Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P27 ppsx

becomes an instrument for the personal advan- tage of its parent corporation, stockholders, directors, or officers. When a court applies it, the court is said to pierce the corporate veil. Courts have not traditionally applied the alter ego doctrine to other business forms, such as partnerships and limited partnerships, be- cause partners generally do not enjoy the same form of limited liability as corporate stock- holders, officers, and directors. By comparison, however, owners of limited liability companies may structure their business in a manner similar to a corporation so that members and managers are shielded from personal liability for the debts of the LIMITED LIABILITY COMPANY (LLC). Several courts have determined that the alter ego doctrine may also apply to LLCs. For instance, in Kaycee Land & Livestock v. Flahive, 46 P.3d 323 (Wyo. 2002), the Wyoming Supreme Court held that the equitable doctrine of piercing the veil was an available remedy under the Wyom- ing Limited Liability Company Act. CROSS REFERENCES Corporations ; Immunity; Liability. ALTERATION Modification; changing a thing without obliterat- ing it. An alteration is a variation made in the language or terms of a legal document that affects the rights and obligations of the parties to it. When this occurs, the alteration is material and the party who did not CONSENT to the change can be released from his or her duties under the document by a court. When an essential part of a writing has been cut, torn, burned, or erased, the alteration is also known as a mutilation. The alteration of a document by someone other than a party to it is called a spoliation. ALTERATION OF INSTRUMENTS A change in the meaning or language of a legal document, such as a contract, deed, lease, or commercial paper, that is made by one party to the document without the consent of the other after it has been signed or completed. If such a change is made by a THIRD PARTY without the CONSENT of either party to the instrument, it is called a SPOLIATION or mutilation. Method The face of an instrument is changed by its alteration. A difference in handwriting, a change in words or figures, an erasure, and the striking out of particular words are some methods used to alter an instrument. Since there must be a change in the meaning or language of a document, retracing an original writing—as when a figure written in pencil is retraced in ink—is not an alteration. Material Changes The alteration of an instrument materially changes it. The document no longer reflects the terms that the parties originally intended to serve as the basis of their legal obligation to each other. To be material, the change must affect an important part of the instrument and the rights of the parties to it. Any material alteration relieves the nonconsenting party of any obligation to perform according to the terms of the instrument. If the altered instrument is a contract, then the original contract is void. The nonconsenting party cannot be legally obligated by the new contract since he or she never agreed to it. A document that has been materially altered does not regain its original validity if it is restored to its original form by erasing or deleting unauthorized words. The date of an instrument is often consid- ered a material provision when it establishes the time within which the parties to a document must perform their obligations under it. An unauthorized change of date that shortens the time of payment or extends the time of performance so that more interest will become due is a material alteration. An alteration of a signature that changes the legal effect of an instrument is material. Erasing words that show that the signer is acting as an agent, for example, changes the signer’s LIABILITY under the instrument and, therefore, is a material alteration. However, when a signature that was improperly placed on a document is erased, there is no mate rial alteration since the legal meaning of the document is not changed. Any change in the terms of the instrument that affects the obligations of the parties is material. In a contract to sell land on co mmis- sion, a change in the rate of commission is material. A change in a description in a deed so that it transfers a smaller piece of land, a change in the name of a purchaser in a sales contract, or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 ALTERATION an alteration in the terms of financing set forth in a MORTGAGE is also material. Time of Alteration A modification in a document before its comple- tion is not an alteration. The parties are bound to review the document and to have agreed upon its terms before executing it. In order for an alteration to nullify the legal effect of an instrument, the change must be made after its completion. Intention A material change must be intentionally made. The motive behind the alteration is unim- portant. If a mistake or accident causes a change, this is not consid ered a material alteration, but the document may be reformed or rescinded. The Person Making the Change The change to the instrument must be made by a party or someone authorized by him or her to do so. No change made by a third person without the consent of either party to the document will invalidate it if its original terms can be learned. When a material alteration is made by a party to COMMERCIAL PAPER, such as a check or PROMISSORY NOTE, the paper will be enforced as originally written against the party who made the changes. Consensual Alteration A change in an instrument made with the consent of the parties is binding upon them. Such CONSENSUAL ALTERATION is usually evidenced by the signing by each party of his or her initials and the date that the agreement to the changes to the instrument was reached. ALTERNATIVE DISPUTE RESOLUTION Procedures for settling disputes by means other than litigation; e.g., by arbitration, mediation,or minitrials. Such procedures, which are usually less costly and more expeditious than litigation, are increasingly being used in commercial and labor disputes, in divorce actions, in resolving motor vehicle and medical malpractice tort claims, and in other disputes that would likely otherwise involve court litigation. In the late 1980s and early 1990s, many people became increasin gly concerned that the traditional method of resolving legal disputes in the United State s, through conventional LITIGATION, had become too expensive, too slow, and too cumbersome for many civil lawsuits (cases between private parties). This concern led to the growing use of ways other than litigation to resolve disputes. These other methods are commonly known collectively as “alternative dispute resolution” (ADR). As of the early 2000s, ADR techniques were being used more and more, as parties and lawyers and courts realized that these tech niques could often help them resolve legal disputes quickly and cheaply and more privately than could conven- tional litigation. Moreover, many people pre- ferred ADR approaches because they saw these methods as being more creative and more focused on problem solving than litigation, which has always been based on an adversarial model. To some degree, the term alternative dispute resolution is a misnomer. In reality, fewer than 5 percent of all lawsuits filed go to trial; the other 95 percent are settled or otherwise con- cluded before trial. Thus, it is more accurate to think of litigation as the alternative and ADR as the norm. Despite this fact, the term alternative dispute resolution has become such a well- accepted shorthand for the vast array of non- litigation processes that its continued use seems assured. Although certain ADR techniques are well established and frequently used—for example, mediation and arbitration—alternative dispute resolution has no fixed definition. It includes a wide range of processes, many with little in common except that each is an alternative to full- blown litigation. Litigants, lawyers, and judges are constantly adapting existing ADR processes or devising new ones to meet the unique needs of their legal disputes. The definition of alternative dispute resolution is constantly expanding to include new techniques. ADR t ec hniques have not been created to undercut the traditional U.S. court system. Cer- tainly, ADR options can be used in cases where litigation is not the most appropriate route. How- ever, they can also be used in conjunction w ith litigation when the parties want to explore other options but also wa nt to remain free to return to the traditional court process at any point. Of the many litigation alternatives to re- solve a legal dispute, mediation, arbitration, mediation-arbitration, minitrial, early neutral evaluation, summary jury trial, and collabora- tive law are the most common. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALTERNATIVE DISPUTE RESOLUTION 249 Mediation Mediation—also known as “conciliation”—is the fastest-growing ADR method. Unlike liti- gation, mediation provides a forum in which parties can resolve their own disputes, with the help of a neutral THIRD PARTY. Mediation depends upon the commitment of the disputants to solve their own problems. The A sample form used in alternative dispute resolution ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. NAME OF COURT: ADR Information Form This form should be filled out and returned, within 10 days of the resolution of the dispute, to: 1. Case name: ___________________________________________________________________ No. _______________________ 2. Type of civil case: ٗ PI/PD-Auto ٗ PI/PD-Other ٗ Contract ٗ Other (specify): __________________________________ 3. Date complaint filed _________________________________ Date case resolved ___________________________________ 4. Date of ADR conference _____________________________ 5. Number of parties ___________________________________ 6. Amount in controversy: ٗ $0–$25,000 ٗ $25,000–$50,000 ٗ $50,000–$100,000 ٗ over $100,000 (specify)___________ 7. ٗ Plaintiff's Attorney ٗ Cross Complainant's Attorney 8. ٗ Defendant's Attorney ٗ Cross Defendant's Attorney __________________________________________________ __________________________________________________ NAME NAME _________________________________________________ __________________________________________________ ADDRESS ADDRESS (_____)_____________________________________________ (_____)____________________________________________ TELEPHONE NUMBER TELEPHONE NUMBER 9. Please indicate your relationship to the case: ٗ Plaintiff ٗ Plaintiff's attorney ٗ Defendant ٗ Defendant's attorney ٗ 3rd party defendant ٗ 3rd party defendant's attorney ٗ Other (specify): __________________________________ 10. Dispute resolution process: ٗ Mediation ٗ Arbitration ٗ Neutral case evaluation ٗ Other (specify): _________________________________ 11. How was case resolved? a. ٗ As a direct result of the ADR process. b. ٗ As an indirect result of the ADR process. c. ٗ Resolution was unrelated to ADR process. 12. Check the closest dollar amount that you estimate you saved (attorneys fees, expert witness fees, and other costs) by using this dispute resolution process compared to resolving this case through litigation, whether by settlement or trial. ٗ $0 ٗ $250 ٗ $500 ٗ $750 ٗ $1,000 ٗ more than $1,000 (specify): $ _____________________________ 13. If the dispute resolution process caused a net increase in your costs in this case, check the closest dollar amount of the additional cost: ٗ $0 ٗ $250 ٗ $500 ٗ $750 ٗ $1,000 ٗ more than $1,000 (specify): $ _____________________________ 14. Check the closest number of court days that you estimate the court saved (motions, hearings, conferences, trial, etc.) as a result of this case being referred to this dispute resolution process: ٗ 0 ٗ 1 day ٗ more than 1 day (specify): _____________________________________________________________ 15. If the dispute resolution process caused a net increase in court time for this case, check the closest number of additional court days: ٗ 0 ٗ 1 day ٗ more than 1 day (specify): ____________________________________________________________ 16. Would you be willing to consider using this dispute resolution process again? ٗ Yes ٗ No Alternative Dispute Resolution Information Form Form Adopted by the Judicial Council of California ADR-101 [New March 1, 1994] WEST GROUP Official Publisher GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 ALTERNATIVE DISPUTE RESOLUTION mediator, also known as a “facilitator,” never imposes a decision upon the parties. Rather, the mediator’s job is to keep the parties talking and to help move them through the more difficult points of contention. To do this, the mediator typically takes the parties through five stages. First, the mediator gets the parties to agree on procedural matters, such as by stating that they are participating in the mediation volun- tarily, setting the time and place for future sessions, and executing a formal confidentiality agreement. One valuable aspect of this stage is that the parties, who often have been unable to agree on anything, begin a pattern of saying yes. Second, the parties exchange initial posi- tions, not by way of lecturing the mediator but in a face-to-face exchange with each other. Often, this is the first time each party hears the other’s complete and uninterrupted version. The parties may begin to see that the story has two sides and that it may not be so unreason- able to compromise their initial positions. Third, if the parties have agreed to what is called a “caucusing procedure,” the mediator meets with each side separately in a series of confidential, private meetings and begins explor- ing SETTLEMENT alternatives, perhaps by engaging the parties in some “reality testing” of their initial proposals. This process, sometimes called shuttle diplomacy, often uncovers areas of flexibility that the parties could not see or would have been uncomfortable putting forward officially. Fourth, when the gap between the parties begins to close, the mediator may carry offers and counteroffers back and forth between them, or the parties may elect to return to a joint session to exchange their offers. Finally, when the parties agree upon the broad terms of a settlement, they formally reaffirm their understanding of that settlement, complete the final details, and sign a settlement agreement. Mediation permits the parties to design and retain control of the process at all times and, ideally, eventually strike their own bargain. Evidence suggests that parties are more willing to comply with their own agreements, achieved through mediation, than with adjudicated decisions, which are imposed upon them by an outside party such as a judge. One additional advantage is that when the parties reach agreement in mediation, the dispute is over—they face no appeals, delays, continuing expenses, or unknown risks. The parties can begin to move forward again. Unlike litigation, which focuses on the past, mediatio n looks to the future. Thus, a mediated agreement is particularly valuable to parties who have an ongoing relationship, such as a commercial or employment relationship. Arbitration Arbitration more closely resembl es traditional litigation in that a neut ral third party hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts. The difference is that in arbitration, the dis- putants generally agreed to the procedure before the dispute arose; the disputants mutually decide who will hear their case; and the proceedings are typically less formal than in a court of law. One extremely important difference is that, unlike court decisions, arbitration offers almost no effective appeal process. Thus, when an arbitra- tion decision is issued, the case is ended. Final and binding arbitration has long been used in labor-management disputes. For dec- ades, unions and employers have found it mutually advantageous to have a knowledge- able arbitrator—whom they themselves have chosen—resolve their disputes in this cheaper and faster fashion. One primary advantage for both sides has been that taking disputes to arbitration has kept everyone working by providing an alternative to strikes and lockouts and has kept everyone out of the courts. Given this very successful track record, the commer- cial world has become enthusiastic about arbitration for other types of disputes as well. A new form of arbitration, known as “court- annexed arbitration,” has emerged. Many variations of court-annexed arbitration have developed throughout the United States. One can be found in Minnesota, where, in the mid- 1990s, the Hennepin County district court adopted a program making civil cases involving less than $50,000 subject to mandatory non- binding arbitration. The results of that experi- mental program were so encouraging that legislation was later enacted expanding the arbitration program statewide. Most cases were channeled through an ADR proces s before they could be heard in the courts. A growing number of other federal and state courts were adopting this or similar approaches. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALTERNATIVE DISPUTE RESOLUTION 251 Mediation-Arbitration As its name suggests, mediation-arbitration, or “med-arb,” combines mediation and arbitra- tion. First, a mediator tries to bring the parties closer together and help them reach their own agreement. If the parties cannot compromise, they then proceed to arbitration—before that same third party or before a different arbitrator— for a final and binding decision. Minitrial The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as PRODUCT LIABILITY, massive con- struction, and antitrust cases. In a minitrial, each party presents its case as in a regular trial, but with the notable difference that the case is “tried” by the parties themselves, and the presentations are dramatically abbreviated. In a minitrial, lawyers and experts present a condensed version of the case to top manage- ment of both parties. Often, a neutral adviser— sometimes an expert in the subject area—sits with management and conducts the hearing. After these presentations, top management representatives—by now more aware of the strengths and weaknesses of each side—try to NEGOTIATE a resolution of the problem. If they are unable to do so, they often ask for the neutra l adviser’s best guess as to the probable outcome of the case. They then resume negotiations. The keys to the success of this approach are the presence of both sides’ top officials and the exchange of information that takes place during the minitrial. Too often, prelitigation work has insulated top management from the true strengths and weaknesses of their cases. Mini- trial presentations allow them to see the dispute as it would appear to an outsider and set the stage for a cooperative settlement. Early Neutral Evaluation An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually an attor- ney, concerning the strength of their cases. An objective evaluation by a knowledgeable outsid- er can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases’ strengths and weaknesses. Of course, the success of this technique depends upon the parties’ faith in the fairness and objectivity of the neutral third- party, and their willingness to compromise. Summary Jury Trial Summary jury trials have been used primarily in the federal courts, where they provide parties with the opportunity to “try” their cases in an abbreviated fashion before a group of jurors, who then deliberate and render an ADVISORY OPINION . Like an early neutral evaluation, an advisory opinion from a summary jury trial can help the parties assess the strengths and weaknesses of their cases and sometimes can facilitate the settlement of the dispute. Another advantage of the summary jury trial, which it has in common with the minitrial, is that it can be scheduled much sooner than a trial. When early evalua- tions help the parties SETTLE their cases, the parties typically avoid much of the delay, expense, and anxiety that occurs in litigation. Collaborative Law Collaborative Law, sometimes referred to as “collaborative practice” or “collaborative di- vorce,” is a form of alternative dispute resolu- tion used for DIVORCE or legal FAMILY LAW disputes. In this process, the goal is to resolve the conflict outside of the courtroom by entering into a series of joint sessions with the two parties, their lawyers, and neutral experts. The primary focus of the meetings or joint sessions is to settle the dispute by identifying the priorities, goals, needs, and interests of the parties and helping them work together toward a settlement that is consistent with such goals and needs. Unlike mediation, in the collaborative law process the parties agree at the beginning of the dispute to settle the case outside of court. In addition, while going through the process, the attorneys facilitate the negotiations, and the parties are fully informed of the law and any legal con- sequences regarding their various decisions and options. As of September 2009, California, North Carolina, and Texas had implemented statutes regarding collaborative divorce. O ther courts have implemented local court rules regarding the collaborative law process for their jurisdiction. In addition, the National Confer- ence of Commissioners on Uniform State laws, on July 15, 2009, adopted the Uniform Collabo- rative Law Act, which will be presented to state legislatures for enactment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 ALTERNATIVE DISPUTE RESOLUTION ADR by Statute and Regulation Since the late 1980s, Congress has recognized that ADR provides a cost-efficient alternative to traditional methods for dispute resolution. In 1988, Congress enacted the Judicial Improve- ments and Access to Justice Act, 28 U.S.C.A. § 652 (1993 & Supp. 2003), which permitted U.S. district courts to submit disputes to arbi- tration. Congress amended this statute with the enactment of the Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2994 (28 U.S.C.A. § 652), which requires each dist rict court to require, by local rule, that litigants in all civil cases consider using an ADR process at the appropriate state of litigatio n. Local rules of U.S. district courts typically provide a wide array of ADR methods. For example, the U.S. District Court for the Western District of Texas recognizes early neutral evalua- tion, mediation, minitrial, moderated settlement conference, summary jury trial, and arbitration as acceptable forms of ADR. According to these rules, the court may order ADR on the motion of a party, on agreement of both parties, or on its own motion. Most other district courts have adopted similar rules. Congress has also included ADR provisions in a number of statutes to resolve a variety of disputes. For example, the Board of Directors of the Office of Compliance, which reviews complaints brought by employees of Congress, may order counseling or mediation, in addition to holding a board hearing or initiating a CIVIL ACTION in federal court. 2 U.S. C.A. § 1401 (1997). Similar statutes apply to such conflicts as labor disputes and claims by individuals with disabilities. State legislatures have similarly provided for ADR in many of their statutes. Judges in Florid a, for example, possess authority to submit most types of cases to mediation or arbitration in lieu of litigation. Fla. Stat. § 44.1011 (1997). The COMMISSIONERS ON UNIFORM LAWS have approved several uniform laws, which may be adopted by the various states, related to ADR proceedings. Versions of the Uniform Arbitration Act, first approved in 1956, have been adopted by 49 states. Likewise, the Uniform Mediation Act, drafted in conjunction with the American Bar Association’s Section on Dispute Resolution in 2001, provides rules on the issu es of confidentiality and privileges in mediation. ADR has had an impact on administrative agencies as well. Congress amended the Administrative Procedure Act in 1990 to autho- rize and encourage administrative agencies to submit administrative disputes to ADR (5 U.S.C.A. § 572 [1996]). ADR often takes the form of mediation in disputes involving labor and employment relations and equal employ- ment opportunity. Several federal agencies provide guides about ADR proceedings to pro- spective complainants and other constituents. Courts frequently uphold decisions made during ADR proceedings. In Major League Baseball Players Association v. Garvey, 532 U.S. 504, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001), the U.S. Supreme Court reviewed a decision in which the U.S. Court of Appeals for the Ninth Circuit had reversed a decision of an arbitration panel regarding a complaint by former baseball player Steve Garvey about a contract dispute. The Ninth Circuit then remanded the case to the arbitration panel with instructions to enter an award in favor of the player for the amount he claimed. Noting that JUDICIAL REVIEW of labor arbitration decisions is limited, the Supreme Court reversed the Ninth Circuit’s decision, holding that it was not the place of a court of appeals to resolve the dispute on its me rits. In 2008 the Supreme Court issued additional decisions pertaining to its role of reviewing arbitration decisions. In Hall Street Associates, L.L.C. v. Mattel, Inc., the Court held that parties who enter into an agreement to arbitrate cannot contractually change the statutory grounds for modifying or vacating the arbitration award. It noted that the grounds for vacating an arbitration award under the Federal Arbitration Act are exclusive and could not be expanded to include either evidentiary or legal review. Thus, the decision further upheld the limited role of judicial review of an arbitrator’s decision. In the 8–1 decision written by Justice RUTH BADER GINSBURG in Preston v. Ferrer, the Court held that the question of whether a contract is unenforceable under California’s Talent Agen- cies Act is a question that must be decided by an arbitrator rather than the court. Specifically Justice Ginsburg wrote in the decision that when the parties have a contract that includes an arbitration clause, the Federal Arbitration Act supersedes state laws that provide for a specific forum to resolv e the dispute. In that case, the Court held that the decision to determine whether the contract was enforceable was for the arbitrator rather than the state’s labor commissioner. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ALTERNATIVE DISPUTE RESOLUTION 253 FURTHER READINGS International Academy of Collaborative Professionals. Home page: http://www.collaborativepractice.com (accessed on September 21, 2009). Meek, Susan B. 1996. Alternative Dispute Resolution. Tucson, Az.: Lawyers and Judges. National Conference of Commissioners on Uniform State Laws. Home page: http://www.nccusl.org (accessed on September 21, 2009). Nolan-Haley, Jacqueline M. 2008. Alternative Dispute Resolution in a Nutshell St. Paul, Minn.: West Group. Ware, Stephen J. 2001. Alternative Dispute Resolution. St. Paul, Minn.: West Group. ALTERNATIVE RELIEF Remedies sought in a lawsuit in various for ms or in the alternative, such as a demand for specific performance of a contract or monetary damages to compensate for the failure to perform the obliga- tion, or both. Modern rules governing PLEADING in courts specifically permit a party to demand relief in the alternative. This eliminates the harsh con- sequences of the rule of COMMON-LAW PLEADING that required a party to make one demand for one type of relief and to lose the case if a different remedy were more appropriate. A party can ask for alternative forms of relief and recover what is later proved to be most appropriate at trial. ALTERNATIVE WRIT An order, issued originally by the king in England but more recently by a court, commanding a person to do a specific thing or to appear and explain why he or she should not be compelled to do it. Under the COMMON LAW, the writs of PROHIBI- TION and MANDAMUS were alternative writs. In modern systems of court procedure, an order to SHOW CAUSE serves the same purpose. It com- mands a person to do something or come into court and show cause why he or she should not be made to do it. AMBASSADORS AND CONSULS An ambas sador is the foreign diplomatic repre- sentative of a nation who is authorized to handle political negotiations between his or her country and the country where the ambassador has been assigned. A consul is the commercial agent of a nation, who is empowered only to engage in business transactions, and not political matters in the country where he or she is stationed. The president with the CONSENT of the Senate appoints ambassadors and consuls whereas the SECRETARY OF STATE appoints staff officers and other subordinate employees. Powers and Duties The powers of an ambassador are specified in his or her credentials, or documents of introduc- tion, which the ambassador submits to the foreign government. In addition to responsibility for political negotiations, an American ambassador may initiate LEGAL PROCEEDINGS on behalf of the United States and defend suits instituted against it. A foreign ambassador in the United States has similar duties regarding his or her government. In general, a consul is authorized to safeguard the legal rights and property interests of the citizens of his or her country and to appear in court to ascertain that the laws of the nation where he or she is assigned are administered impartially to all of the ambassador’s compatriots. A U.S. citizen who has legal difficulties in a foreign country should consult the United States consul. CONSULS are also empowered and obligated to protect the estates of their countrymen and -women who die within their consular districts. This duty terminates when the decedent’s heirs are represented by an attorney. Pete Peterson, the first U.S. ambassador to Vietnam since the end of the Vietnam War, presents his diplomatic credentials to the vice president of Vietnam, Nguyen Thi Binh, in Hanoi on May 14, 1997. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254 ALTERNATIVE RELIEF Diplomatic Immunity The development of harmonious international relations and protection against arrest, harass- ment, or other unjustified actions taken against diplomatic representatives constitute the objec- tives of DIPLOMATIC IMMUNITY. The Vienna Convention on Diplomatic Relations, which became effective as part of the federal law in 1972, governs diplomatic IMMUNITY by granting various degrees of immunity from civil and criminal LIABILITY to the members of diplomatic missions. Diplomatic Agents The supervisor of a mis- sion, such as an ambassador, and members of the mission staff who possess diplomatic rank are DIPLOMATIC AGENTS. Such an agent is immune from criminal liability in the nation in which he or she serves, but the commission of a crime may result in a recall request to the ambassa- dor’s country. His or her expulsion may ensue upon the refusal of any such request. In addition, a diplomatic agent is immune from civil lawsuits, except for actions involving estates, when he or she is the executor, administrator, or BENEFICIARY; actions concern- ing real property held by the diplomatic agent for personal, not official functions; and actions relating to professional or business activities that are beyond the scope of diplomatic duties. A diplomatic agent is not required to TESTIFY as a witness; and the family members living in the agent’s household enjoy the same immunities. Due to the hardship imposed on the victims of motor vehicle accidents in the United States caused by foreign diplomats who have diplomatic immunity, federal law mandates that mission members and their families insure their personal motor vehicles, boats, and airplanes. If the mission has similar vehicles registered in its name, it also must purchase liability insurance. An action for DAMAGES for property loss, personal injuries, or WRONGFUL DEATH can be maintained directly against the diplomat’s insurance company and is tried by the court, presiding without a jury. Staff Members The administrative and techni- cal staffs and families and household membe rs of the mission are completely immune from criminal liability, but are immune from civil liability only for official acts. Similar rules apply to members of the service staff employed as domestics, but their families and private servants employed by staff members are not so protected against liability. Consuls Consuls are not diplomatic agents and, therefore, they are usually amenable to civil lawsuits and criminal prosecution in the country where they are assigned. Federal law, howev er, extends imm unity to consuls from all suits and proceedings in state courts. This prevents any embarrassment to foreign nations that might ensue from such proceedings. Other Exemptions Diplomatic agents in the United States and the members of their house- holds are generally exempt from federal, state, and MUNICIPAL taxes. They are responsible, however, for indirect taxes that are part of the price of goods, taxes on property inherited from a citizen, taxes on any real property they own privately, or capital gains taxes on profits from personal investments. Diplomatic agents have no obligation to serve in the U.S. armed forces. These exemptions also apply to the administra- tive and technical staffs of the mission and their families. The service staff and private servants are exempt from taxes on wages received from their employment with the mission or its members. FURTHER READINGS Keeley, Robert V., ed. 2000. First Line of Defense: Ambassadors, Embassies, and American Interests Abroad. Washington, D.C.: American Academy of Diplomacy. Lehman, Daniel J. 2002. “The Federal Republic of Germany v. The United States of America: The Individual Right to Consular Access.” Law & Inequality: A Journal of Theory and Practice 20, vol. 2 (summer). Pittman, Andrew B. 2001. “Ambassadorial Waiver of Foreign State Sovereign Immunity to Domestic Adju- dication in United States Courts.” Washington and Lee Law Review 58 (spring). CROSS REFERENCES Diplomatic Agents; Diplomatic Immunity; International Law; State Department. AMBER ALERT A national law enforcement early warning plan designed to help find missing or abducted children by broadcasting information over radio, television, the Internet, and roadside signs as quickly as possible. The ABDUCTION of a child by a relative or stranger requires immediate action by law en- forcement officials. Beginning in the 1990s, some states and communities developed early warning plans that informed the public immediately about a missing child by using the electronic news media and roadside signs. These plans, which have come GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AMBER ALERT 255 to be known as AMBER Alerts, have proved popular, though some researchers question their true effectiveness. Congress enacted a law in 2003 that gave the federal government a role in coordinating such plans. The 1996 KIDNAPPING and MURDER of Amber Hagerman in Texas triggered the first early warning plan. The Dallas/Fort Worth Association of Radio Managers wo rk ed with local law enforce- ment officials in north Texas to e stablish what they called the A MBER Alert plan. Though named after Amber Hagerman, AMBER also served as an acronym for America’sMissing:BroadcastEmer- gency Respons e. Th e first AMB ER p lan called o n broadcasters to provide information ov e r radio and television as soon as possible. This information included descriptions and pictures of th e missing child, the suspected abductor, a suspec ted vehicle, and a ny other information t hat could prove helpful in locating the child. The AMBER Alert concept spread quickly around the United States. By 2002, 18 states had enacted such plans and local communities in other states set up their own AMBER Alert plans. Proponents claimed that the al erts had proved effective and urged Congress to enact a law that would make AMBER Alerts a national program. Congress responded by including an AMBER Alert provision in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 (Pub. L. No. 108-21, 117 Stat. 650). Under the statute, the DEPARTMENT OF JUSTICE, in cooperation with the DEPARTMENT OF TRANSPORTATION and the FEDERAL COMMUNICATIONS COMMISSION (FCC), appoints a National AMBER Alert coordinator to oversee the communication network. The coordinator works with states, broadcasters, and law enforce- ment agencies to set up and coordinate AMBER plans. Grants are provided to help set up AMBER Alert programs. The federal government does not mandate that each state follow one type of plan. Instead, each state AMBER Alert plan has its own criteria for issuing AMBER Alerts. The national coordinator does issue minimum standards for AMBER Alerts that states can adopt voluntarily. Most states have followed these criteria. The key criteria are as follows: n Law enforcement must confirm that an abduction has taken place. n The child must be at risk of serious injury or death. n There is sufficient descriptive information of child, captor, or captor’s vehicle to issue an alert. n The child must be 17 years old or younger. n Immediate entry of AMBER Alert data is entered i n FBI’s National Crime Informa- tion Center. Many states have also formal memorandums of understanding with other states. By 2009 there were 28 regional plans as well. If law enforcement believes that the child has been taken across state lines, the AMBER state coordinator asks that state to issue an alert. Even if there is no formal agreement between states, many have informal arrangements to issue AMBER Alerts upon request. The federal AMBER coordinator issues an annual report that analyzes the number of alerts issued, the various classifications of abductions, and their RESOLUTION. There are four classifica- tions: family abduction; nonfamily abduction; lost, injured, or otherwise missing; and endan- gered runaway. A family abduction occurs when an individual between birth and 17 years of age is abducted from his or her custodial parent or legal GUARDIAN by a noncustodial family member who is related to the child by blood or MARRIAGE. A nonfamily abduction occurs when a child, age 17 or younger, is abducted by someone who is unknown to the child or his or her family, an acquaintance, or someone who is unidentifiable as either. The classification of lost, injured, or otherwise missing refers to any missing child where there are insufficient facts to determine the cause of a child’s disappearance as well as any child age 10 or younger who is missing on his or her own accord. An endangered runaway is any missing child between 11 and 17 years of age, who is missing on his or her own accord without permission from his or her parent or legal guardian. The 2008 report disclosed that in 2008, 194 AMBER Alert cases were issued in the United States involving 256 children in 36 states; 166 cases resulted in recovery, but only 40 were the direct result of an AMBER Alert. Of these alerts, 50 percent were statewide alerts, 40 percent were regional alerts, and 18 percent were local. Out of the 194 alerts, 6 percent were found to be hoaxes and 7 percent were eventually determined to be unfounded. Girls constituted 58 percent of the alerts, with more than half of all the children under the age of five. Of the 162 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 AMBER ALERT abductors, 118 had previous relationships with the children. Most significantly, 67 percent of the children were recovered on the same day the alert was issued. Critics of AMBER Alerts have expressed concerns about alert fatigue. If the citizens are constantly presented with alerts, they may eventually tune out the information that is presented. A study of the 233 Amber Alerts issued in 2004 also revealed that stranger abductions, which are the most publicized cases, constituted only 30 percent of the alerts. Family abductions accounted for 50 percent of the alerts, and 20 percent were hoaxes or unfounded. Another study challenged the claim that the alerts saved as many lives as claimed. Successful recovery is most likely when the victim is abducted by a parent, who rarely harms the child. FURTHER READINGS AMBER Alert, Office of Justice Programs, DOJ, www. amberalert.gov (accessed December 21, 2009). Fass, Paula. 2006. Kidnapped: Child Abduction in America. New York: Oxford Univ. Press. CROSS REFERENCES Child Molestation; Kidnapping. AMBIGUITY Uncertainty or doubtfulness of the meaning of language. When language is capable of being under- stood in more than one way by a REASONABLE PERSON , ambiguity exists. It is not the use of peculiar words or of common words used in a peculiar sense. Words are ambiguous when their significance is unclear to persons with competent knowledge and skill to understand them. There are two categories of ambiguity: LATENT and PATENT. Latent ambiguity exists when the language used is clear and intelligible so that it suggests one meaning but some extrinsic fact or evidence creates a need for interpretation or a choice among two or more possible meanings. In a classic case, Raffles v. Wichelhaus, 159 Eng. Rep. 375 (Ex. 1864), a contract was made to sell 125 bales of cotton that were to arrive on a ship called Peerless that sailed from Bombay, India. Unknown to the parties to the contract, two ships of the same name were to arrive from the same port during different months of the same year. This extra neous fact necessitated the interpretation of an otherwise clear and definite term of the contract. In such cases, extrinsic or PAROL EVIDENCE may be admitted to explain what was meant or to identify the property referred to in the writing. A patent ambiguity is one that appears on the face of a document or writing because uncertain or obscure language has been used. In the law of CONTRACTS, ambiguity means more than that the language has more than one meaning upon which reasonable persons could differ. It means that after a court has applied rules of interpretation, such as the plain meaning, COURSE OF DEALING, COURSE OF PERFOR- MANCE ,orTRADE USAGE rules to the unclear terms, the court still cannot say with certainty what meaning was intended by the parties to the contract. When this occurs, the court will admit as evidence extraneous proof of prior or contemporaneous agreements to determine the meaning of the ambiguous language. Parol evidence may be used to explain the meaning of a writing as long as its use does not vary the terms of the writing. If there is no such evidence, the court may hear evidence of the subjective intention or UNDERSTANDING of the parties to clarify the ambiguity. Sometimes, courts decide the meaning of ambiguous language on the basis of who was responsible or at fault for the ambiguity. When only one party knew or should have known of the ambiguity, the unsuspecting party’s subjective knowledge of the meaning will control. If both parties knew or should have known of the uncertainty, the court will look to the subjective understanding of both. The ambiguity no longer exists if the parties agree upon its meaning. If the parties disagree and the ambiguous provisions are material, no contract is formed because of lack of mutual assent. Courts frequently interpret an ambiguous contract term against the interests of the party who pre pared the contract and created the ambiguity. This is common in cases of adhesion contracts and insurance contracts. A drafter of a document should not benefit at the expense of an innocent party because the drafter w as careless in drafting the agreement. In CONSTITUTIONAL LAW, statutes that contain ambiguous language are void for vagueness. The language of such laws is considered so obscure and uncertain that a reasonable person cannot determine from a reading what the law purports to command or prohibit. This statutory GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AMBIGUITY 257 . Form Form Adopted by the Judicial Council of California ADR -10 1 [New March 1, 19 94] WEST GROUP Official Publisher GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 ALTERNATIVE DISPUTE RESOLUTION mediator,. the alerts, with more than half of all the children under the age of five. Of the 16 2 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 AMBER ALERT abductors, 11 8 had previous relationships with the. the end of the Vietnam War, presents his diplomatic credentials to the vice president of Vietnam, Nguyen Thi Binh, in Hanoi on May 14 , 19 97. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254