Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P10 docx

paying his or her share of the expenses incurred for maintenance or improvements of the common areas, regardless of whether the individual owner approves of the upkeep or improvements. The size of the share of operat- ing, maintaining, and improving costs of a building and common areas to be borne by an individual unit owner depends on the size of that owner’s unit, usually measured by the number of rooms in the unit. The three basic instruments used in the purchase of a condominium are a deed to the unit; a declaration of condominium; and the BYLAWS of the condominium association, the membership of which is composed of the units’ owners. An individual buying a condominium receives a deed, which must be duly recorded in the appropriate county office. Such deed ordinarily describes the individual unit, the building in which the unit is located, and the property upon which the building is con- structed. Generally it will also embody all limitations or restrictions imposed on the use of the unit and any other details agreed upon by the purchaser and seller. The deed cannot contain any provision that is contrary to the rules of the co ndominium or declaration of condominium. The declaration of condominium is the official record of the owner’s rights and duties pursuant to receiving title to the condominium. It also states precisely what portions the owner of a unit owns and must maintain. State statute prescribes what must be included in the declaration of condominium. These require- ments vary from one state to another, but a declaration of condominium must ordina rily contain the following: (a) a legal description of the land and buildings of the condominium, which is essentially the same information contained in the deed; (b) a description of each unit, including the address, size, number of rooms, and exact location within the building; (c) a description of the common areas and any restrictions upon the use thereof; (d) the pecuniary worth of each unit of the condomini- um and of the land under it, as well as the percentage of shares in the common areas assigned to each unit owner, usually based upon the number of rooms in his or her unit; (e) the number of votes assigned to each unit. The declaration of condominium must also state the procedure for making decisions concerning repairs, improvements, and similar costs, as well as provisions for amendment of the declaration or for ending the condominium arrangement. The number of votes assigned to each unit owner is in proportion to that owner’s percentage share. A declaration must also provide the procedures for owners’ payments of fees and other costs and sanctions imposed for failure to pay them. Condominium unit owners must adhere to the regulations set forth in the bylaws. The bylaws of a condominium—the rules and regulations by which the condominium associ- ation governs itself—are generally drafted by the developers of the condominium or t he original purchasers of the individual units. The bylaws ordinarily establish procedures for electing the officers or board members of the condominium association, conducting meetings, and handling routine building main- tenance and insurance for the common areas. They prescribe any restrictions that may be imposed on the sale of individual units and penalties for violation of the rules. A condominium unit may be purchased for cash; however, the more common procedure is for a mortgage to be obtained to help finance it. Since each unit is owned individually, if an owner defaults on mortgage payments or property taxes, no other unit owner is liable. Cooperative Organization A cooperative can be created in a number of ways: 1. Corporate organization. The most common type of cooperative organization is its corporate form. Three documents are required for the formation of a corporate cooperative: a corporate charter or certifi- cate of incorporation; bylaws; and a proprietary lease or occupancy agreement. These t hree instruments together constitute the contract between the individual owners and the corporation. The relationship of the unit owners to the corporation is such that they are tenants as well as share- holders. Corporate financing is ordinarily accomplished by a single mortgage executed by the corporation, which covers the entire project. Because separate mortgages on the individual units are uncommon, occupants are dependent upon the financial stability of their fellow occupants. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 78 CONDOMINIUMS AND COOPERATIVES 2. Co-ownership in JO INT TENANCY . In a joint tenancy title to the premises vests in all of the co-owners as joint tenants, which means that they have an undivided interest coupled with a RIGHT OF SURVIVORSHIP.Such an arrangement includes provisions for exclusive occupancy of individual units, vested in designated co-owners. This type of plan is not often practicable, since there must be four unities in a joint tenancy: time, title, interest, and possession. 3. TENANCY IN COMMON. The occupants own the entire project collectively as tenants IN COMMON . Each tenant is given the right to occupy exclusively a specifically designated unit. A tenancy in common dif fers from a joint tenancy in that each tenant owns an undivided portion ; ho wever, th e p ortions are not necessarily equal. In addition, each tenant has the LEGAL RIGHT to dispose of his or her undivided share or a portion thereof by deed or by will. Various covenants are employed to enforce the financial obliga- tions in maintenance and operation by the co-tenants. 4. BUSINESS TRU ST. In a business trust or MASSACHUSET TS TRUST, title to the entire premises vests in the trustees of the trust. Certificates of BENEFICIAL INTEREST are issued to the individual tenants, and each benefi- cial owner is assigned an exclusive right of occupancy of a s pecific unit under a proprietary lease. Each tenant-shareholder may deduct on his or her federal income TAX RETURN a proportion- ate share of the interest that the cooperative corporation has paid upon its blanket mortgage, so long as the corporation does not obtain in excess of 20 percent of its GROSS INCOME from sources apart from its tenant-shareholders. FURTHER READINGS Barton, Stephen E., and Carol J. Silverman, eds. 1994. Common Interest Communities: Private Governments and the Public Interest. Berkeley: Univ. of California Press. Hyatt, Wayne S. 2006. Condominium and Homeowner Association Practice: Community Association Law. 3d ed. Philadelphia, PA: American Law Institute-American Bar Association, Committee on Continuing Professional Education. Rohan, Patrick J. 1999. “Preparing Community Associations for the Twenty-First Century: Anticipating the Legal Problems and Possible Solutions.” St. John’s Law Review 73 (winter). Thomsett, Michael C. 1990. How to Buy a House, Condo, or Co-Op. Mount Vernon, NY: Consumers Reports. Trigiani, Lucia Anna. 2002. Reinventing the Rules: A Step-By- Step Guide for Being Reasonable. Alexandria, VA: Community Associations Institute. CROSS REFERENCES Community Property; Lease; Massachusetts Trust. CONDONATION In marriage, the voluntary pardoning by an innocent spouse of an offense committed by his or her partner conditioned upon the promise that it will not recur. Condonation, which is used as a defense in DIVORCE actions based on fault grounds, is strongly supported by PUBLIC POLICY. The institution of MARRIAGE and its preservation are considered essential for the stability of society, and therefore condonation is encouraged to promote the notion that marriages should not be lightly dissolved. The elements of condonation are the resumption of normal marital relations after knowledge of the offense or offenses and the promise that the offense will not be repeated. Various cases have attempted to interpret whether or not condonation has actually taken place. If, for example, a wife commits ADULTERY and her husband, after discovering this, allows her to return to their home but does not resume normal marital relations with her, a full condonation has not taken place. Whether or not a marital relationship has been fully resumed is generally considered to be a QUESTION OF FACT in divorce cases. Whether or not condonation has taken place is important in the area of maintenance or support obligations. In many states, remedies for nonsupport will be granted only when there is a showing that the husband has been guilty of a serious ma rital offense. If a husband who has committed such an offense can prove condona- tion, he can use this as a defense to his wife’s claim of nonsupport. Similarly, condonation has important co nsequences in formulating the grounds for divorce. If a woman’s husband has beaten her on a few occasions but she subsequently continued to cohabit with him, she might later be unable to sue for divorce on grounds of CRUEL AND INHUMAN TREATMENT. Some offenses, such as MENTAL CRUELTY, due to their ongoing, continuous nature, may not be eliminated by a showing of condonation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONDONATION 79 CONFEDERACY The association or banding together of two or more persons for the purpose of committing an act or furthering an enterprise that is forbidden by law, or that, though lawful in itself, becomes unlawful when made the object of the confederacy. More commonly called a conspiracy. The union of two or more independent states for the purpose of common safety or a furtherance of their mutual goals. CONFEDERATE ATTORNEYS GENERAL Following SECESSION from the Union, the Southern states immediately began the process of establishing a separate government to guide their course. One of the first acts of the provisional congress of the CONFEDERATE STATES OF AMERICA was to preserve the fo rce and framework of existing law in the South by adopting the Constitution of the Confederate States, which closely mirrored the CONSTITUTION OF THE UNITED STATES of America. Though the Confederate constitution made provisions for the existence of a supreme judicial court, with powers like those of the SUPREME COURT OF THE UNITED STATES, the pro- visional congress refused to enact the legislation necessary to actually establish the national court. Therefore, the attorneys general of the CONFEDERACY were often called on to act in place of a national tribunal and to render opinions interpreting the laws enacted by the Confederate congress. Accordingly their opinions were varied, covering both commonplace issues and constitutional questions. From 1861 to 1865, the Confederacy was served by four full time attorneys general— Judah Philip Benjamin, Thomas Bragg, Thomas Hill Watts, and George Davis—and by Wade Keyes, who functioned at various times as assistant, acting, and AD INTERIM (temporary) attorney general. As a group, they authored 218 opinions for Confederate president Jefferson Davis and members of his cabinet; most of the opinions were requested by the Departments of War, Treasury, and the Navy, and most were related to the fighting of, or financing of, the Civil War. Judah Philip Benjamin JUDAH PHILIP BENJAMIN (1811–84) was the Con- federacy’s first attorney general. Appointed by President Davis, Benjamin was confirmed on March 5, 1861, and served until November 21, 1861, when he was named secretary of war. As attorney general, he wrote 13 opinions on such matters as agricultural products tariffs, mail route contracts, and defense appropriations. Wade Keyes Jr. Wade Keyes Jr. (1821–79) was named assistant attorney general by Benjamin on May 6, 1861. He became a central figure in the Confederate DEPARTMENT OF JUSTICE, and he often assumed the responsibilities of the attorney general when the current appointee was absent or in times of transition. Before taking the position of assistant attorney general under Benjamin, Keyes was a prominent Alabama lawyer who specialized in property cases. Born to wealth and privilege, he was educated at La Grange College and the University of Virginia. His parents financed an extended tour of Europe and, on his return to the United States, arranged for him to study law with several noted Southern attorneys. Though Keyes directed his efforts to the PRACTICE OF LAW and generally avoided politics, he did hold public office for six years as chancellor of the Southern Division of Alabama. It was during his years in this office that Keyes was first noticed by Benjamin. Benjamin, impressed with Chancellor Keyes’s administra- tive abilities, legal intellect, and writing skills, was instrumental in bringing Keyes into the newly formed Confederate Depart ment of Justice. In the course of Keyes’s service to the Confederate president and cabinet, he authored 24 opinions—both for himself and for other attorneys general—on such diverse subjects as the duties of the attorney general; the treatment of prisoners of war; and, drawing on his former area of expertise, the appropriation of PERSONAL PROPERTY for the war effort. Following Watts’s election as governor of Alabama and resignation as attorney general, Keyes stepped in and served as attorney general ad interim from October 2, 1863, to January 1, 1864, when George Davis was able to take the office. Thomas Bragg Thomas Bragg (1810–72) was named attorney general on Novemb er 21, 1861, when Benjamin became secretary of war. Bragg had been GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 80 CONFEDERACY attorney general for only four months and had authored just seven opinions, when the escalat- ing military conflict threatened his family and his personal interests. He resigned on March 18, 1862. Bragg was born on November 9, 1810, in Warrenton, North Carolina, the son of Thomas Bragg and Margaret Crossland Bragg. He attended local schools in Warrenton and a military academy in Middletown, Connecticut, before studying law in Warrenton with Joh n Hall, a North Carolina Supreme Court judge. Bragg was admitted to the bar and began the practice of law in 1833 at the age of 23. On October 4, 1837, he married Isabella Cuthbert, the daughter of a locally prominent and politically active family. Bragg continued to practice law for the next several years, and he began to take an interest in local politics. He was elected to the North Carolina legislature in 1844, and by 1854 he was governor of the state. After two highly success- ful terms as governor, he was sent to the U.S. Senate, where he served until the secession of North Carolina. In spite of Bragg’s brief service as attorney general, he remained a friend of, and adviser to, the Davis administration throughout the war. After the war, Bragg returned to practice in North Carolina and tried, without success, to restore the personal property and fortune he had lost during the war years. Bragg died on January 21, 1872, in Raleigh, North Carolina. Thomas Hill Watts On March 19, 1862, Thomas Hill Watts (1819– 92) was named to succeed Bragg as attorney general. He served more than a year, and he wrote 99 opinions on MARTIAL LAW, reorganiza- tion of the military under CONSCRIPTION, pay allowances, rights of prisoners of war, treason- able offenses, and many other issues related to military service and the war. At the outbreak of the Civil War, Watts had organized the Seventeenth Alabama Infantry Regiment and served as its colonel. He was commanding the regiment in Tennessee when he received the appointment as attorney general. Perhaps because of this background, he had a special affinity for the men on the front lines of the conflict and for men from his home state. He spent many hours visiting wounded Alabama soldiers at nearby field hospitals and camps. Watts was born January 3, 1819, in Alabama Territory near the town of Greenville in present-day Butler County, Alabama. He was a middle son in a family of modest means. His parents, John Hughes Watts and Prudence Hill Watts, agreed to pay for his education at the University of Virginia if he agreed to forfeit any future claim to the family estate. He thought the bargain was a good one, and he graduated in 1839. He studied law locally and was admitted to the bar in 1840. On January 10, 1842, he married Eliza Brown Allen. The Wattses had ten children. While practicing law and providing for his growing family, Watts served several terms in the Alabama legislature in the 1840s. In 1850, he made an unsuccessful bid for a congressional seat. As war approached, Watts was an outspoken opponent of ABRAHAM LINCOLN and a firm believer in the right of an individual state to determine its future. While serving as attorney general, Watts left the office in the hands of Keyes on several occasions in order to return home and tend to state business. During the course of those visits, he decided to make a bid for the Alabama governorship in 1863. He was successful. Following his election, he resigned his position as attorney general effective October 1, 1863. Watts’s term as governor of Alabama ended with the fall of the Confederacy. For his part in the rebellion, Watts lost his personal fortune in land and slaves, and in 1865 he was sent to a Northern prison camp. Three years later he was pardoned by President ANDREW JOHNSON and permitted to return to Alabama to care for his ailing wife. She died in 1873. Following her death, Watts moved to Montgomery, Alabama, and resumed the practice of law. He remarried in September 1875. Watts died in Montgomery on September 16, 1892. George Davis George Davis (1820–96) took office as attorney general on January 2, 1864, and he served until the collapse of the Confederacy. He authored 75 opinions on issues such as the constitutionality of the conscription act, the legality of contracts for imports and exports, and the liability of the government for seized property and stored goods. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFEDERATE ATTORNEYS GENERAL 81 Davis was born March 1, 1820, at Porter’s Neck, New Hanover (now Pender) County, North Carolina. His parents were Thomas Frederick Davis and Sarah Isabella Eagles Davis. He graduated first in the University of North Carolina class of 1838, and he was admitted to the bar in 1839. He became a prominent and respected member of the local legal community, as well as a man of w ealth and taste. He was married, on November 17, 1842, to Mary A. Polk, and they had a la rge family. Davis had an early interest in politics, but as a WHIG PARTY member living in a DEMOCRATIC PARTY stronghold, he had little opportunity to serve. Finally, when North Carolina withdrew from the Union, Davis was sent to the provisional congress as a DELEGATE from his state. The following year, he entered the Confederate Senate, where he generally supported the admin- istration of the Confederate president. It was from his position in the Confederate Senate that Davis was tapped by the president and asked to take the office of attorney general after Watts resigned. Davis was unable to accept the office immediately, owing to the illness and subsequent death of his wife, so the position was temporarily filled by Keyes. Davis’s last act as attorney general was to advise the president and the cabinet to accept the terms of a presurrender agreement. The agreement was not accepted by the Union. After receiving word of General Robert E. Lee’s surrender at Appomattox Courthouse, in Virgi- nia, the attorney general resigned and became a fugitive. Fleeing southward, Davis first sought to locate his children, who were staying with friends near Wilmington, North Carolina. He managed to elude federal forces for a while but was eventually captured at Key West, Florida. He was imprisoned and held until January 1, 1866. After his release, Davis returned to Wil- mington, North Carolina. Just six months after leaving prison, he married Monimia Fairfax, on May 9, 1866. He resumed his legal practice and found himself in demand as a regional speaker. In the mid-1870s, he was offered, and declined, the chief justiceship of the North Carolina Supreme Court. His last public appearance was to deliver the eulogy at the 1889 funeral of Jefferson Davis. George Davis died in Wilming- ton, North Carolina, on February 23, 1896. FURTHER READINGS Canfield, Cass. 1981. The Iron Will of Jefferson Davis. New York: Fairfax. Catton, Bruce, and William Catton. 2004. Two Roads to Sumter: Abraham Lincoln, Jefferson Davis and the March to the Civil War. Edison, NJ: Book Sales. Eaton, Clement. 2003. A History of the Confederacy. New York: Textbook Publishers. Patrick, Rembert W. 1950. The Opinions of the Confederate Attorneys General, 1861–1865. Buffalo: Dennis. Sandburg, Carl. 2002. Abraham Lincoln: The War Years. Boston: Mariner. CROSS REFERENCES Confederac y; Secession. CONFEDERATE STATES OF AMERICA The Confederate States of America was the name taken by the states that seceded from the government of the United States in 1860 and 1861. The catalyst for leaving the Union was the election of ABRAHAM LINCOLN as president. The states feared that as a Republican, Lincoln would seek to restrict or even abolish SLAVERY. Six states organized this new government in Montgomery, Alabama, in February 1861. South Carolina had left the Union in December 1860 and was followed in January 1861 by Alabama, Florida, Georgia, Louisiana, and Mississippi. In March 1861, Texas seceded, and by the end of the year, Arkansas, North Carolina, Tennessee, and Virginia had also. The delegates to the organization of the CONFEDERACY began on February 4, 1861, when they met in Montgomery to establish a tempo- rary government. Jefferson Davis was elected president of the Confederacy and Alexander H. Stephens was selected as vice president. Their positions were temporary and were to last one year. However, after the adoption of the con- stitution, both men were elected to six-year terms. Six men became members of the first cabinet, and Montgomery was chosen as the temporary capital. The Confederate Congress transferred the capital to Richmond, Virginia, in May 1861, following the SECESSION of that state. The Constitution of the Confederacy was adopted in March 1861. Most of this document was modeled on the U.S Constitution; in fact, much of the language was copied verbatim. However, there were significant differences in a number of areas. Though the new constitution maintained the existing prohibition against international slave trading, slavery was pro- tected. One clause prevented a state from GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 82 CONFEDERATE STATES OF AMERICA barring slaveholders from moving their slaves anywhere in the Confederacy or from interfer- ing with a slaveholder’s property rights when moving slaves from state to state. This clause was in response to the Dred Scott decision, where it had been asserted that the slave Scott became a freeman when he entered territory where slavery was banned. Even though the Supreme Court had rejected this argument, the drafters clearly wanted this rejection enshrined in the constitution. Not surprisingly, the constitution endorsed restrictions on the federal government. The southern states had chafed at federal legislation that dealt with slavery and countered that most powers resided with the states. The constitution prohibited Congress from appropriating funds for internal improvements, enacting protective trade tariffs, or giving bounties. The president was given the power to VETO single items in appropriations, which in modern times is known as the line item veto. In turn, the Congress could override a line item veto by a two-thirds vote. Other changes in the Constitution of the Confederacy dealt with the EXECUTIVE BRANCH. The president and vice president were to be elected to six-year terms instead of four-year terms. Most importantly, the president could only serve one term. In a break from the SEPARATION OF POWERS concept, cabinet members were given seats in Congress and could partici- pate in debates. However, they could not vote. As for the legislative branch, the constitu- tion placed restrictions on its powers. A state could be admitted to the Confederacy only after a two-thirds vote by both houses of Congress. The same two-thirds vote requirement was applied to appropriations that were not requested by members of the cabinet through the president. Curiously, the constitution did not include a provision that allowed states to secede. The PREAMBLE proclaimed that each state acted “in its sovereign and independent charac- ter,” but it also announced the creation of a “permanent federal government.” A proposal to include a secession clause was voted down 5-1, with only South Carolina, the first state to secede, voting in favor of it. Though the Constitution of the Confederacy addressed in general terms a judicial branch, divisions over the scope and breadth of federal judicial power prevented the establishment or the appointment of a Supreme Court. The southern states had objected to the growing power of the federal appellate bench to review state court decisions and state laws. President Davis was able to appoint Confederate States district judges; in a number of cases, the U.S. district court judge simply shifted his title to the Confederacy. Several states bordering the North and the Deep South allowed slavery. After the Civil War began on April 12, 1861, the Confederacy sought to bring them into the government. Though Arkansas, North Carolina, and Virginia agreed, Delaware, Kentucky, Maryland, and Missouri remained in the Union. Later in the war, the western part of Virginia seceded from the Confederacy, becoming the state of West Virginia. Secessionist groups created separate governments in Kentucky and Missouri and sent members to the Confederate Congress, even though both states stayed loyal to the Union. Though the governments of Brazil, Great Britain, France, Spain, and the Netherlands recognized the Confederate States of America, the recognition was not that of a nation but of a belligerent. This meant that Confederate ships received the same privileges given to vessels of the United States in foreign ports or at sea. The Confederate Congress met throughout the Civil War, but it was a docile body, allowing President Davis to wield his war powers similarly to those exercised by President Lincoln. When the Union Army took Richmond in April 1865, the capital was moved to Danville, Virginia. Within days, however, the main fighting force, the Army of Northern Virginia, surrendered at Appomattox, Virginia, bringing the Civil War to a close. Following the war, the Confederate states were placed under federal control. The states were readmitted to the Union under a plan announced by President ANDREW JOHNSON.Inthe Proclamation of Amnes ty, issued in May 1865, Johnson made “wealthy planters, bankers, and merchants,” along with Confederate govern- ment officials ineligible for pardons. As for the 11 states, they had to end slavery, remove all secession ordinances, pay off Confederate debt, and ratify the THIRTEENTH AMENDMENT before being readmitted. FURTHER READINGS Channing, Steven. 1974. Crisis of Fear: Secession in South Carolina. New York: Norton. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFEDERATE STATES OF AMERICA 83 Davis, William. 1997. A Government of Our Own: The Making of the Confederacy. Baton Rouge: Univ. of Louisiana Press. Thomas, Emery. 1981. The Confederate Nation: 1861–1865. New York: Harper. CONFEDERATION A union of states in which each member state retains some independent control over internal and external affairs. Thus, for international pur- poses, there are separate states, not just one state. A federation, in contrast, is a union of states in which external affairs are controlled by a unified, central government. CONFERENCE OF CHIEF JUSTICES Improving the state judicial system is the mission of the Conference of Chief Justices. Founded in 1949 as an association of chief justices of state supreme courts, the conference tackles organizational, administrative, and pro- cedural issues at its biannual meetings and through standing and special committees. It is governed by a board of directors. Long regarded as an austere group with narrow concerns, the conference emerged in a broader role in the 1990s. Pressing concerns about a logjam of cases in state courts led it to open a new partnership with federal courts, resulting in the first-ever meeting between the highest judicial officers of both court systems in 1990. More dramatically, the conference broke its long-standing silence on politics: It entered a heated battle with the JUSTICE DEPARTMENT over ethics rules, made outspoken attacks on federal health care and crime l egislation, and began earnestly LOBBYING Congress. This bolder identity caused ripples in the legal community as the conference announced its willingness to be a political player with the help of its research and lobbying arm, the National C enter for State Courts (NCSC). Traditionally, the Conference of Chief Justices tended to looked inward. Its member- ship includes, besides state supreme court justices, the highest judicial officers of the District of Columbia, Puerto Rico, and U.S. territories, and each jurisdiction has long faced similar concerns. State court systems are simple only in appearance: Every system of trial, appellate, and supreme courts requires vast organizational resources. The conference was founded to share ideas, compare methods, and brainstorm new solutions to managing these behemoths. From the mid-1970s to the mid- 1990s, meetings addressed matters ranging from the expanding role of the court admi nistrator to the problems of caseload management and rules and methods of procedure. Not all these concerns were limited to the courts. The conference reacted in dismay to the ruling in the 1984 case of Pulliam v. Allen (466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 [1984]), which ignored the historic doctrine of judicial immu- nity and permitted attorneys to collect awards against state judges, and it began an ongoing lobbying effort that eventually led to Congress limiting such awards. The conference’s horizons had started to broaden in the 1980s, as changes in federal policy began overloading state courts. The states have always handled the vast majority of civil and criminal cases, but the so-called war on drugs filled state court dockets with more cases than they could reasonably handle. By 1990 the conference’s president, Chief Justice Vincent L. McKusick, of the Supreme Judicial Court of Maine, noted that Arizona’s trial courts pro- cessed more drug cases annually than did all federal trial courts combined. The conference’s response was to open a dialogue with the JUDICIAL CONFERENCE OF THE UNITED STATES, its federal partner. In September 1990 the highest officials of both systems met for the first time at the national level to address mutual concerns about drug and tort cases. They formed the Federal-State Judicial Council to continue to seek solutions. By 1994 the conference was taking bolder steps in a long-running dispute with the Justice Department. As far back as 1989, then attorney general RICHARD THORNBURGH had suggested changing the Justice Departm ent’s code of ethics to stop following Rule 4.2 of the American Bar Association’s Model Rules of Professional Conduct. Upheld by the states and most federal courts, this rule governs the communication of lawyers in disputes: It specifically bars lawyers from communicating with a party who is represented by another lawyer, without that lawyer’s consent. The Justice Department believed that the rule hampered federal prosecutors in their investiga- tions, and in early 1994 Attorney General JANET RENO said the U.S. Constitution exempted federal prosecutors from the ethics rules of state bar associations. In August 1994 the conference passed a resolution blasting the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 84 CONFEDERATION Justice Department’s position and advising state bars and supreme courts to enforce Rule 4.2. Conference members accused the department of blatant illegality, and legal observers expected the matter ultimately to end up before the U.S. Supreme Court. Although the conference had traditionally refrained from taking overtly political positions, members decided in 1994 to enter the fray. Two issues troub led them: health care reform and the crime bill, both of which were put forward by the administration of President BILL CLINTON. Using the resear ch facilities of the NCSC, the conference claimed that health care reform would fill state courts with 90 million new claims. And in a strongly worded resolution, it lashed out at the original text of the crime bill for “indiscriminate federalization of crimes, the needless disruption of effective state and local law enforcement efforts, and the inefficient use of the special but limited resources of the federal courts.” Going beyond harsh criticism, the conference direc ted the NCSC to lobby members of Congress in what became a partially successful effort at trimming the bill. This departure from tradition excited the legal community. The National Law Journal spotted “new-f ound muscle and aggression” in the conference’s activities, and other observers saw potential for the conference to become a major player in political debate. Not wishing to be viewed as a partisan organization, the conference itself vowed to limit its lobbying to issues that affected JUDICIAL ADMINISTRATION. The conference maintained a lower profile between the mid-1990s and 2009, reaffirming its commitment to improving the administra- tion of justice. In 2002 it passed a resolution endorsing a report on public access to court information that seeks to bring uniform prac- tices to the judiciary. In addition, the confer- ence endorsed a resolution that seeks to make the system more accessible to self-represented litigants. With the precipitous decline in state government budgets in the early 2008 and 2009, the conference began to explore how far the judicial branch must go in sharing the financial burden with the other two branches of govern- ment. The conference has called for more funding for the courts. Following Hurricane Katrina, the 2005 natural disaster that devastated New Orleans and a large swath of the Gulf Coast, the conference took a leadership role in having courts prepare for emergencies that make court facilities inoperable. FURTHER READINGS “Chief Justices Meet, Grouse about Crime Bill.” 1994. National Law Journal (February 28). Conference of Chief Justices. Resolution 33. Endorsing and Supporting Public Access to Court Records: Guidelines for Policy Development by State Courts (2002). Available online at www.ccj.ncsc.dni.us/resol33PublicAccess CourtRecords.html (accessed March 10, 2010). “Feds, State Judges in Showdown.” 1994. National Law Journal (August 15). National Center for State Courts. Available online at www. ncsconline.org (accessed October 11, 2009). “State Court Chiefs Flex New Muscle—Chief Justices Conference Sheds Benign Image and Challenges Washington.” 1994. National Law Journal (October 17). CONFERENCE OF STATE COURT ADMINISTRATORS Founded in 1955, the Conference of State Court Administrators is an association of the admin- istrators of state courts and the courts of the District of Columbia, Puerto Rico, and Guam. According to the conference, its purpose is “to deal with problems of state court systems.” Toward that end, the conference tries to n encourage the formulation of fundamental policies, principles, and standards for state court administration. n facilitate cooperation, consultation, and exchange of information by and among national, state, and local offices and organizations directly concerned with court administration. n foster the utilization of the principles and techniques of modern management in the field of judicial administration. n improve administrative practices and pro- cedures in and increase the efficiency and effectiveness of all courts in the seve ral states. The members of the conference are the principal court administrative officers of the several states, the Commonwealth of Puerto Rico, and any other jurisdiction that is elected as a full member of the CONFERENCE OF CHIEF JUSTICES . If any state or any other member jurisdiction of the Conference of Chief Justices does not have a duly appointed principal court administrative officer, the chief justice of that state or jurisdiction may designate an individual to take part in the activities of the Conference of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFERENCE OF STATE COURT ADMINISTRATORS 85 State Court Administrators in an associate member status. An associate member is not eligible to vote or hold office. Serving as the secretariat is the National Center for State Courts. It publishes State Judiciary News and holds annual meetings. CONFERENCE ON PERSONAL FINANCE LAW The CONFERENCE ON PERSONAL FINANCE LAW was founded in 1927 to encourage study, research, and education in the area of personal finance law. Its members are lawyers. The conference disseminates information on the history and current status of laws and regulations pertaining to personal finance, provides a forum for exchange of views on the subject among lawyers in the hope of stimulating improvement of legal procedures, and fosters sound development of consumer finance through education and publi- cation. The conference stages an annual argu- ment before the supreme court of the mythical state of Franklin in order to dramatize an important issue in the field of CONSUMER CREDIT. The conference publishes Quarterly Report and programs and briefs related to the annual argument, which is staged during the AMERICAN BAR ASSOCIATION annual meeting. CONFESSION A statement by which an individual acknowledges his or her gu ilt in the commission of a crime. One vital function of the U.S. judicial system is to determine the guilt or innocence of suspects who have been accused of crimes. Confessions can play a key role in making this determination. Courts in the U.S. have recog- nized the fallibility of inaccurate or involuntary confessions—such as those that have been obtained as the result of threats or trickery— and have developed a body of law to prevent untrustworthy confessions from jeopardizing a criminal defendant’s CIVIL RIGHTS. Confessions were always allowed as evidence in early English common-law trials, even when torture was used to elicit them. Not until the mid–eighteenth century did judges in England start to admit only confessions that they deemed trustworthy. To determine the trustworthiness of a confession, judges considered the circum- stances surrounding it, whether a threat or promise coerced the suspect to confess, and whether the suspect confessed voluntarily. The U.S. Supreme Court first addressed the issue of confessions in the 1884 case of Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262. Following the English common-law standard, the Court looke d at whether the suspect had confessed voluntarily or as a result of a threat or promise. The Court first invoked the U.S. Constitution to support this voluntariness stan- dard in the 1897 case of Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568. In Bram, the Court applied the FIFTH AMENDMENT PRIVILEGE AGAINST SELF -INCRIMINATION to confessions in federal courts, observing that any amount of influence exerted to obtain a confession would render the confession invol- untary and thus INADMISSIBLE. The Bram holding initially created a harsh standard of confession admissibility. Later decisions interpreting Bram lowered the standard by requiring that a confession be exc luded from evidence only if the amount of influence that had been used to obtain it actually called into question the statement’s reliability. In 1936, the U.S. Supreme Court considered the issue of coerced confessions for actions in state court, rather than federal court, in Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682. Brown involved three African American defendants who had confessed to the MURDER of a white man only after being beaten and tortured by state police. The Court, this time, invoked the Fourteenth Amendment’s due process guarantee in holding the confessions to be inadmissible because the police had obtained them in a way that violated basic liberty and justice principles. The Court in Brown announced a due process analysis to be employed by state courts on a case-by-case basis to determine whether, given the totality of the circumstances, a suspect had confessed volun- tarily. The analysis was to include an assessment of the suspect’s character and status as well as of the methods used by the police. Case-by-case determination of the kind required by Brown proved to be unwieldy for state courts because the method was so fact- specific. Appellate courts had difficulty setting effective precedents because case outcomes depended solely on unique factual circum- stances. As a result, the police were left with little guidance as to thew way to interrogate suspects properly and lawfully. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 86 CONFERENCE ON PERSONAL FINANCE LAW By the mid-1960s the U.S. Supreme Court once again began to alter its approach to determining the admissibility of confessions. Starting with Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), the Court held that the Fifth Amendment privilege against SELF-INCRIMINATION, which previously had ap- plied only to federal actions, now applied to state actions as well. Thus, the Court held, suspects in state court were entitled to the same standards governing confessions— initially set forth in the Bram opinion—as were suspects in federal court. In MASSIAH V. UNITED STATES, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), the Court continued to move away from the FOURTEENTH AMENDMENT due process analysis that it had employed in its previous decisions. In Massiah, the Court held that the SIXTH AMENDMENT grants criminal defendants the RIGHT TO COUNSEL during post-indictment interrogations, and when this right is violated, confessions obtained are inadmissible. In ESCOBEDO V. ILLINOIS, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), the Court expanded this protection to pre-indict- ment confessions, holding that the right to counsel attaches when a police investigation becomes accusatory. Two years later, the Court handed down the landmark decision MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), finding that police custody is inherently coer- cive, and therefore that criminal suspects in police custody must be informed expressly of their constitutional rights before interrogation begins. A suspect’s Miranda rights include the right to remain silent and to have a lawyer present during questioning. Any statements made by the suspect may be used against him or her in a court of law. The Court held in Miranda that a suspect may waive any of these rights, but only if the waiver is made voluntarily, knowingly, and intelligently. But Miranda left these criteria essentially undefined, thus prompt- ing a glut of LITIGATION concerning the validity of Miranda waivers. The Court attempted to clarify its position in North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 286 (1979). Willie Thomas Butler had spoken with the police after they had advised him of his Miranda rights, then later sought to have the court exclude his incrimi- nating statements because he had declined to sign a waiver agreement. In ruling against Butler, the high court adopted the totality-of- the-circumstances approach for determining whether a waiver of Miranda right s is voluntary, knowing, and intelligent. Butler, the Court found, had implied a voluntary waiver through his words and actions, thus making an express written waiver unnecessary. Butler thus required courts to determine the voluntariness of a suspect’s waiver case by case. Butler further instructed courts to invalidate seemingly volun- tary waivers in instances of apparent COERCION, deceit, or trickery on the part of police. Another attemp t at clarification came in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), in which the Court held that the suspect’s confession had been voluntary and valid even though the police, after reciting Miranda rights, had failed to inform him that his attorney had been trying to contact him. The Court in Burbine found that although the police have a duty to convey Miranda rights, including the right to an attorney, there is no constitutional duty to inform a suspect when that suspect’s attorney wants to confer. The Court further held that Miranda rights belong to the suspect, and therefore it was irrelevant that the police in Burbine had deceived the suspect’s attorney by falsely stating that they would not interrogate the suspect. Burbine invoked a two-pronged test for courts to apply in determining waiver validity: (1) whether the suspect’s choice to waive Miranda rights was free and uncoerced; and (2) whether the suspect fully understood the consequences of waiving those rights. Nine months later the Court refined Burbine’s first prong in Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). Francis Barry Connelly, who was diagnosed as schizophrenic, made unsolicited murder confessions to the police while he was in a psychotic state. He continued to talk even after the police read him the Miranda rights. In attempting to exclude the confession at trial, Connelly’s attorney argued that Connelly had no control over his psychotic delusions, and that the confession therefore had been involuntary. Finding no police misconduct, the high court ruled against Connelly, stating that “Miranda protects defendants against govern- ment coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Connelly suggests that the voluntariness of a waiver depends on the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFESSION 87 . Norton. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFEDERATE STATES OF AMERICA 83 Davis, William. 1997. A Government of Our Own: The Making of the Confederacy. Baton Rouge: Univ. of Louisiana. chief justice of that state or jurisdiction may designate an individual to take part in the activities of the Conference of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFERENCE OF STATE COURT. the practice of law in 1 833 at the age of 23. On October 4, 1 837 , he married Isabella Cuthbert, the daughter of a locally prominent and politically active family. Bragg continued to practice law for