheet post mortem Latin. “After death.” showing combined figures of two compa- Generally used to refer to the examina- nies in case of a merger. tion of a corpse by the coroner to ascer- tain the cause of death. pro hac vice Latin. For this one pur- pose or occasion. The allowing of some- praecipe n. Latin. “Command.” 1 thing not usually allowed, usually command, order. A written order or referring to an attorney who normally request to the clerk of the court 2 A could not practice in a certain jurisdic- written court order commanding a party tion, but is allowed to just for one case. to do something or to show cause why it has not been already done. pro rata adv. Latin. “According to the rate”; in proportion. If a lawyer charges prima facie adj. Latin. “At first sight.” $100 per hour, and she works a quarter Not in need of further support to estab- of an hour, her pro rata fee would be lish credibility or existence; obvious, $100/4, or $25. unless disproved. pro se adj./adv. Latin. “For himself”; prima facie case. A case supported by on one’s own behalf; on one’s own. at least the minimal amount of evi- Characterization of one who represents dence needed to meet the require- himself/herself in an action without the ment for trying it; adequate to be assistance of an attorney at law and who able to avoid a directed verdict or a acts as his/her own attorney of record. motion to dismiss. pro tanto adj./adv. Latin. “To that primogeniture n. Latin. “First born.” extent.” To such extreme; as far as it An ancient rule of descent by which the goes; for just so much. Often, a partial firstborn son inherits all the property of payment made for invoking eminent his deceased father, usually to the exclu- domain. sion of all his siblings. The purpose of primogeniture was to keep the estate pro tempore adj./adv. Latin. “For the (real property), the ownership of which time being.” A temporary position or implied power, from being subdivided appointment. Also called pro tem. into smaller and smaller parcels of land. quaere Latin. “To query or inquire.” pro bono publico Latin. “For the pub- Used in law textbooks to indicate that a lic good.” Used to refer to the taking of point was dubious or questionable. cases by attorneys without expectation of compensation. Also called pro bono. quantum Latin. “An amount”; the nec- essary or desired portion; the required profit à prendre French. “Profit to or needed amount or share. take.” The right to take minerals, soil, trees, animals, or the like from the land quantum meruit Latin. “As much as of another. he deserved.” Equitable formula for determining how much to award to one pro forma adj. Latin. “For form.” 1 who has provided goods or services to Done as a formality, rather than because another who has not paid, based on the of conviction, in order to make possible reasonable value of the goods or serv- further proceedings. 2 In accounting ices; the equitable principle that one 30_542109 appb.qxp 3/28/06 12:22 PM Page 299

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who has received the benefit of a bar- claims his/her office. 2 A state action gain should not be permitted to be with the intent of revoking the charter of unjustly enriched. a corporation that has abused or for a long period failed to exercise its fran- quantum valebant Latin. “As much as chise. they were worth.” 1 The reasonable worth of goods or services, used to com- ratio decidende n. Latin. “The reason pute fair and reasonable damages; the for deciding.” The rule of law or princi- market value. 2 A common-law action ple on which the court’s decision is of assumpsit for items sold and deliv- based. See also obiter dicta. ered, in order to recover proper and appropriate payment for same. reductio ad absurdum Latin. “Reduc- tion to the absurd.” In logic, disproving quare clausum fregit Latin. “Why he an argument by demonstrating that it broke the close.” An early form of tres- leads to a ridiculous conclusion. pass onto someone else’s land, whether or not that land actually had a physical remittitur Latin. “It is sent back.” A fence around it. The plaintiff would court’s order that reduces what it deems argue that because the defendant had to be excessive damages awarded by a broken the boundary “with force and jury; the process by which the court pro- arms,” the former was due damages. poses to reduce or actually reduces dam- ages without the jury’s consent. See also quasi Latin. “As if.” Alike in some additur. sense, but not in actuality; resembling something but not really being it; nearly; res n. Latin. “The thing.” The subject almost like. of the matter—that is, an action con- cerning an object or property, rather quia timet Latin. “Because he fears.” than a person,; the status of individuals. A legal remedy sought in an equity court to enjoin someone from doing an antici- res gestae n. Latin. “Things done.” pated damage. Such a remedy may be Either the events at issue or other granted if the petitioner can show immi- things, such as utterances, that are con- nent and irreparable harm would be temporaneous with the res gestae; spon- done. taneous statements or exclamations made by the participants, perpetrators, quid pro quo Latin. “What for what.” victims, or onlookers at or immediately Something exchanged for another thing following the event, be it criminal or the of approximately equal value, not neces- subject of litigation. As present-sense sarily in a monetary sense. impressions, they are excluded from the hearsay rule. qui tam Latin. “Who as well . . . .” An action that, if prevailed in, grants the res ipsa loquitur Latin. “The thing plaintiff a portion of the recovered speaks for itself.” An evidentiary rule in penalty and gives the rest of it to the torts that the very fact that an accident state. The plaintiff is said to be suing for occurred is enough to provide a prima the state as well as his or herself. facie case of negligent behavior. Rear- ending another automobile is an exam- quo warranto Latin. “By what author- ple, showing failure to maintain a safe ity.” 1 A common law writ inquiring into distance on the part of the rear-ender. the authority by which a public official 30_542109 appb.qxp 3/28/06 12:22 PM Page 300

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res judicata Latin. “A thing decided.” tional law. See also precedent and res A doctrine whereby the court’s decision judicata. is binding upon the parties in any and all subsequent litigation concerning the status quo n. Latin. “The situation as same case. In effect, it bars the litigants it currently exists.” from seeking to take the same case to status quo ante n. Latin. “The situa- another court in hopes of a different out- tion as it existed before.” As things were come, or of raising new issues that were before whatever happened or is being not raised at the first trial. discussed took place. For example, sta- respondeat superior Latin. “Let the tus quo ante bellum is the situation as it superior respond.” The doctrine that an existed before the war. employer is held liable for all wrongful stirps n. Latin. “Stalk; root.” A branch acts or any harm caused by an employee of a family or of the family tree. See also or agent acting within the scope of his per stirpes. employment or duties. See also scope of employment. sua sponte Latin. “Of itself.” regard- ing a judge or court, to raise an issue or scienter n. Latin. 1 “Knowingly.” A take an action independently of any knowledge beforehand of the conse- request or suggestion made by the par- quences of an action or failure to act ties or lawyers; adj. description of action that makes a person legally responsible taken by court in absence of any party for those consequences. Such advance urging such action to be taken. knowledge may make the person subject to civil or criminal punishment. 2 An sub judice adv. Latin. “Under a judge.” intention to deceive or defraud (usually A case that is before the bar for deter- applied to stock fraud). See also know- mination, rather than one being settled ing and mens rea. out of court. seriatim Latin. “In sequence.” Succes- subpoena 1 n. Latin. “Under penalty.” sively; in successive order, one by one; A writ issued by a court commanding a in due order; sequentially, one at a time. person to appear , with penalties that attach for failure to comply. 2 v. the sine die Latin. “Without day.” With no act of sending a subpoena to a witness day being assigned for the next meeting or other person to secure his attendance or for resumption of meeting. and testimony at trial or other proceed- sine qua non n. Latin. “Without which ing (such as deposition); generally, sub- not.” Something that is indispensable poenas are obtained and sent out by the and upon which something else relies. lawyers, rather than directly by the court. stare decisis n. Latin. “To stand by what was decided.” The doctrine of com- subpoena ad testificandum. The most mon law under which courts follow the common type of subpoena, ordering earlier judicial decisions made on the a witness to testify. same points of litigation; following subpoena duces tecum. Issued at the precedent. Stare decisis is not invio- request of one of the parties to a lable, but precedent will be overturned lawsuit, ordering a witness to only for good cause. The doctrine, how- appear and bring relevant docu- ever, is essentially useless in constitu- ments to the hearing. 30_542109 appb.qxp 3/28/06 12:22 PM Page 301

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sub silentio Latin. “Under silence.” vir n. Latin. Man. Without notice being taken. If a case is decided against precedent, the newer vis major n. Latin. “A superior force”; case is said to have over-ruled the previ- the term is used in civil cases to denote ous decision sub silentio. an act of God. A loss vis major results from natural causes, such as a hurri- sui generis Latin. “Of its own kind.” cane, tornado, or earthquake, and with- Unique; of its own particular type; in a out the intervention of human beings. It class of its own. is a loss that could not have been pre- vented by diligence or by having taken sui juris Latin. “Of one’s own right.” precautions. See also force majeure. Used to describe one who is no longer a dependent; having reached majority and viz. abbr. for videlicit. Latin. “Namely; having full civil and social rights. See to wit; that is to say.” Used to elaborate also emancipation and incompetency. on what has already been said in more particular or precise language. supersedeas n. Latin. “You shall for- bear or desist.” A writ suspending or voir dire n. French. Literally “to see, staying a proceeding in order to main- to speak”; hence, idiomatically, to speak tain the status quo, pending appeal. It the truth. The usual reference is to an usually stays a creditor’s taking posses- examination by the attorneys and/or the sion of property pursuant to a lower court of prospective jurors to determine court’s ruling. whether reasons exist that might dis- qualify them or cause their selection to supra Latin. “Above”; superior to. be challenged, other than peremptorily. voir dire trespass vi et armis Latin. “With During a trial, a examination force and arms.” An immediate injury, refers to one outside the hearing of the such as an assault to another’s person jury concerning some issue of fact or or property, accompanied by force or vio- law that requires the court to rule. lence. volenti non fit injuria n. Latin. “The ultra vires Latin. “In excess of,” or volunteer suffers no wrong”; a person outside of powers; that which is beyond cannot usually sue for damages when he a corporation’s or an agency’s author- consented in the first place to whatever ized power. A corporation’s ultra vires it was that caused the damages. activity may lead to its forfeiting its charter of incorporation. uxor n. Latin. Wife. venire Latin. “To come” n. A panel of jury duty selectees, from among whom the actual jury will be chosen. venire de novo. A calling of a new jury panel for the purpose of holding a second trial, in cases where a first trial has failed to render a verdict. 30_542109 appb.qxp 3/28/06 12:22 PM Page 302 31_542109 appc.qxp 3/28/06 12:23 PM Page 303

The Constitution of the United States of America, 1787

WE the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the gen- eral Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article I Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legis- lature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by law Direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the

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first Class shall be vacated at the expiration of the second Year, of the second Class at the expiration of the fourth Year, and of the third Class at the expiration of the sixth Year, so that one third may be chosen every second Year; and if vacancies happen by Resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next meeting of the Legislature, which shall then fill such Vacancies. No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice-President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day. Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each house may determine the Rules of its Proceedings, punish its Members for dis- orderly Behavior, and, with the Concurrence of two-thirds, expel a Member. Each house shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. 31_542109 appc.qxp 3/28/06 12:23 PM Page 305

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Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that house shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be pre- sented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 31_542109 appc.qxp 3/28/06 12:23 PM Page 306

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To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dockyards, and other needful Buildings;—And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section 9. The Migration or Importation of such Persons as any of the States now exist- ing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or Duty may be imposed on such Importation, not exceeding ten dollars for each Person. 31_542109 appc.qxp 3/28/06 12:23 PM Page 307

307 The Constitution of the United States of America, 1787

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States; and no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspec- tion Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article II Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. 31_542109 appc.qxp 3/28/06 12:23 PM Page 308

Webster’s New World Law Dictionary 308

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of votes, then the House of Representatives shall immediately choose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose the President. But in choosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a Quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall choose from them by Ballot the Vice President. The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service 31_542109 appc.qxp 3/28/06 12:23 PM Page 309

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of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other pub- lic Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session. Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge nec- essary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States; —between Citizens of the same State claiming Lands under Grants of 31_542109 appc.qxp 3/28/06 12:23 PM Page 310

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different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article IV Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, But shall be delivered up on Claim of the Party to whom such Service or Labor may be due. Section 3. New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. 31_542109 appc.qxp 3/28/06 12:23 PM Page 311

311 The Constitution of the United States of America, 1787

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Article V The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when rati- fied by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year one thou- sand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article VI All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article VII The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. 31_542109 appc.qxp 3/28/06 12:23 PM Page 312

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Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names, Go. Washington— Presid. and deputy from Virginia New Hampshire John Langdon Nicholas Gilman Massachusetts Nathaniel Gorham Rufus King Connecticut Wm. Saml. Johnson Roger Herman New York Alexander Hamilton New Jersey Wil: Livingston David Brearley Wm. Paterson Jona: Dayton Pennsylvania B Franklin Thomas Mifflin Robt Morris Geo. Clymer Thos FitzSimons Jared Ingersoll James Wilson Gouv Morris Delaware Geo: Read Gunning Bedford jun John Dickinson Richard Bassett Jaco: Broom Maryland James Mchenry Dan of St Thos. Jenifer Danl Carroll 31_542109 appc.qxp 3/28/06 12:23 PM Page 313

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Virginia John Blair James Madison Jr North Carolina Wm. Blount Rich’d Dobbs Spaight Hu Williamson South Carolina J. Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler Georgia William Few Abr Baldwin Attest: William Jackson, Secretary

Amendment I (1791) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II (1791) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III (1791) No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV (1791) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V (1791) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall 31_542109 appc.qxp 3/28/06 12:23 PM Page 314

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any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI (1791) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been commit- ted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII (1791) In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re- examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII (1791) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX (1791) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X (1791) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment XI (1795) The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Amendment XII (1804) The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with 31_542109 appc.qxp 3/28/06 12:23 PM Page 315

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themselves; they shall name in their ballots the person voted for as President, and in dis- tinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice- President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eli- gible to that of Vice-President of the United States.

Amendment XIII (1865) Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

Amendment XIV (1868) Section 1. All persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or 31_542109 appc.qxp 3/28/06 12:23 PM Page 316

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property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, exclud- ing Indians not taxed. But when the right to vote at any election for the choice of elec- tors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an exec- utive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, includ- ing debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebel- lion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the pro- visions of this article.

Amendment XV (1870) Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous con- dition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legisla- tion.

Amendment XVI (1913) The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. 31_542109 appc.qxp 3/28/06 12:23 PM Page 317

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Amendment XVII (1913) The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the execu- tive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Amendment XVIII (1919) Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the expor- tation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XIX (1920) The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

Amendment XX (1933) Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. 31_542109 appc.qxp 3/28/06 12:23 PM Page 318

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Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law pro- vide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Section 4. The Congress may by law provide for the case of the death of any of the per- sons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Amendment XXI (1933) Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. The article shall be inoperative unless it shall have been ratified as an amend- ment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XXII (1951) Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as 31_542109 appc.qxp 3/28/06 12:23 PM Page 319

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President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment XXIII (1961) Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and per- form such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legisla- tion.

Amendment XXIV (1964) Section 1. The right of citizens of the United States to vote in any primary or other elec- tion for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Section 2. The Congress shall have power to enforce this article by appropriate legisla- tion.

Amendment XXV (1967) Section 1. In case of the removal of the President from office or of his death or resigna- tion, the Vice President shall become President. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. 31_542109 appc.qxp 3/28/06 12:23 PM Page 320

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Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, trans- mit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inabil- ity exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tem- pore of the Senate and the Speaker of the House of Representatives their written decla- ration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the lat- ter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Amendment XXVI (1971) Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Section 2. The Congress shall have power to enforce this article by appropriate legisla- tion.

Amendment XXVII (1992) No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.