Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P53 pot

reimburse a policyholder is a fixed percentage— usually 80 percent—of the approved charges— the amount of a submitted bill which the insurer considers reasonable and will reimburse after the policyholder has paid the DEDUCTIBLE, which is usually the first $100 of medical expenses. The insured becomes a coinsurer for the remaining 20 per cent of the approved charges as well as for the amount by which the individual medical bills exceed the approved charges. COINTELPRO Between 1956 and 1971, the Federal Bureau of Investigation (FBI) condu cted a campaign of domestic counterintelligence. The agency’s Do- mestic Intelligence Division did more than simply spy on U.S. citizens and their organiza- tions; its ultimate goal was to disrupt, discredit, and destroy certain political groups. The divi- sion’s operations were formally known within the bureau as COINTELPRO (the Counterin- telligence Program). The brainchild of former FBI director J. Edgar Hoover, the first COIN- TELPRO campaign targeted the U.S. Commu- nist party in the mid-1950s. More organizations came under attack in the 1960s. FBI agents worked to subvert CIVIL RIGHTS groups, radical organizations, and white supremacists. COIN- TELPRO existed primarily because of Director Hoover’s extreme politics and ended only when he feared its exposure by his critics. A public uproar followed revelations in the news media in the early 1970s, and congressional hearings criticized COINTELPRO campaigns in 1976. In 1956 Hoover interpreted a recent federal law—the Communist Control Act of 1954 (50 U.S.C.A. § 841)—as providing the general authority for a covert campaign against the U.S. Communist party. Officially, the law stripped the party of “the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States.” Hoover saw the party as a pe ril to national security and ordered a large-scale effort to infiltrate and destabilize it. Employing classic ESPIONAGE techniques, FBI agents joined the party and recruited infor- mants. They spread dissension at party meetings by raising embarrassing questions about the recent Soviet invas ion of Hungary, for instance, or about Soviet premier Nikita Khrushchev’s denunciation of the Soviet leader JOSEPH STALIN, who had been a hero to U.S. Communists. Agents also engaged in whispering campaigns identifying party members to employers and neighbors. The FBI intensified its harassment by enlisting the INTERNAL REVENUE SERVICE (IRS) to conduct selective tax audits of party members. And it spread rumors within the party itself— employing a practice known as snitch jacketing— that painted loyal members as FBI informants. In all, the government executed 1,388 separate documented efforts, and t he y worked: whereas party membership was an estimated twenty-two thousand in the e arly 1950s, it fell to some three thousand by the end of 1957. After his initial success, Hoover did not rest. From the late 1950s through the end of the 1960s, he unleashed his agents against a wide range of political groups. Some were civil rights organizations, such as the National Association for the Advancement of Colored People ( NAACP) and the SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (SCLC). Others were radical, such as the BLACK PANTHER PARTY ,theAMERICAN INDIAN MOVEMENT, and the Socialist Workers party. Yet another target was the nation’s oldest white hate group, the KU KLUX KLAN, although Hoover was less enthusiastic about pursuing it and did so chiefly because of political pressure resulting from the Klan’s highly publicized murders of civil rights workers. In internal FBI memorandums, Hoover’s motive for these operations is given as the need to stamp out COMMUNISM and subver- sion, but the historical record reveals a muddier picture. What turned Hoover’s attention to the NAACP, for example, was the organization’s criticism of FBI hiring practices for excluding minorities. In their scope and tactics, these FBI operations occasionally went much further than the original anti-Communist COINTELPRO effort. They involved at least twenty documen- ted burglaries of the offices of the SCLC, an organization headed by MARTIN LUTHER KING Jr. Hoover detested King, whom he called “one of the most reprehensible … individuals on the American scene today,” and urged his agents to use “imaginative and aggressive tactic s” against King and the SCLC. To this end, agents bugged King’s hotel rooms; tape-recorded his infideli- ties; and mailed a recording, along with a note urging King to commit suicide, to the civil rights leader’s wife. The COINTELPRO opera- tion against the radical Black Panther party, which Hoover considered a black nationalist GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 508 COINTELPRO hate group, tried to pit the party’s leaders against each other while also fomenting violence between the Panthers and an urban gang. In at least one instance, FBI activities did lead to violence. In 1969 an FBI informant’s tip culminated in a police raid that killed Illinois Panther chairman Fred Hampton and others; more than a decade later, the federal govern- ment agreed to pay RESTITUTION to the victims’ survivors, and a federal judge sanctioned the bureau for covering up the facts in the case. Political changes in the early 1970s weakened Hoover’s position. Critics in the media and Congress began to question Hoover’s methods, and the newly created FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C.A. § 552, promised to pierce the veil of secrecy that had always protected him. In 1971 a break-in at an FBI field office in Pennsylvania yielded secret documents that were ultimately published. Fearing greater exposure of FBI counterintelligence programs, Hoover for- mally canceled them on April 28, 1971. Some small-scale operations continued, but the days when agents had carte blanche to carry out the director’s will were over. Hoover died May 2, 1972, at the age of 77. His death was followed by the realization of his greatest fear. In 1973 and 1974 NBC reporter Carl Stern gained access to COINTELPRO documents through an FOIA claim. More revelations followed, producing a public outcry and leading to an internal investigation by Attorney General WILLIAM B. SAXBE. The U.S. Congress was next: In 1975 and 1976, hearings of the House and Senate Select Committees on Intelligence further probed COINTELPRO. Even as Hoover’s legacy was laid bare, supporters tried to keep the cover on: House lawmakers kept their committee’s report secret. The Senate did not; its report, released on April 28, 1976, denounced a “pattern of reckless disregard of activities that threatened our constitutional system.” Along with revealing other instances of FBI illegalities under Hoover, the investigation of his activities set in motion a process of reform. Congress ultimately limited the term of the director of the FBI to ten years, to be served at the pleasure of the president, a safeguard designed to ensure that no single individual could again run the bureau indefinitely and without check. Details about COINTELPRO continue to be made public through govern- ment documents. FURTHER READINGS Gentry, Curt. 2001. J. Edgar Hoover: The Man and the Secrets. New York: Norton. Hakim, Joy. 2007. History of US Volume 10: All the People 1945–2005. New York: Oxford Univ. Press. Kleinfelder, Rita L. 1993. When We Were Young: A Baby- Boomer Yearbook. New York: Simon & Schuster. Powers, Richard G. 1987. Secrecy and Power: The Life of J. Edgar Hoover. New York: Free Press. v COKE, SIR EDWARD An influential figure of Renaissance England and a great jurist, SIR EDWARD COKE bravely fought for the supremacy of the COMMON LAW over the monarchy. He served in numerous high public offices under Elizabeth I, who reigned from 1558 to 1603, James I, who reigned from 1603 to 1625, and Charles I, who reigned from 1625 to 1649—and his continual efforts to restrain the last two rulers remain a significant part of his legacy. He was frequently a member of Parliament (M.P.), and in the 1620s, he became a leading figure of that body, staunchly advocating the rights and freedoms of Parliament against challenges from James I and Charles I. Coke was a contemporary of such great figures of Elizabethan England as William Shakespeare, Edmund Spenser, Sir Walter Raleigh, Ben Jonson, and FRANCIS BACON.Heis most well-known for his influential legal writings, particularly his four-volume Institutes of the Laws of England. He also published, during his career, Reports, a compendium of leading cases of common law with his own analyses that finally constituted thirteen volumes. Coke’s ideas formed part of the intellectual background for the American Revo- lution and the U.S. Constitution. His writings on English common la w, along with those of SIR WILLIAM BLACKSTONE, greatly influenced U.S. law and were considered required reading for U.S. lawyers until well into the nineteenth century. Coke was born February 1, 1552, at Mile- ham, Norfolk, England, into a family of Norfolk gentry, the only son amon g eight children. His father was a barrister, or trial lawyer, and Coke took up the same profession. In 1572, after being educated at Norwich Grammar School; at Trinity College, Cambridge; and at Clifford’s Inn, London, he was admitted to the Inner Temple—one of the INNS OF COURT that served as colleges in the university of law. He became a barrister in 1578, and quickly rose to great THE GREATEST INHERITANCE THAT A MAN HATH IS THE LIBERTY OF HIS PERSON , FOR ALL OTHERS ARE ACCESSORY TO IT . —SIR EDWARD COKE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COKE, SIR EDWARD 509 prominence in his profession and in the political sphere of his time. He was aided in his rise by his friendship with William Cecil, Baron Burghley, the chief minister to Queen Elizabeth I. Coke became recorder of Coventry in 1585 and of Norwich in 1586, M.P. for Aldeburgh in 1589, recorder of London and SOLICITOR GENERAL in 1592, and M.P. for Norfolk and Speaker of the Commons in 1593. In 1582 Coke married Bridget Paston. The union brought him a considerable fortune in money and land, as well as seven child ren. With his later political power, he was able to add greatly to his wealth over the course of his life. His first wife died in 1598. His subsequent marriage a few months later to Lady Elizabeth Hatton, 26 years his junio r and granddaughter of Burghley, was a troubled one and ended in separation. He had one daughter by Lady Hatton. In 1594 Coke became attorney general for the Crown, or “the quenes atturney,” as a contemporary put it, winning the post in competition against Bacon, a noted philosopher and politician and Coke’s chief rival dur ing his public career. As attorney general, Coke was responsible for defending the interests and royal prerogative, or power, first of Queen Elizabeth and then of King James. He supervised state prosecutions in several major TREASON trials, including those of the earls of Essex and Southampton (1600–01); Raleigh (1603); and the conspirators involved in the Gunpowder Plot (1605), an attempt by Catholic opponents to blow up the House of Lords. A gifted speaker, Coke also proved in such trials that he could be brutal in court. He said of Raleigh, a former favorite of Queen Elizabeth and hero of the realm, “[T]hou hast a Spanish heart, and thyself art a spider of hell” and “there never lived a viler viper upon the face of the earth than thou.” Coke was so powerful at this point in his career that in 1601 he was able to invite the queen to his estate at Stoke Poges, where he presented her with jewels and other gifts valued at over £1,000. Coke’s responsibilities as “the queen’s attorney” were diametrically opposed to those in his later role as champion of the common law against the Crown. In 1606 he was made chief justice of the Court of COMMON PLEAS, a position as judge of the common law that soon put him at odds with King James. Through this position, Coke sought to limit thejurisdiction of the royal courts—particularly the ecclesiastical, or church, courts and the Chancery, or courts of the king’s lord chancellor—by maintaining that ▼▼ ▼▼ Sir Edward Coke 1552–1634 15501550 16001600 16251625 16501650 15751575 ◆◆◆◆◆◆◆◆◆ ❖❖ 1552 Born, Mileham, Norfolk, England 1558–1603 Reign of Elizabeth I 1589 Became a member of Parliament 1594 Became attorney general for the Crown 1606 Appointed chief justice of the Court of Common Pleas 1578 Became a barrister 1603–25 Reign of James I 1613 Appointed chief justice of the King's Bench 1616 King James dismissed Coke 1617 Reappointed to Privy Council and Star Chamber 1621 Helped draft the Protestation of December 1621, which caused King James to dissolve Parliament 1628 Led the movement to put forward the Petition of Right; first volume of the Institutions of the Laws of England published 1634 Died, Stoke Poges, England 1625–49 Reign of Charles I Sir Edward Coke. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 510 COKE, SIR EDWARD the king was bound by the tradition of common law in making decisions. Coke told King James that he could not make judicial decisions that were in conflict with common-law precedent. He argued that the common law was a system of “artificial reason and judgment,” the accumu- lated wisdom of many decisions over hundreds of years that could only be acquired through laborious study. The common law was therefore not amenable to arbitrary change by one individual, even if that individual was the king. In Fuller ’s case (1607–8), for example, Coke argued that “the king in his own person cannot adjudge any case.” He also delivered an opinion in 1610 in which he stated that the king cannot change any part of the common law or create through royal proclamation a new offense under the law. Coke’s concept of the common law’s authority over the monarchy eventually became part of the English constitution. In 1613 Coke was made chief justice of the King’s Bench, moving to a lower-paying posi- tion that Bacon and other enemies inflicted on him as punishment and with the hope that it would force Coke to give in to the demands of the Crown. However, shortly thereafter, Coke was appointed to the PRIVY COUNCIL, the king’s formal body of advisers. Again, he stubbornly asserted the superiority of the common law over the powers of the king and the king’s advisers. He clashed with the Court of King’s Bench and with the king in several more prominent cases—including the king’s attempts to hold several ecclesiastical benefices, or offices, at the same time—and in 1616 James dismi ssed Coke from office. Ever resilient—and ever valuable to the state because of his great legal skills and knowledge—by 1617 he was back in the PRIVY Council and the STAR CHAMBER, a court of law made up largely of members of the Privy Council. In 1620 Coke again entered Parliament, this time as a member from a Cornwall borough. While in Parliament in this last stage of his public career, Coke became a leading advocate for that body’s independent power against the king. He participated in the IMPEACHMENT of Bacon as lord chancellor and helped draft the Protestation of December 1621, which stated that “the liberties, franchises, privileges and jurisdictions of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England” and that Parliament “hath and of right ought to have freedom of speech” in England. This document caused James to dissolve that session of Parliament and dismiss its leaders. Coke, at age 70, received the most severe sentence of anyone in Parliament and was put in the Tower of London for nine months. Coke soon became an M.P. again, sitting for Coventry in the Parliament of 1624. James I died in 1625, the same year that Coke sat in Parliament for Norfolk, and the throne was taken by Charles I. In 1628, Coke spent his last term in Parliament, for Bucking hamshire. That year, he led the movement to put forward the Petition of Right, which guaranteed the subjects’ rights with respect to the monarchy, including protection against arbitrary imprisonment, freedom from TAXATION without parliamentary representation, and DUE PROCESS OF LAW.Inhis defiant reply to the petition, King Charles was adamant about what he called his “sovereign power” to rule the country. Later, in an eloquent speech before Parliament, Coke ques- tioned the king’s phrase, reminding the mem- bers of the importance of MAGNA CARTA,the medieval document that protected the nobility, Parliament, and, to a certain degree, the common people from arbitrary royal decrees. “Take we heed what we yield unto,” Coke declared. “Magna Carta is such a fellow that he will have no sovereign.” Coke retired from public life shortly after this speech. Despite his effort s, ideas such as those contained in the Petition of Right were not embodied in formal law until much later in English history. Sadly, Coke suffered the indignities of royal prerogative once again in July 1634, several months before his death, when his papers were ransacked and stolen by royal officials. Though Coke was very old and infirm, the king still deemed him “too great an oracle among the peop le” and therefore dan- gerous to the power of the monarchy. Coke died in his house at Stoke Poges in September 1634. Coke’s legal writings served as invaluable guides to jurists for centuries after his death. His Reports (1600–1611, 1650–59), covering a peri- od of 40 years, were the preeminent legal texts of their time. These 13 volumes were based on careful notes on cases he had heard since he had been nominated to the bar. Arranged by subject, they went into greater detail than had previous LAW REPORTS , including coverage of earlier precedents affecting contemporary judicial deci- sions. They are different from modern legal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COKE, SIR EDWARD 511 reports in that they reflect Coke’s own inter- pretations of the law, with each report forming a brief treatise on the relevant points of law. They also contain numerous factual errors and misinterpretations of legal precedent. Coke’s four-volume Institutes of the Laws of England (1628–64) was the first significant legal work to be written partly in English. The first volume, called Coke upon Littleton (1628), contains the text of Sir Thomas Littleton’s 1481 treatise on property, On Tenures, with an English translation and commentary by Coke. The second volume (1642) deals with statutes of Parliament, the third (1664) with CRIMINAL LAW, and the fourth (1644) with the JURISDICTION and history of different English courts. Though the Institutes reflect many of Coke’s own short- comings—they have been criticized for their disorganization, inaccuracies, a nd idiosync rasies — they nevertheless put into modern language and make accessible a body of law that would have otherwise remained obscure and difficult to gather. Coke’s ideas later influenced the American Revolution, particularly through the voice of James Otis Jr., a lawyer in Massachusetts. In arguing the WRITS OF ASSISTANCE CASE in 1761, Otis used Coke’s writings to support his contention that an unwritten English constitu- tion had been developed by precedent over the years, and that any act of Parliament deemed to be in violation of that constitution could be declared VOID by the judiciary. The relevant passage in Coke is taken from Dr. Bonham’s case (1610): It appears in our books that in many cases the common law will control acts of Parlia- ment, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right or reason, or repug- nant, or impossible to be performed, the common law will control it, and adjudge such act to be void. Leaders of the American Revolution, in- cluding JOHN ADAMS, used such ideas in the eighteenth century to lobby for power to void Parliamentary laws that were considered to be harmful. Such ideas also influenced the devel- opment of the U.S. Constitution and the power of JUDICIAL REVIEW, which allows the judiciary to strike down legislation that violates the Constitution. FURTHER READINGS Bowen, Catherine D. 1990. The Lion and the Throne: The Life and Times of Sir Edward Coke 1552–1634. Boston: Little, Brown. Boyer, Allen D. 2003. Sir Edward Coke and the Elizabethan Age. Stanford, Calif.: Stanford Univ. Press. Hostettler, John. 1997. Sir Edward Coke: A Force for Freedom. Chichester, England: Barry Rose. Powell, Damian. 2000. “Coke in Context: Early Modern Legal Observation and Sir Edward Coke’s Reports.” Journal of Legal History 21, no. 3 (December). Woolrych, Humphry W. 2009. The Life of the Right Honourable Sir Edward Coke, Knt., Lord Chief Justice of the King’s Bench. Charleston, S.C.: BiblioBazaar. CROSS REFERENCES English Law “Dr. Bonham’s Case” (In Focus). v COKE, RICHARD Richard Coke achieved prominence as a politi- cian and jurist in the state of Texas. Coke was born March 13, 1829, in Williamsburg, Virginia. He graduated from the College of William and Mary in 1849 and was admitted to the Texas bar in 1850. After a tour of military duty during the Civil War, Coke became a district court judge in 1865 and subsequently presided as an ASSOCIATE JUSTICE of the Texas Supreme Court from 1866 to 1867. In 1874 Coke was elected governor of Texas. Two years later he became a member of the U.S. Senate, representing Texa s until 1894. He died May 14, 1897, in Waco, Texas. Richard Coke 1829–1897 ▼▼ ▼▼ 18251825 19001900 18751875 18501850 ◆◆◆◆◆◆ ❖❖ 1829 Born, Williamsburg, Va. 1850 Admitted to Texas bar 1859 Served on committee that induced Native Americans of the Upper Brazos River to move to the Indian Territory 1862–65 Served in the 15th Texas Regiment during Civil War 1865 Became district court judge 1866–67 Served as associate justice of Texas Supreme Court 1874 Elected governor of Texas 1887 Supported the Interstate Commerce Act 1897 Died, Waco, Tex. 1876 Elected to represent Texas in U.S. Senate GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 512 COKE, RICHARD COLD WAR The cold war was a pivotal era in the twentieth century. The term cold war itself, popularized in a 1946 speech by prime minister Winston Churchill of Britain, describes the ideological struggle between democracy and COMMUNISM that began shortly after the end of WORLD WAR II and lasted until 1991. For the foreign policy of the United States, the cold war defined the last half of the twentieth century. It was a war of ideas, of THREATS, and of actual fighting in the countries of Korea and Vietnam, pitting western nations against the Soviet Union and China and their Communist allies. The 1940s and 1950s saw the cold war bloom into a period of unparalleled SUSPICION, hostility, and persecu- tion. Anti-Communist hysteria ran through each branch of government as the pursuit of U.S. Communists and their sympathizers con- sumed the energies of the EXECUTIVE BRANCH, lawmakers, and the courts. Rarely in the nation’s history have constitu tional rights been so widely and systematically sacrificed. The cold war began in the aftermath of World War II. Although only recently allied against Germany, the United States and the Soviet Union saw their relationship quickly disintegrate. The division of Europe, with the Soviet bloc countries sealed off behind what Churchill called the “iron curtain,” had been the first blow. A fear that Communism would undermine the security of the United States took hold of the nation’s leaders and citizens alike. Measures had to be taken to safeguard the country from infiltration, it was popularly believed, and the government began a vigorous campaign against Communist activity. On March 21, 1947, President HARRY S. TRUMAN took a significant early step toward protecting the country from Communism by issuing an order establishing so-called loyalty boards within each department of the executive branch (Exec. Order No. 9835, 3 C.F.R. 627). These boards were designed to hear cases brought against employees “disloyal to the Government” and, on the evidence presented, remove disloyal employees from federal service. The loyalty boards deviated from the tradi- tional standard of presumed innocence. Instead, the boards made their determinations based on whether “reasonable grounds exist for belief” that an accused employee was disloyal. Thus, instead of having to prove BEYOND A REASONABLE DOUBT that the accused person was guilty of A family sits in their bomb shelter, a common feature of many homes during the early years of the Cold War when fear of a nuclear war with the Soviet Union was intense. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLD WAR 513 disloyalty, it was sufficient to bring enough evidence against the accused person to damn that person in the eyes of the board. This abridgment of due process, which ended jobs and ruined reputations, grew harsher under the administra- tion of President DWIGHT D. EISENHOWER.By amending the order in 1951, Eisenhower made it even harder for an accused employee to prove his or her innocence (Exec. Order No. 10,241, 16 Fed. Reg. 3690). Now, the BURDEN OF PROOF was reduced to a showing of “reasonable doubt as to the loyalty of [the] person,” a standard amenable to trumped-up charges. The intensity of domestic fears grew in 1949, following the announcement by Presid ent Truman that the Soviets had developed the atomic bomb. Only a year later, the KOREAN WAR broke out. These events ushered in a period of bomb she lters, air raid drills in schools, civilian anti-Communist organizations, and suspicion of anyone whose ideas, behavior, personal life, or appearance suggested belief in or sympathy for Communism. Terms such as Pinko, Red, and Communist sympathizer found their way into the national vocabulary. During the late 1940s, the House Un- American Activities Committee (HUAC), created to investigate subversives, provoked widespread concern that government officials had given secrets to the Soviets. Over the next decade, in a climate of general suspicion that it helped foster, it also investigated union leaders, academics, and, most dramatically, Hollywood. The right to freedom of association meant little to congressional investigators. HUAC subpoe- naed private citizens and confronted them with a no-win choice: cooperate in naming Com- munists or face CONTEMPT charges. Crucial to the success of these hearings was the cooperation of the FEDERAL BUREAU OF INVESTIGATION (FBI), which provided the committee with both public support and information. At the same time, Senator JOSEPH R. MCCARTHY conducted his own hearings through the Permanent Subcommittee on Investigations. From 1950 to 1954, McCarthy’s charges about alleged Communist operatives in the STATE DEPARTMENT and the Army captivated the nation. Like HUAC activities, his witch-hunt shattered reputations and lives, but it backfired when he attacked the U.S. Army. Censured by the U.S. Senate in 1954, he ultimately gave history a word that symbolizes the zealous disregard for fairness in accusation: McCarthyism. Starting in 1948, the JUSTICE DEPARTMENT prosecuted members of the American Commu- nist party under the SMITH ACT of 1940 (18 U.S. C.A. § 2385), a broadly written law that prohibited advocating the violent overthrow of the government. The U.S. Supreme Court upheld 12 convictions in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), and this ruling cleared the way for 141 subsequent indictments. Over the next several years, 29 convicted party members were sent to jail. In time, Congress provided prosecutors with new ammunition through the MCCARRAN INTERNAL SECURITY ACT of 1950 (50 U.S.C.A. § 781 et seq.) and the Communist Control Act of 1954 (50 U.S.C.A. § 841). Anti-Communist hysteria decreased some- what following the embarrassment of McCarthy. However, the cold war continued. HUAC operated throughout the 1960s, as did the Senate Permanent Subcommittee on Investiga- tions; both continued to locate the nation’s troubles in the work of alleged subversives. And from the late 1950s to the 1960s, the FBI, under the direction of J. Edgar Hoover, secretly fought Communists and other targets through its Counterintelligence Program ( COINTELPRO). Although the domestic waging of the cold war had diminished by the early 1970s, the international struggle continued. Over the next two decades the cold war drew the United States into military involvement in Asia, Africa, and Central America. After Vietnam, the United States fought communism by supporting anti- communist factions in Angola, El Salvador, Nicaragua, Guatemala, and Afghanistan. During the 1980s the United States shifted to an economic strategy, hoping to bankrupt the Soviet Union through an arms race of unprece- dented scale. The cold war effectively ended with the breakup of the Soviet Union in 1991. FURTHER READINGS Craven, John Pina. 2001. The Silent War. New York: Simon & Schuster. Hakim, Joy. 2007. History of US Volume 10: All the People 1945–2005. New York: Oxford Univ. Press. la Feber, Walter. 2006. America, Russia, and the Cold War, 1945–2007. 10th ed. Boston: McGraw-Hill. Levering, Ralph B. 1982. The Cold War: 1945–1972. Arlington Heights, Ill.: Harlan Davidson. Mendelsohn, Jack. 1999. “History and Evaluation of the Role of Nuclear Weapons in the Cold War.” Case Western Reserve Journal of International Law 31 (mid- summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 514 COLD WAR Neusner, Jacob, and Noam M. M. Neusner. 1995. The Price of Excellence: Universities in Conflict during the Cold War Era. New York: Continuum International. Rosenn, Max. 1995. “Presumed Guilty.” Univ. of Pittsburgh Law Review (spring). Tatum, Dale C. 2002. Who Influenced Whom?: Lessons from the Cold War. Lanham, MD: Univ. Press of America. Wenger, Andreas, and Doron Zimmermann. 2003. Interna- tional Relations: From the Cold War to the Globalized World. Boulder, CO: L. Rienner. CROSS REFERENCES Communism “House Un-American Activities Committee” (In Focus); Hiss, Alger; Nixon, Richard Milhous; Rosenbergs Trial. COLLATERAL Related; indirect; not bearing immediately upon an issue. The property pledged or given as a security interest, or a guarantee for payment of a debt, that will be taken or kept by the creditor in case of a default on the original debt. That which is collateral is not of the essence. Collateral facts are facts that are not indepen- dently provable from, and that are not directly relevant to, issues in a CAUSE OF ACTION. Collateral heirs are those individuals who are not directly related to the deceased through CONSANGUINITY. Similarly, collateral ancestors are uncles and aunts, as contrasted with direct ancestors, such as parents and grandparents. COLLATERAL ATTACK An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it. A defendant may make a COLLATERAL ATTACK on a judgment entered against him or her in some instances. If a DEFAULT JUDGMENT is entered against the person, he or she may collaterally attack the authority of the issuing court to render it, claiming that there was a lack of PERSONAL JURISDICTION. Similarly, if a man leaves his wife and moves to another state where he obtains a DIVORCE that contains no support provisions for the woman, she may directly attack the judgment by appealing it in the state where it was entered or initiate a collateral attack by bringing her own divorce action in her state of residence. A collateral attack may also be made upon a judicial proceeding in a single state. COLLATERAL ESTOPPEL A doctrine by which an earlier decision rendered by a court in a lawsuit between parties is conclusive as to the issues or controverted points so that they cannot be relitigated in subsequent proceedings involving the same parties. Collateral estoppel is an AFFIRMATIVE DEFENSE that must be pleaded by a DEFENDANT in civil actions. The similar affirmative defense of RES JUDICATA differs from collateral ESTOPPEL in that it completely precludes the relitigation of a claim, demand, or CAUSE OF ACTION, as opposed to an issue or controverted point, in a subsequent proceeding between the same parties to an earlier action. The application of the collateral estoppel doctrine promotes the speedy administration of justice by preventing the continuous, duplica- tive LITIGATION of fruitle ss claims when relitiga- tion of them is unlikely to change the original decision made regarding them. Requirements Issues or findings of fact, not conclusions of law, are subject to collateral estoppel only in certain cases. The issue against which collateral estoppel is claimed must be identical to an issue already litigated in the earlier case and must have been fully litigated at that time. In addition, the court must have actually decided the issue. The decision on the issue must have been integral in the outcome of the original lawsuit. This last requirement assures the issue was vigorously litigated so that it is fair to prevent its relitigation in a second action because there is little likelihood that the results will be different the second time. If an action has been settled by the agreement of the parties, most jurisdictions will not apply collateral estoppel, since the issues have not been fairly and fully litigated. Persons Affected Collateral estoppel is binding only upon those parties to the first action in which a decision was made and anyone who might be regarded as in PRIVITY with those parties, such as a BAILOR and BAILEE or a principal and his or her agent. In many jurisdictions a party in a lawsuit who is not subject to the estoppel effect of a prior judgment because the party was not a party to the original action in which the judgment was rendered can, in certain instances, use that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLATERAL ESTOPPEL 515 judgment to bind his or her adversary who had been a party in the former action. A defendant who, in a second action, pleads the defenses of collateral estoppel against the PLAINTIFF uses it defensively. In many jurisdictions this use of the doctrine is considered fair because the plaintiff has the advantage of selecting the defendant and the forum in which the case is to be decided. The decision to commence the second lawsuit is based, in part, upon the findings or issues in the first action, and, therefore, it is not unreasonable to bind the plaintiff by the issues or findings made in that case. In contrast, a plaintiff in a subsequent lawsuit who asserts collateral estoppel against a defendant uses the doctrine of fensively to buttress his or her cause of action. Fewer jurisdictions, however, permit its offensive use since the defendant against whom it would be applied has neither the choice of forum nor of adversary. Limitations Collateral estoppel has limited applicability in cases where the issues raised in the court where the action was first heard were beyond its jurisdiction. In antitrust cases brought in federal court, which has exclusive jurisdiction over such matters, prior state court rulings concerning antitrust violations made during the course of deciding the legality of a contract will not be given collateral estoppel effect. Courts reason that the punitive and exclusive nature of the federal remedy in antitrust cases precludes collateral estoppel based upon state court decisions. In contrast, federa l courts have applied collateral estoppel in patent cases to any underlying facts decided by state courts but not to facts alleged to prove the issue of patent validity or INFRINGEMENT. The availability of collateral estoppel is also limited by changes in the law that take place between the original and subsequent action. Collateral estoppel will not apply if modifica- tions in the applicable law alter the operative facts needed to obtain a favorable ruling. To do otherwise would deny an individual EQUAL PROTECTION of law merely because of the luck of the person who obtained the previous ruling. Criminal Matters Jurisdictions differ on whether to give an estoppel effect to a criminal conviction of a party currently involved in a civil lawsuit. Traditionally, estoppel was not permitted, since the plaintiff in the CIVIL ACTION was not a party to the criminal proceeding. In the early twenty- first century, a number of states give full collateral estoppel effect to a previous criminal conviction. ACQUITTAL of a crime is not given collateral estoppel effect in a civil proceeding because the plaintiff in the civil suit was not a party to the criminal proceeding and could not offer EVIDENCE against the defendant. This rule prevented O. J. SIMPSON from using his acquittal of MURDER as a defense in the civil trials brought against him by the families of Nicole Brown Simpson and Ronald Goldman following the murder trial. In addition, the difference betw een the BEYOND A REASONABLE DOUBT standard of proof necessary for a criminal conviction and the PREPONDERANCE OF EVIDENCE standard in civil actions would make it unfair to allow the acquitted defend ant to use his or her acquittal to bind the opponent in the civil matter in which the standard of proof to obtain a judgment is not as stringent. COLLATERAL HEIR A successor to property—either by will or descent and distribution—who is not directly descended from the deceased but comes from a parallel line of the deceased’s family, such as a brother, sister, uncle, aunt, niece, nephew, or cousin. COLLATERAL WARRANTY In real estate transactions, an assurance or guaranty of title made by the holder of the title to the person to whom the property is conveyed. Such a WARRANTY is not the same as a covenant RUNNING WITH THE LAND, since it run s only to a particular convenantee who accepts the land from the holder of title and not to each successive owner of the land upon taking ownership of it. COLLECTIVE BARGAINING Collective bargaining is the process through which a labor union and an employer negotiate the scope of the employment relationship. A COLLECTIVE BARGAINING AGREEMENT is the ultimate goal of the COLLECTIVE BARGAINING process. Typically, the agreement establishes wages, hours, promotions, benefits, and other GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 516 COLLATERAL HEIR employment terms, as well as procedures for handling disputes arising under it. Because the collective bargaining agreement cannot address every workplace issue that might arise in the future, unwritten customs and past practices, external law, and informal agreem ents are as important to the collective bargaining agree- ment as the written instrument itself. Collective bargaining allows workers and employers to reach voluntary agreement on a wide range of topics. Even so, it is limited to some extent by federal and state laws. A collective bargaining agreement cannot accom- plish by contract what the law prohibits. For example, a union and an employer cannot use collective bargaining to deprive employees of rights they would otherwise enjoy under laws such as the CIVIL RIGHTS statutes (Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 [1974]). Collective bargaining also cannot be used to WAIVE rights or obliga- tions that laws impose on either party. For example, an employer may not use collective bargaining to reduce the level of safety stan- dards it must follow under the Occupational Safety and He alth Act (29 U.S.C.A. §§ 651 et seq.). Furthermore, the collective bargaining agreement is not purely voluntary. One party’s failure to reach agreement entitles the other to resort to certain legal tactics, such as strikes and lockouts, to apply economic pressure and force agreement. Moreover, unlike commercial con- tracts governed by state law, the collective bargaining agreement is governed almost exclu- sively by federal LABOR LAW, which determines the issues that require collective bargain ing, the timing and method of bargaining, and the consequences of a failur e to bargain properly or to adhere to a collective bargaining agreement. National Labor Relations Act Congress passed the National Labor Relations Act (NLRA) (29 U.S.C.A. §§ 151 et seq.) in 1935 to establish the right of workers to engage in collective bargaining and other group activities (§ 157). The NLRA also created the NATIONAL LABOR RELATIONS BOARD (NLRB), a federal agency authorized to enforce the right to bargain collectively (§ 153). The NLRA has been amended several times since 1935, most notably in 1947, 1959, and 1974. The NLRA governs labor relations for businesses involved in interstate commerce only; thus, it does not protect the collective bargaining interests of all categories of workers. Several classes of employers fall outside the NLRA, including those working for the U.S. government and its wholly owned corporations, states and their political subdivisions, railroads, and AIRLINES. The NLRA also does not protect certain types of workers, such as agricultural workers, independent contractors, and supervi- sory and managerial employees. But other federal and state laws often provide protection for workers not covered under the NLRA. For example, federal government workers enjoy the right to bargain collectively under the CIVIL SERVICE Reform Act of 1978, which is patterned largely after the NLRA and enforced by the Federal Labor Relations Authority. Railroads and airlines are generally governed by the Railway Labor Act, the predecessor to the NLRA. Plus many states have adopted statutes similar to the NLRA that protect the rights of state and local government workers to bargain collectively. Sections 8(a)(5) and 8(b)(3) of the NLRA define the failure to engage in collective bargaining as an UNFAIR LABOR PRACTICE (29 U.S. C.A. § 158(a)(5), (b)(3)). The AGGRIEVED PARTY may file an unfair labor practice charge with the NLRB, which has the authority to prevent or halt the performance of unfair labor practices (§ 160). Law of Collective Bargaining The law of collective bargaining encompasses four basic points: n The employer may not refus e to bargain over certain subjects with the employees’ National Basketball Association (NBA) Commissioner David Stern (right) shakes hands with NBA Players Association Executive Director Billy Hunter during a June 2005 press conference in which a new collective bargaining agreement between the league and players was announced. NATHANIEL S. BUTLER/ NBAE VIA GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION COLLECTIVE BARGAINING 517 . Institutions of the Laws of England published 1634 Died, Stoke Poges, England 1 625 –49 Reign of Charles I Sir Edward Coke. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 510. Case Western Reserve Journal of International Law 31 (mid- summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 514 COLD WAR Neusner, Jacob, and Noam M. M. Neusner. 1995. The Price of Excellence: Universities. four -volume Institutes of the Laws of England. He also published, during his career, Reports, a compendium of leading cases of common law with his own analyses that finally constituted thirteen volumes.