Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P48 pdf

applicability of this rule is whether the employ- ment or services of the plaintiff were personal in nature. The rule is not applicable in contracts that do not require all, or a significant portion, of the plaintiff’s time, or those that do not preclude the plaintiff from becoming engaged in simultaneous performance of other contracts. Torts A party who suffers a PERSONAL INJURY is required to exercise ordinary care an d perseverance to f ind a cure, thereby reducing the damages to the most practicable extent. Such an individual should seek reasonable medical care i f so required by the injury. It is not necessary for the person to undergo excessively painful treatment or that which involves a significant hazard of death o r injury or o ffers a mere possibility of a cure. The pain inherent in the necessary medical care and treatment may be taken into consideration in assessing whether the plaintiff acted reasonably in declining to submit to it. Although submission to treatment is not a prerequis ite to an awa rd of damages, recovery cannot be obtained for increased damages that stem from the failure to submit to necessary medical treatment. Conversely,themerefactthat medical attention was not sought immediately, or at all, will not proscribe an award of damages where the circumstances did not reasonably indicate that medical aid and attention was necessary. In addition, an injured party has no absolute duty to subscribe t o a physician’s advice t o miti- gate damages. The party might, however, under some circumstances, be under an OBLIGATION to exercise ordinary care in following such advice. CROSS REFERENCE Mitigation of Damages. AVOIDANCE An escape from the consequences of a specific course of action through the use of legally acceptable means. Cancellation; the act of render- ing something useless or legally ineffective. A taxpayer may take all legally recognized deductions in order to minimize the INCOME TAX LIABILITY . This conduct is called TAX AVOIDANCE and is legal. If, however, a taxpayer claims deductions to which he or she is not entitled so that the individual pays less income tax than is actually owed, then the taxpayer has committed TAX EVASION, a crime punishable by a fine, imprisonment, or both. A PLEA in CONFESSION AND AVOIDANCE is one that admits the truth of allegations made in former PLEADING but presents new information that neutralizes or avoids the legal ramifications of those admitted facts. AVOWAL An open declaration by an attorney representing a party in a lawsuit, made after the jury has been removed from the co urtroom, that requests the admission of particular testimony from a witness that would otherwise be inadmissible because it has been successfully objected to during the trial. An avowal serves two purposes. It enables an ATTORNEY to have the court learn what a witness would have replied to a question had opposing counsel not made an objection to the question sustained by the court. It also provides the interrogator with an opportunity to offer evidence that contradicts the disputed TESTIMONY. If, upon appeal, an appellate court decides that a witness should have been allowed to respond to such questions before a jury, an avowal will be a record of the witness’s response. AVULSION The immediate and noticeable addition to land caused by its removal from the property of another, by a sudden change in a water bed or in the course of a stream. When a stream that is a boundary suddenly abandons its bed and seeks a new bed, the boundary line does not change. It remains in the center of the original bed even if water no longer flows through it. This is known as the rule of avulsion. Avulsion is not the same as accretion or alluvion, the gradual and imperceptible buildup of land by the continuous activity of the sea, a river, or by other natural causes. AWARD To concede; to give by judicial determination; to rule in favor of after an evaluation of the facts, evidence, or merits. The decision made by a panel of arbitrators or commissioners, a jury, or other authorized indivi- duals in a controversy that has been presented for resolution. A document that memorializes the determination reached in a dispute. A jury awards damages; a MUNICIPAL CORPO- RATION awards a PUBLIC CONTRACT to a bidder. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 458 AVOIDANCE BABY M, IN RE In 1988 the New Jersey Supreme Court declared surrogacy contracts void against state PUBLIC POLICY but then determined that the best interests of the child born to the surrogate mother required that custody of that child be awarded to the biological father and his wife, with liberal VISITATION RIGHTS later being granted to the biological mother. In the Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988). Mary Beth Whitehead entered into a contract with William Stern in which she agreed to be artificially inseminated with Stern’s sperm. At the time, Mary Beth was married to Richard Whitehead, with whom she had two children. In the Surrogate Parenting Agreement Mary Beth agreed that after the baby was born she would relinquish the baby to Stern and his wife Elizabeth and would permit the termination of her parental rights so that the Sterns could adopt the baby. In return the Sterns would pay Whitehead the sum of $10,000, plus expenses. Elizabeth Stern was not a party to the contract. Richard Whitehead did not object to the contract and acknowledged that his wife would be artificially inseminated by Stern’s sperm. Prior to the Baby M case, surrogacy agreements had been most often used when the wife of the adopting couple was infertile. But in the Baby M case Elizabeth Stern was not infertile. Instead the Sterns decided not to have Elizabeth bear a child due to the possibility that being pregnant would exacerbate her multiple sclerosis. Under the Surrogate Parenting Agreement, Mary Beth was not entitled to payment of her $10,000 fee until after the child was born, surrendered to the Sterns, and her parental rights had been terminated. The contract also provided that the Whiteheads would receive no compensation if the child was miscarried prior to the fifth month of pregnancy and would receive only $1,000 if the child was miscarried after that time. Additionally, Whitehead re- nounced her right to have an ABORTION, unless it was medically necessary. Whitehead gave birth to a baby girl named Melissa on March 27, 1986. She turned custody of the child over to the Sterns on March 30, 1986, but immediately regretted doing so. Alarmed by Whitehead’s anxieties and fearin g that she might commit SUICIDE, the Sterns allowed her to have temporary custody of the child. After Whitehead refused to return the baby to the Sterns, William Stern filed an ex- parte application for an order to SHOW CAUSE why the Superior Court of New Jersey should not issue an order for SUMMARY JUDGMENT to enforce the surrogacy contract and a verified complaint seeking specific enforcement of the contract. The complaint sought injunctive relief to obtain custody, termination of Whitehead’s parental rights, and an order allowing the Sterns to adopt Melissa. The trial court issued a TEMPORARY RESTRAIN- ING ORDER and an order requiring the White- heads to surrender Melissa to William Stern. B 459 The Whiteheads refused to surr ender the child, instead removing her from the state of New Jersey and taking her to Florida. While in Florida, Mary Beth Whitehead threatened to kill the child if Stern did not drop his case to enforce the surrogacy contract. She also threat- ened to accuse William Stern of sexually abusing Whitehead’s other daughter. Melissa was later recov ered by law enforcement officials in Florida and returned to New Jersey, where the Sterns assumed custody under the New Jersey court order. The case then proc eeded to a trial on the merits. During trial Mary Beth stressed the bond that had developed between her and Melissa, especially after the child ’s birth. Whitehead testified that she intended to turn over Melissa to the Sterns but that after the child was born she was emotionally unable to do so. She testified that she felt an obligation to the Sterns but said that the “the obligation [she] felt to [her] child was stronger.” Whitehead also offered TESTIMONY by child development experts who testified as to the important and the unique role played by the biological mother in a child’s early development and the harm that can result to both the child and the biological mother when the two are separated immediately after birth. The EXPERT TESTIMONY offered by the Sterns at trial focused on the best interests of the child. For example, one doctor focused on the question of whether the Sterns or the White- heads would be better suited to meet the needs of the child, concluding that the Sterns would be able to make the child feel more wanted, provide more emotional stability for the child, provide more educational support, offer greater capacity to explain to the child what happened in the circumstances of her conception and birth, and better assist the child in reaching maturity. Another doctor testified that the Sterns could provide a stable and financially secure household, while the Whitehead house- hold was dominated by Mary Beth Whitehead, who had established a pattern of dealing with her children by “inhibiting their development of independence.” The trial lasted 32 days and consisted of testimony from 23 lay WITNESSES and 15 expert witnesses. Ultimately, the trial judge declared the surrogacy contract valid and enforceable, awarded custody of Melissa to W illiam and Elizabeth Stern, and terminated Mary Beth Whitehead’s parental rights, although the judge permitted Mary Beth limited visitation rights pending her direct appeal to the New Jersey Supreme Court. The New Jersey Supreme Court affirmed in part, reversed in part, and remanded the case to the trial court for further proceedings. Specifi- cally, the state supreme court reversed the trial court’s ruling that the surrogacy contract was valid and enforceable. The supreme court said the surrogacy contract was unlawful on two different bases: (1) it conflicted with existing New Jersey statutes and (2) it violated public policy. The high court ruled that the surrogacy contract conflicted with state laws prohibiting the use of money in connection with adoptions, state laws requiring proof of parental unfitness or ABANDONMENT prior to the termination of parental rights, and state laws affording a parent the righ t to revoke a prior co nsent to ADOPTION. The contract also violated important principles of New Jersey public policy. Among these principles were the preference for retaining children with their natural parents; the equal status of mothers and fathers in custody determinations; the right of a parent to be fully informed prior to consenting to the relinquish- ment of a child; and the pre-eminence of the child’s best interests in any custodial placement. Once the surrogacy contract was declared illegal and unenforceable, the court said, the issue of custody over a child born pursuant to an invalid surrogate contract would be decided by determining the best interests of the child. In making this determination, the court said it was required to consider that Mary Beth had acted improvidently in violating the trial court’s order by removing Melissa to Florida, threatening to kill Melissa, threatening to lodge phony sexual- abuse accusations against William Stern if he failed to drop his lawsuit, and her overall propensity to manipulate the system and use Melissa to achieve her own aims. The court also said it had to take into account the testimony of the expert witnesses who testified that stability in the Whitehead household was at best doubtful, while the Sterns were much more likely to provide Melissa with a strong founda- tion upon which to grow and thrive. Accord- ingly, the court ordered that custody of Melissa be awarded to William and Elizab eth Stern. The GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 460 BABY M, IN RE New Jersey Supreme Court also ordered the trial court, on remand, to award Mary Beth Whitehead visitation rights as the trial court deemed appropriate. Following remand and after conducting a further hearing, the trial court granted Mary Beth Whitehead unsuper- vised, uninterrupted, liberal visitation with Melissa. Baby M was the first case decided by a state court of final jurisdic tion in which the lawful- ness of a surrogacy contract was addressed. States responded to the Baby M decision by passing a flurry of legislation, which fell into four classes. The first class of legislation declares all surrogacy agreements void and/or unenforce- able in that jurisdiction. Such legislation has been enacted in Arizona, the District of Columbia, Indiana, Michigan, New York, North Dakota, and Utah. The second class of legisla- tion prohibits only surrogacy agreements in which the surrogate is compensated with something of value over the expenses incurred as a result of the pregnancy. Such legislation has been adopted in Kentucky, Louisiana, Mary- land, Nebraska, and Washington. A third class of legislation addresses one particular aspect of surrogacy contracts. For example, Alabama, Iowa, and West Virginia have exempted surro- gacy agreements from statutory provisions making it a crime to sell babies. The fourth class of legislation provides for the enforceability of surrogacy contracts but at the same time establishes significant safe- guards for parties desiring to enter such con- tracts. For example, Illinois, Florida, Nevada, New Hampshire, and Virginia make surrogacy contracts enforceable so long as the parties to the contract (1) provide proof that the intended parents are medically unable to conceive or bear their own children; (2) obtain judicial preauthor- ization to enter the agreement; (3) participate in complete medical and psychological examina- tions; and (4) sign an INFORMED CONSENT notice acknowledging that they have entered the contract after having been apprised of all the risks in doing so. In states that have not addressed the subject by statute, issues regarding the lawfulness and enforceability surrogacy contracts are resolved by courts in a manner similar to how the Baby M case was resolved, that is, by determining the best in terests of the child and weighing any competing public policy concerns. However, disputes over the lawfulness and enforceability of surrogacy contracts would only come before the courts in these states if a dispute arose between the parties to the contract. According to some figures, as man y as 1,000 babies are born each year to surrogate mothers without any judicial interference or oversight. FURTHER READINGS Boyer, Paul S. 2001. Oxford Companion to United States History. New York: Oxford Univ. Press. NBC. January 25, 2002. Today Show Transcripts. Richardson, Herbert, ed. 1987. On The Problem of Surrogate Parenthood: Analyzing The Baby M Case. Lewiston, NY: Mellen. Robbins, Sara. 1988. Baby M Case: The Complete Trial Transcripts. Superior Court of New Jersey, Chancery Division, Family Part, Bergen County: Transcript of Proceedings. Buffalo, NY: Hein. CROSS REFERENCES Adoption; Artificial Insemination; Custody; Parent and Child; Surrogate Motherhood; Visitation Rights. BACK PAY AWARD A legally enforceable decree ordering an employer to pay to an employee retroactively a designated increase in his or her salary that occurred during a particular period of employment. A decision rendered by a judicial or quasi-judicial body that an employee has a legal right to collect accrued salary that has not been paid out to him or her. Back pay awards ensue from LITIGATION involving employment discrimination and issues regarding labor-management relations. Federal CIVIL RIGHTS legislation provides for back pay awards to compensate the victim for economic losses suffered as a result of discrimination. BACK TO WORK AGREEMENT The accord reached between an employer and a union to which his or her employees belong that establishes the terms and conditions governing the return of striking employees to work. Disputes involving back to work agreements are subject to applicable federal and state laws governing labor-management relations. CROSS REFERENCES Labor Uni on; Strike. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BACK TO WORK AGREEMENT 461 BACKDATING Predating a document or instrument prior to the date it was actuall y drawn. The negotiability of an instrument is not affected by the fact that it is backdated. v BACON, SIR FRANCIS Sir FRANCIS BACON was an English lawyer and statesman whose philosophical theories and writings influenced the development of scientific and legal thought in Great Britain and the United States. Bacon was born in 1561, the second son of Sir Nicholas Bacon, the lord keeper of the great seal, and Lady Ann, whose brother-in-law was Baron Burghley (William Cecil), the first minister to Queen Elizabeth I. Bacon, like his father, was educated at Trinity College, Cam- bridge, where he enrolled at the age of twelve. In 1576 he was admitted to Gray’s Inn , one of the four INNS OF COURT in London, which were institutions established for LEGAL EDUCATION.He also spent time in France as a member of the English ambassador’s staff, before his father’s sudden death required him to return to England and resume his legal education so that he could support his family. After completing his studies, Bacon became a barrister in 1582 and then attained the posts of reader (lecturer at the Inn) and bencher (senior member of the Inn). In 1584, at the age of twenty-three, Bacon was elected to the House of Commons, representing Taunton, Liverpool, the county of Middlesex, Southampton, Ipswich, and the University of Cambridge. In 1594 he argued his first major case, Chudleigh’s Case (1 Co. Rep. 1136, 76 Eng. Rep. 261 [K.B. 1594]), which involved the interpretation of complex inheri- tance statutes. He also began writing about science and philosophy and started work on his first major volume, Temporis Partus Maximus (The greatest part of time), though the book, along with many of his earliest works, was never published and so disappeared. Through his friendship with Robert Dever- eux, the Earl of Essex, Bacon became acq uainted with Queen Elizabeth I and he eventually became her counsel around 1600. As counsel, Bacon later took part in the prosecution of Essex, from whom he had become estranged, for TREASON, and for these efforts Bacon was knighted in 1603. In 1605 he published his first book, The Advancement of Learning, a collection of essays on philosophy that he dedicated to King James I. Later the same year, he married Alice Barnham, the daughter of a wealthy London politician. Bacon continued to curry the king’s favor by assisting James in his plans to unite Scotland with England, and was named to the post of SOLICITOR GENERAL in 1607. He also continued to write, publishing in 1609 The Wisdom of the Ancients, in which he analyzed the meaning of ancient myths. Seeking promotion to attorney general, Bacon advised the king concerning affairs of state and the relationship between the Crown and Parliament. He successfully engi- neered the ouster of the chief justice of the COMMON PLEAS, SIR EDWARD COKE, a longtime rival who had earlier occupied SOLICITOR and ATTOR- NEY general posts that Bacon had sought. Bacon finally became attorney general in 1613, which enabled him to continue his feud with Coke. He eventually prosecuted Coke for his role in the case of Edmond Peacham, a clergyman charged with treason for advocating rebellion against OPPRESSION in an unpublished TREATISE, leading to Coke’s dismissal in 1616. Bacon continued his Sir Francis Bacon 1561–1626 ◆◆◆◆ ◆ ◆◆◆ ◆ ❖❖ 1626, Died; James I died same year 1620 Novum Organum published 1617 Appointed lord keeper of the Great Seal 1618–21 Served as lord chancellor of England 1603 Elizabeth I died; James I ascended throne 1600 Became counsel to Elizabeth I 1613 Became attorney general 1607 Appointed solicitor general by James I 1558 Elizabeth I became queen 1561 Born, England 1573 Enrolled in Trinity College, Cambridge 1584 Elected to House of Commons ▼▼ ▼▼ 15751575 15501550 16001600 16251625 16501650 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 BACKDATING service to the king and was appointed lord keeper of the great seal in 1617. A year later, he became lord chancellor of Engla nd, a post he held until 1621. Bacon, a man of great intellect and energy, was often torn between his ambitions for higher office and his keen interest in science and philosophy. Though he was primarily concerned with his service to the Crown during most of his adult life, he did devote time to the study of philosophy. He was an early proponent of inductive reasoning, the theory that by analyzing observed facts, one can establish general laws or principles about how the world works. This theory is the opposite of deductive reasoning, which holds that one can draw specific conclu- sions by reasoning from more general premises. Bacon believed inductive reasoning to be more useful because it permitted the development of new theories that could be more generally and widely applied to a variety of situations. The legal systems of many countries, including the United States, were eventually grounded on the applica- tion of general laws derived from specific fact situations to govern conduct. Bacon was likewise a strong believer in empiricism, the belief that experience is the most important source of knowledge. According to Bacon, scientists should try to learn about the world by using information gathered through the senses rather than by using reason or rules set forth by religious or political authority. Empiri- cism, like inductive reasoning, also influenced the development of later legal philosophies, in this case theories that viewed the law and justice as emerging from social life and experience. Bacon was a prolific writer throughout his life, authoring a number of works expounding his theories. The Novum Organum, his most well known and widely read philosophical work, was published in 1620. The Instauratio Magna (Great instauration, from the Latin word instaurare, “to renew or begin afresh”)wasacomprehensive plan in which Bacon attempted to reorganize and redefine the sciences; it also contained his views concerning logic and scientific experimentation. In his philosophical writings, Bacon argued that the mind should be purged of what he termed idols, or tendencies to err. These idols, he maintained, arose from human nature, individu- al experience, and language. In addition, Bacon kept an extensive diary, which was discovered after his death. The notebook, known as the Commentarius Solutus (Loose commentary), contained his notes about, among other things, his debts, his garden, and his health. Later in his life, Bacon began to fall out of favor with the Crown. In 1618 the king criticized him for interfering in the MARRIAGE of Coke’s daughter. In 1621 Bacon was charged with accepting a bribe concerning a grievance com- mittee over which he had presided. Bacon admitted in a full confession that he had received gifts, but denied that they had influenced his judgment. Though he begged for mercy, Bacon found the king unsympathetic to his case and was forced to resign his office. Bacon was sentenced to a stiff fine (which was later suspended), impris- onment in the Tower of London (which actually lasted only four days), exclusion from holding any state office, and prohibition from coming within the vicinity of the Court of King’sBench. Following his ouster from the court, Bacon returned to his large estate at Gorhambury, in rural England, to devote all of his energies to research and writing. He prepared digests of the laws and wrote a history of Great Britain and its monarchs. He planned to write six separate natural histories, but only two were completed: Historia Ventorum (History of the winds), which was published in 1622, and Historia Vitae et Mortis (History of life and death), which appeared the Sir Francis Bacon. LIBRARY OF CONGRESS. JUDGES MUST BE AWARE OF HARD CONSTRUCTIONS AND STRAINED INFERENCES , FOR THERE IS NO WORSE TORTURE THAN THE TORTURE OF LAWS . —SIR FRANCIS BACON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BACON, SIR FRANCIS 463 following year. He also wrote the History of Henry VII, published in 1622. In 1621 he enlarged his volume of Essays, which he had first published in 1597, and in 1627 he published The New Atlantis. He also corresponded with Italian philosophers and sent his work to them. Over the years, some writers have suggested that Bacon may have been the true author of William Shakespeare’splays, but because no concrete proof has been offered, the theory has been discounted by most scholars. Sometime around 1623, Bacon, in ill health, was finally granted an audience with the king, but he was not granted a PARDON for his offenses. In London, on April 9, 1626, he died of bronchitis he contracted while conducting experiments on the effects of refrigeration on poultry. FURTHER READINGS Bowen, Catherine D. 1963. Francis Bacon: The Temper of a Man. Boston: Little, Brown. Hogan, John C., and Mortimer D. Schwartz. 1985. “A Translation of Bacon’s Maxims of the Common Law.” Law Library Journal 77 (fall): 707–18. Whitney, Charles. 1986. Francis Bacon and Modernity. New Haven, Conn.: Yale Univ. Press. Zagorin, Perez. 1998. Francis Bacon. Princeton, N.J.: Princeton Univ. Press. CROSS REFERENCES Coke, Sir Edward; Inns of Court. BAD FAITH The fraudulent deception of another person; the intentional or malicious refusal to perform some duty or contractual obligation. Bad faith is not the same as prior judgment or NEGLIGENCE. One can make an honest mistake about one’s own rights and duties, but when the rights of someone else are intentionally or maliciously infringed upon, such conduct demonstrates bad faith. The existence of bad faith can minimize or nullify any claims that a person alleges in a lawsuit. PUNITIVE DAMAGES, attorney’s fees, or both, may be awarded to a party who must defend himself or herself in an action brought in bad faith. Bad faith is a term commonly used i n the law of contracts and other commercial dealings, such as COMMERCIAL PAPER, and in SECURED TRANSACTIONS . It is the opposite of GOOD FAITH, the observance of reasonable standards of fair dealings in trade that is required of every merchant. A government official who selectively enforces a nondiscriminatory law against the members of a particular group or race, thereby violating the CIVIL RIGHTS of those individuals, is acting in bad faith. v BADGER, GEORGE EDMUND George Edmund Badger was a lawyer, judge, and politician, and the subject of a U.S. Supreme Court confirmation battle in 1853. The only son of a lawyer who died prematurely and a daughter of a Revolutionary War leader, Badger was born on April 17, 1795, in New Bern, North Carolina. He was first educated at a local academy and then attended Yale College. Because of poverty, he was forced to leave the college after only two years. He then returned home to North Carolina to study law. In 1814 he served for a short time as a major in a MILITIA called out to repel a threatene d British invasion. A year later, he was admitted to the North Carolina bar. He quickly built a reputa- tion as a brilliant and persuasive trial and appellate lawyer. In 1820, after four years of representing New Bern in the state house of commons, he was elected a judge of the George Edmund Badger 1795–1866 ❖❖ ◆◆◆◆◆ 1799 Badger's father, Thomas Badger, died 1795 Born, New Bern, North Carolina 1816 Elected to N.C. House of Commons 1815 Admitted to North Carolina bar 1820–25 Served as judge of N.C. Superior Court 1841 Appointed secretary of the Navy 1853 Nomination to U.S. Supreme Court defeated 1847–55 Served in U.S. Senate 1861–65 Civil War 1866 Died, Raleigh, N.C. ▼▼ ▼▼ 18001800 17751775 18251825 18501850 18751875 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 BAD FAITH superior court, where he served five years before resigning to practice law in Raleigh. Initially a strong supporter of ANDREW JACKSON , Badger became a Whig in the mid- 1830s and was appointed secretary of the Navy in 1841 by President WILLIAM H. HARRISON.Heserved for less than a year in this position and thus had little opportunity to have a lasting effect. However, during his tenure, he did recommend a home squadron to patrol the Caribbean and the Gulf of Mexico. He also authorized the construction of two steam vessels. In 1846 Badger was elected to the U.S. Senate. As a senator, he strongly opposed the policies of the Polk administration. He also proposed reform of the Supreme Court’sdocket and advocated salary increases for the justices. In January 1853 President MILLARD FILLMORE,who had lost the 1852 election to FRANKLIN PIERCE, nominated Badger for a vacancy on the Court. Badger’s nomination was met with widespread criticism from the Democratic papers of the South. Senators from Alabama, Louisiana, and Mississippi opposed his nomination because he resided outside the Fifth Circuit, where the vacancy on the Court arose. Even the Whig press, though it supported the proposed appoint- ment, stated that “as a statesman, [Badger] is of no account, and as a politician detestable.” On previous occasions, the Senate had usually granted quick confirmation to a senator nominated for the Court, with little debate. But it postponed consideration of Badger’s nomina- tion until March 1853, so that Pierce could fill the vacancy with his own nominee—effectively defeating Badger’s nomination. The same tactic would also be used to defeat later Supreme Court nominees. Badger served in the Senate until 1855. After his retirement, he continued to practice law and took an active role in politics, helping to organize the Constitutional Union party in 1861. This party was made up of conservative Whigs who had been alienated by the emer- gence of ABRAHAM LINCOLN as the leader of the Republican party during the presidential election of 1860. In its platform, the Constitu- tional Union party took no stand on the issue of SLAVERY and strongly advocated preservation of the Union. Badger was elected as a Union candidate, but a convention was never held. Though he was widely known as a national- ist, when the Civil War broke out Badger was elected to the North Carolina SECESSION conven- tion. At first he argued aga inst secession, contending that it was unconstitutional. Instead he offered a DECLARATION OF INDEPENDENCE, which was rejected. As a result, he reluctantly voted for secession. Badger continued to practice law in North Carolina until his death in 1866. FURTHER READINGS Congressional Quarterly. 2004. Guide to the U.S. Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly. “George E. Badger (1795–1866). 2000. Department of the Navy—Naval Historical Center. Available online at http://www.history.navy.mil/photos/pers-us/uspers-b/ g-badger.htm; website home page: http://www.history. navy.mil (accessed August 28, 2009). Maisel, L. Sandy, ed. 1991. Political Parties and Elections in the United States: An Encyclopedia. New York: Garland. CROSS REFERENCES Fillmore, Millard; Slavery. v BAER, GEORGE FREDERICK George Frederick Baer was born September 26, 1842, near Lavansville, Pennsylvania. Baer was educated at Franklin and Marshall College, where he received an honorary master of arts degree in 1875 and a doctor of laws degree in 1886. George Frederick Baer 1842–1914 ◆◆◆◆ ◆ ❖❖ 1842 Born near Lavansville, Pa. 1862 Fought in Civil War battles at Antietam and Chancellorsville 1861–65 U.S. Civil War 1864 Admitted to Pennsylvania bar 1870 Served as counselor for Philadelphia and Reading R.R. 1901 Served as president of Philadelphia and Reading R.R. 1902 United Mine Workers went on strike 1914–18 World War I 1914 Died, Philadelphia, Pa. ▼▼ ▼▼ 18501850 18251825 18751875 19001900 19251925 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BAER, GEORGE FREDERICK 465 During the Civil War, Baer fought on the side of the Union at Bull Run, Antietam, Chancellorsville, and Fredericksburg. He was admitted to the bar in 1864, moved to Reading,Pennsylvania,in1868,andin1870 performed the duties of counselor for the Philadelphia and Reading Railroad Company. He became a director of the railroad, acted as legal advisor to magnate J. P. Morgan, and was instrumental in the restructuring of the railroad in 1893. In 1901 he was president of the Philadelphia and Reading Railway Company, the Philadelphia and Reading Coal & Iron Company, and the Central Railroad Company of New Jersey. When the United Mine Workers went on strike in Pennsylvania in 1902, Baer gain ed notoriety for his lack of sympathy for the plight of the miners. Baer died April 26, 1914, in Philadelphia, Pennsylvania. BAIL The system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial. In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant’sfirstappearance.For many misdemeanors, bail need not be set. For example, the DEFENDANT may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor MISDEMEAN- OR at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined. The courts have several methods available for releasing defendants on bail. The judge deter- mines which of these methods is used. One alternative is for the defendant to post a BAIL BOND or PLEDGE of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defen- dant’s failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an amount determined in light of the seriousness of the alleged offense. A defendant can also be released upon her or his own RECOGNIZANCE, which is the defen- dant’s written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recogni- zance constitutes a crime. Other conditions may also be set regarding the release of the defendant. The Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141–3150) provided for many additional conditions that do not rely upon finances and that reflected current trends to move away from financial requirements for freedom. These conditions came about, in part, owing to concerns regarding the discriminatory nature of bail toward the poor. The Bail Reform Act allows for conditional releases dependent upon such circumstances as maintaining employment, meet- ing curfews, and receiving medical or psychiatric treatment. Civil Actions A defendant in a CIVIL ACTION can be arreste d to ensure that he or she will appear in court to respond to the plaintiff’s claims. Civil arrest prevents a defendant from leaving the jurisdic- tion to evade the LITIGATION, and from attempt- ing to conceal or dispose of assets in order to keep the PLAINTIFF from collecting on the judgment if the plaintiff prevails. Because civil arrest is a drastic remedy, state laws must be consulted to determine when it may be used. The purpose of bail in a civil action is to ensure the presence of the defendant at trial and to guarantee the payment of a debt or the fulfillment of some civil duty, as ordered by the court. The court sets the amount of bail, which is generally based on the probable amount of damage against the defendant. In some instances, if informed of changed circum- stances, the court might increase or reduce bail. Cash, as opposed to a bail bond, may be deposited with the court only w hen authorized by statute. The purpose of the arrest and the statutory provisions determine whether this deposit may be used to pay the judgment awarded to the plaintiff. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 466 BAIL Criminal Prosecutions The objective of bail in criminal actions is to prevent the imprisonment of the accused prior to trial while ensuring her or his appearance at trial. Constitutional and statutory rights to bail prior to conviction exist for most offenses, but state constitutional provisions and statutes must be consulted to determine the offenses to which bail applies. The Bail Reform Act of 1984 governs bail in federal offenses. It provides the federal MAGISTRATE with alternatives to the incarceration of the defendant. If the charge is a noncapital offense (an offense not punishable by death), the defendant may be released on her or his own recognizance. If there is a reasonable likelihood that the defendant will not return for trial, the judge may impose bail. The judge may also release the defendant into the custody of a designated person or organization for supervision. Restrict- ing the residence, extent of travel, and personal associations of the accused are other options. Discretion of the Court A court exercises its discretion with respect to the allowance of bail. In reaching its decision, it evaluates the circumstances of the particular case, including the existence of doubt as to the accused person’s appearance at trial. Unreasonable Jail Inmate Population in the U.S. at Midyear, 2000 to 2008 Number in thousands Year 2000 2001 92% b 90% 93% 94% 94% 95% 96.3% 94.8% 94.8% SOURCE: U.S. Bureau of Justice Statistics, Jail Inmates at Mid y ear 2008, Statistical Tables, March 2009. 0 100 200 300 400 500 700600 800 900 2002 2003 2004 2005 2006 2007 2008 621.1 677.8 631.2 699.3 665.5 713.9 691.3 736.5 714.0 755.6 747.5 786.9 765.8 795.0 780.2 810.5 785.6 828.4 a Rated capacity is the number of beds or inmates assigned to facilities within each jurisdiction. Rated capacity a Number of inmates b Percentage represents the number of inmates confined divided by the rated capacity and multiplied by 100. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION BAIL 467 . queen 15 61 Born, England 15 73 Enrolled in Trinity College, Cambridge 15 84 Elected to House of Commons ▼▼ ▼▼ 15 7 515 75 15 5 015 50 16 0 016 00 16 2 516 25 16 5 016 50 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. Navy 18 53 Nomination to U.S. Supreme Court defeated 18 47–55 Served in U.S. Senate 18 61 65 Civil War 18 66 Died, Raleigh, N.C. ▼▼ ▼▼ 18 0 018 00 17 7 517 75 18 2 518 25 18 5 018 50 18 7 518 75 GALE ENCYCLOPEDIA OF. R.R. 19 01 Served as president of Philadelphia and Reading R.R. 19 02 United Mine Workers went on strike 19 14 18 World War I 19 14 Died, Philadelphia, Pa. ▼▼ ▼▼ 18 5 018 50 18 2 518 25 18 7 518 75 19 0 019 00 19 2 519 25 GALE