Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P42 docx

particular fact sought to be proved. The party offering circumstantial evidence argues that this series of facts, by reason and experience, is so closely associated with the fact to be proved that the fact to be proved may be inferred simply from the existence of the circumstantial evidence. The following examples illustrate the differ- ence between direct and circumst antial evi- dence: If John testifies that he saw Tom raise a gun and fire it at Ann and that Ann then fell to the ground, John’s TESTIMONY is direct evidence that Tom shot Ann. If the jury believes John’s testimony, then it must conclude that Tom did in fact shoot Ann. If, however, John testifies that he saw Tom and Ann go into another room and that he heard Tom say to Ann that he was going to shoot her, heard a shot, and saw Tom leave the room with a smoking gun, then John’s testimony is circumstantial evidence from which it can be inferred that Tom shot Ann. The jury must determine whether John’s testimony is credible. Circumstantial evidence is most often employed in criminal trials. Many circum- stances can create inferences about an accused’s guilt in a criminal matter, including the accused’s resistance to arrest; the presence of a motive or opportunity to commit the crime; the accused’s presence at the time and place of the crime; any denials, evasions, or contradictions on the part of the accused; and the general conduct of the accused. In addition, much SCIENTIFIC EVIDENCE is circumstantial, because it requires a jury to make a connection between the circumstance and the fact in issue. For example, with fingerprint evidence, a jury must make a connection between this evidence that the accused handled some object tied to the crime and the commission of the crime itself. Books, movies, and television often perpet- uate the belief that circumstantial evidence may not be used to convict a criminal of a crime. But this view is incorrect. In many cases, circum- stantial evidence is the only evidence linking an accused to a crime; direct ev idence may simply not exist. As a result, the jury may have only circumstantial evidence to consider in deter- mining whether to convict or acquit a person charged with a crime. In fact, the U.S. Supreme Court has stated that “circumst antial evidence is intrinsically no different from testimonial [direct] eviden ce” (Holland v. Un ited States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 [1954]). Thus, the distinction between direct and circumstantial evidence has little practical effect in the presentation or admi ssibility of evidence in trials. FURTHER READINGS Earley, Pete. 1996. Circumstantial Evidence: Death, Life, and Justice in a Southern Town. New York: Bantam. Romano, John F. 1999. “Prohibitions in the Use of Circumstantial Evidence: Key Tips on Gaining Strategic Advantage.” Trial Lawyer 22 (January-February). ———. 1986. Strategic Use of Circumstantial Evidence. Frederick, MD: Wolters Kluwer Law & Business. Shestokas, David J. 2009. “Circumstantial Evidence in an American Trial.” Suite101.com. Available online at http://peacesecurity.suite101.com/article.cfm/circum stantial_evidence_in_an_american_trial; website home page: http://peacesecurity.suite101.com (accessed August 30, 2009). CITATION A paper commonly used in various courts— such as a probate, matrimonial, or traffic court—that is served upon an individual to notify him or her that he or she is required to appear at a specific time and place. Reference to a legal authority—such as a case, constitution, or treatise—where particular infor- mation may be found. Cases are published in a series of books called reporters, which are compilations of judicial decisions made in a certain court, state, or jurisdiction. Reporters are published in consecutively numbered volumes, each of which contains the most recently decided cases. When the volume numbers on a set of reporters get too high, the publisher will begin a new set with a new series of numbers. To refer to a particular case in a reporter, a designation including the volume number, the name of the reporter, and the page number is given. If, for example, a case decided in the U.S. Supreme Court were cited as 60 S. Ct. 710, the case would be in volume 60 of the Supreme COURT REPORTER on page 710. To promote uniformity of citations, many lawyers and law students use The BLUE BOOK: A Uniform System of Citation, commonly referred to simply as The Blue Book. This manual is published jointly by law schools at Harvard, Yale, Columbia, and the University of Pennsylvania. Other citation manuals have also been published. When a court issues a citation, it orders a person to appear at a certain time and place . Failure by the person to adhere to the require- ments in a citation results in punishment by the court. On appeal, a court may issue a citation of appeal, giving parties notice of the appeal and ordering them to appear in court. Issuance of a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 398 CITATION citation is required in order to give an appellate court jurisdiction over the appeal. The clerk of a court is generally required to issue a citation. Police officers also issue citations for minor offenses, especially for traffic violations. The citation that an officer gives to a violator states the charge and requires an appearance before a judge on a specified date, subject to punish- ment for failure to appear. Citations issued by police officers for minor violations are typically only admissible for a CRIMINAL ACTION that is based upon the violation. In most jurisdic- tions, evidence of an arrest from a citation is not admissible in a CIVIL ACTION based upon the same facts. CROSS REFERENCE Legal Publishing. CITATOR A volume or set of volumes that is a record of the status of cases or statutes. A citator is a guide published primarily for use by judges and lawyers when they are in the process of preparing such papers as judicial decisions, briefs, or memoranda of law. Its purpose is to provide a judicial history of cases and statutes as well as to make a note of new cases. A citator indicates whether or not the law in a particular case has been followed, modified, or overruled in subsequent cases. A citator is usually organized into columns of citations. Various abbreviations designate such things as whether a case has been overruled, superseded, or cited in the dissenting opi nion of a later case. The most well-known and commonly used citator is Shepard’s Citations. The proce ss of consulting this book or any other citator is known as shepardizing a case. CITE To notify a person of a proceeding against him or her or to call a person forth to appear in court. To make reference to a legal authority, such as a case, in a citation. Cases, statutes, constitutions, treatises, and other similar authorities are cited to support a certain view of law on an issue. When writing a legal brief, an attorney may wish to strengthen his or her position by referring to cases that support w hat he or she is saying in order to persuade the court to make a ruling favorable for the client. CROSS REFERENCES Precedent; Stare Decisis. CITIZENS Those who, under the Constitution and laws of the United States, or of a particular community or of a foreign country, owe allegiance and are entitled to the enjoyment of all civil rights that accrue to those who qualify for that status. Neither the United States nor a state is a citizen for purposes of DIVERSITY OF CITIZENSHIP,a phrase that is used in regard to the jurisdiction of the federal courts, which—under Article III, Section 2, of the Constitution—empowers those courts to hear and decide cases between citizens of different states. Municipalities and other local governments, however, are deemed to be citizens. The term cit izen in Article III of the Constitution, which established the federal judiciary, includes corporations; therefore, suits concerning corporations involve citizens for federal jurisdictional purposes. The term citizen, however, as defined by the Fourteenth and Fifteenth Amendments, does not encompass either corporations or ALIENS. Neither corpora- tions nor aliens receive the protection of the PRIVILEGES AND IMMUNITIES Clauses of the FOUR- TEENTH AMENDMENT and Article IV, as those clauses protect only citizens. Aliens, howev er, are considered to be “persons” for the purposes of the Due Process Clauses of the Fifth and Fourteenth Amend- ments and the EQUAL PROTECTION Clause of the Fourteenth Amendment. In the 1982 case of Immigrants take an oath of citizenship in a ceremony held on Ellis Island in New York City. Naturalized citizens have all the rights of a native-born U.S. citizen with one exception: they cannot serve as president of the United States. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CITIZENS 399 Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786, the U.S. Supre me Court recognized that even illegal aliens are “persons” within the Equal Protection Clause of the Fourteenth Amendment for purposes of public education. A corporation is also deemed to be a citizen for certain purposes. It is a citizen of the United States and of the state under whose laws it was organized. A particular state, commonly Dela- ware, is selected for incorporation because that state charges lower taxes and its laws favor businesses. Once the company incorporates in the designated state, it is a citizen of that state, but it can apply in any other state for authority to do business there. The Fourteenth Amendment to the Consti- tution provides: “All persons born or natural- ized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside….” The important right of citizenship, whether for native-born or naturalized citizens, cannot be divested, whether as punishment for a crime or for any other reason, by the states or the federal government, including their agencies and offi- cials (see also Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660, 18 L. Ed. 2d 757 [1967]). American citizenship can be relinquished, but it cannot be taken away unless it was procured through FRAUD or any other unlawful action. The Fourteenth Amendment, through the inclusion of the phrase “all persons,” was specifically enacted in 1868 specifically to grant citizenship to former slaves. Since 1924, it has been judicially interpreted to include American Indians. U.S. citizenship does not divest an Indian of tribal citizenship but, rather, coexists with it. The Fourteenth Amendment does not, however, make children who are born within the territory of the United States of foreign ambassadors, CONSULS, and military officers American citizens. Such children derive their citizenship from their parents. Ordinarily, a person who is in a country other than the one of which he or she is a citizen owes to that country a type of “temporary allegiance,” which essentially is a respect for the laws of the host country, although it is not as substantial as the loyalty demanded of citizens. It requires that an alien observe the laws of the country and, in some countries, even serve in the military; it ensures the protection of the alien by the laws of the country. Ambassadors, consuls, and military officers, however, owe no allegiance to the foreign country where they are assigned, and their children are not “born within the allegiance” of a foreign country in which they serve. Citizen of a State The Fourteenth Amendment provides that American citizens are also citizens “of the state wherein they reside,” but U.S. citizenship does not necessitate residence in a particular state. Persons living abroad, for example, are citizens of the United States but not of any state. One significant legal disadvantage exists for a person who is not a citizen of a state. The Constitution provides that federal courts can hear “Controversies … between Citizens of different States.” The phrase “Citizens of different States” includes citizens of Puerto Rico, the Virgin Islands of the United States, and Guam. Puerto Rico is in the First Circuit, the Virgin Islands are in the Third Circuit, and Guam, Alaska, and Hawaii are in the Ninth Circuit. A person who is not a resident of a state or designated area, even if he or she is a U.S. citizen, cannot satisfy the diversity of citizenship requirement and therefore cannot bring an action under the Diversity Clause in a federal court. American Citizenship U.S. citizenship is attained either by birth or by NATURALIZATION, the legal procedure that a qualified person must satisfy in order to be accepted as a citizen. Federal law provides that those who are born in any of the 50 states, Puerto Rico, the former Panama Cana l Zone, the Virgin Islands of the United States, and Guam are all native- born citizens, including the children of an American Indian, Eskimo, Aleutian, or any other tribal member. Persons born in outlying possessions of the United States, such as Wake Island or Midway Island, and their children are called nationals. They owe allegiance to the United States and enjoy some rights. The term national denotes everyone who owes alleg iance to the country, including citizens, but not every national possesses all of the rights of a citizen. A person born beyond the geographical boundaries of the United States and its outlying possessions, of parents who are both U.S. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 400 CITIZENS citizens, is a national and a citizen of the United States at birth if one parent had a residence in the United States or one of its outlying possessions prior to the birth of such person. If only one parent is a citizen and the other is a national—but not a citizen—the parent who is a citizen must have been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of the child in order for the child to be a national and a citizen of the United States at birth. A person born out of wedlock in a foreign country acquires at birth American citizenship if the mother was a citizen at the time of such person’s birth and had formerly been physically present in the United States or one of its outlying possessions for a continuous period of one year preceding the birth. Derivative Citizenship A child born in a foreign country can become a U.S. citizen if his or her parents become naturalized U.S. citizens. If the child is brought to the United States before becoming an adult, and the child’s parents become citizens, then the child is entitled to claim U.S. citizenship when he or she becomes an adult. Although his or her birth certificate will still reflect a foreign- born status, a person in this situation can obtain a certificate of nationality by filing an applica- tion with the SECRETARY OF STATE. Rights of U.S. Citizens Everyone within the jurisdiction of the United States is protected by most of the guarantees and safeguards of the Constitution. A U.S. citizen traveling abroad retains the protection of the United States. If property of an individual is stolen while he or she is in a foreign country, the United States consul can lend him or her money to return to the United States. U.S. citizens, of course, must observe and obey the laws of other countries while they are visiting, but if a U.S. citizen is arrested, a representative from the U.S. ambassador’s office can visit him or her and inform the foreign government that the treatment of the U.S. citizen will be scrutinized. Unlike citizens of other countries, U.S. citizens are entitled to enter into, and to depart from, the United States, and to obtain a PASSPORT from the government. The passport certifies to foreign nations that its holder is entitled to all of the protection afforded by the U.S. government. The right to enter and leave the United States is so fundamental, however, that a citizen cannot be prevented from coming into the United States merely because he or she has no passport. Even if someone departs from the country without obtaining a passport, knowing that he or she should have done so, he or she must be permitted to enter upon returning if a birth certificate or expired passport is presented, or if the person takes an OATH as to his or her citizenship. However, the U.S. government can prohibit its citizens from traveling in designated coun- tries that are hostile to the U.S. and perilous to U.S. citizens. The passport of a person who ignores these restrictions can be revoked, and such a traveler can be denied protection by the government. A naturalized citizen has all of the rights of a native-born U.S. citizen but one: He or she can never be PRESIDENT OF THE UNITED STATES. Article II of the Constitution provides: “No person except a natural-born Citizen, or a Citizen of the United States, at the time of Adoption of this Constitution, shall be eligible to the Office of President.” Obligations of Citizenship The most fundamental duty of a citizen is to be loyal to the United States. Allegiance is not an unquestioning acceptance, but a general faith in the U.S. system. In times of national emergency, citizens can be required to defend the country, through military service or alternative service such as employment in a hospital. Issues surrounding the duties of citizens often arise in the same context as the freedoms enjoyed by citizens of the United States. In one of his more famous speeches, The Duties of American Citizenship, President THEODORE ROO- SEVELT said, “It ought to be axiomatic in this country that every man must devote a reason- able share of his time to doing his duty in the Political life of the community. No man has the right to shirk his political duties under whatever PLEA of pleasure or business.…” In the wake of the SEPTEMBER 11TH ATTACKS in 2001, the case against one American citizen, John Philip Walker Lindh, demonstrated the attitude that the U.S. government takes against nationals who breach their duty of citizenship. Lindh, also known by the Islamic names GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CITIZENS 401 Suleyman al-Faris and Abdul Hamid, as well as the nickname “the American Taliban,” con- verted to Islam in 1997. After visiting such countries as Yemen and Pakistan to study Islam at various times from 1997 to 2000, Lindh began training with the terrorist organization al-Qaeda in 2001. Both before and after the terrorist attacks in September 2001, Lindh served the Taliban regime of Afghanistan in an ongoing conflict with the Northern Alliance in northeastern Afghanistan. After his groups retreated and eventually surrendered, Lindh was captured by Northern Alliance groups in November 2001. He was eventually turned over to the U.S. military, who returned him to the United States on January 23, 2002. In the case of United States v. Lindh, 198 F. Supp. 2d 739 (E.D. Va. 2002), Lindh was indicted on ten criminal charges, including CONSPIRACY to MURDER U.S. nationals, contribut- ing to and conspiring to contribute to al-Qaeda, and using and carrying firearms and other destructive devices during crimes of violence. Lindh pled guilty in July 2002 to a count of supplying services to the Taliban government and received a 20-year sentence. Surrender of Citizenship Unlike some nations, the United States permits EXPATRIATION, the voluntary relinquishment of one’s citizenship. A U.S. citizen can lose his or her citizenship by declaring that he or she no longer wishes to be a citizen or to owe allegiance to the United States, or by performing a VOLUNTARY ACT that constitutes the surrender of citizenship, as prescribed by law. The test of whether an abandonment of citizenship is voluntary depends on whether the person’s acts were of his or her own choice and pertained to allegiance to the United States. If they were, federal law provides that one has intentionally and voluntarily surrendered his or her right to American citizenship. A loss of citizenship can occur by serving in the military of another nation; serving as a public official in a foreig n cou ntry that requi res an oath of allegiance to that country ; and attempting to overthrow the U.S. government, which is established by a conviction for the crime. Conduct that might be construed as a renunciation of citizenship sometimes is insuf- ficient to prove volu ntary expatriation. If a person merely enjoys the benefits that are available in another country, the surrender of his or her U.S. citizenship is not necessarily established. The U.S. Supreme Court has recognized the power of Congress to specify conduct that constitutes expatriation, but the right to citi- zenship is so substantial that such actions must be closely related to a conspicuous movement of allegiance away from the United States. Al- though some courts have ruled that Congress never is empowered to deprive the native born of citizenship, this view is not in accordance with current law. Conviction of a crime can result in a partial deprivation of rights of citizenship. Prior to the twentieth century under English and American COMMON LAW, convicts actually lost their citizen- ship, which was known in some jurisdictions as CIVIL DEATH. In the early twenty-first century, however, only some rights are divested, even if the applicable law is called “loss of citizenship.” A state is empowered to deny someone the right to vote after his or her conviction of a FELONY or an “infamous crime,” such as BRIBERY or PERJURY. This denial of a right of citizenship can remain in effect until the completion of the sentence, including periods of PAROLE,oritmight be permanent. A PARDON from the president or a governor can restore such rights, however. Some statutes even authorize the courts to restore rights of citizenship upon proof of the rehabili- tation of the former prisoner. International Law Questions concerning whether someone is a citizen of one country or another are generally resolved by treaty, a compact formed between two or more nations with respect to matters pertaining to the public welfare pursuant to principles of INTERNATIONAL LAW. One person might qualify for DUAL NATIONALITY, that is, citizenship in more than one nation, if he or she can satisfy the citizenship requirements of different countries. International law also recognizes a rule labeled the “law of the flag,” which determines the citizenship of persons born on ships. The rule is responsive to the citizenship laws of different nations and to treaties that are rewritten to fulfill new political conditions. A child born of U.S. parents on a vessel anywhere in the world is a U.S. citizen. A child GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 402 CITIZENS born in U.S. waters on a foreign ship is a citizen of that foreign nation when his or her parents are citizens of that country. If his or her parents are from a different country, provisions of treaty or international law apply. A child born on the high seas on a foreign vessel of parents from that same country assumes that country’s citizenship and not the citizenship of his or her destination. FURTHER READINGS Aleinikoff, T. Alexander, et al, eds. 2001. Citizenship Today: Global Perspectives and Practices. Washington, D.C.: Carnegie Endowment for International Peace. Doak, Robin. 2003. Citizenship. New York: Heinemann Raintree. Lister, Ruth. 2003. Citizenship: Feminist Perspective. Washing- ton Square, NY: New York Univ. Press. Noorani, A.G. 2002. Citizens’ Rights, Judges and State Accountability. New York: Oxford Univ. Press. CITIZENS FOR DECENCY THROUGH LAW Citizens for Decency through Law (CDL), one of the first major anti-pornography organiza- tions in the United States, was founded in 1956 by lawyer and future financier Charles H. Keating Jr., after his daughter was sexually attacked in the 1950s. Believing that PORNOGRA- PHY causes violence and CHILD ABUSE,CDL memb ers have endeavored to stop the sale of pornographic material and close movie theaters that show sexually explicit movi es by pressuring politicians and judges into enforcing OBSCENITY laws. CDL has provided legal advice to cities investigating dealers in sexually explicit motion pictures, magazines, and mail-order publica- tions. CDL attorneys have concentrated on helping the police and prosecutors to prepare trials and appeals in obscenity cases, prepare TESTIMONY before local, state, and federal legisla- tive committees, and draft model legislation. Between 1963 and 1981, CDL sponsored or wrote AMICUS CURIAE (friend-of-the-court) briefs for 27 obscenity cases reviewed by the U.S. Supreme Court. Of those cases, 37 percent had rulings favorable to CDL’s views. In addition to providing direct, personal assistance in certain important cases, CDL’s legal staff have prepared and mailed comprehensive analyses of develop- ments in obscenity law to prosecutors around the United States. The group has also sought to educate the public on the extent of the traffic in OBSCENE materials. Keating, a staunch Roman Catholic who originally called his group Citizens for Decent Literature, is perhaps best known as a central figure in a scandal involving the Lincoln SAVINGS AND LOAN ASSOCIAT ION . Between 1989 and 1993 he was charged with and convicted on numer- ous civil RACKETEERING and FRAUD charges and sentenced to prison. CDL as a national organization splintered after the scandal, but local chapters remain active in some cities and states. Keating began his career as a PROSECUTOR in Cincinnati—a conservative city that now prides itself on being a national center for anti- pornography efforts—and first sought to rid newsstands of sexually explicit materials in the 1950s when he prosecuted a local candy store accused of selling obscene publications. By 1969 his zealous battles against pornography had earned him an appointment by RICHARD M. NIXON to the Presidential Commission on Obscenity and Pornography. In 1970 Keating filed a lawsuit that delayed release of a report by the commission that recommended repeal of all adult CENSORSHIP laws. Over the years, CDL battled foes ranging from Larry Flynt, publisher of Hustler magazine, to Pacific Bell, which allowed indiscriminate access to dial-a-porn messages. A long-running skirmish in the 1980s involved an adult movie theater in an Orange County, California, shopping center that Lincoln Savings and Loan sued after the city of Santa Ana failed to close the theater. Lincoln’s lawsuit charged that the theater, operated by Mitchell Brothers, attracted “criminal elements, ORGANIZED CRIME and per- sons who practice sexual deviations, such as homosexuals, lesbians, voyeurs, prostitutes, pedophiles, sadists, masochists, rapists, etc., into the area.” (After the Lincoln bank failed, the federal government took over the institu- tion, and the lawsuit was dropped.) During the administrations of Presidents RONALD REAGAN and GEORGE HERBERT WALKER BUSH lawyers recruited from CDL took part in a controversial and lengthy prosecution of busi- nesses involved with obscene materials. In November 1993 the U.S. JUSTICE DEPARTMENT dropped this prosecution tactic, which involved threatening businesses with indictments in numerous jurisdictions in order to extract agreements to stop distribution of the materials. The theory behind the strategy was that the mere expense of defending themselves in so many GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CITIZENS FOR DECENCY THROUGH LAW 403 places would encourage PLEA bargains by the businesses. Among the targets of these prosecu- tions was Adam and Eve, a large distributor of sexually explicit films, magazines, and books. A number of federal judges and civil liberties organizations denounced the multidistrict tactic as a form of harassment, sweeping in nonob- scene materials protected by the FIRST AMENDMENT in addition to unprotected obscenity. CDL often worked with other organizations, including the National Religious Alliance against Pornography; Morality in Media; the Moral Majority; Citizens against Pornography; the American Family Association; and the National Federation for Decency. It has also been aligned with smaller compatriot groups such as Citizens for Legislation against Decadence in Portland, Oregon; Women against Pornography in New York; Feminists against Pornography in Chicago and in Washington, D.C.; and the feminist- sponsored Pornography Resource Center in Minneapolis. CDL opponents include the AMERI- CAN CIVIL LIBERTIES UNION and other civil liberties organizations as well as publishers of pornogra- phy, such as Oui magazine, which in 1975 dubbed Keating the number one enemy of pornography. FURTHER READINGS Bessler, John D. 1994. “The Public Interest and the Unconstitutionality of Private Prosecutors.” Arkansas Law Review 47. Epstein, Lee. 1993. “Interest Group Litigation during the Rehnquist Era.” Journal of Law and Politics 9 (summer). Harlow, Carol. 1992. Pressure through Law. New York: Routledge. CIVIL ACTION A lawsuit brought to enforce, redress, or protect rights of private litigants—the plaintiffs and the defendants—not a criminal proceeding. In the early 2000s, courts in the United States generally are not divided into COMMON- LAW COURTS and equity courts because most states and the federal government have merged the procedures for law and equity into one system. Now all kinds of lawsuits are simply called civil actions without the former distinc- tions of procedure in law or in equity. A criminal proceeding is called a PENAL action to distinguish it from civil actions. CIVIL DEATH The forfeiture of rights and privileges of an individual who has been convicted of a serious crime. Civil death is provided for by statute in some states. Most civil death statutes apply only to offenders who have been sentenced to a life term. Civil death involves the imposition of numerous disabilities, including the denial of the privilege to vote, to hold public office, and to obtain many job and occupational licenses. In addition, an offender cannot enter into judicially enforceable agreements, such as contracts, and may not obtain insurance and pension benefits. The offender may also be deprived of any right to commence certain lawsuits in court. Successive marriages can also be affected by civil death laws. The issue is whether or not the spouse of a person declared civilly dead may enter into a subsequent MARRIAGE. The state courts are in disagreement on the matter, although, in most instances, where a FELONY is a ground for DIVORCE, the spouse of the convicted person may end the marriage. CIVIL DISOBEDIENCE A symbolic, non-violent violation of the law, done deliberately in protest against some form of perceived injustice. Mere dissent, protest, or disobedience of the law does not qualify. The act must be nonviolent, open and visible, illegal, performed for the mora l purpose of protesting an injustice, and done with the expectation of being punished. By peacefully and openly violating the law and submitting to punishment, those engaging in civil disob edience hope to draw attention to the law they hope to reform, the injustice they hope to stop, or the policy or practice they hope to end. By calling into question the justness, fairness, equity, or propriety of the STATUS QUO, persons engaging in civil disobedience usually appeal to some form of higher law, whether it be the divine law of god, NATURAL LAW,orsome form of moral reasoning. The philosophi cal underpinnings for civil disobedience can be found in New Testament writings which report on the teachings of Jesus. They also appear in works by Cicero, Thomas Aquinas, JOHN LOCKE, and THOMAS JEFFERSON.Ina famous essay entitled “Civil Disobedience,” HENRY DAVID THOREAU claimed that the individual is “a higher and independent power” from which the state obtains its authority. As GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 404 CIVIL ACTION individuals, people must not wait for the government to recognize injustice and instigate reform, Thoreau said, because the machinery of government moves too slowly. If individuals have right on their side, then they must do right by trying to peacefully and openly change society. Civil disobedience has been extensively employed around the world by nationalist movements (e.g., MOHANDAS GANDHI used civil disobedience to protest against British colonial rule in India), CIVIL RIGHTS leaders (e.g., MARTIN LUTHER KING Jr. used civil disobedience to protest against racial SEGREGATION laws in the United States), and anti-war protestors (e.g., Muham- mad Ali used civil disob edience to protest U.S. involvement in the VIETNAM WAR), among others. CROSS REFERENCES Civil Rights Movement; Protest. CIVIL LAW In the United States, the term civil law has two meanings. One meaning of civil law refers to a legal system prevalent in Europe that is based on written codes. Civil law in this sense is contrasted with the common-law system used in England and most of the United States, which relies on prior CASE LAW to resolve disputes rather than written codes. The second meaning of civil law refers to the body of laws govern ing disputes between indivi- duals, as opposed to those governing offenses that are public and relate to the government — that is, civil law as opposed to CRIMINAL LAW. The civil law system is derived from the Roman Corpus Juris Civilus of Emperor Justi- nian I; it differs from a common-law system, which relies on p rior de cisions to determine the outcome of a lawsuit. Most European and South American countries have a civil l aw system. England and most of the countries it dominated or colonized, including CANADA AND THE UNITED STATES , have a common-law system. However, within these countries, Louisiana, Quebec, and Puerto Rico exhibit the influence of French and Spanish settlers in their use of civil law systems. In France, the civil law is set forth in the comprehensive French Civil Code of 1804, also known as the Code Napoléon. France exported this legal system to the New World when it settled Louisiana in 1712. When the French ceded Louisiana to Spain in 1762, the new Spanish governor replaced French civil law with Spanish civil law. France regained control of the territory in 1803 and the United States pur- chased it a mere 20 days later. During that brief period of French rule, the French prefect abolished all Spanish courts but did not reintroduce French law. Hence, the new U.S. governor of Louisiana, William Claiborne, took control of a territory that lacked a legal system. Determined to Americanize Louisiana, Clai- borne attempted to impose COMMON LAW but met fierce resistance from Louisianans who had grown accustomed to their mixture of French and Spanish laws and culture. Realizing that he would not be able to mandate a common law system, he directed the state’s legislature to draft a civil code based on existing law. Louisiana’s first civil code, enacted in 1808, drew heavily from the Code Napoléon and was even written in French. It was replaced in 1825 by a more comprehensive and detailed code. Finally, the Louisiana Civil Code, enacted in 1870 and still largely in force, clarifies and simplifies the earlier laws. The 1870 code is written in English, signaling a shift toward a partial Americaniza- tion of Louisiana’s legal culture. To this day, Louisiana enjoys the distinction of being the only state in the United States to have a civil law system rather than a common-law system. The first article of the Louisiana Civil Code reads: “The sources of law are legislation and custom” (LA C.C. Art. 1). This means that judges in Louisiana are obligated to look first to written laws for guidance in reaching their decisions. If no statute directly governs the dispute, judges may base their decisions on established custom. Article 3 defines custom as a “practice repeated for a long time and generally accepted as having acquired the force of law.” However, Article 3 makes it clear that custom may not abrogate or conflict with legislation. Hence, Louisiana judges do not make law with their decisions; rather, the code charges them with interpreting, as closely as possible, what has been written and passed by the legislature or long established by custom. Louisiana judges , unlike their common-law counterparts, are not bound by jud icial prece- dent. Common-law judges adhere to the doctrine of STARE DECISIS, which mandates that the outcome of a lawsuit be governed by previous decisions in similar cases. Louisiana’s civil code does not recognize the binding force GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CIVIL LAW 405 of precedent. However, under the civil law doctrine of jurisprudence constante, or settled jurisprudence, judges are expected to follow a series of decisions that agree on the interpreta- tion of a code provision. Although Louisiana is generally called a civil law state, its code is imbued with some common-law features, making it a hybrid of the two traditi ons. The state’sconstitution, administrative and criminal law, civil and CRIMINAL PROCEDURE, and rules of evidence all contain elements derived from common-law principles. As a result, Louisiana judges operate under administrative rules that differ from those found in other civil law jurisdictions. For example, whereas European judg es a ctively elicit the facts in a controversy and seldom use a jury, Louisiana judges operate more like their common-l aw colleagues, assuming the role of neutral and passive fact finder or ARBITER,andleavingtheFINAL DECISION to a jury. Oral argument is generally absent in a pure civil law proceeding, whereas Louisiana’spro- ced ural and ev identiary rules allow oral pre- sentati ons, resulting in trials that are closer to those found in a common-law court. F inally, European courts allow almost unlimited dis- covery by the accused in a lawsuit, whereas Louisiana’s procedura l and evide ntiary rules place certain restrictions on such discovery. Civil law systems differ from common-law systems in another important way: In a common-law jurisdiction, appellate courts, in most instances, may review only findings of law. However, civil law appellate courts may review findings of fact as well as findings of law. This allows a Louisiana appellate court to declare a jury’s decision erroneous, impose its own findings of fact, and possibly even reduce a damage award. This is a significant consider- ation for a PLAINTIFF who has a choice of whether to file suit in Louisiana or in another state (to bring suit in a particular state, a plaintiff must demonstrate some relationship between that state and the lawsuit). Because a jury award could be overturned on appeal, the plaintiff with a strong case may wish to file in a common-law state. On the other han d, if the plaintiff is uncertain of success at the trial level, the possibility of broader review on appeal may make Louisiana the better choice. As a practical matter, such dilemmas ari se infrequently, and most often involve complex multistate LITI- GATION concerning corporations. FURTHER READINGS Apple, James G., and Robert P. Deyling. A Primer on the Civil–Law System. Washington, D.C.: Federal Judicial Center. Available online at http://www.fjc.gov/public/ pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf; website home page: http://www.fjc.gov (accessed August 30, 2009). Rogowski, Ralf. 1996. Civil Law and Legal Theory. New York: New York Univ. Press. Scott, S.P. 2006. The Civil Law. Clark, NJ: The Lawbook Exchange. CROSS REFERENCES Napoleonic Code; Roman Law. CIVIL PROCEDURE The methods, procedures, and practices used in civil cases. The judicial system is essentially divided into two types of cases: civil and criminal. Thus, a study of civil procedure is basically a study of the procedures that apply in cases that are not criminal. Generally, criminal trials are used by the government to protect and provide relief to the general public by attempting to punish an individual. Civil trials can be used by anyone to enforce, redress, or protect their legal rights through court orders and monetary awards. The two types of trials are very different in character and thus have separate procedural rules and practices. PROCEDURAL LAW is distinguished from SUB- STANTIVE LAW , which creates, defines, and regulates the rights and duties of individuals. Federal and state constitutions, statutes, and judicial decisions form the basis for substantive CIVIL LAW on matters such as contracts, torts, and probate. Procedural law prescribes the methods by which individuals may enforce substantive laws. The basic concern of procedural law is the fair, orderly, efficient, and predictable applica- tion of substantive laws. Procedural guidance can be found in court rules, in statutes, and in judicial decisions. Federal Rules of Civil Procedure State and federal courts maintain separate procedural rules. On the federal level, the Federal Rules of Civil Procedure govern the process of civil LITIGATION at the level of the U.S. district court, which is a trial court. At least one U.S. district court operates in each state. Each district court also exists within one of thirteen federal circuits. Any appeal of a decision by a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 406 CIVIL PROCEDURE U.S. district court is heard by the court of appeals fo r the federal circuit in which the district court sits. Appeals of decisions by a U.S. court of appeals may be heard by the SUPREME COURT OF THE UNITED STATES . The Supreme Court and the courts of appeals use procedures contained in the Federal Rules of Appellate Procedure and in the U.S. Supreme Court Rules. As reviewing courts, they are concerned with the district courts’ applica- tion of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure are now contained in title 28 of the U.S. CODE. Before 1938, the procedural rules in U.S. district courts varied from circuit to circuit. The rules in the western United States, for example, were generally less complex than those in the East. To add to the confusion, federal civil cases were designated either at law, which essentially meant that the relief sought was monetary or equitable, which meant that the court was asked to act on principles of fairness and, generally, to award nonmonetary relief. The distinction was impor- tant because the procedural rules for a case at law differed from those for an equity suit. In response to widespread criticism of procedural complexity, the U.S. Congress in 1934 passed the Federal Rules Enab ling Act (28 U.S.C.A. §§ 2071, 2072). This act conferred on the Supreme Court the power to make new rules for federal courts. In 1938 new rules were recommended by an advisory committee appointed by the Supreme Court and approved by Congress. The new rules featured simplified PLEADING requirements, comprehensive discov- ery procedures, a PRETRIAL CONFERENCE to narrow the scope of a trial and define issues, and broad provisions for joining parties and claims to a lawsuit. In addition, legal and equitable claims were merged to proceed with the same set of rules. After the first set of uniform federal rules were promulgated, it became clear that contin- uous oversight of the rules was necessary to ensure their improvement. In 1958 Congress created the JUDICIAL CONFERENCE OF THE UNITED STATES , a freestanding body to study federal civil procedure and propose amendments to the Supreme Court. The Judicial Conference, in turn, created the ongoing Committee on Rules of Practice and Procedure to help fashion the best procedural rules for federal courts. Subse- quently amendments to the Federal Rules of Civil Procedure occurred on a regular basis. State Courts generally follow the sam e judicial hierarchy as federal courts. In all states, a party to a civil suit is entitled to at least one review of a trial court decision. In some states, a party may be entitle d to two appeals: one in a court of appeals, and one in the state supreme court. Procedural rules in state courts are similar to the federal rules. Indeed, many states base their procedural rules on the federal rules. Thus, thereisalargemeasureofuniformityamong the states and among state and federal courts. Litigation Process: Pleadings, Justisdiction, and Venue A CIVIL ACTION is commenced with the filing of a complaint. The PLAINTIFF must file the complaint with the court and must give a SUMMONS to the court and a copy of the complaint to the DEFENDANT. The complaint must set forth the claims and the legal bases for them. Before filing the complaint, the plaintiff must decide where to file it. As a general rule, cases are filed in state, not federal, courts. The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction. Federal courts generally have jurisdiction over civil actions in three situations. The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds $50,000. The second instance is when a claim is specifically authorized by federal statute. The third is when a claim is made by or against the federal government or its agents. The jurisdiction of state courts depends on a number of variables. Plaintiffs filing in state court generally prefer to file in their home state. However, this may be difficult in a case where the defendant lives in another state and the injury occurred outside the plaintiff’s home state. A court in the plaintiff’s home state can gain jurisdiction over an out-of-state defendant in several ways. For example, if the defendant enters the plaintiff’s home state, the plaintiff may serve the defendant there and force the defendant to appear there for trial. Or the plaintiff can show the court that the defendant has some minimal amount of contact with the plaintiff’s home state. Or the plaintiff can show that the defendant has property in the plaintiff’s home state and the property is the subject matter of the dispute. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CIVIL PROCEDURE 407 . code does not recognize the binding force GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CIVIL LAW 405 of precedent. However, under the civil law doctrine of jurisprudence constante, or settled jurisprudence,. 20 2, 1 02 S. Ct. 23 82, 72 L. Ed. 2d 786, the U.S. Supre me Court recognized that even illegal aliens are “persons” within the Equal Protection Clause of the Fourteenth Amendment for purposes of. all of the rights of a citizen. A person born beyond the geographical boundaries of the United States and its outlying possessions, of parents who are both U.S. GALE ENCYCLOPEDIA OF AMERICAN LAW,