Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P54 pps

It may cover a different range of legal topics than does the Multistate Bar Examination, although some topics are duplicated by the two tests. In addition, as of 2007 all states except Maryland, Washington, and Wisconsin require a passing score on the Multistate PROFESSIONAL RESPONSIBILITY Examination (MPRE), a standard- ized multiple-choice test of legal and profes- sional ethics. Bar applicants normally take this two-hour test several weeks before or after they take the bar examination. The Multistate Professional Responsibility Examination tests the applicants’ knowledge of the Amer ican Bar Association’s Model Rules of Professional Conduct. Topics include attorney-client confi- dentiality, conflicts of interest, and attorney advertising. In 2008 a total of 34 jurisdictions incorpo- rated the Multistate Performance Test (MPT) as part of their bar examinations. This test was designed to assess an examinee’s ability to complete fundamental legal tasks that most beginning lawyers face in real life practice. The MPT assesses an examinee’s ability to sort factual materials, separating relevant from irrelevant facts; analyze statutory, case, and administrative materials to extract the relevant principles of law; apply the relevant law to the presented facts in a manner that would resolve a client’s legal problem; address all ethical con- cerns; and communicate the legal issue and solution effectively in writing. The MPT is a timed examination, and each jurisdiction deter- mines the relative weight to give this part of the examination along with the other scores. Finally, several states include a Multistate Essay Examination (MEE) as part of their overall bar examinations. The MEE consists of 30-minute essay questions on a more expansive array of legal topics than the standard six topics covered in the 200-question multistate exami- nation. These additional areas of law include business associations, evidence, FAMILY LAW, federal CIVIL PROCEDURE, trusts and estates, and the UNIFORM COMMERCIAL CODE (UCC). Fewer than 20 states were testing the MEE in 2007. A steady rise in the number of persons taking bar examinations keeps competition tight. According to the National Conference of Bar Examiners, 80,3 19 applicants took a bar examination in 2008; 70,172 of them 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 only 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 speci al bar examination for reinstatement. In 2008, only 20 disbarred or suspended attorneys across the United States took a reinstatement exam (seven, or 35 percent, passed). In a few states, an attorney may be licensed to pract ice law without taking the state’s bar examination. Wisconsin permits graduates of accredited Wisconsin law schools to become licensed attorneys without taking any bar examination. Other states offer reciprocity, by accepting Multistate Bar Examination scores attained in other jurisdictions or by waiving the bar examination requirement for experienced attorneys licensed in other jurisdictions. Jurisdictions also differ in their approach to legal education requirements. Most states re- quire bar applicants to graduate from law schools accredited by the American Bar Associ- ation (ABA). Some states, such as California and Georgia, will admit bar candidates who received law degrees from unaccredited law schools under certain circumstances. California, Maine, New York, Vermont, Virginia, Washing- ton, and Wyoming do not require law degrees at all, but alternatively require several years of legal study—also known as reading law — with a licensed attorney. According to the NCBE, in 2008, 56,357 persons were admitted to bars by examination; 7,888 by court motion, and 468 by diploma privilege. Whatever the legal education requirements, all members of the bar must pass the bar examination. FURTHER READINGS American Bar Association/Bureau of National Affairs. 1995. ABA/BNA Lawyers’ Manual on Professional Conduct. Bosse, Diane F., and Lawrence M. Grosberg. 2003. “The Bar Exam: Should the Test Continue in Its Current Form or Are Alternatives Needed?” New York Law Journal Magazine 2 (April): 12. Curcio, Andrea A. 2002. “A Better Bar: Why and How the Existing Bar Exam Should Change.” Nebraska Law Review 81 (winter): 363–423. Curriden, Mark. 1995. “Lawyers Who Skip Law School.” American Bar Association Journal 81 (February). Darrow-Kleinhaus, Suzanne. 2009. The Bar Exam in a Nutshell. 2d ed. St. Paul, Minn.: West Group. Garth, Bryant G. 1983. “Rethinking the Legal Profession’s Approach to Collective Self-Improvement: Competence GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 518 BAR EXAMINATION and the Consumer Perspective.” Wisconsin Law Review 1983. Getz, Malcolm, John Siegfried, and Terry Calvani. 1981. “Competition at the Bar: The Correlation between the Bar Examination Pass Rate and the Profitability of Practice.” Virginia Law Review 67. National Conference of Bar Examiners, 2009. “2008 Statistics.” The Bar Examiner, May. Text available online at http://www.ncbex.org/fileadmin/mediafiles/ downloads/Bar_Admissions/2008_Stats.pdf; website home page: http://www.ncbex.org/bar-admissions/stats/ (accessed August 5, 2009). Pobjecky, Thomas A. “The Florida Board of Bar Examiners: The Constitutional Safeguard between Attorney Aspir- ants and the Public.” Nova Law Review 18. Rogers, W. Sherman. 1989. “Title VII Preemption of State Bar Examinations: Applicability of Title VII to State Occupational Licensing Tests.” Howard Law Journal 32. “Society of American Law Teachers Statement on the Bar Exam, July 2002.” 2002. Journal of Legal Education 52 (September): 446–52. v BARBOUR, PHILIP PENDLETON Philip Pendleton Barbour, an ASSOCIATE JUSTICE of the U.S. Supreme Court, was a strong advocate of states’ rights and the STRICT CONSTRUCTION of the Constitution. The son of a wealthy planter from one of Virginia’s oldest families, Barbour was born May 25, 1783, in Orange County, Virginia. He was educated locally and excelled in languages and classical literature. At seventeen, he became an apprentice to an Orange County lawyer. After less than a year clerk ing and studying law, Barbour left Virginia for Kentucky, where he practiced law for a short time. In 1801 he returned to Virginia to attend the College of William and Mary, in Williamsburg, where he briefly studied law. A year later he established a law practice in Orange County, and quickly gained a reputation for his outstanding oratori- cal abilities in the courtroom. In 1804 he married Frances Johnson, the daughter of a local planter, with whom he had seven children. Barbour’s family was both socially promi- nent and politically active. His father, Thomas Barbour, was a member of the Virginia House of Burgesses for many years, and his older brother became a Virginia governor, U.S. sena- tor, and secretary of war under President JOHN QUINCY ADAMS , whose administration Barbour would eventually oppose. Encouraged by his father’s and brother’s successes, in 1812 Bar- bour ran for and won a seat in the Virginia House of Delegates. Two years later he won a seat in the U.S. Congress and aligned himself with a group of older Republicans who favored strict construction of the Constitu tion and a limited federal government. Barbour served as Philip Barbour. GETTY IMAGES Philip Pendleton Barbour 1783–1841 ◆◆◆◆◆ ◆ ❖❖ 1775–83 American Revolution 1783 Born, Orange County, Va. 1789 U.S. Constitution ratified 1800 Began apprenticeship with Orange Co. lawyer 1812 Elected to Virginia House of Representatives 1827–30 Served in U.S. House of Representatives a second time 1836 Appointed associate justice of the U.S. Supreme Court 1830 Appointed federal judge for eastern Virginia 1841 Died, Richmond, Va. 1821–23 Served as speaker of the House 1825 Appointed state judge in General Court for the Eastern District of Virginia 1814–24 Served in U.S. House of Representatives ▼▼ ▼▼ 1775 1850 1825 1800 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BARBOUR, PHILIP PENDLETON 519 Speaker of the House from 1821 until 1823, when he was defeated by HENRY CLAY . In 1824 Barbour chose not to run for reelection to Congress, and returned to Virginia to resume his law practice. During his career as a practicing ATTORNEY, Barbour was involved in a number of important cases. He argued the state’s position before the U.S. Supreme Court in Cohen v. Virginia, 19 U.S. 264, 6 Wheat. 264, 5 L. Ed. 257 (1821), a landmark suit that helped to clarify the role of the federal courts in reviewing state court decisions. In Cohen the Court held that the federal judiciary could review cases arising in the state courts that involved constitutional issues. Though Barbour lost the case, his vigorous represent ation helped to further estab- lish his reputation as a strong defender of the states against what he often saw as the growing encroachment of the federal government. In 1825, after consid ering and then declin- ing an offer from THOMAS JEFFERSON to join the law faculty at the University of Virginia, Bar- bour was appointed to the General Court for the Eastern District of Virginia, a state trial court, where he served for almost two years. In 1827, at the urging of his constituents, Barbour ran unopposed for Congress, though he lost the Speaker’s race to fellow Virginian Andrew Stevenson. During his second stint in Congress, Barbour was a vocal opponent of President Adams, even though Barbour’s brother James Barbour was a member of the Adams cabinet. Barbour objected to the administration’s spend- ing policies and to the imposition of a TARIFF in 1828. He also continued his relentless advocacy of states’ rights and the narrow construction of the Constitution, introducing an unsuccessful bill in 1829 requiring that five of the seven justices on the U.S. Supreme Court concur in any decision involving a constitutional question. In the late 1820s Barbour became a strong supporter of ANDREW JACKSON, who defeated the incumbent Adams in 1828. Barbour was considered for a position in the Jackson cabinet but was not appointed. In 1829 Barbour was chosen president of the Virginia Constitutional Convention, replacing the ailing JAMES MONROE. During the sometimes tumultuous convention, Barbour argued for APPORTIONMENT of represen- tation based on both white population and property ownership, and argued that the latter should be a qualification for the right to vote. Barbour also sided with the conservative slaveholders in the eastern part of the state against citizens in the western part of the state who, opposed to SLAVERY, eventually formed a separate state, West Virginia. Barbour’s unwavering support of Jackson and his policies earned him an appointment as a federal judge for eastern Virginia in 1830. In 1832 he was briefly a candidate for VICE PRESIDENT against MARTIN VAN BUREN, even though Van Buren was Jackson’s choice in his reelection bid. Barbour soon withdrew his candidacy to preserve party unity, and threw his support to Van Buren. As early as 1831 Barbour was rumored to be next in line for a seat on the U.S. Supreme Court as soon as Jackson, now in his second term, had an opportunity to make an appoint- ment. Nationalists, who disagreed with Bar- bour’s states’ rights and strict constructionist views, opposed Barbour as a possible candidate for the Court. In 1836 Barbour was nominated to succeed retiring justice Gabriel Duval, at the same time that ROGER B. TANEY was nominated as chief justice and confirmed to succeed JOHN MARSHALL , also retiring. As expected, Barbour’s nomination drew criticism, but he was never- theless confirmed by a vote of 30–11. Barbour wrote only a dozen opinions for the Court. His most important majority opini on was in City of New York v. Miln, 36 U.S. 102, 11 Pet. 102, 9 L. Ed. 648 (1837). At issu e in Miln was a New York state law requiring captains of vessels arriving at ports to provide harbor authorities with the names, ages, birthplaces, and occupations of arriving passengers. The Court considered whether the law was an un- constitutional invasion of the exclusive federal right to regulate interstate and international trade. The Court ruled that the law was a legitimate exercise of the state’s “police power” to protect the health and welfare of its citizens. The decision provided the perfect opportunity for Barbour to expound upon his states’ rights views. He wrote that the state not only had the right to impose such laws but also the “solemn duty to advance the safety, happiness and prosperity of its people, and to provide for the GENERAL WELFARE, by any and every act of legislation, which it may deem to be conducive to these ends.” The decision marked a signifi- cant departure from the philosophy of the previous Court, headed by Marshall, which had emphasized the importance of federal authority in matters that even indirectly involved inter- state and international commerce. Though WHAT IS SETTLED BY THE CONSTITUTION CANNOT BE ALTERED BY LAW . —PHILIP BARBOUR GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 520 BARBOUR, PHILIP PENDLETON influential, Miln was criticized and limited by subsequent decisions of the Court. In February 1841, at age 58, Barbour died suddenly of a heart attack. He thus served only five years on the Court, completing one of the shortest terms in its history. FURTHER READINGS Congressional Quarterly. 2004. Guide to the U.S. Supreme Court. 4th ed. Washington, D.C.:Congressional Quarterly. Elliott, Stephen P., ed. 1986. A Reference Guide to the United States Supreme Court. New York: Facts on File. Federal Judicial Center. Available online at http://www.fjc. gov (accessed August 28, 2009). BARGAIN A reciprocal understanding, contract, or agree- ment of any sort usually pertaining to the loan, sale, or exchange of property between two parties, one of whom wants to dispose of an item that the other wants to obtain. To work out the terms of an agreement; to negotiate in good faith for the purpose of entering into an agreement. A union engages in COLLECTIVE BARGAINING on proposed contract terms. BARGAINING AGENT A union that possesses the sole authority to act on behalf of all the employees of a particular type in a company. A b argaining a gent is certified by the NATIONAL LABOR RELATIONS BOARD (NLRB) as the exclusive representative of a certain type of employee. The International Garment Workers Union, for ex- ample, might act as the bargaining agent for all seamstresses employed at a particular dress factory. CROSS REFERENCES Labor Law; Labor Union. v BARLOW, FRANCIS CHANNING Francis Channing Barlow achieved prominence as a lawyer and a soldier. Barlow was born October 19, 1834, in Brooklyn, New York. He graduated from Harvard in 1855, and was admitted to the New York bar in 1858. From 1859 to 1861, and also in 1866, Barlow practiced law. At the onset of the Civil War in 1861, Barlow joined the Union Army and fought at various battles, including Fair Oaks, Antietam, Chancellorsville, and Spottsylvania. He was wounded at Gettysburg in 1863 but returned to service, and by the end of the war he had earned the rank of major general. After the Civil War Barlow became SECRETARY OF STATE of New York, serving from 1865 to 1867, and 1869 to 1870. In 1869, he was U.S. marshal for the southern district of New York. He per- formed the duties of New York attorney general from 1871 to 1873, and was instrumental in the early proceedings concerning the prosecution of the Tweed Ring, a group of corrupt New York politicians. Barlow returned to his law practice in 1874. In 1876 he participated in the investigation of the controversial Hayes-Tilden presidential election results. He died January 11, 1896, in New York City. CROSS REFERENCE Tammany Hall. v BARR, WILLIAM PELHAM William Pelham Barr served as attorney general of the United States from 1991 to 1993 under President GEORGE H.W. BUSH. The son of Donald Barr and Mary Ahern Barr, WILLIAM BARR was born May 23, 1950, in Francis Channing Barlow 1834–1896 ◆◆◆ ❖ ❖ 1834 Born, Brooklyn, N.Y. 1861–65 U.S. Civil War 1871 Began “Tweed Ring” prosecution; helped found American Bar Association 1861–65 Fought in Union Army; attained rank of major general 1855 Graduated from Harvard University 1871–73 Served as attorney general of New York State 1876 Participated in Hayes-Tilden presidential election investigation 1896 Died, New York City ◆ 1858 Admitted to New York bar ▼▼ ▼▼ 1825 1900 1875 1850 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BARR, WILLIAM PELHAM 521 New York City, and was schooled there. He completed an undergraduate degree at New York’s Columbia University in 1971 and began a two-year master’s program in Chinese studies. Armed with his graduate degree, he moved to Washington, D.C., in 1973 and went to work as a staff officer with the CENTRAL INTELLIGENCE AGENCY (CIA). He was accompanied by his wife, Christine Moynihan, to whom he was married on June 23, 1973. While working at the CIA, Barr enrolled in the night program at George Washington University Law School. He earned his law degree in 1977, graduating second in his class. After law school, he clerked for one year with the presiding judge of the District of Columbia Circuit Court. He was admitted to the Virginia bar in 1977 and to the District of Columbia bar in 1978. Also in 1978, Barr accepted an associate position at the Washington, D.C., law firm of Shaw, Pittman, Potts, and Trowbridge. There he concentrated on civil LITIGATION and federal administrative practice. In 1982 Barr was named to President Ronald Reagan’s Domestic Policy Council. During his two years of service, he became well known and respected by the administration and leaders in the REPUBLICAN PARTY. Barr returned to Shaw, Pittman in 1984, to resume his legal career. He was made a partner of the firm in 1985. After several years in private practice, Barr reentered public service in 1989, when he was named assistant attorney general by the George H. W. Bush administration. He took over the Justice Departm ent’s Office of Legal Counsel, where his role was to advise the White House and the attorney general and other administra- tion officials. Historically, the Office of Legal Counsel has been called upon to reassure presidents that their intended actions are within the law. As assistant attorney general Barr auth ored two controversial advisory opinions that allowed President Bush to expand his war on drugs and to apprehend Panamanian drug lord Manuel Noriega. One opinion (13 U.S. Op. Off. Legal Counsel 387) held that U.S. military forces could be assigned to law enforcement opera- tions abroad, and the other (13 U.S. Op. Off. Legal Counsel 195) that the president had authority to order the FEDERAL BUREAU OF INVESTIGATION (FBI) to arrest fugitives overseas without consent of the local government. William Pelham Barr. AP IMAGES William Pelham Barr 1950– ▼▼ ▼▼ 1950 2000 1975 ◆ ◆ ◆ ◆ ◆ ◆◆ ❖ 1950 Born, New York City 1971 Earned undergraduate degree at Columbia University 1950–53 Korean War 1961–73 Vietnam War ◆ 1973 Graduated with M.A. in Chinese from Columbia; joined CIA 1977 Earned J.D. from George Washington University 1982–84 Served as counsel for President Reagan’s Domestic Policy Council 1989 Appointed assistant attorney general by President George H. W. Bush ◆ 2001 Advised George W. Bush administration on terrorism-related legal issues; advocated secret military tribunals for Al Qaeda POWs 2001 September 11 terrorist attacks 2009 Joined Kirkland & Ellis LLP as Of Counsel 1993 Returned to private practice 1991 Nominated and confirmed as U.S. attorney general ◆ 1990 Became deputy attorney general GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 522 BARR, WILLIAM PELHAM Barr was named deputy attorney general in 1990. He became acting attorney general in June 1991 when RICHARD THORNBURGH resigned to enter the race for a U.S. Senate seat in Pennsylvania. Barr was nominated and con- firmed as attorney general in the fall of 1991, becoming, at age forty-one, the youngest person to hold that post since Ramsey Clark, who was appointed in 1967. After years of unpleasant and adversarial relationships with Attorneys General EDWIN MEESE III and Thornburgh, Congress welcomed Barr’s appointment. Members of Congress praised his candor and cooperation, and they supported his decision to launch internal investigations into the Justice Department’s handling of the Bank of Credi t and Commerce International (BCCI) scandal and the Inslaw computer scandal. BCCI was shut down by bank regulators in 1991 for massive FRAUD, THEFT, MONEY LAUNDERING, and the financing of arms deals and terrorist activities. Depositors lost billions when the bank’s assets were seized. Inslaw, Inc., accused the JUSTICE DEPARTMENT of conspiring to steal its proprietary software after the company’s government contract had been revoked. The AMERICAN BAR ASSOCIATION was encour- aged by Barr’s willingness to reconsider a Thornburgh decision that prevented local bar associations from interviewing judicial nomi- nees, and an editorial in the November 25, 1991, issue of National Law Journal praised the department planned by the new attorney general as less poli tical, more open, and more “inclined toward integrity” than the depart- ments run by his immediate predecessors in the RONALD REAGAN and George H. W. Bush admin- istrations. However, Barr’s honeymoon with the Dem- ocratic Congress and the nation’s legal press did not last. Barr was soon criticized for his inability to obtain CIA cooperation in the BCCI and Banca Nationale del Lavoro (BNL) investiga- tions and for delays in closing down the BCCI. A CIA investigation revealed that an Atlanta, Georgia, branch of the BNL had provided fraudulent loans to Iraq—loans that helped Saddam Hussein to build his military strength. Barr’s internal investigation of the theft of an Inslaw-developed computer program by gov- ernment officials was tagged a whitewash. He angered Japanese officials when he announced a change in antitrust policy that allowed the Justice Department to bring cases against Japanese cartels that restricted U.S. exports. Moreover, Barr fought popular opinion and strong evidence of improprieties by the Justice Department w hen he continued to support the deportation of John Demjanjuk—wrongly ac- cused of being the infamous Nazi death camp guard who was called Ivan the Terrible. Finally, Barr took the unprecedented step of denying a congressional request for an indepen- dent investigation into the events known as Iraqgate. Barr said he and the Justice Depart- ment would conduct their own investigation to determine whether anyone in the Bush admin- istration had commi tted a crime by giving aid to Saddam Hussein prior to the Iraqi invasion of Kuwait and the resulting Persian Gulf War. Ongoing questions about the administra- tion’s knowledge of, and involvement in, Iraqgate contributed to Bush’s defeat in the presidential election of 1992 and ended Barr’s tenure as the nation’s attorney general. In spite of his bright beginning, Barr was unable to depart significantly from the agendas and operational styles of his predecessors and the presidents they served. According to the December 7, 1992 issue of National Law Journal, “Under Presidents Reagan and Bush and their Attorneys General Ed Meese, Dick Thornburgh and WILLIAM P. BARR, the nation witnessed the politicization of the JUSTICE DEPARTMENT beyond anything that has gone before”. In 1993 Barr returned to Shaw, Pittman and resumed the PRACTICE OF LAW. At the time, he was a member of the American Bar Association, the Virginia State Bar Association, and the District of Columbia Bar Association. Barr later joined Verizon Communicatio ns, a provider of phone services, as head of its legal department. Under his leadership, the depart- ment developed a high percentage of minority and women attorneys and employees. The legal department of New York-based Verizon Com- munications was named the 2002 Northeast Region Employer of Choice by the Minority Corporate Counsel Association (MCCA). In 2001, as the competition between local phone companies and other digital subscriber line (DSL) provider s grew, B arr i nst ituted a law - suit against D SL provider Covad C ommunications. I DON’T CARE HOW MUCH POLITICAL PRESSURE IS BROUGHT TO BEAR [OR THAT] THE OP-EDS [AND] JOURNALISTS ARE SAYING IT’S NOT FAST ENOUGH FOR THEM .THE STANDARD WILL STAY WHERE IT IS . —WILLIAM BARR GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BARR, WILLIAM PELHAM 523 The suit, which claimed that Covad employees had m ade f alse reports that Verizon had obs- tructed Covad’s installation services, was dis- missed by a federal d istrict court judge in November 2002. While working for Verizon, Barr lectured to groups such as the Federalist Society and offered advice to the administration of GEORGE W. BUSH concerning legal measures against TERRORISM. Barr retired from Verizon Communications in late 2008, after serving as executive VICE PRESIDENT . While at Verizon, he led the legal, regu- latory, and government affairs group. In early 2009 he joined Kirkland & Ellis LLP in an Of Counsel capacity, in its Washington, D.C., office. FURTHER READINGS Baker, Nancy V. 1992. Conflicting Loyalties: Law and Politics in the Attorney General’s Office, 1789-1990. Lawrence: Univ. Press of Kansas. Department of Justice. 1991. 200th Anniversary of the Office of the Attorney General, 1789-1989. Washington, D.C.: Department of Justice, Office of Attorney General and Justice Management Division. Fletcher, Martin. 2001. “Terror Leaders Could Die By Firing Squad.” London Times. (November 16). “Legal Job No. 1.” 1992. National Law Journal 15 (December 7). BARRATRY In criminal law, the frequent incitement of lawsuits and quarrels that is a punishable offense. Barratry is most commonly applied to an ATTORNEY who attempts to bring about a lawsuit that will be profitable to her or him. Barratry is an offense both at COMMON LAW and under some state statutes. The broader common-law crime has been limited by certain statutes. An attorney who is overly officious in instigating or en- couraging prosecution of groundless LITIGATION might be guilty of common barratry under a particular statute. The requirement for the crime of barratry is that repeated or persistent acts of litigation are performed by the accused. Barratry is generally a MISDEMEANOR punishable by fine or imprisonment. In the case of an attorney, disbarment is the usu al punishment. Because few cases have been prosecuted, barra- try is considered by the legal community at large to be an archaic crime. This is particularly true today due to a highly litigious atmosphere. In maritime law, barratry is the commission of an act by the master or mariners of a vessel for an unlawful or fraudulent purpose that is contrary to the duty owed to the owners, by which act the owners SUSTAIN injury. Aformofbarratryismisconductofthe master of a ship in taking commodities on board that subject the ship to SEIZURE for SMUGGLING.Itis essential in barratry that a criminal act or intent exist on the part of the master or mariners which inures to their own benefit and causes injury to the owners of the ship. BARRISTER In English law, an attorney who has an exclusive right of argument in all the superior courts. A barrister is a counselor who is learned in law and who has been admitted to plead at the bar. A barrister drafts the pleadings in all cases, with the exception of the simplest ones. Distinguished from an ATTORNEY, which is an English lawyer who conducts matters out of court, a barrister engages in the actual argument of cases or the conduct of the trial. BARRON V. BALTIMORE In Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (U.S. 1833), the U.S. Supreme Court ruled that the FIFTH AMENDMENT to the U.S. Constitution bound only the federal government and was thus inapplicable to actions taken by state and local governments. In 1868 the states ratified the FOURTEENTH AMENDMENT in part to nullify the Supreme Court’s holding in Barron v. Baltimore. However, it was not until the twentieth century when the Supreme Court made most of the federal BILL OF RIGHTS applicable to the states. The case arose when John Barron, owner of the largest and most profitable wharf in the eastern section of Baltimore, Maryland, sued the city for losses his wharf had allegedly suffered as a result of silting. When Barron had originally purchased the wharf, the wharf enjoyed the deepest waters in the area. However, in 1815 Baltimore had undertaken a major plan to reno- vate and modernize the city by building em- bankments, grading roads, and paving streets. To facilitate this plan, the city began diverting water streams from a range of hills around the city into the wharf. In the seven years leading up to Barron’s lawsuit, Baltimore experienced a number of violent rainstorms, causing the streams to fill with sand, mud, and earth from the newly graded roads and abutting emban k- ments. The silt eventually poured into Barron’s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 524 BARRATRY wharf, making the water so shallow that it was no longer accessible by larger ships. By 1822, the year Barron filed suit, the harbor had lost almost its entire value as a commercial wharf. At trial in the Baltimore County Court- house, Barron claimed that the city appropriat- ed his private property for a public use without providing him JUST COMPENSATION, as he said was required by the Takings Clause of Fifth Amendment to the U.S. Constitution. The trial court agreed and awarded Barron $4,500 in damages. The city appealed, and a Maryland appellate court reversed. Barron then petitioned the U.S. Supreme Court by WRIT of error and review was granted. Chief Justice JOHN MARSHALL delivered the Court’s unanimous opinion. The sole issue before the Court was whether the Fifth Amendment to the federal Constitution applied to actions taken by state and local governmental entities. The federal Constitution “was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states,” Marshall wrote. When the Founding Fathers made an exception to this rule in particular provisions of the U.S. Constitution, Marshall said, they made clear that those provisions were in fact applicable to the states. For example, Marshall observed that section 10 of Article I provides that “No State shall pass any Bill of Attainder.” Yet none of the first Ten Amendments to the U.S. Constitution makes any similar reference to STATE ACTION, Marshall reasoned, evincing the Founding Fathers clear intent to make the Bill of Rights applicable only against the federal government. “Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated,” the chief justice continued. If Barron’s property interests were harmed by the city, then he was required to rely on state or local law to vindicate his rights. Neither the Fifth Amend- ment nor any other provision in the Bill of Rights was applicable to his lawsuit, Marshall concluded, and U.S. Supreme Court lacked jurisdiction to take any further action. Accord- ingly, Marshall dismissed the suit. Barron v. Baltimore signaled a retreat from Marshall’s earlier opinions that had expanded the scope and application of the federal Cons- titution, a change that reflected the growing states’ rights movement over the issue of SLAVERY. Although Barron v. Baltimore was re- affirmed 12 years later in Permoli v. New Orleans, 44 U.S. (3 How.) 589, 11 L.Ed. 739 (1845), the Union’s victory in the Civil War marked the beginning of the end for Barron as a valid and binding PRECEDENT. In 1868 the states ratified the Fourteenth Amendment, which provides that no state shall “deprive any person of DUE PROCESS OF LAW [or] EQUAL PROTECTION of the laws.” During the Congressional debates, JOHN BINGHAM,aRepubli- can representative from Ohio and the primary architect of the Fourteenth Amendment, argued that enacting the Fourteenth Amendment was necessary to nullify the Supreme Court’sholding in Barron v. Baltimore. Despite Bingham’s stated intentions, the Bill of Rights was not made applicable to the states through the doctrine of selective incorporation until the twentieth century. Under this doctrine, the Supreme Court has ruled that every protec- tion contained in the Bill of Rights—except for the right to bear arms, the right to an indictment by a GRAND JURY, the right to trial by jury in civil cases, and the right against quartering soldiers— must be protected by state governments under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Supreme Court has explained that each of the incorporated rights is “deeply rooted in the nation’s history,” and is “fundamental” to the concept of “ordered liberty” embodied in the Due Process Clause. Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L.Ed. 288 (1937). Any state that denies one of these rights to its residents violates its duty to provide “equal protection of the laws” guaranteed to the residents of every state. States may provide their residents with more constitutional protection than is afforded by the U.S. Bill of Rights, but the Fourteenth Amendment prohibits any state from providing its residents with less protection. FURTHER READINGS Amar, Akhil Reed. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101. Jenkins, Ray. 1987. “Amendable Constitution Allows for Corrections of Framer’s Errors.” Los Angeles Daily Journal (June 4). Papenfuse, Edward C. 2006. Outline, Notes and Documents Concerning Barron v. Baltimore, 32 U.S. 243. Available online at http://mdhistory.net/msaref06/barron/index. html; website home page: http://mdhistory.net (accessed August 28, 2009). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BARRON V. BALTIMORE 525 BARTER The exchange of goods or services without the use of money as currency. Barter is a contract wherein parties trade goods or commodities for other goods, as op- posed to sale or exchange of goods for money. Barter is not applicable to contracts involving land, but solely to contracts relating to goods and services. For example, when a tenant exchanges the performance of various mainte- nance tasks around a house for free room and board, a barter has taken place. BASE FEE An interest in real property that has the potential to last forever, provided a specific contingency does not occur. For example, a grantee might be given an estate in blackacre, “provided the land is not used for illegal purposes.” This type of fee is also known as a con- ditional, determinable, or qualified fee. BASE LINE Survey line used in the government survey to establish township lines. Horizontal elevation line used as a centerline in a highway surv ey. BASEBALL Although certain laws have protected citizens for decades from various forms of monopolistic practices, the legal dec isions surrounding “America’s favorite pastime” have allowed it to be exempt from most forms of government intervention. Through the years, Major League Baseball (MLB) has escaped measures that would have ended its exc lusive control over contracts and copyrights and its all-around monopoly on professional U.S. baseball. Mean- while, as contracts and team expenditures have run well into the millions of dollars, many have come to see baseball as less of a sport and more of a business—and a business that should be regulated. Americans still revere baseball, but fans, players, and owners al l hope that govern- ment decisions will save the game from labor strikes and a host of other ills. The federal government, however, has done little other than let baseball remain a special, nationally pro- tected institution. The growth of professional baseball—and some of its headaches—followed a natural economic progression. Much about the sport’s origin is shrouded in myth, but the sport is thought to have begun sometime in the nineteenth century. The first organized contest probably took place on June 19, 1846, between two amateur teams: the New York Nine and the Knickerbockers. In 1869 the Cincinnati Red Stockings, a professional team, paved the way for other franchises to develop. In 1871 the National Association of Professional Base Ball Players was born. The National League of Professional Base Ball Clubs was formed in 1876, and baseball has been both a game and profitable enterprise ever since. From baseball’s early days, the courts have failed to see the game as posing a threat to business laws. The Sherman Antitrust Act of 1890 (15 U.S .C.A. § 1 et seq.)—a statute prohibiting monopolies—forbids undue RE- STRAINT OF TRADE on commerce between states. In 1920, an appeals court ruled that baseball is unobjectionable in part because it operates on an interstate level (Nation al League of Profes- sional Baseball Clubs v. Federal Baseball Club of Baltimore, 50 App. D.C. 165, 269 F. 681). It stated, in general reference to other forms of trade and commerce, that “the Sherman Anti- trust Act does not apply, unless the effect of the act complained of on interstate commerce is direct, not merely indirect or incidental.” Baseball, the court found, did not pose a threat to the economy of the world of sports. The National Lea gue case stemmed from allegations made by the Federal League’s Baltimore Terrapins. In the early 1900s the struggling Federal League sought to be a venture of the major leagues and competed with other major league franchises. But the National and American Leagues bought out many of the Federal teams, sometimes player by player. The Terrapins, one of the last surviving teams in the Federal League, sued the National League. Representatives of the Terrapins argued that MLB owners had treated the Terrapins with scorn, offering the team only $50,000 in settlement for damages incurred by the buyouts. In court, the Terrapins argued that MLB had violated antitrust laws and had participated in monopolizing ventures. The case made it all the way to the U.S. Supreme Court (National League, 259 U.S. 200, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 526 BARTER 42 S. Ct. 465, 66 L. Ed. 898 [1922]). In 1922, in an opinion written by Justice Oliver Wendell Holmes Jr., the Supreme Court declared baseball to be, first and foremost, a sport and not a business. In Holmes’s words, baseball activities were “purely state affairs.” The deci- sion gave baseball the unique status of being the only official professional sports organization to be exempt from antimonopoly laws. In effect, the decision protected baseball as a national treasure. The National League decision was reaf- firmed in 1953 with Toolson v. New York Yankees (346 U.S. 356, 74 S. Ct. 78, 98 L. Ed. 64). In a brief statement, the Court ruled against the PLAINTIFF, minor league player George Toolson. Toolson’s arguments were based on the complaint that baseball was a monopoly that offered him unfair contract deals. The Court said Congress alone had been given the right to exercise powers that could break up the structure of baseball’s professional organization. The controversial issue in Toolson was baseball’s reserve clause, the earliest symbol of the sport’s under lying business nature. The reserve clause stated that once a player had accepted a contract to play for a certain team, the player was bound to serve that team for one year and must enter into a new contract with the same team “for the succeeding season at a salary to be determined by the parties to such contract.” It was agreed that if a player violated the reserve clause, he would be guilty of “contract jumping” and would be ineligible to serve in any club of the leagues until formally reinstated. The reserve clause guaranteed players little more than an in come. Players attacked it. I n the 197 0s, Curtis C. Flood, center fielder for the St. Louis Cardinals, brought charges against Bowie K. Kuhn, acting c ommissioner of baseball. The issue was a player’s FREE AGENCY , which Flood had requested and Kuhn had denied. Free agency is the option to negotiate a contract with any team, basically a release from the reserve clause. Taking his case to the Supreme Court, Flood argued that the reserve clause unfairly prevented him from striking deals with other teams that would pay him more for his services. The Supreme Court decided on June 19, 1972, that it did not have the authority to act (Flood v. Kuhn, 407 U .S. 258, 92 S. Ct. 2099, 32 L. Ed. 2d 728). Only baseball’s acting commissioner could designate free agency. Player discontent, as a reaction to the decision, set the stage for more free agency bids, and ARBITRATION between players and owners began in 1973. In January 1976, Andy Messersmith succeeded in obtaining free agen- cy, which ushered in a new era of high stakes: Players could now dictate certain terms of employment, and the era of multimillion-dollar contracts began. Money was also at issue in a case related to another aspect of the game. After more than a century of professional play, in 1986 televised broadcasts of baseball and the copyright laws surrounding them came into question. Players felt that the terms of their employment did not include their performances for television audi- ences. They insisted that the telecasts and the profits being derived from them were being made without their consent. In Baltimore Orioles v. Major League Baseball Players Associa- tion, 805 F.2d 663 (7th Cir. 1986), major league clubs sought a judgment that upheld their exclusive right to broadcast games. The major league players argued that their performances were not copyrightable works because they lacked sufficient artistic merit. Refusing to cut With a payroll of approximately $11,000, the 1869 Cincinnati Red Stockings were the first professional baseball team. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION BASEBALL 527 . of Representatives ▼▼ ▼▼ 17 75 18 50 18 25 18 00 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BARBOUR, PHILIP PENDLETON 519 Speaker of the House from 18 21 until 18 23, when he was defeated by HENRY CLAY . In 18 24 Barbour. election investigation 18 96 Died, New York City ◆ 18 58 Admitted to New York bar ▼▼ ▼▼ 18 25 19 00 18 75 18 50 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BARR, WILLIAM PELHAM 5 21 New York City, and. Lawrence: Univ. Press of Kansas. Department of Justice. 19 91. 200th Anniversary of the Office of the Attorney General, 17 89 -19 89. Washington, D.C.: Department of Justice, Office of Attorney General