Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P14 ppsx

require the appointment of counsel. Two adjacent districts may be combined to reach this total. Each defender organization submits to the director of the Administrative Office an annual report of its activities along with a proposed budget. Because they rely on grants and not regular funding, community defender organiza- tions submit grant proposals to the Administra- tive Office for the coming year. The director then submits the proposed budgets and grants to the Judicial Conference of the United States for approval. After budgets are determined, the director pays the defender organizations. The director also compensates private counsel appointed to defend individuals charged in federal court. In wake of the SEPTEMBER 11TH ATTACKS in 2001, the Administrative Office relied on its newly created Office of Emergency Prepared- ness. This office worked with courts around the United States to develop crisis response plans to deal with emergency evacuations, relocations, and the continuation of court business. The office also arranged for the testing of court- houses for hazardous materials. FURTHER READINGS Administrative Office of the U.S. Courts Website. Available online at http://www.uscourts.gov/adminoff.html (accessed June 25, 2009). U.S. Government Manual Website. Available online at http:// www.gpoaccess.gov/gmanual/ (accessed June 25, 2009). CROSS REFERENCES District Court; Federal Courts; Justice Department; Magistrate. ADMINISTRATIVE PROCEDURE ACT OF 1946 Since its original enactment in 1946, the Administrative Procedure Act (APA), 5 U.S.C.A. §§ 501 et seq., ha s governed th e process that federal a dministrative agencies follow. The sta tute applies t o all federal agencies except for those that are expressly exempted from its prov i sions. Despite the broad n ature of the act, however, it allows flexibility among the various agencies in carrying out their responsibilities. Although a number of administrative agen- cies were created during the nineteenth and early twentieth centuries, no federal law at the time governed the conduct of these agencies. Legislation that was enacted during the NEW DEAL era of the 1930s established a new series of administrative agencies. In 1936 President FRANKLIN D. ROOSEVELT established the President’s Committee on Administrative Management. The committee’s report found that agencies were “irresponsible” and that they had been given “uncoordin ated powers.” Moreover, the report characterized administrative agencies as a “headless ‘fourth branch’ of government.” The committee found that the laws that created administrative agencies failed to distin- guish between the legislative and executive functions of those committees. It recommended that each of the existing administrative agencies be moved into the EXECUTIVE BRANCH of the government and that the judicial powers of the agencies be limited. Members of Congress and many commentators at the time disagreed with the committee’s findings. At the center of the debate was the need to maintain a SEPARATION OF POWERS with respect to the work of federal agencies. In 1939 President Roosevelt established the Attorney General’s Committee on Administra- tive Procedure. The committee was charged with the responsibility of reviewing criticisms of the federal administrative processes and formu- lating recommendations for improvement in these processes. The committee issued its recom- mendations in 1941 in a detailed report of almost 500 pages. Legislation was drafted based upon the recommendations of the 1941 report, but the U.S. entrance into WORLD WAR II interrupted the enactment of the statute. After the war, the legislation was reintroduced, and following a series of compromises, Congress enacted the Administrative Procedure Act in 1946. In 1947 the DEPARTMENT OF JUSTICE issued the Atto rney General’s Manual on the Administrati ve Procedure Act. This document explain s how the act can be applied and remains valuable as a research tool in the early 2000s. Some of the information in this manual provides analysis that the courts had not considered as of 2009. The purpose of the APA is to provide minimum procedural standards that federal administrative agencies must follow. It distin- guishes between two major forms of adminis- trative functions: agency rulemaking and agency adjudication. Administrative rulemaking is analogous to LEGISLATIVE ACTS, whereas ADMINIS- TRATIVE ADJUDICATION is analogous to judicial GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 118 ADMINISTRATIVE PROCEDURE ACT OF 1946 decision. This distinction contained in the APA has long been the subject of scholarly debate. Some argue that such a dichotomy is unneces- sarily rigid and that it might not always allow for the most appropriate procedures for a particular agency. Supporters of the distinction between rulemaking and adjudication contained in the APA note that this distinction best represents the basic functions of administrative agencies. The rulemaking provisions of the APA are more detailed than those governing adjudica- tions. Most agencies engage in not ice-and- comment rulemaking, which is required as the minimum rulemaking procedure under the APA. Under notice-and-comment rulemaking, agencies are required to give the public advance notice of the contents of a proposed rule and to offer citizens an opportunity to express their views of the proposed rule before the agency. Some agencies are required by the statutes that created them to follow more stringent stan- dards, whereby all of the agency’s actions during rulemaking are conducted “on the record.” This latter type of rulemaking is known as formal rulemaking. The APA defines and governs only those types of adjudications that are required by statute to be conducted “on the record after opportunity for an agency hearing.” If an agency is required to conduct such a formal adjudication under the APA, it must engage in a proceeding that resembles a trial. However, if the agency is not required to conduct such a hearing, the APA remains silent. Accordingly , an agency may adopt its own procedure for an informal adjudication, so long as the agency otherwise does not violate the U.S. Constitution or other law. Other provisions of the APA govern JUDICIAL REVIEW of agency actions and public access to agency-created law and information emanating from agencies. The judicial-review provisions under the APA have given rise to the greatest amount of scholarship regarding federal admin- istrative law, although these provisions are contained in only six sections of the APA. Courts have similarly grappled with judicial review of agency actions. For instance, Chevron U.S.A., Inc. v. National Resources Defense Council, Inc. (467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 [1984]) has been cited more often than any other decision in the history of the U.S. Supreme Court. In Chevron, the U.S. Supreme Court held that interpretive decisions of admin- istrative agencies are entitled to substantial judicial deference. In doing so, it enhanced the efficacy of administrative bodies in mitigating the transition costs of legislative law. The APA was designed to increase access to agency law by allowing the public to participate in agencies’ decision-making process. In 1966 Congress enacted the FREEDOM OF INFORMATION ACT , Pub. L. No. 89-487, 80 Stat. 250 (codified as amended at 5 U.S.C.A. § 552), which greatly increased the amount of government informa- tion that is available to the public. Congress later enacted similar laws designed to make governmental decisions open to the public, including the PRIVACY ACT OF 1974, Pub. L. No. 93-579, 88 Stat. 1896 (codified as amended at 5 U.S.C.A. § 552a); the Government in the Sunshine Act of 1976, Pub. L. No. 94-409, 90 Stat. 1241 (codified at 5 U.S.C.A. § 552b); and the Electronic Freedom of Information Act of 1996, Pub. L. No. 104-231, 110 Stat. 2422 (codified as amended at 5 U.S.C.A. § 552). In 2005 the Judiciary Committee of the House of Representatives began collaborative research under the Administrative Law, Process and Procedure Project, intended to review the efficacy of federal ADMINISTRATIVE LAW AND PROCEDURE . Several studies were commenced, including the solicitation of comments from public agencies, law schools, the AMERICAN BAR ASSOCIATION , and several other organizations. One important study, conducted by the CON- GRESSIONAL RESEARCH SERVICE (CRS) analyzed the outcome of cases appealed to all 12 U.S. Circuit Courts of Appeal over a ten-year period that challenged administrative agencies or their rulemaking. An interim report was presented in a hearing before the Judiciary Committee’s Subcommittee on Commercial and Administra- tive Law in November 2006. The report, which contained more than 1,400 pages, summarized various recommendations and the proposed adoption of several of them. Most addressed a perceived need for more standardization of procedures. Following this, various federal agencies published notices in the Federal Register, outlining proposed changes and soli- citing comment, ultimately making changes as warranted. In November 2008, then-Democratic presi- dential candidate BARACK OBAMA campaigned on a platform promising more transparency in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADMINISTRATIVE PROCEDURE ACT OF 1946 119 federal government and more access by the public to governmental records and policy- making efforts. As one of his first official acts, President Barack Obama signed EXECUTIVE ORDER 13489 on January 21, 2009, which revoked the previous Executive Order 13233 from the Bush administration that had severely restricted release to the public of presidential records. At that time, Obama signed two other memoranda focusing on transparency and openness. One directed the attorney general to issue new guidelines to agencies for compl ying with the letter and spirit of the FOIA. In the other, Obama asked three senior officials to produce an “open government” directive within the first 120 days of the administration. Said Obama, “[T]he old rules said that if there was a defensible argument for not disclosing some- thing to the American peop le, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.” FURTHER READINGS Allen, William H. 1986. “The Durability of the Administra- tive Procedure Act.” Virginia Law Review 235. Bonfield, Arthur Earl. 1986. “The Federal APA and State Administrative Law.” Virginia Law Review 297. “Executive Order 13489 of January 21, 2009.” Presidential Documents, Federal Register, Vol. 74, No. 15, January 26, 2009. Also available at http://edocket.access.gpo. gov/2009/pdf/E-9-1712.pdf Funk, William F., and Richard H. Seamon. 2009. Adminis- trative Law: Examples and Explanations. 3d ed. New York: Aspen Publishers, Inc. Obama, Barack H. 2009. Remarks to White House Senior Staff with the signing of Executive Order 13,489, January 21. Available at http://www.gpoaccess.gov/ presdocs/2009/DCPD200900012.htm. Prepared Testimony of the Administrative Law, Process and Procedure Project, Before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, House of Representatives, 109th Congress. November 14, 2006. Available online at http://com mdocs. ho use. go v/commi ttees/ju diciary/h ju 30838.000/hju30838_0.htm; website home page: http:// judiciary.house.gov (accessed August 5, 2009. Stein, Jacob A., et al. 2003. Administrative Law. New York: LexisNexis/Matthew Bender. ADMINISTRATOR A person appointed by the court to manage and take charge of the assets and liabilities of a decedent who has died without making a valid will. When such a person is a male , he is called an admini strator, whereas a woman is called an administratrix. An administrator c.t.a. (cum testamento annexo, Latin for “with the will annexed”) is appointed by the court where the TESTATOR had made an incomplete will without naming any executors or had named incapable persons, or where the executors named refuse to act. A public administrator is a public official designated by state law to perform the duties of administration for persons who have died INTESTATE. An executor differs from an administrator in that he or she is named in the decedent’s will to manage the estate. If an executor dies while performing these duties, a court will appoint an administrator de bonis non cum testamen to annexo (Latin for “of the goods not [already] administered upon with the will annexed”)to complete the distribution of the decede nt’s estate. This term is often abbreviated: adminis- trator d.b.n.c.t.a. ADMIRALTY AND MARITIME LAW A field of law relating to, and arising from, the practice of the admiralty courts (tribunals that exercise jurisdiction over all contracts, torts, offenses, or injuries within maritime law) that regulates and settles special problems associated with sea navigation and commerce. History of Admiralty and Maritime Law The life of the mariner, spent far away from the stability of land, has long been considered an exotic one of travel, romance, and danger. Stories of pirates, mutinies, lashings, and hasty trials— many of them true—illustrate the peculiar, isolated nature of the maritime existence. In modern times, the practice of shipping goods by sea has become more civil, but the law still gives maritime activities special treatment by acknowl- edging the unique conflicts and difficulties involved in high-seas navigation and commerce. The roots of maritime law can be traced as far back as 900 B.C., which is when the Rhodian Customary Law is believed to have been shaped by the people of the island of Rhodes. The only concept in the Rhodian Laws that still exists is the law of jettison, which holds that if goods must be thrown overboard (jettisoned) for the safety of the ship or the safety of another’s property, the owner of the goods is entitled to compensation from the beneficiaries of the jettison. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 120 ADMINISTRATOR Codes enacted by medieval port cities and states have formed the current U.S. maritime law. The eleventh-century Amalphitan Code, of the Mediterranean countries; the fourtee nth- century Consolato del Mare, of France, Spain, and Italy; the twelfth-century Roll of Oleron, from England; and the thirteenth-century Law of Visby all drew on the customs of mariners and merchants to create the unique SUBSTANTIVE LAW of admiralty that still exists in the early twenty-first century. Procedural differences existed be tween maritime cases and other civil proceedings until 1966, when the U.S. Supreme Court approved amendments to the Federal Rules of CIVIL PROCEDURE that brought admiralty and maritime procedural rules into accord with those used in other civil suits. The substantive maritime law, however, has remained intact. Admiralty and Maritime Law in the Early 2000s The terms admiralty and maritime law are sometimes used interchangeably, but admiralty originally referred to a specific court in England and the American colonies that had jurisdiction over torts and contracts on the high seas, whereas substantive maritime law developed through the expansion of admiralty court jurisdiction to include all activities on the high seas and similar activities on NAVIGABLE WATERS. Because water commerce and navigation often involve foreign nations, much of the U.S. maritime law has evolved in concert with the maritime laws of other countries. The federal statutes that address maritime issues are often customized U.S. versions of the convention resolutions or treaties of international maritime law. The UNITED NATIONS organizes and prepares these conventions and treaties through branches such as the International Maritime Organiza- tion and the International Labor Organization, which prepares conventions on the health, safety, and well-being of maritim e workers. The substance of maritime law considers the dangerous conditions and unique conflicts Admiralty law concerns personal injuries or loss of cargo suffered during accidents such as this one, in which the freighter Republic of Colombia was struck by the Trans Hawaii. BETTMAN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ADMIRALTY AND MARITIME LAW 121 involved in navigation and water commerce. Sailors are especially vulnerable to injury and sickness owing to a variety of conditions, such as drastic changes in climate, constant peril, hard labor, and loneliness. Under the Ship- owners’ LIABILITY Convention (54 Stat. 1693 [1939]), a shipowner may be liable for the maintenance and cure of sailors injured on ship and for injuries occurring on land. Courts have construed accidents occurring during leave as being the responsibility of the shipowner because sailors need land visits in order to endure the long hours of water transportation. Assigning responsibility for onboard NEGLI- GENCE was a long-standing problem, but the JONES ACT of 1920 (46 U.S.C.A. § 688 et seq.) solidifies the right of sailors to recover from an employer for injuries resulting from the negli- gence of the employer, a master, or another crew member. The 1920 Death on High Seas Act (46 App. U.S.C.A. § 761 et seq.) allows recovery by the beneficiaries of a sailor’s estate when the sailor dies by negligence, default, or wrongful act on the high seas “beyond a marine league from the shore of any state [territory or dependency].” A marine league is one-twentieth of a degree of latitude, or three miles. Accidents suffered by nonmaritime persons on docks, piers, wharfs, or bridges do not qualify for the application of maritime law principles. However, personal injuries suffered while indi- viduals were aboard a ship or as a result of an air-to-water airplane crash are considered within the jurisdiction of admiralty law. The Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C.A. § 901 et seq. [1927]) sets up a federal system to compensate injured maritime workers who do not sail. Through the Federal Office of Workers’ Com- pensation Programs, employees such as steve- dores (workers who load and unload ships) and ship service operators can receive compensation for injuries suffered in the course of their employment. U.S. sailors benefit from Title 46 of the U. S. Code, which sets a schedule for sailors’ earnings and the conditions of their contracts. Title 46 also lists the qualifications for sailor employment (§§ 7301 et seq.), the hours and conditions of the employment (§§ 8104 et seq.), and the living conditions that must be provided (§§ 11101 et seq.). Federal laws also address the problems that beset ships and the life-or-death decisions made by carriers. The Carriage of Goods by Sea Act (46 U.S.C.A. §§ 1300–1315 [1936]) regulates the rights, responsibilities, liabilities, and immuni- ties regarding the relationship between shippers and carriers of goods. The Salvage Act (46 U.S. C.A. §§ 727–731 [1912]) provides for compen- sation to persons who help save a ship or cargo from danger or help recover a ship or cargo from actual loss. To qualify for salvage remu- neration, a person must not be acting in service of the ship or in performance of a contract, and the help given must have contributed at least in part to a wholly or partially successful salvage of the ship or goods. The CASE LAW of the United States is rich in the areas of sailors’ rights respecting the unseaworthiness of vessels, compensation for vessel suppliers and servicers, and the liabilities arising from collisions, towage, pilotage, and groundings. The MARITIME LIEN Act (46 U.S.C.A. §§ 31341–31343 [1920]) gives a LIEN to any person who, upon the order of the ship owner, furnishes repairs, supplies, towage, use of dry dock or marine railway, or other necessaries to any vessel, without allegation or proof that credit was given. The Ship Mortgage Act (46 U. S.C.A. §§ 31301–31330 [1920]) regulates the mortgages on ships registered in the United States, and also provides for enforcement of the maritime liens obtained through the Maritime Lien Act. In case of collision or other damage to a vessel, an IN REM proceeding is often used to recover DAMAGES. An in rem action is a lawsuit brought against an offending thing (in admiralty, usually the ship), whereas an IN PERSONAM action is a suit brought against a person. Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims (1985) provides necessary details for the SEIZURE of an offending owner’s vessel or property if a DEFENDANT vessel owner does not live in the state in which a suit is brought. The practical effect of Supplemental Rules B to E is to make it easier for a PLAINTIFF to bring actions against out-of-state and foreign vessel owners and to provide for the attachment and GARNISHMENT of the offending vessel. An important consideration in any lawsuit is venue. Under Article III, Sec tion 2, of the U.S. Constitution, federal courts have the power to try “all Cases of admiralty and maritime Jurisdiction” (art. III, SEC. 2). However, state courts can also hear admiralty and maritime GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 122 ADMIRALTY AND MARITIME LAW cases by virtue of the “saving-to-suitors” clause of 28 U.S.C.A. § 1333(1). This clause allows a plaintiff to sue in state court through an ordinary CIVIL ACTION when the court’s COMMON LAW is competent to give a remedy. In such actions, the state court must apply the federal law of admiralty to the admiralty claims. Nevertheless, if a plaintiff believes he or she will fare better before a local tribunal, the option is available. When no applicable federal statute exists, the governing law of a maritime case will be the uniform laws as expounded by the U.S. Supreme Court and applicable to all torts and contracts, whether the case is tried in federal or state court. Maritime case law—not the general common law—will govern a contract dispute only if the subject matter of the co ntract pertained to water commerce. Maritime pre- cedents will govern a tort claim only if the negligent or reckless actions involved commer- cial activity on navigable waters. Charter parties are often a topic of concern in maritime law. A charter party, or charter, is an agreement among a shipowner, a crew (the charterer), and the owner of the goods to be transported. Charter parties come in three types: time, voyage, and demise. A time charter is the lease of a ship to a charterer for a specified period of time. A voyage charter is the lease of a ship for a specific number of voyages. A demise charter (so called because the shipowner effec- tively relinquishes ownership for a certain period, causing a “demise” in ownership interest) is usually a bareboat charter, which means that the charterer supplies the master and crew for the ship. Other demise charters provide that the shipowner’s master and crew take charge of the vessel. In contrast to the usual contract practice of providing risk-of-loss insurance for one party, charters utilize what is called a general average. General average is the traditional, primitive f orm of maritime risk allocation whereby all participants in a charter agree to share any damages resulting from an unsuccessful voyage. Most parties to a charter obtain i nsurance to cover their portion of risk. However, because a charter involves multiple parties, and because insurance policies are subject to interpretation, insurance coverage does not always prevent disputes over damages. Risk of loss is sometimes decided according to a BILL OF LADING. This document confirms a carrier’s receipt of goods from the owner (consignor), verifies the voyage contract, and shows rightful ownership of the goods. In Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426 (2d Cir. 1962), the SS Ioannis P. Goulandris had chartered to carry olive oil, cheese, and tobacco from the western Greek port of Piraiévs to the United States via the Strait of Gibraltar. On October 28, 1940, with the Ioannis docked in Piraiévs, Italy attacked Greece, and the Ioannis was requisitioned by the Greek govern- ment for a military mission. On November 10, 1940, the Ioa nnis finally set sail with its cargo for the United States via the Suez Canal and the Red Sea, and around Cape Horn. After an arduous journey that included two crossings of the equator, hull damage, and lengthy repairs, the Ioannis came into port at Norfolk, Virginia, on May 3, 1941. En route, the tobacco had been damaged, much of the olive oil had leaked from its drums, and the cheese was “‘[m]elted with a terrible stench, and worthless.’” Despite the Ioannis’s brave participation in wartime activities, the intended recipients (con- signees) of the tobacco and olive oil sued the Ioannis and were able to recover for the losses suffered as a result of the damage. However, on the subject of the cheese, the court refused to allow recovery by Lekas and Drivas, which had consigned the cheese to itself. Lekas argued that the crew of the Ioannis was negligent in storing the cheese in the structure at the stern above the main deck, known as the poop. According to Lekas, it was inappropriate for the cheese to be in the poop. The poop lacked ventilation, and it was not refrigerated. However, according to the bill of lading between Lekas and the Ioannis, special cooling was not necessary and had not be en contracted for. The cheese was also stored on lighters (large, flat-bottomed barges used for loading and unloading ships) during the 35 days needed for repairs of the Ioannis, and Lekas claimed that this storage was improper. But because wartime conditions were responsible for the length of repairs and the lack of proper storage space for the cheese, the court ultimately held that the Ioannis was not negligent in its handling of the cheese. In addition to the state and federal govern- ments, municipalities ca n affect t he private enjoy- ment of maritime activity. In Beveridge v. Lewis, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADMIRALTY AND MARITIME LAW 123 939 F.2d 859 (9th Cir. 1991), a ppellants Richard Beveridge, P eter Murray, Gregory Davis, a nd Peter Eastman challenged a Santa Barbara city ordinance (Santa Barbara Municipal Code § 17.13.020) that prohibited the anchoring or mooring of b oats within 30 0 feet o f Stear ns Wharf from De cember t o M arch. Santa Barbara had acquired ownership of Stearns Wharf in 1983, passed the ordinance in 1984, and started issuing citations for noncompliance shortly thereafter. Beveridge, Murray, D avis, and Eastman all owned boats moored or anchored within 300 feet of Stearns Wharf, and the four, re presented by Eastman, brought suit against the city in 1989, seeking in junctive r elief a gainst enforce ment of the ordinance. At trial, Eastman argued that the Santa Barbara ordinance conflicted with the Ports and Waterways Safety Act of 1972 (PWSA) (33 U.S. C.A. §§ 1221 et seq.), a federal act designed to reduce the loss of vessels and cargo, protect marine environment, prevent damage to struc- tures on or adjacent to navigable waters, and ensure compliance with vessel operation and safety standards. The trial court dismissed the case, reasoning that the ordinance was neither preempted by, nor in conflict with, the federal statute. On appeal, the Ninth CIRCUIT COURT of Appeals agreed that the Santa Barbara ordi- nance was not in conflict with the PWSA, because the federal act was not intended to limit a municipality’s control over its local shores. The appeals court also rejected the proposition that the enactment of the PWSA implicitly foreclosed the enactment of similar ordinances by municipalities, and Santa Barbara’s control over the Stearns Wharf was complete. Admiralty and maritime matters will always deserve laws carefully crafted to suit the complexity and urgency of maritime endeavors. The international nature of high-seas navigation and its attendant perils demand no less. Federal, state, and local control of navigable waters can affect everyone from the largest charter party to a private boat owner. FURTHER READINGS Healy, Nicholas J., and David J. Sharpe. 2006. Cases and Materials on Admiralty. 4th ed. Eagan, MN: West. Lucas, Jo Desha. 2003. Admiralty: Cases and Materials. 5th ed. New York: Foundation. Robertson, David W. 2008. Admiralty and Maritime Law in the United States: Cases and Materials. 2d ed. Durham, NC: Carolina Academic. Schoenbaum, Thomas J. 2004. Admiralty and Maritime Law. 4th ed. Eagan, MN: West. CROSS REFERENCES Carriers; Environmental Law; Navigable Rivers; Piracy; Salvage; Shipping Law; Territorial Waters. ADMISSIBLE A term used to describe information that is relevant to a determination of issues in any judicial proceeding so that such information can be properly considered by a judge or jury in making a decision. Evidence is admissible if it is of such a character that the court is bound to accept it during the trial so that it may be evaluated by the judge or jury. Admissible evidence is the foundation of the deliberation process by which a court or jury decides upon a judgment or VERDICT. The FEDERAL RULES OF EVIDENCE regulate the admissibility of evidence in federal courts. State rules of evidence determine evidence that is admissible in state court proceedings. ADMISSION A voluntary acknowledgment made by a party to a lawsuit or in a criminal prosecution that certain facts that are inconsistent with the par ty’s claims in the controversy are true. In a lawsuit over whether a DEFENDANT neg- ligently drove a car into the PLAINTIFF pedestrian, the defendant’s apology to the plaintiff and payment of the plaintiff ’s medical bills are admissions that may be introduced as evidence against the defendant. An admission may be express, such as a written or verbal statement by a person con- cerning the t ruth, or it may be implied by a person’s conduct. If someone fails to deny certain assertions which, if false, would be denied by any REASONABLE PERSON, such failure indicates that the person has accepted the truth of the allegations. An admission is not the same as a confes- sion. A confession is an acknowledgment of guilt in a criminal case. Admissions usually apply to civil matters; in criminal cases they apply only to matters of fact that do not involve criminal intent. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 124 ADMISSIBLE Admissions are used primarily as a method of disc overy, as a pleading device, and as evidence in a trial. Once a complaint is filed to commence a lawsuit, the parties can obtain facts and information about the case from each other to assist their preparation for the trial through the use of discovery devices. One type of discovery tool is a request for admission: a written statement submitted to an opposing party before the trial begins, asking that the truth of certain facts or the genuineness of particular documents concerning the case be acknowl- edged or denied. When the facts or documents are admitted as being true, the court will accept them as such so that they need not be proven at trial. If they are denied, the statements or documents become an issue to be argued during the trial. Should a party refuse to answer the request, the other party can ask the court for an order of preclusion that prohibits denial of these facts and allows them to be treated as if they had been admitted. By eliminating undisputed facts as issues in a case, requests for admissions expedite trials. Matters that are admitted are binding only for the pending case and not for any other lawsuit. Judicial admissions—made in court by a party or the party’s attorney as formal acknowl- edgments of the truth of some matter, or as stipulations—are not considered evidence that may be rebutted but are a type of pleading device. Averments in a pleading to which a RESPONSIVE PLEADING is required are admitted if they are not denied in the responsive pleading. If a party has made an admission in a pleading that has subsequently been amended, the pleading containing the admission will be admissible as evidence in the case. In civil actions any offers to SETTLE the case cannot be admitted into evidence. A plea of guilty in a criminal case may usually be shown as an admission in a later civil or criminal proceeding, but it is not conclusive. The defendant may explain the circumstances that brought it about, such as a PLEA BARGAINING deal. Any admissions or offers to plead guilty during the plea-bargaining process are INADMIS- SIBLE as evidence. Many courts refuse to admit a guilty plea to a traffic offense as evidence because many people plead guilty to avoid wasting their time and money by appearing in traffic court. A guilty plea that has subsequently been withdrawn and followed by a plea of not guilty cannot be used as an admission in either a criminal or civil case. It is considered an unreliable admission that has a potentially prejudicial effect on the opportunity of the defendant to get a fair trial. Admissions are used as a type of evidence in a trial to bolster the case of one party at the expense of the other, who is compelled to admit the truth of certain facts. They may be made directly by a party to a lawsuit, either in or out of court; or implicitly, by the conduct of a party or the actions of someone else which bind the party to a lawsuit. When an admission is made out of court, it is hearsay because it was not made under OATH and not subject to CROSS-EXAMINATION. Although hearsay cannot be used as evidence in a trial because of its unreliable nature, admissions can be introduced as evidence because they are considered trust- worthy. An admission by a party can be used only to prove the existence of the fact admitted and to IMPEACH the credibility of the party. An admission by a witness can be introduced as evidence only to discredit the witness’s TESTIMONY. An admission against interest is a statement made by a party to a lawsuit, usually before the suit, that contradicts what he or she is now alleging in the case. Because the statements tend to establish or disprove a material fact in the case, they are considered admissions against interest. The truth of such statements is presumed because people do not make detri- mental statements about themse lves unless they are true. Such an admission is considered an exception to the hearsay rule and, therefore, can be used as evidence in a lawsuit. ADMISSION TO THE BAR The procedure that governs the authorization of attorneys to pra ctice law before the state and federal courts. Statutes, rules, and regulations governing admission to practice law have been enacted to protect the PUBLIC INTEREST, in terms of prevent- ing the victimization of clients by incompetent practition ers. The courts have inherent power to promulgate reasonable rules and regula- tions for ADMISSION TO THE BAR. Although this authority is vested exclusively in the courts, the legislature can, subject to constitutional GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADMISSION TO THE BAR 125 limitations, issue reasonable rules and regula- tions governing bar admission provided they do not conflict with judicial pronouncements. The highest state court administers the admission of applicants to the state bar, usually requiring successful completion of a bar exami- nation and evidence of good moral character. With respect to admission to the federal bar, federal district courts are empowered to issue requirements for admission separately from those of the state courts. If, however, a federal district court, pursuant to a rule, derivatively admits to its bar those admitted to the state bar, it cannot arbitrarily deny admission to an applicant who is a member in good standing of the state bar. In most instances, the federal district courts have considerable latitude in establishing requirements for admission to practice before them, but their rules must not contravene federal law. In terms of the federal bar, an attorney is also eligible for admission to the bar of a court of appeals, if he or she has been admitted to practice before the Supreme Court or the highest court of a state or another federal court and if the lawyer is of good moral and professional character. The attorney must comply with the procedural requirements and take and subscribe to the following OATH: “I, [name], do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States.” In order to gain admission to the bar of the Supreme Court, an attorney must have prac- ticed for thre e years in the highest court of a state, territory, district, commonwealth, or possession. The person must be of good character in terms of both his or her private and professional lives and complete the speci- fied procedures, including taking or subscribing the following oath: “I, [name], do solemnly swear (or affirm) that as an attorney and as a counselor of this court I will conduct myself uprightly, and according to law, and that I will support the Constitution of the United State s.” In some instances, a particular board is empowered to promulgate rules pertaining to applicants seeking to practice before it as attorneys. For example, the SECURITIES AND EXCHANGE COMMISSION has implied authority under its general statutory power to determine qualifications for attorneys practicing before it. Under federal law, the commissioner of PATENTS and trademarks, subject to the approval of the secretary of commerce, can promulgate regula- tions governing the recognition and conduct of attorneys appearing before the U.S. PATENT AND TRADEMARK OFFICE . Qualifications for admission to the bar must be rationally related to the applicant’sfitnessto practice law; therefore, a state cannot prevent a person from practicing law for racial, political, or religious reasons. Good moral character is a prerequisite to the right to admission to practice law and, at a minimum, consists of honesty. Lack of good moral character is demonstrated by an immutable dishonest and corrupt nature and not by radical political beliefs or membership in lawful, but controversial, political parties. In regard to the effect of criminal conduct upon the evaluation of an applicant’s character, a conviction for the commission of a FELONY is not, per se, sufficient to demonstrate a lack of good moral character. It will be incumbent upon the applicant, however, to prove complete rehabilitation. Although a conditio nal PARDON is insufficient to remove objections to bar admis- sion, a felony conviction will not prevent an applicant from practicing law if he or she has received a full pardon and is otherwise qualified. MISDEMEANOR convictions do not necessarily result in a finding of lack of good moral character, but mere conduct that does not culminate in a conviction might present an i n surmounta ble obstacle to admission if it indicates a lack of Admission to the Bar by Examination, 2003 to 2007 SOURCE: National Conference of Bar Examiners, “2007 Statistics,” The Bar E xaminer, May 2008. Number of admissions Year 2003 2004 2005 2006 2007 0 10,000 20,000 30,000 40,000 50,000 49,151 49,127 50,270 53,871 54,618 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 126 ADMISSION TO THE BAR moral f itness. In some cases, an applicant has been rejected for want of good moral character becauseheorshehasmadefalsestatementsor concealed material f acts in the application for admission or in other legal documents. In other cases, the withholding or falsification on the application of minor matters has been viewed as having no effect on an evaluation of character; the same principle applies t o unintentional concealment of information. Admission to the bar cannot be denied because the applicant is not a United States citizen, but the states can impose reasonable residency requirements upon all applicants prior to, or during, the time a license is sought. This requirement enables the state examining authority to investigate the character of the applicant, but it must be rationally related to the attainment of this objective. While a majority of states have some form of residency requirement for admission to the bar, the emerging trend is to nullify durational residency requirements that mandate that an attorney live in a state for a prescribed period as a prerequisite to certifica- tion to practice law. Applicants for admission to practice law must take a bar examination, unless they are exempted from this requirement by statute or court rule. According to the National Confer- ence of Bar Examiners, 80,319 applicants took a bar examination in 2008, of which 70,172 were first-time takers. Overall, 71 percent, or 56,915 examinees, passed. However, among first-time takers from AMERICAN BAR ASSOCIATION (ABA)- approved law schools, 85 percent passed, whereas repeat-takers had a 43 percent pass rate. The examination can be taken more than once. In rare cases, an attorney who has been disbarred or suspended can take a special bar examination for reinstatement. In 2008 only 20 disbarred or suspended attorneys across the U.S. took a reinstatement exam (seven, or 35 percent, passed). Attorneys from other states can be admitted to prac tice in the state without examination upon providing the required proof of pract ice in another state that has reciprocity provisions, pursuant to which an attorney licensed in one state can be admitted to the bar of another state, if the first state grants RECIPROCAL rights to attorneys admitted to practice in the other state. Under the device of PRO HAC VICE, an attorney can be admitted to practice in a jurisdiction without having to take the bar examination, but only on a limited basis and only for a particular case. Such an attorney must be a member in good standing of a bar of other states or countries. In order to practice law, an attorney must obtain a certificate or license, which is a privilege rather than a PROPERTY RIGHT. Attorneys must also comply with the court rules or statutes governing the registration system, which is used to maintain a current list of all attorneys authorized to practice law in the state. Generally, admission by court order constitutes sufficient registratio n, but in some states, attorneys sign the roll or file a certificate with the clerk of the court to establish that they have been duly admitted to practice. An applicant for admission to the bar is entitled to notice of, and a hearing on, the grounds for rejection either before the commit- tee on character and fitness or the court. The courts can review the decision of bar examiners who deny an applicant admission to the bar, and the courts can ascertain whether the examiners acted after a fair investigation and hearing, exercised their discretion impartially and reasonably, and conducted their proceed- ings in compliance with the requirements of procedural due process. The legal profession has tried in recent years to diversify the population of attorneys. First- year law student statistics compiled by the American Bar Association show that for the 2008–2009 academic year, out of 49,414 stu- dents, 23,407 (roughly 47 percent) were women. A stea dy supply of new attorneys continue to enter the profession each year. According to the National Council of Bar Examiners, in 2008, 56,357 persons were admitted to state bars by examination; 7,888 by court motion, and 468 by diploma privilege. FURTHER READINGS American Bar Association (ABA), 2009. “Legal Education and Bar Admissions 2008 Statistics.” Available online at http://www.abanet.org/legaled/statistics/charts/stats% 20-%201.pdf; website home page: http://www.abanet. org/ (accessed August 5, 2009) American Bar Association Publishing Company. 2009. Rules for Admission to the Bar in the Several States and Territories of the United States. Charleston, SC: BibioLife LLC. Glen, Kristin Booth. 2002. “When and Where We Enter: Rethinking Admission to the Legal Profession.” Columbia Law Review 102 (October): 1696–1740. Moeser, Erica. 2002. “Bar Admission in the United States 2001: Framing the Discussion for Response to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADMISSION TO THE BAR 127 . admiralty and maritime GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 12 2 ADMIRALTY AND MARITIME LAW cases by virtue of the “saving-to-suitors” clause of 28 U.S.C.A. § 13 33 (1) . This clause allows. 10 ,000 20,000 30,000 40,000 50,000 49 ,15 1 49 ,12 7 50,270 53,8 71 54, 618 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF. analogous to judicial GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 11 8 ADMINISTRATIVE PROCEDURE ACT OF 19 46 decision. This distinction contained in the APA has long been the subject of scholarly debate. Some