Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P26 doc

The SEC has responded to these problems by requiring greater oversight of the accounting profession in the United States. New regulations have also modified the accounting methods that by these companies employed. Nevertheless, public confidence in U.S. corporations and the capital markets remains shaken, and much of the criticism has focused upon the lack of oversight regarding corporate directors and officers. Many have called for reforms that will hold these directors and officers responsible in instances of malfeasance. FURTHER READINGS Barnet, Richard, and Ronald E. Muller. 1974. Global Reach The Power of the Multinational Corporation. New York: Simon & Schuster. Brown, Bruce. 2003. The History of the Corporation. Available online at http://www.astonisher.com/archives/corpora- tion/corporation_intro.html; website home page: http:// www.astonisher.com (accessed September 1, 2003). Cox, James D., Thomas L. Hazen, and B. N. Cox. 2003. Corporations. Frederick, MD: Aspen. CROSS REFERENCES Bonds “Michael R. Milken: Genius, Villain, or Scapegoat?” (Sidebar); Golden Parachute; Greenmail; Instrumentality Rule; Preferred Stock; Stockholder’s Derivative Suit; Transnational Corporation. CORPOREAL Possessing a physical nature; having an objective, tangible existence; being capable of perception by touch and sight. Under COMMON LAW, corporeal heredita- ments are physical objects encompassed in land, including the land itself and any tangible object on it, that can be inherited. Corporeal is the opposite of incorporeal, that which exists but is incapable of physical manifestation, as in the right to bring a lawsuit. CORPSE The physical remains of an expired human being prior to complete decomposition. Property and Possession Rights In the ordinary use of the term, a PROPERTY RIGHT does not exist in a corpse. For the purpose of burial, however, the corpse of a human being is considered to be property or quasi-property, the rights to which are held by the surviving spouse or NEXT OF KIN. This right cannot be conveyed and does not exist while the decedent is living. Following burial, the body is considered part of the ground in which i t is placed. Articles of Delaware: The Mighty Mite of Corporations D B elaware may be amo ng the United States’ smallest states, but it is the biggest when it comes to corporations: more than a t hird of all corporations listed by the New York Stock Ex- change are incorporated in Delaware. Delaware’s allure is explained through a combination of history a nd law. Although in the early 2000s the state’s corporations law is not necessarily less restrictive and less rigid than other states’ corporation laws, Delaware could boast more corporation friendly statutes before model corporation laws came into vogue. As a re sult, corporate lawyers nationwide are more familiar with Delaware’s law, and its statutes and case law provide certainty and easy access. Delaware, more than any other state, relies on franchise tax revenues; thus, Delaware, more than any other state, is committed to remaining a responsive and desirable incorporation site. In addition, Delaware offers a level of certainty and stability: the state’s constitution requires a two- thirds vote of both legislative h ouses to change its corporations statutes. Delaware also has a specialized court that is staffed by lawyers from the corporate bar, and its highest court has similar expertise. Lawyers in the state continually work to keep Delaware’s corpo- rate law current, effective, and flexible. All combine to make Delaware the first state for incorporation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 238 CORPOREAL PERSONAL PROPERTY that have been buried with the body, such as jewelry, may be taken by their rightful owner as determined by traditional property rules or laws relating to DESCENT AND DISTRIBUTION or wills, as they are material objects independent of the body. A corpse may not be retained by an undertaker as security for unpaid funeral expenses, particularly if a body was kept without authorization and payment was demanded as a condition precedent to its release. At times, the need to perform an autopsy or postmortem examination gives the local coro- ner a superior right to possess the corpse until such an examination is performed. The general rule is that such examinations should be performed with discretion and not routinely. Some state statutes regulate the times when an autopsy may be performed, which may require the procurement of a court order and written permission of a designated person, usually the one with property rights in the corpse. Burial Rights The right to a decent burial has long been recognized as COMMON LAW, but no universal rule exists as to whom the right of burial is granted. Generally, unless otherwise provided before death by the deceased, the right will go to the surviving spouse; if there is none, it will go to the next of kin. When a controversy arises concerning the right of burial, each case will be considered on its own merits. The burial right per se is a sacred trust for those who have an interest in the remains. Although the surviving spouse usually has the principal right to custody of the remains and to burial, special circumstances undermine this right, such as the absence or neglect of the surviving spouse or the separation of the parties at the time of death. When there is no surviving spouse, the next of kin, in order of age, have the burial rights, unless a friend or remote relative is found by the court to have a superior right. The caretaker of an elderly, childless decedent who lived with the decedent for years prior to his or her death and to whom the estate was bequeathed might have a burial right that is superior to that of relatives. In the case of the death of a child of divorced parents, the paramount privilege of burial is awarded to the parent who had custody. The preference of the deceased concerning the disposition of his or her body is a right that should be strictly enforced. Some states confer this right, considering a decedent’s wishes of foremost importance. In most instances, the courts will honor the wishes of the decedent, even in the face of opposition by the surviving spouse or next of kin. If for some reason a decedent’swishes cannot be carried out, direction should be sought by the court. The court will decide how the body should be disposed of and will most likely do so according to the wishes of the surviving spouse or next of kin, provided those wishes are reasonable and not contrary to PUBLIC POLICY. When an individual wishes to direct the disposition of his or her remains, no formality is required. Oral directions are considered to be sufficient, and an indivi- dual’s last wish will ordinarily be the controlling factor, provided it is within the limits of reason and decency. Occasionally, a decision by the person who holds the right to burial can cause controversy beyond the deceased’s family. One of the more unusual cases involves the body of Ted Williams, one of the greatest baseball players in the history of the game, as well as a military hero in World War II and the Korean War. John Henry Williams, Ted’s son, decided when his father died in July 2002 to freeze the body in liquid nitrogen in a process called cryonics. The body is stored in a warehouse in Arizona. Friends and family have suggested that Ted In some cases, the need to perform an autopsy or postmortem examination gives the local coroner a superior right to retain possession of a corpse until the examination is performed. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CORPSE 239 Williams wanted to be cremated, but his body remains in a frozen state. John Henry’s decision has been a major controversy, not only among close friends and family, but among former teammates, baseball fans, and commentators. Duties as to Burial Public policy favors the concept of what is colloquially referred to as a “decent burial.” There is a strong societal interest in the proper disposition of the bodies of deceased persons. It is universally recognized that a duty is owed to both society and the deceased that the body be buried without any unnecessary delay. This duty rests upon whoever has the right to bury the decedent. At common law, the duty was imposed upon the person under whose roof the deceased died. Some state statutes specifically name those people who are charged with the duty of having a decedent buried. Statutes of this kind have been enacted for various poli cy reasons, such as the general interests of public health and the protection of public welfare, as well as the relief of anxiety that some people might experience concerning the proper disposition of their remains. Rights to Disinterment After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court. The law does not favor disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances. The courts frequently allow a change of burial place in order to enable people who were together during life to be buried together, such as husbands and wives, or family members. Disin- terment for the purposes of reburial in a family plot acquired at a later date is generally autho- rized by law, particularly if the request is made by the surviving members of the decedent’sfamily. Disinterment may be allowed under certain circumstances, such as when a cemetery has been abandoned as a burial place or when it is condemned by the state by virtue of its EMINENT DOMAIN power for public improvement. Consideration of the deceased’s wishes as to his or her burial place is instrumental in a decision of a court as to whether or not a body should be disinterred. Such wishes are of paramount importance but are not necessarily controlling in all cases, such as when subse- quent ci rcumstances require a change of burial. In states that have statutes regulating the exhumation or removal of the dead, such statutes are controlling. Purchasing a lot in a cemetery entails a contract that obligates the purchaser and his or her survivors to abide by and observe the laws, rules, and regulations of the cemetery as well as those of the religious group that maintains it. When a dispute over the right to disinter a corpse arises, the court must make a finding of fact as to whether or not the rules or regulations of the cemetery forbid it. Rights of Particular Persons to Disinter- ment The surviving spouse or next of kin of a deceased person has the right to let the body remain undisturbed. This right, however, is not absolute and can be violated when it conflicts- with the public good or when the demands of justice require it. Also, the right to change the place of burial is not absolute, and the courts take various factors into consideration when deciding whether a body should be removed for burial elsewhere, such as the occurrence of unforeseen events. If an elderly woman’s husband died and was buried in New York and she subsequently moved to California, she might be allowed to have his remains removed to a different location to facilitate her visits to his grave. The consent of the surviving spouse of a decedent to the decedent’s original resting place is another factor that the court will consider in determining whether a body may be disinterred, particularly if it is against the wishes of the next of kin. Once consent has been shown, the burial will usually not be disturbed in the absence of strong and convincing evidence of new and unforeseen events. If a body is improperly buried—that is, buried in a grave belonging to someone else who has not consented to the burial—the court will order the body removed for reburial. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 240 CORPSE A landowner who allows the burial of a deceased person on his or her property cannot later remove the body against the will of the surviving spouse or next of kin. On the other hand, the landowner is entitled to object to the removal of the remains from his or her land. A landowner may not assert that a burial was made without his or her consent if he or she fails to raise any objections within a REASONABLE TIME after the interment of the decedent. Disinterment for Autopsies The disinterment of a body may be ordered by the courts for the purpose of an autopsy. Courts may permit a body to be exhumed and an autopsy to be performed under certain circumstances in order to discover truth and promote justice. If disinterment for the purpose of examination is to be allowed, GOOD CAUSE and exigent circum- stances must exist to make such action neces- sary, such as controversy over the cause of death, or to determine in an heirship proceed- ing whether or not a decedent ever gave birth to a child. Disinterment for an autopsy should not be granted arbitrarily. The law will only search for facts by this method in the rarest of cases and when there is a reasonable probability that answers will be found through disturbing interment. Civil Liabilities A CIVIL ACTION for breach of contract as to the care and burial of a corpse may be brought under certain circumstances. An individual who makes an agreement to properly bury a corpse may be subject to a lawsuit if he or she gives the body an improper burial, negligently allows the body to be taken from his or her custody, or allows the body to suffer indignities while in his or her possession. General rules that govern damages for breach of contract have been applied in these actions. In one case, an undertaker was sued for failure to embalm a body in such a manner that it would be preserved for a reasonably long time. The PLAINTIFF recovered damages for illness and disability suffered when he found out that the body had disintegrated and become infested with insects as a result of the under- taker’s breach of contract. However, exemplary or PUNITIVE DAMAGES are not recoverable in such cases. Funeral or Burial Expenses Even in the absence of a contract or statute, a person may be liable for funeral or burial expenses based on his or her relationship to the decedent, such as a HUSBAND AND WIFE ,oraPARENT AND CHILD. Statutes may also dictate liability. Some statutes designate the persons charged with the duty of burial but do not impose financial responsibility for burial or funeral expenses. Others impose financial liability on designated people in the order in which they are named in the statute. Liability for burial expenses is not ordinarily imposed on someone merely because that person received a financial benefit as a result of the decedent’s death. A joint tenant will not be charged with fun eral expenses merely as a result of the joint ownership of property with the deceased. Contractual Liability An individual who would not ordinarily be obligated to pay for burial or funeral expenses may accept responsi- bility to do so by contract. The terms of such an agreement must be very clear. The mere direction to furnish funeral services does not automatically create a contract for their pay- ment. Liability for funeral services cannot be imposed arbitrarily. The obligation to pay the costs of a decent burial will be enforced by the law on those who should properly pay. Although there is a lack of authority on the question of who should bear the costs of disinterment and reburial, it has generally been held as the responsibility of the person who caused it to be done. Torts In the law of torts, there are a large number of cases involving the mishandling of corpses. These cases are concerned with mutila- tion, unauthorized disinterment, interference with proper burial, and other types of intentional disturbance. The breach of any duty as well as the unlawful invasion of any right existing with regard to a corpse is a tort for which an action may be commenced. For example, if the wrong body is delivered to a funeral home and the family discovers this when they attend the wake, they may be able to recover damages for mental suffering. Thus, the right of recovery is not necessarily based directly on injury to the corpse per se. Exemplary damages may be awarded in cases where the injury to plaintiffs was either malicious or resulting from GROSS NEGLIGENCE. The award of damages is subject to appellate court review, and the adequacy or excessiveness GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CORPSE 241 of the amount awarded is dependent upon the particular circumstances of each case. A tort action for damages in such cases may be maintained to protect the personal feelings of the survivors and, mainly, to compensate for the mental distress that has been caused. Mutilation, Embalmment, and A utopsy An important component of the right to decent burial is the right to possession of the body in the same condition in which it is left by death. There is no additional basis for recovery where mutilation is caused simultaneously with death, as in the case of a person who dies in a train crash or who is fatally stabbed. Some statutes authorize the delivery of corpses to medical colleges for dissection under certain conditions. It is mandatory, however, that the consent of relatives be obtained if such relatives can be found. Only a reasonable inquiry is necessary, the duty of which is on the school and on those delivering the body. The unauthorized embalming of a body alone does not necessarily support a CAUSE OF ACTION for damages based upon mutilation or mishandling. When such unauthorized embalming occurs, combined with the resulting mental suffering of the next of kin and other such factors, a legal action may be brought. If, for example, an unauthorized embalming contrary to the decedent’s religious beliefs is performed, an actionable wro ng occurs for which damages may be granted. Generally, an unauthorized autopsy is a tort. No liability exists, however, when an autopsy is performed in accordance with the consent of the individual having burial rights or pursuant to statute or the proper execution of the duties of the coroner. Offenses and Prosecutions Several varied offenses with respect to corpses are recognized both at common law and under statute. At common law, it is an offense to treat a corpse indecently by keeping, handling, and exposing it to view in order to create the impression that the deceased is still alive. The attempt to dispose of a corpse for gain and profit is a misdemeanor punishable at common law. Ordinarily, it is a misdemeanor for the individual possessing the duty of having a body buried to refuse or neglect to do so, or to dispose of the corpse indecently. The burning of a corpse in such a way as to incite the feelings of the public is a common-law offense. At common law and often under statute, interfering with another person’s right of burial or neglecting to bury or cremate a body within a reasonable time after death is an offense. It is also a crime to detain a body as security for the payment of a debt. The mutilation of a corpse is an offense at common law, and under some statutes, the unauthorized dissection of a corpse is a specific criminal offense. Someone who receives a corpse for the purpose of dissection with the knowledge that it has been unlawfully removed is subject to prosecution. The unauthorized disturbance of a grave is indictable at common law and by statute as highly contrary to acceptable community con- duct. Similarly, the unauthorized disinterment of a body is a criminal offense under some statutes and at common law. Some statutes make disinterment for speci- fied purposes an offense; therefore, an offense is not committed unless disinterment was done for such purposes. A case where a body was exhumed and a portion of the body was removed by the next of kin for use as evidence in a malpractice trial, however, did not warrant prosecution for removal of the body because of mere wantonness, as set forth in a statute. Under laws that proscribe opening a grave to remove anything interred, the act is for- bidden per se and is conclusive as to the intent with which it is done. In such cases, no SPECIFIC INTENT , whether felonious or otherw ise, needs to be shown. Statutes that make make disinterment an offense do not apply to exhumations made by public officials attempting to ascertain whether a crime has been committed. Similarly, statutes are not directed against cemetery authorities who wish to change the place of burial and who are authorized to do so; nor are they directed against people who had obtained the permission of those having burial rights or against those who, under necessary permit, remove the corpse of a relative for reinterment. CORPUS [Latin, Body, aggregate, or mass.] Corpus might be used to mean a human body, or a body or group of laws. The term is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 242 CORPUS used often in CIVIL LAW to denote a substantial or positive fact, as opposed to one that is ambiguous. The corpus of a trust is the sum of money or property that is SET ASIDE to produce income for a named beneficiary. In the law of estates, the corpus of an estate is the amount of property left when an individual dies. CORPUS JURIS means a body of law or a body of the law. Corpus Juris Secundum (C.J.S.®) is an all- inclusive, multivolume legal encyclopedia. CORPUS DELICTI [Latin, The body of the crime.] The foundation or material substance of a crime. The phrase corpus delicti might be used to mean the physical object upon which the crime was committed, such as a dead body or the charred remains of a house, or it might signify the act itself, that is, the MURDER or ARSON. The corpus delicti is also used to describe the evidence that proves that a crime has been committed. CORPUS JURIS [Latin, A body of law.] A phrase used to designate a volume encompassing several collections of law, such as the Corpus Juris Civilis. The name of an American legal encyclopedia, the most recent edition of which is known as Corpus Juris Secundum (C.J.S.). CORPUS JURIS CIVILIS [Latin, The bod y of the civil law.] The name given in the early seventeenth century to the collection of civil law based upon the compilation and codification of the Roman system of jurisp ru- dence directed by the Emperor Justinian I during the years from 528 to 534 A.D. CORRELATIVE Having a reciprocal relationship in that the existence of one relationship normally implies the existence of the other. Mother and child, and duty and claim, are correlative terms. In the law governing gas and oil transac- tions, a correlative right is the opportu nity of each owner of land making up part of a common source of supply of oil and gas to produce an equitable share of such products. In the law governing WATER RIGHTS,the correlative rights doctrine gives the individual owners of land overlying a strata of percolating waters limited rights to use the water reasonably when there is not enough water to meet the needs of everyone in the area. CORRESPONDENCE AUDIT An examination of the accuracy of a taxpayer’s income tax return conducted through the mail by the Internal Revenue Service, which sends the taxpayer a request for proof of a particular deduction or exemption taken by either complet- ing a special form or sending photocopies of relevant financial records. A correspondence audit is distinguishable from a FIELD AUDIT and an OFFICE AUDIT in the manner in which it is conducted. CORRESPONDENT A bank, securities firm, or other financial institution that regularly renders services for another in an area or market to which the other party lacks direct access. A bank that functions as an agent for another bank and carries a deposit balance for a bank in another city. SECURITIES firms may have correspondents in foreign countries or on exchanges— organizations that provide facilities for conven- ing purchasers and sellers ofsecurities—of which the firms are no t members. The term correspondent is distinct from corespondent—a person summoned to respond to litigation, together with another person, particularly, a paramour in a divorce action based on ADULTERY. CORROBORATE To support or enhance the believability of a fact or assertion by the presentation of additional information that confirms the truthfulness of the item. Thetestimony of a witness is corroborated if subsequent evidence, such as a coroner’s report or the testimony of other witnesses, substanti- ates it. CORRUPTION OF BLOOD In English law, the result of attainder, in that the attainted person lost all rights to inherit land or other hereditaments from an ancestor, to retain GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CORRUPTION OF BLOOD 243 possession of such property and to transfer any property rights to anyone, including heirs, by virtue of his or her conviction for treason or a felony punishable by death, beca use the law considered the person’s blood tainted by the crime. Attainder and the consequent corruption of the blood were abolished by English statutes and are virtually unknown in the United States. v CORWIN, EDWARD SAMUEL Edward Samuel Corwin was a noted historian, political scientist, and CONSTITUTIONAL LAW scholar. Born January 19, 1878, on a farm in rural Plymouth, Michigan, Corwin graduated Phi Beta Kappa from the University of Michigan in 1900, where he was president of his class. He entered graduate school at the University of Pennsylvania, earning his doctor’s degree in 1905. Corwin then took a teaching position at Princeton University, where he began a long association with Woodrow Wilson, then presi- dent of Princeton. Wilson had recruited Corwin to be one of the first faculty at the university to teach undergraduates in small seminars called precepts, one of Wilson’s many educational innovations. Wilson and Corwin quickly be- came friends, though Corwin often disagreed with Wilson’s more conservative views. Corwin was selected by Wilson to update his book Division and Reunion, and Corwin wrote part 6 of the text, which was published in 1909. In 1911 Corwin was promoted to full professor. Seven years later, he was appointed to a chair first occupied by Wilson, the McCormick Professor of Jurisprudence, which Corwin held until his retirement from Prince- ton in 1946. In 1924, he also became chair of the newly formed Department of Politics . Corwin was known at Princeton as a de mand- ing yet popular professor; students regularly voted his co urses on constitutional interpreta- tion as the most difficult but also the most valuable. While pursuing his teaching career, Corwin authored an impressive number of books and articles. In his first book, National Supremacy— Treaty Power vs. State Power (1913), Corwin explored the complex relationship between federal and state powe rs in foreign affairs. His later books, includ ing The President: Office and Powers (1940, 3d ed. 1948), The Twilight of the Supreme Court (1934), Court over the Constitu- tion (1938), Constitutional Revolution, Ltd. (1941), The Constitution and World Organiza- tion (1944), Total War and the Constitution (1947), and Liberty against Government (1948) established him as a preeminent authority on the Constitution. Some of his books—including The Constitution and What It Means Today (first published in 1920 and now called Edward S. Corwin’s Constitution and What It Means Today) and The CONSTITUTION OF THE UNITED STATES of America: Analysis and Interpretation (1949)—are considered standard texts in the field of constitutional law and are still kept current. In addition to his work at Princeton, Corwin served as a visiting professor and lecturer at major universities, including Johns Hopkins University, New York University, Boston University, and Yale University. From 1928 to 1929 he was visiting professor at ▼▼ ▼▼ Edward Samuel Corwin 1878–1963 18751875 19251925 19501950 19751975 19001900 ◆◆◆◆◆◆◆ ❖❖ 1878 Born, Plymouth, Mich. 1905 Joined Princeton University faculty 1913 National Supremacy—Treaty Power vs. State Power published 1914–18 World War I 1918 Appointed McCormick Professor of Jurisprudence 1920 The Constitution and What It Means Today published 1924 Became chairman of the new Dept. of Politics at Princeton 1928–29 Taught at Yenching University in Beijing 1935–37 Served as advisor to Roosevelt administration 1939–45 World War II 1946 Retired from Princeton 1949–52 Served as editor of the Legislative Reference Section of the Library of Congress 1950–53 Korean War 1963 Died, Princeton, N.J. 1961–73 Vietnam War 1948 Liberty against Government published WHAT THE PRESIDENCY IS AT ANY PARTICULAR MOMENT DEPENDS IN IMPORTANT MEASURE ON WHO IS PRESIDENT . —EDWARD CORWIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 244 CORWIN, EDWARD SAMUEL Yenching University, in Beijing. He was also the recipient of a number of major awards, including the American Philosophical Society’s Franklin Medal in 1940 and the Henry M. Phillips Prize in the Science and Philosophy of Jurisprudence in 1942. Corwin’s expertise eventually led him to federal government service. In 1935 he became adviser to the Public Works Administration, and from 1936 to 1937 he acted as special assistant and consultant to the attorney general, on constitutional issues. He publicly supported President Franklin D. Roosevelt’s court-packing plan—a bill proposed by Roosevelt to expand the U.S. Supreme Court so that he could nominate justices who would uphold NEW DEAL legislation—but opposed Roosevelt’s run for a third term as a breach of tradition. Corwin maintained an active caree r follow- ing his retirement from Princeton in 1946. During the 1947–48 academic year, he served as a visiting professor at Columbia University, and from 1949 to 1952, he was an editor for the Legislative Reference Section, LIBRARY OF CON- GRESS , where he directed a major research project that resulted in the multivolume Constitution Annotated: Analysis and Interpreta- tion (1952). In 1954 he became chairman of a national committee opposed to the Bricker Amendment, S.J. Res. 1, 83d Cong., 1st Sess. (1953), which had been proposed to restrict the president’s treaty-making power. Corwin, who died in 1963 at the age of 85, carries the distinction of being the only nonlawyer among the ten legal scholars and writers most frequently cited by the SUPREME COURT OF THE UNITED STATES . Corwin was acutely aware of his important role, noting that “if judges make law, so do commentators.” FURTHER READINGS Corwin, Edward Samuel, ed. 1953. The Constitution of the United States of America: Analysis and Interpretation. Washington, D.C.: U.S. Government. Available online at http://www.gutenberg.org/etext/18637; website home page: http://www.gutenberg.org (accessed September 1, 2009). ———. 1978. Edwin S. Corwin’s Constitution and What it Means Today. Princeton, N.J.: Princeton Univ. Press. Loss, Richard, ed. 1981. Corwin on the Constitution. Ithaca, NY: Cornell Univ. Press. COSIGNER An obligor—a person who becomes obligated, under a commercial paper, such as a promissory note or check—by signing the instrument in conjunction with the original obligor, thereby promising to pay it in full. The cosigner may be held equally responsi- ble for the payment of the debt or may be required to pay only upon the failure of the original obligor to do so, depending upon state law and the terms of the agreement that also determine the rights of the cosigner. Cosigner is synonymous with the t erm comaker. COSTS Fees and charges required by law to be paid to the courts or their officers, the amount of which is specified by court rule or statute. A monetary allowance, granted by the court to a prevailing party and recoverable from the unsuccessful party, for expenses incurred in instituting or defending an action or a separate proceeding within an action. A bill of costs is a certified, itemized statement of the amount of the expenses incurred in bringing or defending a lawsuit. A cost bond, or bond for costs, is a promise to pay litigation expenses; it is provided by a party to an action as a guarantee of payment of any costs awarded against him or her. A cost bond also might be required of an appealing party in a civil case, in order to cover the appellee’s expenses if the judgment is affirmed. Final costs are paid at the conclusion of an action, the liability for which depends upon its final outcome. Interlocutory costs accrue during the inter- mediate stages of a proceeding, as distingu ished from final costs. Security for costs refers to an assurance of payment that a DEFENDANT may demand of a PLAINTIFF who does not reside within the jurisdiction of the court, for the payment of such costs as might be awarded to the defen- dant. Statutory costs are amou nts specified by law to be awarded for various phases of litigation. The award of costs is not a penalty but is a method used to reimburse an innocent party for the expenses of litigation. Costs include the payment of court fees for the commencement of the litigation; the submission of pleadings or other documents; or the SERVICE OF PROCESS or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COSTS 245 other papers by a public officer. The appoint- ment by a court of a referee to hear extremely technical testimony, or a receiver to retain and preserve the defendant’s funds or property during litigation, is included in costs. Costs entail expenditures made in interviewing parties or witnesses prior to trial and the fees that are properly paid to witnesses who testify. Printing expenses for maps or nece ssary documents are also included. Costs do not include the compensation of an attorney. Expenditures in terms of the adversary nature of the proceedings, however, are included. Only when specifically authorized by law may attorney’s fees be awarded in addition to costs. Prevailing Party A party must request the court to award costs. The court generally defers its decision until judgment is rendered, then determines whether the PREVAILING PARTY is entitled to costs. The successful party is not required to prevail on every issue or to obtain the entire amount of damages sought. Costs are also awarded to a party prevailing on appeal, even though the case was lost in the trial court. Under the Federal Rules of CIVIL PROCEDURE, after which most states have patterned their own procedural rules, “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” Since state laws vary on this subject, however, the applicable state law must be consulted to determine the exact rules. Costs cannot be assessed against a party merely because of tenacity in pursuing the claim. In Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981), the justices held that plaintiffs who lose their lawsuits in federal court after rejecting a settlement offer (a proposal to avoid litigation by compromis ing a disputed claim that does not admit liability) are not required to pay the defendant’s costs and attorney fees. Parties may determine the imposition of costs pursuant to an agreement. The court will enforce a contractual provision or a stipulation provided neither is unconscionable or the result of FRAUD. When cases involve multiple parties— more than one plaintiff or more than one defendant—a court may allocate costs among the losing parties. If one party is a stakeholder—a person who is or might be exposed to multiple liability from adverse claims—the stakeholder’s costs are generally obtained from all the other parties to an interpleader action or from the stake: funds or property deposited by two persons with a third person, the stakeholder, for delivery to the person entitled to it upon the occurrence of a particular event. Amount In some instances, the amount of costs is specified by law, which restricts a party who is awarded costs to the figure permitted by law for each component of the total costs. Security A court may order a party to post a bond to guarantee that costs will be paid if he or she is unsuccessful. Three other alternatives provide sufficient security: a signed statement by the party that he or she will pay determined costs; the deposit of sufficient funds with the court; or the promise of a person who accepts the obligation to pay in full if the party who would normally be responsible fails to do so. Denial of Costs A court may deny costs, although they are ordinarily awarded to the prevailing party. Misconduct, such as the concealment of a party’s actual financial circumstances, when relevant to the action, justifies the denial of costs. A court that incurs additional, unneces- sary expenses as a result of inadequate prepara- tion of the case by the counsel of the prevailing party is entitled to reject a req uest for costs. In such an instance, the court has the discretion to order the attorney to pay a client’s costs, particularly where his or her actions were grossly negligent. Criminal Proceedings Costs in criminal proceedings are those expenses specified by law that have been necessarily incurred in a criminal prosecution. The concept of costs was unknown at COMMON LAW . The allowance of costs, therefore, is based on the applicable statutory provisions. COUNCIL A legislative body of local government. A group of persons who, whether elected or appointed, serve as representatives of the public to establish state or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 246 COUNCIL municipal policies and to assist the chief executive of the government unit in the performance of duties. COUNSEL An attorney or lawyer. The rendition of advice and guidance concerning a legal matter, contem- plated form of argument, claim, or action. The terms counsel and advise are frequently employed as synonyms for the term AID AND ABET to describe a person who, while not actually performing a criminal act, induced its perfor- mance or contributed to it. The term junior counsel refers to the younger member of the team of attorneys retained on the same side of a case, or the one lower in the hierarchy of the firm, or one who is assigned to the preparation or trial of less significant aspects of the case. The term OF COUNSEL refers to the descrip- tion given to an attorney who is not the principal lawyer in charge of a case but who merely contributes his advice on the way it should be handled. Where of counsel follows an attorney ’s name on a letterhead or office sign, this designation indicates that the person is em ployed by the firm primarily as a consultant on specialized matters, not as a full-time partner or associate. COUNSELLOR One engaged in the practice of law; lawyer; advocate. The term counsellor is commonly used interchangeably with attorney, except in a few states where the terms refer to lawyers of different ranks. In such states, an attorney may become a counsellor only after practicing law for a certain designated period of time and passing an additional examination. Formerly, the SUPREME COURT OF THE UNITED STATES made a distinction between a counsellor and an attorney. A counsellor was a lawyer who litigated on a party’s be half whereas an attorney AT LAW did not do any trial work. This distinction is no longer made by the Court. COUNT In common-law pleading or code pleading, the initial statements made by a plaintiff that set forth a cause of action to commence a civil lawsuit; the different points of a plaintiff’s declaration, each of which constitute a basis for relief. In criminal procedure, one of several parts or charges of an indictment, each accusing the defendant of a different offense. The term count has been replaced by the word complaint in the Federal Rules of CIVIL PROCEDURE and many state codes of civil procedure. Sometimes count is used to denote the numbered paragraphs of a complaint, each of which sets out an essential element of the claim. Federal and state rules of CRIMINAL PROCEDURE govern the standards that a criminal count must satisfy in federal and state criminal matters. COUNTERCLAIM A claim by a defendant opposing the claim of the plaintiff and seeking some relief from the plaintiff for the defendant. A counterclaim contains assertions that the DEFENDANT could have made by starting a lawsuit if the PLAINTIFF had not already begun the action. It is governed by many of the same rules that regulate the claims made by a plaintiff except that it is a part of the answer that the defendant produces in response to the plaintiff’s com- plaint. In general a counterclaim must contain facts sufficient to support the gra nting of relief to the defendant if the facts are proved to be true. These facts may refer to the same event that gave rise to the plaintiff’s CAUSE OF ACTION or they may refer to an entirely different claim that the defendant has against the plaintiff. Where there is more than one party on a side, a counterclaim may be made by any defendant against any plaintiff or plaintiffs. According to the rules governing federal CIVIL PROCEDURE, a defendant usually is required to make a counterclaim in an answer if the counterclaim arises from the same transaction or occurrence on which the plaintiff is suing. This is called a compulsory counterclaim because the claim must be made in response to the plaintiff’s complaint and cannot be made later or in a separate lawsuit. There are also permissive counterclaims that may be made in the defendant’s answer at a later time. A claim against the plaintiff that is based on an entirely different event is one kind of PERMISSIVE COUNTERCLAIM . For example, a man may sue a woman for money damages because of a minor GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COUNTERCLAIM 247 . the payment of court fees for the commencement of the litigation; the submission of pleadings or other documents; or the SERVICE OF PROCESS or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COSTS. to retain GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CORRUPTION OF BLOOD 2 43 possession of such property and to transfer any property rights to anyone, including heirs, by virtue of his or. CORWIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 244 CORWIN, EDWARD SAMUEL Yenching University, in Beijing. He was also the recipient of a number of major awards, including the American