state’s POLICE POWER to prescribe regulations that promote the health, peace, morals, education, and good order of the people. The state’s police power, said the Virginia high court, gives the state legislature authority to make laws that spur industrial growth, develop resources, and add to Virginia’s wealth and prosperity. When the case reached the U.S. Supreme Court, Chief Justice WILLIAM HOWARD TAFT assigned the job of writing the opinion to Associate Justice Oliver Wendell Holmes Jr., then 86-years old. Holmes began his opinion by detailing the procedural safeguards that were afforded Buck, though neither Buck nor her representative had taken issue with them. Holmes noted that Buck had received notice of the superintendent’s petition for sterilization, Buck was given the opportunity to appear at a hearing where the propriety of her sterilization was determined based on the evidence pre- sented, and Buck had the right to APPEAL all the way to the highest court in the United States. “There can be no doubt,” Holmes concluded, “that so far as procedure is concerned, the rights of the patient [we]re most carefully considered.” Holmes next addressed Buck’s substantive due process claim that she had a constitutional liberty to procreate. “Carrie Buck is a feeble- minded white woman She is the daughter of a feeble-minded mother and the mother of an illegitimate feeble-minded child,” Holm es wrote. Then Holmes, a Civil War veteran, compared Buck’s sacrifice of procreative free- dom to the sacrifice other U.S. citizens make when called into military duty for their county: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. ” Noting that once sterilized, Buck could be released from the institution to become a pro- ductive member of society, Holmes reflected on what he thought to be the wider benefits of the Virginia sterilization law: “It is better for the entire world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains com p ulsory vaccination is broad enough to cover cutting the Fallopian tubes Threegenerationsof imbeciles are enough.” As to the equal protection argument, Holmes said that “so far as the [institution’s] operations enable those who otherwise must be kept confined to be returned to the world, and thus open the ASYLUM to others, the equality aimed at will be more nearly reach ed.” Seven justices joined Holmes’s majority opinion upholding the Virginia sterilization law. Only Associate Justice PIERCE BUTLER dis- sented, but he did so without filing an opinion. The dissenting voices of history have been much louder. Historians and legal scholars have criticized Holmes’s opinion for being unenlightened and unduly harsh, pointing to portions of the opinion where Holmes assumed that disabled persons were not among the “best citizens,” that the “degenerate offspring” of “feeble-minded” persons would either become criminals or starve, and that unless such persons were sterilized society would become swamped by incompetence. The Supreme Court itself has since rendered several opinions that have all but expressly abrogated Holmes’s opinion in Buck, including one opinion that overturned a forced sterilization law on grounds that “[m]arriage and procreation are fundamental to the very existence and survival of the race” (Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 [1942]). In Holmes’s defense, other historians and scholars have pointed out that the Virginia sterilization law was written by a democratically elected state legislature and upheld by three separate courts. They also note that compulsory sterilization was part of the Eugenics Movement, a popular but paternalistic reform movement that was based on the premise that the “lower classes” were too ignorant to practice BIRTH CONTROL or otherwise take care of themselves and that eradicating “feeble-minded” persons from the population was humane. Scholars on both sides of the historical debate acknowledge that Holmes personally was an enthusiast for population control devices but question why Holmes’s opinion in Buck v. Bell could not have been as prescient as his opinions on other subjects like the FIRST AMENDMENT, where his articulation and application of the “clear-and-present-danger” test revolutionized free speech jurisprudence. In the final analysis, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 168 BUCK V. BELL Buck v. Bell serves as a striking counter example to Holmes’s supporters who like to remember the former associate justice as an unyielding liberal champion of individual rights. FURTHER READINGS Berry, Roberta M. 1998. “From Involuntary Sterilization to Genetic Enhancement: The Unsettled Legacy of Buck v. Bell.” Notre Dame Journal of Law, Ethics & Public Policy 12 (summer). Cynkar, Robert J. 1981. “Buck v. Bell: ‘Felt Necessities’ v. Fundamental Values?” Columbia Law Review 81 (November). Estacio, Richard A. 1988. “Sterilization of the Mentally Disabled in Pennsylvania: Three Generations without Legislative Guidance Are Enough.” Dickinson Law Review 92 (winter). Leslie-Miller, Jana. 1997. “From Bell to Bell: Responsible Reproduction in the Twentieth Century.” Maryland Journal of Contemporary Legal Issues 8 (spring-summer). Lombardo, Paul A. 2008. “Three Generations, No Imbeciles: New Light on Buck v. Bell.” Baltimore: Johns Hopkins. Mahowald, Mary B. 2003. “Aren’t We All Eugenicists?” Florida State Univ. Law Review 30 (winter). CROSS REFERENCES Civil Rights; Due Process of Law; Equal Protection; Fourteenth Amendmen t; Police Power; Steriliz ation. BUGGERY The criminal offense of anal or oral copulation by penetration of the male organ into the anus or mouth of another person of either sex or copulation between members of either sex with an animal. Buggery is historically referred to as a “crime against nature.” It is an offense under both COMMON LAW and statutes. Although prosecution for buggery is rare, the punishment upon conviction can be a fine, IMPRISONMENT, or both. The term is often used interchangeably with SODOMY. BUILDING AND LOAN ASSOCIATION An organization that exists to accumulate a fund, composed of subscriptions and savings of its members, to help facilitate the purchase or construction of real estate by such members by lending them the necessary funds. CROSS REFERENCE Savings and Loan Association. BUILDING CODES A series of ordinances ena cted by a state or local governmental entity, establishing minimum requirements that must be met in the construction and maintenance of buildings. Building codes have been used by govern- mental units for centuries to ensure that buildings remain safe and sanitary. Early settlements in the United States drafted codes for such purposes as restrictions on the use of wooden chimneys to prevent fire. The early codes were usually only a few sentences in length, specifying narrow restrictions in con- struction. In the early twenty-first century, home and business construction has become a process governed by a complex series of rules. A building code is usually not one document, but rather it is usually a series of documents setting forth requirements for several aspects of construction, such as gas, mechanics, electricity, fire-alarm systems, and plumbing. Building codes generally regulate all aspects of a construction project, including the structural design of a building, sanitation facilities, environmental control, fire prevention, ventilation, light, materials used for the building, and conservation measures. State and local governmental entities are empowered to enact building codes as part of their police powers under the TENTH AMENDMENT to the federal Constitution. That amendment has been inter- preted to allow the states to enact legislation designed to protect public health, welfare, and safety. The development of modern building codes began in the early twentieth century. Residents who lived in tenement houses during that time began a movement that demanded basic sanitation in their housing. Insurance compa- nies also advocated the use of safety standards, due to the potential limitations on the LIABILITY of these companies. In 1905 the National Board of Fire Examiners, the predecessor to the American Insurance Association, approved the first National Building Code, which was designed to be used as model for state and local governmental units to use when drafting their own building codes. This model code proved very popular among legislators because it provided a respected and comprehensive source for technical construction requirements without the burden and expense of researching and drafting a building code from scratch. During the NEW DEAL era of the 1930s, the federal government sought to modernize the system of housing in the United States, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BUILDING CODES 169 the use of building codes to ensure safety and sanitation became widespread. Studies during the late 1960s and early 1970s indicated that the vast majority of cities had adopted a building code of some form. As the use of building codes became more prevalent, the actual codes themselves became much more comprehensive and complex. Through the 1970s, the majority of building codes were enacted at the local level. A number of model building codes were developed during the second half of the twentieth century. By the 1990s four major building codes were produced, including the National Building Code, by the American Insurance Association (AIA); the Basic/National Building Code (sometimes called the BOCA Code), by the Building Officials Conference of America (BOCA); the Southern Standards Building Code, by the Southern Building Code Congress International, Inc. (SBCCI); and the Uniform Building Code, by the International Congress of Building Officials (IC BO). Most of these various organizations were formed during the first half of the twentieth century by code enforcement officials who wanted to provide a forum whereby they could exchange ideas about the implementation of building codes. Since 1990, roughly half of the states have enacted legislation providing construction stan- dards on a statewide basis. The states that enacted these laws generally have done so in order to provide uniformity in building regulations across the state, and also to ensure that building laws protected all of the citizens in the state equally. Local governments have retained much of the responsibility for the actu al implementation of building regulations in these states. It is not uncommon for a state to draft statutes that govern buildings on a general level, while the local units of the state enact more specific regulations to apply to that locality. Local building codes often remain uniform because these local governments typically rely upon one of the available model building codes. The various associations representing code enforcement officials have formed broader associations for the purposes of collaboration. In 1972, BOCA, SBCII, and ICBO formed the Council of American Building Officials (CABO), which has successfully drafted such model codes as the CABO One and Two Family Dwelling Code and the CABO Model Energy Code. In 1994, the three major model code organizations formed the International Code Council (ICC), which has produced several international model codes. As of 2003, the ICC had developed more than a dozen international model codes, includ- ing the International Building Code. The ICC estimates that 46 states, plus the District of Columbia, Puerto Rico, and some federal agencies, enforce or have adopted at least one of the international codes. Building codes are directly affected by ongoing research regarding the performance of products, materials, or construction methods. Industry experts develop standards, which are documents that contain industry consensus regarding the methods by which the products, materials, or methods should be designed or employed. When an organization drafts a model building code, it typically refers to these standards in the text of the code. Because the standards are national in scope, the reference of these standards ensures that a local building code requires constructors to meet minimum national standards concerning details like safety and performance. Few question that houses and other buildings are now designed to be much safer and more sanitary than were buildings constructed a century or longer ago, primarily as a result of the implementation of the various building codes throughout the United States. However, some commentators have noted that the requirements of these codes have caused construction prices to rise steadily, which in turn causes the costs of housing and other building usage to rise as well. Moreover, some critics maintain that the process of developing building codes is often as much of a process of negotiation between trade groups who are protecting their own interests as it is a completely scientific process. Those who are involved in the drafting and implementation of building codes counter that building codes are designed with the health and safety of the public in mind. Results of testing performed during the development of standards are often readily available for inspection, so if questions of reliability arise, they often can be answered through a review of these testing procedures. Moreover, supporters note that state and local governmental entities are not bound to adop t the model building codes, and if a governmental unit disagrees with a provision in a model code, it is free to replace that pro- vision with a requirement of its own creation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 170 BUILDING CODES Accordingly, if a member of the public disagrees with a particular requirement, he or she generally may raise this issue with the appropri- ate governing body that decides whether a code or code provision should be adopted. FURTHER READINGS Council of American Building Officials. 2004. An Introduc- tion to Model Codes. Falls Church, VA: Council of American Building Officials. Kelly, Eric Damian. 1996. “Fair Housing, Good Housing or Expensive Housing? Are Building Codes Part of the Problem or Part of the Solution?” John Marshall Law Review 29. Turner, Michael D. 2001. “Paradigms, Pigeonholes, and Precedent: Reflections on Regulatory Control of Resi- dential Construction.” Whittier Law Review 23, no. 3. BUILDING LINE A line that a municipal corporation establishes, beyond which no building may extend to ensure that its streets will appear uniform. A building line is also known as the “set back” requirement. BUILDING OFFICIALS AND CODE ADMINISTRATORS INTERNATIONAL The Building Officials and Code Administrators International (BOCA) is an association of pro- fessionals employed in the establishment and enforcement of BUILDING CODES, which are the rules and regulations that govern the design and construction of buildings. BOCA encourages cities and states to adopt uniform building codes, and promotes competence and profes- sionalism in the enforcement of those codes. The organization was established in 1915 by building officials from nine states and Canada. Their purpose was to provide a forum for the exchange of knowledge and ideas about build- ing safety and construction regulation. In 1950, BOCA published the BOCA Basic Building Code. This was the organization’s first model code. Within one year, the BOCA code had been adopted by fifty cities. BOCA currently publishes a series of books called the BOCA National Codes, which contain detailed standards for all aspects of building construction. The section on stairways, for example, precisely describes the acceptable height, depth, and width of steps, and the proper placement and configuration of hand- rails necessary to ensure safety and ease of use. Separate volumes cover general construction, mechanical systems, plumbing, fire prevention, energy conservation, and other areas. The codes published by BOCA do not in themselves have the force of law. They can be enforced only when they have been adopted by cities, states, or other government bodies with the authority to issue or withhold building permits. A city or state is free to adopt the BOCA codes in whole or in part. BOCA’s codes have been adopted by many states and cities in the eastern and midwestern United States. Other professional associatio ns perform a similar function in other parts of the country, and publish their own building codes: the International Conference of Building Offi- cials serves western states and publishes the Uniform Building Code, and the Southern Building Code Congress serves southern states and publishes the Standard Building Code. The three regional organizations are working to- gether toward creating a single model code for the United States. The publication of the codes is BOCA’s most important functi on. The organization also publishes manuals, textbooks, and periodicals for its members. In addition, BOCA continually develops its model code to keep it up-to-date. It conducts regular training and education pro- grams for its members and provides consulta- tion services for local governments. BOCA disseminates information on the quality and acceptability of building materials and systems as well as on new construction techniques. BOCA’s membership consists largely of cities, towns, and government agencies. These “government members” are represented by Contractors, manufacturers, architects, and engineers must follow the recommendations of BOCA when building in a municipality that has adopted BOCA’s codes. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION BUILDING OFFICIALS AND CODE ADMINISTRATORS INTERNATIONAL 171 individual officials who administer rules and regulations on construction, fire safety, property maintenance, development, and land use. A typical official of this kind is a building inspector with duties to examine building plans and make on-site inspections during construc- tion. Contractors, manufacturers, and people in the architectural and engineering professions may also be members of BOCA. BOCA is funded by the annual dues of its members and through the sale of its publica- tions. It is based in Country Club Hills, Illinois, a suburb of Chicago. FURTHER READINGS “Code Groups to Study Common Format.” 1991. Building Design & Construction (November 1). Harkness, Albert. 1995. “Building Codes: A Historical Perspective.” Building Official and Code Administrator Magazine (March/April). International Code Council. “Join ICC” Birmingham, AL: ICC. Available online at http://www.iccsafe.org/ membership/join.html; website home page: http:// www.iccsafe.org (accessed July 10, 2009). BULK TRANSFER A sale of all or most of the materials, supplies, merchandise, or other inventory of a business at one time that is not normally done in the ordinary course of the seller’s business. Bulk transfers, commonly called bulk sales, have, in the past, been governed by individual state laws, generally called Bulk Sales Acts, which imposed certain requirements on such transfers. These acts were aimed at preventing a seller from secretly selling his or her business and absconding with the proceeds in order to avoid the repayment of any outstanding debts. These laws have been superseded in most states by Article 6 of the UNIFORM COMMERCIAL CODE (UCC), which shares the same purpose but establishes uniform requirements to simplify commercial transactions. A prospective buyer of a business must obtain a list of the creditors of the seller and notify them in advance of the sale so they can take steps to protect themselves against the seller’s possible default on his or her debts. Failure of a bulk transfer to comply with the UCC neither makes the transfer void nor destroys the creditors’ rights to repayment. Depending upon the jurisdiction, the buyer may become personally liable to the seller’s creditors up to the value of the assets purchased or the property sold may be levied upon by the creditors for the outstanding debts. A bulk transfer is not the same as a secured transaction. BULLETIN A printing of public notices and announcements that discloses the progress of matters affecting the general public and which usually includes provi- sions for public comment. A summarized report of a newsworthy item for immediate release to the public. The official publication of an association, business, or institution. BURDEN OF GOING FORWARD The onus on a par ty to refute or to explain evidence presented in a case. The burden of going forward, also called the burden of producing evidence, burden of pro- duction, or the burden of proceeding, requires a party in a lawsuit to refute or explain each item of evidence introduced that damages or discredits his or her position in the action, as a trial progresses. Suppose a person is charged with the possession of stolen goods. After the prosecution has introduced evidence of the defendant’s possession of such goods, the defense bears the burden of refuting or explaining the evidence. If the evidence appears unfavorable for the prosecution, it has the burden of going forward to produce more evidence to bolster its claim that the DEFENDANT committed the crime. The failure to produce more evidence may result in the judge’s dismissing the charges against the defen- dant. If the prosecution produces such evidence, it shifts the burden of production back to the defendant, who then must refute the additional evidence. The burden of going forward also shifts during a civil proceeding. It shifts to the defendant after the PLAINTIFF rests its case, but it may shift even before that time. In a WRONGFUL DEATH case, for example, the plaintiff may, at a certain point in the trial, file a motion asking for a ruling (sometimes a motion for SUMMARY JUDGMENT or a motion for a DIRECTED VERDICT)in his or her favor by maintaining that he or she has presented sufficient evidence to show that the defendant’s actions resulted in the victim’s death. The burden then shifts to the defendant to produce additional evidence to refute the plaintiff’s claim; otherwise, the judge may grant the plaintiff’s motion, thus concluding the case in the plaintiff’s favor. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 172 BULK TRANSFER BURDEN OF PERSUASION The onus on the party with the burden of proof to convince the trier of fact of all elements of his or her case. In a criminal case the burden of the government to produce evidence of all the necessary elements of the crime beyond a reason- able doubt. The burden of persuasion is the affirmative duty of a party to establish his or her right to judicial relief by convinc ing the trier of fact, the judge or the jury, that the facts asserted are true and support the allegations. Whereas the BURDEN OF GOING FORWARD shifts from the prosecution to the defense in a criminal case, or from the PLAINTIFF to the DEFENDANT in a civil case, as evidence is presented and disproved, the burden of persuasion remains with the plaintiff or the prosecution until the case is concluded. The phrase burden of persuasion is often used inter- changeably with the phrase BURDEN OF PROOF. The burden of proof varies depending on whether the proceeding is criminal or civil. In a criminal case, the burden of proof required of the state or government will be satisfied by evidence that demonstrates “beyond a reason- able doubt” that the defendant has committed the crime. Proof BEYOND A REASONABLE DOUBT does not require that the proof be so clear that no possibility of error can exist; no criminal prosecution would ever prevail if that were the standard. On the other hand, REASONABLE DOUBT will be found to exist (and the defendant fo und not guilty) if the evidence produced only demonstrates that it is slightly more probable that the defendant committed the crime than that she or he did not. The reasonable doubt standard has been defined to mean that the evidence must be so conclusive and complete that all reasonable doubts are removed. In a civil matter, a plaintiff is required to establish his or her case by “a prepond erance of the evidence.” A preponderance of the evidence is a body of evidence that is of greater weight or is more convincing than the evidence offered in opposition—evidence that as a whole shows that the facts asserted by the plaintiff and sought to be proved are more probable than not. Another burden of proof applied in some matters is that the evidence must be “clear and convincing.” This standard of proof falls somewhere between the civil preponderance- of-the-evidence standard and the criminal beyond-a-reasonable-doubt standard. Clear and convincing evidence requires the trier of fact to have a “firm belief” that the facts have been established. The clear-and-convincing standard, though not used nearly as often as the other two standards, has been applied to some civil cases, including suits seeking the reformation of a contract. In addition, the SUPREME COURT OF THE UNITED STATES has held that the clear-an d-convincing standard is the con- stitutionally required burden of proof in a civil commitment proceeding (Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 [1979]). FURTHER READINGS Johnson, Calvin H. 1997. “Current and Quotable: IRS Restructuring: Burden of Proof vs. Burden of Persua- sion.” Tax Notes 77 (November 3). Rothstein, Paul F. and Myrna S. Raeder. 2007. Evidence in a Nutshell. 5th ed. Eagan, MN: West. Sprung, Marshall S. 1996. “Taking Sides: The Burden of Proof Switch.” New York Univ. Law Review 71 (November). Stratton, Sheryl. 1998. “Burden of Proof Shift—Making Sense of a Political Provision.” Tax Notes 80 (August 24). BURDEN OF PLEADING The duty of a party to plead a matter to be heard in a lawsuit. The onus on the defendant to introduce or raise the defense for consideration in the lawsuit. This concept is also referred to as burden of allegation. The PLEADING burden concerns what a party must put in his or her pleading when a legal proceeding is first instituted. In a criminal proceeding, this initial pleading is an indictment or information, which alleges that a crime was committed. In a MURDER case, for instance, the PROSECUTOR must plead that the DEFENDANT killed the victim. The pros ecution thus has the burden of pleading on the issue of whether the defendant killed the victim. On other issues in the case, the burden of pleading may shift to the defendant. For example, if the defendant claims that she or he is insane and thus not responsible for the crime, the defendant has the burden of pleading insanity. In a civil matter, the initial pleading is a complaint, which initiates a lawsuit. For in- stance, in a NEGLIGENCE action, the PLAINTIFF has the burden of pleading that the defendant was negligent and that the plaintiff has been injured or damaged by the actions of the defendant. Likewise, in a contract claim, the plaintiff must ALLEGE that a contract existed and that the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BURDEN OF PLEADING 173 defendant breached the contract. Failure to meet the pleading burden can result in dismissal of the claim. CROSS REFERENCES Burden of Proof; Insanity Defense. BURDEN OF PROOF A duty placed upon a civil or criminal defendant to prove or disprove a disputed fact. Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. In criminal cases, the burden of proof is placed on the prosecutio n, who must demon- strate that the DEFENDANT is guilty before a jury may convict him or her. But in some jurisdic- tion, the defendant has the burden of establish- ing the existence of certain facts that give rise to a defense, such as the insanity PLEA. In civil cases, the PLAINTIFF is normally charged with the burden of proof, but the defendant can be required to establish certain defenses. Burden of proof can also define the BURDEN OF PERSUASION , or the quantum of proof by which the party with the burden of proof must establish or refute a disputed factual issue. In criminal case s, the prosecution must prove the defendant’s guilt BEYOND A REASONABLE DOUBT. Judges explain the REASONABLE DOUBT stan- dard to jurors in a number of ways. Federal jury instructions provide that proof beyond a reasonable doubt is “proof of such a convincing character that a REASONABLE PERSON would not hesitate to act upon it in the most important of his own affairs.” State judges typically describe the standard by telling jurors that they possess a reasonable doubt as to the defendant’s guilt if, based on all the evidence in the case, they would be uncomfortable with a criminal conviction. In giving the reasonable doubt instruction, judges regularly remind jurors that a criminal convic- tion imposes a variety of hardships on a defendant, including public humiliation, INCAR- CERATION , fines, and occasionally the FORFEITURE of property. Reasonable doubt is the highest stan- dard of proof used in any judicial proceeding. Reasonable doubt is also a constitutionally mandated burden of proof in criminal proceed- ings. The U.S. Supreme Court has ruled that the Due Process Clause of the FIFTH AMENDMENT and Fourteenth Amendments to the federal consti- tution prohibit criminal defendants from being convicted on any quantum of evidence less than proof beyond a reasonable doubt. IN RE WINSHIP, 397 U.S. 358, 90 S. Ct. 1068, 23 L. Ed. 2D 368 (1970). Although the reasonable doubt standard is not specifically mentioned anywhere in the Constitution, the Court observed that the standard is so deeply rooted in the nation’s history as to reflect the fundamental value that “it is far worse to convict an innocent man than to let a guilty man go free.” In civil LITIGATION the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. Both are lower burdens of proof than beyond a reasonable doubt. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and convincing evidence is evidence that establishes the truth of a disputed fact by a high probability. Criminal trials employ a higher standard of proof because criminal defendants often face the deprivation of life or liberty if convicted while civil defendants generally only face an order to pay money damages if the plaintiff prevails. FURTHER READINGS Cooper, S. 2003. “Human Rights and Legal Burdens of Proof.” Web Journal of Current Legal Issues 3. Available online at http://www.ca6.uscourts.gov/lib_hist/Courts/ supreme/judges/brown/hbb-bio.html; website home page: http://www.ca6.uscourts.gov (accessed August 28, 2009). Scheibe, Benjamin D. 2003. “Claim of Reverse Engineering Doesn’t Alter Burden of Proof.” The Los Angeles Daily Journal 116 (October 2). Twining, William and Stein, Alex, eds. 1992. Evidence and Proof. New York: New York Univ. Press. CROSS REFERENCES Burden of Persuasion; Due Process of Law; Evidence; Fifth Amendment; Fourteenth Amendment; Proof; Reasonable Doubt. BUREAU OF INDIAN AFFAIRS See INTERIOR DEPARTMENT. BUREAUCRACY A system of administration wherein there is a specialization of functions, objective qualifications for office, action according to the adherence to fixed rules, and a hierarchy of authority and delegated power. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 174 BURDEN OF PROOF Organizations such as the armed forces or administrative agencies are common examples of bureaucracies. v BURGER, WARREN EARL Warren Earl Burger was a self-made man who rose from modest origins to become the fifteenth chief justice of the U. S. Supreme Court. Burger was born September 17, 1907, in St. Paul, Minnesota, the fourth of seven children of Charles Burger and Katharine Schnittger Burger. His father worked as a railroad cargo inspector and traveling salesman, and the family lived on his limited income. Burger began delivering newspapers at the age of nine to help with family finances. At Johnson High School in St. Paul, he participated in music, sports, student government, and the student newspa- per. Princeton University offered him a partial scholarship, but because of his family’s limited resources, he was unable to accept it. Instead, he took EXTENSION courses through the Univ ersity of Minnesota from 1925 to 1927 and then attended night classes at St. Paul College of Law (now WILLIAM MITCHELL College of Law). Throughout college and law school, Burger supported himself by working as an insurance agent. He earned his bachelor of laws degree, magna cum laude, in 1931. Burger was admitted to the Minnesota bar in 1931, then entered private practice in St. Paul with Boyesen, Otis, and Faricy. He became a partner in 1935, and the firm was renamed Faricy, Burger, Moore, and Costello. Burger concentrated his practice in corporate law, REAL ESTATE , and probate law. At the same time, he became involved in politics, and in 1934 he helped organize the Minnesota Young Repub- licans. Burger was rejected for military service in WORLD WAR II because of a spinal injury and instead served on the Minnesota Emergency War Labor Board. After the war he returned to his law practice and became more active in politics. He had played an important part in Harold E. Stassen’s successful campaigns for governor of Minnesota in 1938, 1940, and 1942, and acted as floor manager for Stassen’spre- sidential bids at the 1948 and 1952 Republican ▼▼ ▼▼ 19251925 Warren Earl Burger 1907–1995 19001900 19501950 19751975 20002000 ❖ ❖ ◆ ◆ ◆ ◆ ◆ 1907 Born, St. Paul, Minn. 1914–18 World War I 1941–45 U.S. involvement in World War II; served on the Minnesota Emergency War Labor Board 1931 Earned bachelor of laws degree from St. Paul College of Law; admitted to Minnesota bar 1935 Made partner at Boyeson, Otis and Faricy; firm renamed Faricy, Burger, Moore and Costello 1952 Appointed assistant attorney general in the Justice Department's Civil Division 1950–53 Korean War 1961–73 Vietnam War 1956 Appointed to the U.S. Court of Appeals for the District of Columbia 1969 Nominated as chief justice of the U.S. Supreme Court by President Nixon 1986 Retired from the Court in order to chair the commission honoring U.S. Constitution's bicentennial in 1987 1995 Died, Washington, D.C. ◆ Warren Burger. PHOTOGRAPH BY JOSEPH LAVENBURG, NATIONAL GEOGRAPHIC. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. FREEDOM OF SPEECH CARRIES WITH IT SOME FREEDOM TO LISTEN . —WARREN BURGER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BURGER, WARREN EARL 175 conventions. These activities brought him to the attention of prominent Republicans. In 1952 he was named assistant attorney general in charge of the Justice Department’s Civil Division, which handled all civil cases except antitrust and land LITIGATION. Burger’s career as a JURIST began when he was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1956. He quickly established his credentials as a law-and- order judge, leading the conservative faction of the court to numerous decisions that favored police officers and prosecutors and curbed the rights of criminal defendants. Burger served on the D.C. CIRCUIT COURT until 1969 when President RICHARD M. NIXON appointed him chief justice of the Supreme Court. In choosing Burger to replace EARL WARREN, Nixon was fulfilling a campaign promise to restrain the Court, which was, according to him, favoring the criminals in U.S. society. Burger’s ethical record was a major consideration in his nomination, and his opposition to judicial activism (a philosophy of judicial decision- making whereby judges allow their personal views about PUBLIC POLICY, among other factors, to guide their decision, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent), and the expansion of CIVIL RIGHTS and liberties made him what Nixon was looking for, a conservative antidote to the activist liberalism of the WARREN COURT. However, the swift and certain counterrev- olution that Nixon and others expected from the Burger Court never mat erialized. Although the Court diluted some earlier liberal decisions, particularly in the area of CRIMINAL PROCEDURE,it stopped far short of overruling them. And although the Burger Court was far less sympa- thetic to the rights of criminal defendants than the Warren Court had been, it established no clear pattern of repudiating the earlier doc- trines. In some areas, such as AFFIRMATIVE ACTION and desegregation, the Burger Court continued in the direction set by the Warren Court, and Burger often cast the swing vote that tipped the balance in favor of the liberals’ position. The Burger Court’s decision in ROE V. WADE (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]) established a constitutional right to privacy and made ABORTION legal. Yet Burger refused to support a movement to give gender classifications the same level of scrutiny used for racial discrimination. When viewed as a whole, the record shows that Burger was an enigmatic and unpredictable justice but that he generally stayed the course set by his predecessor. In fact, the Burger Court never directly overruled any major doctrine of the Warren years. Burger was satisfied with his reputation as a centrist. “It’s always been somewhat comforting to know,” he once told an interviewer, “that I have been castigated by so-called liberals for being too conservative and castigated by so- called conservatives for being too liberal. Pretty safe position to be in.” Burger left his personal imprint on several important areas of the law. His 1973 opinion in MILLER V. CALIFORNIA (413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]) established the use of “contemporary community standards” in de- termining whether material is OBSCENE.He authored key decisions interpreting the free speech and free press guarantees of the FIRST AMENDMENT , including Nebraska Press Ass’nv. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), a 1976 decision prohibiting pre- publication restraints to protect criminal defen- dants from negative PRETRIAL PUBLICITY. Writing for the majority, Burger declared that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.” Burger also delivered the opinion in validating th e legislative veto (I.N.S. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 [1983]), thus preventing Congress from blocking presidential acti on without passing a law. Burger’s most fam ous criminal opinion was UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), in which he ordered the embattled president, then deeply enmeshed in the WATERGATE scandal, to release to Special Prosecutor LEON JAWORSKI the tape recordings that implicated the president in the Watergate cover-up. Nixon’s resignation was a direct result of Burger’s ruling. One of Burger’s goals as chief justice was to modernize and streamline the courts to make them more accessible and functional, and he worked tirelessly toward that end. Burger originated the idea of employing professional court administrators, implemented continuing education for judges, and improved coordi- nation between federal and state courts. In GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 176 BURGER, WARREN EARL addition, he was noted for his outspoken criticism of ill-prepared litigators who use the courts for what he called on-the-job training. Burger retired from the bench in 1986 to chair the commission honoring the two hundredth anniversary of the signing of the Constitution, which occurred on his eightieth birthday, September 17, 1987. He ended his last day on the bench without fanfare, simply announcing that the Court had completed its term and would RECESS until the first Monday in October. Asked about his future plans, he said, “I have a lot of other things I want to do. I never had any ambition to be a judge. I loved practicing law. If tradition didn’t prohibit it, I’d love to go back to practicing law.” Upon his retirement, one of his law clerks commented that Burger’s most important legacy may be that “he kept most of society’s problems truly in balance.” Burger died July 25, 1995. FURTHER READINGS Maltz, Earl M. 2000. The Chief Justiceship of Warren Burger, 1969–1986. Columbia, S.C.: Univ. of South Carolina Press. Reske, Henry J. 1995. “The Diverse Legacy of Warren Burger.” ABA Journal 81 (August). Significant Supreme Court Opinions of the Honorable Warren E. Burger, Chief Justice of the United States. 1984. Manila, Philippines: Philippine Bar Association. CROSS REFERENCES Criminal Procedure; Freedom of Speech; Freedom of the Press; Obscenity. BURGLARY The criminal offense of breaking and entering a building illegally for the purpose of committing a crime. Burglary, at COMMON LAW, was the trespas- sory breaking and entering of the dwelling of another at night with an intent to commit a FELONY therein. It is an offense against posses- sion and habitation. The common-law elements of the offense have be en modified in most jurisdictions by statutes that tend to make the crime less restrictive. Elements of the Offense Trespass The trespass elem ent of the offense signifies that it must occur without the consent of the victim. If the thief gains entry by misrepresenting his or her identity, the element of trespass is satisfied, as there is no consent to entry. Breaking Breaking consists of creating an opening for entry into the building. It can be accomplished by removing an object that is blocking an entry or by blasting open a wall. The use of force is not required. The breaking element is satisfied if access is obtained by opening a closed door or window, regardless of whether these are locked. At common law, entering through a pre- existing opening did not constitute breaking. If one gained access through an open door or Persons Arrested for Burglary a , by Sex and Age, in 2007 b SOURCE: FBI, Crime in the United States, 2007. a Defined as “breaking and entering” in many jurisdictions. b Numbers may not add up to 100 due to rounding. Total: 228,846 55 years and over 1.2% 45–54 years 7.0% Under 15 years 8.1% 15–17 years 18.8% 18–24 years 31.7% 25–44 years 33.2% Female 14.5% Male 85.4% ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION BURGLARY 177 . favor. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 1 72 BULK TRANSFER BURDEN OF PERSUASION The onus on the party with the burden of proof to convince the trier of fact of all elements of his. and delegated power. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 174 BURDEN OF PROOF Organizations such as the armed forces or administrative agencies are common examples of bureaucracies. v BURGER,. GEOGRAPHIC. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. FREEDOM OF SPEECH CARRIES WITH IT SOME FREEDOM TO LISTEN . —WARREN BURGER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BURGER,