Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P27 pptx

injury and some property damage after their cars collided. Under the rules governing plead- ing in most courts, the woman would be required to assert a demand for money damages for the same accident in her answer to the man’s complaint or she would lose the right to sue on that claim. If the man also happens to be a neighbor who borrowed the woman’s chain saw and never returned it, the woman could demand return of the saw as a counterclaim or she could wait and sue the man for that at some other time. She might decide to wait in order to sue in a different court or because she does not want to argue the different circum- stances of both claims before the same jury. A defendant usually cannot make a coun- terclaim if it is not possible to make the same claim by starting a lawsuit. For example, a lawsuit to collect on a claim cannot be started after the period of time allowed by a STATUTE OF LIMITATIONS has run out. In certain situations, however, a defendant may assert an expired cause of action as a counterclaim. This proce- dure, allowed for reasons of fairness and justice, is called equitable recoupment. The court may reduce the plaintiff’s money damages up to the amount of the defendant’s counterclaim, but the defendant will not be allowed an affirmative recovery of money over and above the amount to which the plaintiff may be entitled. CROSS REFERENCE Set-off. COUNTERCLAIMS AND SETOFFS AGAINST SOVEREIGNS A comprehensive term for the vulnerability of a foreign government to retaliatory suits against it arising out of a lawsuit that it commences against a party. The Federal Foreign Sovereign Immunities Act (28 U.S.C.A. § 1602 et seq. [1976]) provides that, in any action initiated by a foreign state or in which a foreign state intervenes, such a state is not afforded immunity regarding any coun- terclaim for which no immunity would have been granted if such aclaim had been brought in a separate action aga inst the foreign state. In addition, a foreign state is not entitled to immunity in cases involving counterclaims that arise out of the transaction that is the subject matter of the foreign state’s claim, or to the extent that the counterclaim does not seek relief that is in excess of, or different from, the type sought by the foreign state. The Foreign Sovereign Immunities Act codified the general rule that when a foreign government brings suit, it is deemed to have submitted to the court’s jurisdiction and waives its immunity to the extent that a counterclaim arising out of the same transaction or to the extent that the counterclaim, when used defensively in the form of a setoff, is not in excess of the amount of the foreign state’s claims. A foreign nation that is a PLAINTIFF in an action brought before a court of another nation is not barred in appropriate cases from invoking the act of state doctrine to preclude a counter- claim against it. This doctrine provides that, as a general rule, the acts of one foreign state committed within its own boundaries or territories are not reviewable by the courts of another nation. CROSS REFERENCES International Law; Set-off. COUNTERFEIT To falsify, deceive, or defraud. A copy or imitation of something that is intended to be taken as authentic and genuine in order to deceive another. A counterfeit coin is one that may pass for a genuine coin and may include a lower denomi- nation coin altered so that it may pass as a higher denomination coin. COUNTERFEITING The process of fraudulently manufacturing, alter- ing, or distributing a product that is of lesser value than the genuine product. Counterfeiting is a criminal offense when it involves an intent to defraud in passing off the counterfeit item. The law contains exemptions for collector’s items and items that are so obviously dissimilar from the original that a REASONABLE PERSON would not consider them real. However, making a poor copy is no defense if the intent to defraud exists. Counterfeiting most commonly applies to currency and coins. It is illegal to manufacture, possess, or sell equipment or materials for use in producing counterfeit coins and currency. Federal law also prohibits producing counterfeit postmarks, postage stamps, military papers, or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 COUNTERCLAIMS AND SETOFFS AGAINST SOVEREIGNS government SECURITIES. Counterfeiting also applies to the fraudulent manufacture and sale of other items, such as computer software, CDs, consumer products, airplane parts, and even designer dresses. An increase in this type of counterfeiting has led to a strengthening of INTELLECTUAL PROPERTY laws worldwide. Counter- feiting or conspiracy to distribute counterfeit goods can lead to state or federal criminal charges. Civil lawsuits also can result from allegations of counterfeiting. Coins and Currency Counterfeit coins appeared within a cen tury of the first legitimate coins, which appeared in about the seventh century B.C. The severity of the punishment for counterfeiting (deat h, in many cultures) and the difficulty of creating counterfeit coins that did not include some metal of value (and therefore cost a significant amount to produce) kept the practice in check. However, counterfeiting flourished after the development of paper money in about A.D. 1650, especially in American colonies where counterfeit bills and even coins were sometimes more common than genuine ones. Counter- feiters had honed their skills so much that when the United States issued its first federal coins in the 1780s, the government hired an ex-counterfeite r to cut the dies. Counterfeiting boomed again during the CIVIL WAR, when the United States issued its first paper money. For many decades, the skills and equipment that are needed to create counterfeit money confined the practice to a few professionals, and the SECRET SERVICE, the branch of the TREASURY DEPARTMENT that is charged with enforcing counterfeiting laws, discovered most co unter- feiters before the money leaked into circulation. But in the late twentieth century, with the availability of new technologies, such as color copying and electronic reprographics, more counterfeit schemes emerged. The DEPARTMENT OF THE TREASURY estimated that $25 million worth of counterfeit bills were pas sed off in fiscal year 1994. Further damaging U.S. currency was a flood of fraudulent $100 bills on the world market. The Secret Service believes that from the early to mid 1990s, as much as $10 billion worth of nearly perfect counterfeit $100 bills were circulating internationally. It believes that the bills were printed on a press that is similar to those used by the U.S. Treasury and that had been sold to Iran in the 1970s. In 2002 authorities seized $130 million in fraudulent U.S. notes worldwide before they were circulated, and detected $44.3 million in spurious U.S. currency after it had passed into unwitting A fan displays both a counterfeit (top) and an actual ticket to the opening game of the 1996 World Series. Counterfeiting laws apply to a wide variety of products, not just currency. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION COUNTERFEITING 249 hands. But according to the Secret Service, the amount of fake money circulating has been fairly constant over recent decades, and only one or two notes in every 10,000 are counterfeit. The increase in counterfeiting prompted Congress to pass the Counterfeit Deterrence Act of 1992 (18 U.S.C.A. § 471 note) to increase penalties. Prior to the enactment of new law, it was not a criminal act to manufacture counter- feit U.S. currency abroad. The law also instructed the Department of the Treasury to redesign paper money in order to make it more difficult to reproduce. In 1996 the first new currency was released. The bills’ portraits were increased in size and moved to the left, to make room for watermark miniatures of them. Treasury officials believe that the watermark and the use of color-shifting inks make the currency nearly impossible to reproduce with current technologies. Other Items Counterfeiting also applies to reproductions of packaging when the intent is to defraud or to violate protections under trademark, copyright, or patent laws. It is estimated that U.S. companies lose $8.1 billion annually in overseas business owing to violations of intellectual property laws. Increasing the enforcement of trademark and copyright law to discourage counterfeiting has been a focus of U.S. trade negotiations, both with individual countries and during the Uruguay Round of the international GENERAL AGREEMENT ON TARIFFS AND TRADE, Pub. L. No. 103-465, 108 Stat. 4809 (1994). Disputes over counterfeit CDs and computer software have been at the center of U.S. trade conflicts with China for several years. Software manufacturers claim that 98 percent of the software used in China, including that used by the government, was illegally copied. Other goods that are distributed under false trade marks include cereal, razor blades, and soap. Under pressure from the United States, China strength- ened its copyright and trademark laws in 1993. Lax enforcement resulted in a new trade agreement in 1995, which was designed to give U.S. manufacturers greater access to Chinese markets. Nevertheless, counterfeiting in China remains rampant. Although most counterfeiting allegations are brought through the criminal courts, counter- feiting that violates patent, trademark, or copyright laws has resu lted in civil lawsuits. For example, in 1994, a Paris court found that designer Ralph Lauren had copied a tuxedo dress pattern from Yves Saint Laurent’s collec- tion and ordered Lauren to pay his competitor $386,000 in damages. Punishment Under federal law, counterfeiting is a class C felony, punishable by up to 12 years in prison and/or a fine of as much as $250,000. State laws also establish penalties for counterfeiting. FURTHER READINGS Glaser, Lynn. 1968. Counterfeiting in America: The History of an American Way to Wealth. New York: Potter. “Know Your Money: How to Detect Counterfeit Money.” 2008. Washington, D.C.: U.S. Secret Service. Available online at http://www.ustreas.gov/usss/money_detect. shtml; website home page: http://www.ustreas.gov (accessed September 1, 2009). The Economic Impact of Counterfeiting and Piracy. 2007. Paris, France: Organisation for Economic Co-operation and Development. COUNTEROFFER In contract law, a proposal made in response to an original offer modifying its terms, but which has the legal effect of rejecting it. A counteroffer normally terminates the original offer, but the original offer remains open for acceptance if the counteroffer ex- pressly provides that the counteroffer shall not constitute a rejection of the offer. The UNIFORM COMMERCIAL CODE (UCC)—a body of law adopted by the states that governs commercial transactions—modifies this princi- ple of contract law with respect to the sale of goods by providing that the “additional terms are to be construed as proposals for addition to the contract.” COUNTERSIGN The inscription of one’s name at the end of a writing, done by a secretary or a subordinate, to attest to the fact that such a writing has been signed by a principal or a superior, thereby vouching for the genuineness of the signature. To write one’s name at the end of a document—in addition to the inscription of a name by another—to attest to the authenticity of the signature. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 COUNTEROFFER COUNTY A political subdivision of a state, the power and importance of which varies from one state to another. A county is distinguishable from a city or MUNICIPAL CORPORATION, since a municipal cor- poration has a dual character, both public and private, while a county is established by the state and is considered to be an agency there of. Through HOME RULE, a municipality may make certain decisions on matters of local concern, while a county is controlled by the state and does the work of state administration. In the state of Louisiana, a state political subdivision is known as a parish. Comparable to counties, parishes have no independent exis- tence apart from the state but possess only such authority as the state grants them. Status The state constitution determines the proce- dures for the formation of a county. Certain states require a specific minimum size popula- tion or property value before a county is created. A county government that is too small can be either completely abolished or subject to a consolidation plan designed to merge urban and rural areas. Conversely, a county that becomes too large or diverse follow ing an extended period of development can be divided by the state to form a new county. The principle of SOVEREIGN IMMUNITY permits states to refuse to allow anyone to sue them. This doctrine protects counties from legal action to the same extent that the states they exist in are so protected. States and counties can only be sued where state law specifically permits it. Boundaries Ordinarily, the boundaries of a county are set by the state legislature. If a boundary is marked by a stream or river, the county extends to the center and rema ins there from the time of the county’s creation, even if the stream subse- quently changes course. When a lake is the boundary, the county line ordinarily extends to the bank or the low water mark. A boundary that is on the ocean extends to the three-mile limit offshore. State law provides for the revision of the boundaries of countie s. Certain state statutes proscribe the creation of a new county line too close to an already existing county seat. Ordinarily voters can petition for the expansion or division of a county where populati on and commercial growth justify it. Although citizens have no absolute right to prevent the alteration of county lines by state legislatures, the legisla- ture cannot change boundaries for the purpose of diluting the voting power of some of the citizens in an election. The state retains power to designate special districts for purposes of irrigation, flood control, fire protection, or library services, which do not affect the makeup of existing counties. Government The government of a county is located at the county seat, a city or town where court sessions are held and duties are performed by county officers. The county board, comprised of public officials who are elected or appointed to serve on it, is the body that manages the government of the county. Other county officials include sheriffs, clerks, surveyors, and commissioners responsible for certain areas such as highways and HUMAN RIGHTS. The state gives counties express authority to purchase and sell property and to raise funds from taxes, licenses, or bond issues. Counties have state-granted authority to make provisions for public health, safety, welfare, and morals of its residents through the enactment and en- forcement of ordinances and regulations. The state, however, has the authority to make the decision whether to create courts on the county level or to use counties to designate intrastate judicial districts. COUPON A certificate evidencing the obligation to pay an installment of interest or a dividend that mu st be cut and presented to its issuer for payment when it is due. Coupons are usually attached to a docu- ment, such as a PROMISSORY NOTE, bond, share ofstock, or a bearer instrument. A co upon is a written contract for the payment of a definite amount on a specified date according to the terms of the main document from which it must be separated for presentation for payment. Each coupon represents a separate promise by its issuer to pay its holder on the DUE DATE. Failure to do so will support a CAUSE OF ACTION for breach of contract. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COUPON 251 COURSE OF DEALING A clearly recognizable pattern of previous conduct between parties to a business transaction. The course of dealing between parties to an action is examined by a court in ascertaining what the parties intended when they entered into a contract. The supposition is that the parties drew up the contract in view of the customary manner in which business had been transacted prior to the signing of the contract. In a breach-of-contract action, evidence of the course of dealing is admissible in order to interpret ambiguities in the contract, but not to effectuate an alteration or contradiction of the contract’s provisions. A term that was seemingly unambiguous when the contract was entered into might subsequently prove to be problematic. Course of dealing is distinguishable from both COURSE OF PERFORMANCE and TRADE USAGE. Course of performance refers to a pattern of conduct that occurs subsequent to approval of the contract terms. Trade usage entails behavior that is the standard of conformity for a majority of businesses engaged in a particular business or commercial venture. Course of dealing safeguards the expecta- tions of the parties and augments the certainty of their transactions, based upon their prior experiences with each other. The concepts of course of dealing, course of performance, and trade usage in the context of contract law are derived largely from the work of Linton Corbin, who did not believe that courts should be bound by the so-called FOUR CORNERS of a contract or to the “plain meaning” to those terms. Corbin was instrumental in the drafting of the UNIFORM COMMERCIAL CODE (UCC), which governs commercial agreements and transactions in most states. The UCC defines course of dealing in its general provi- sions (U.C.C. § 1-205). The term applies, for example, to the laws governing contracts for the sale of goods, negotiable instruments, and SECURED TRANSACTIONS. COURSE OF EMPLOYMENT As set forth in workers’ compensation acts, the time, place, and conditions under which an on- the-job accident occurs. The performance of an act that an employee might prudently do while in the appropriate area during working hours. In the event that an employee causes an injury to another or another’s property, it is necessary to ascertain whether the employee was acting within the course of employment. The employer is legally responsible for the damages if the employee caused them while performing a job. If a driver for a transportation firm is involved in an accident with a pedestrian, for example, the pedestrian can sue both the driver and the firm. Under the doctrine of RESPONDEAT SUPERIOR , an employer can be held liable for a tort, a civil wrong other than breach of contract, committed by an employee operating within the scope of the employee’s employment. Workers’ compensation laws require the payment of compensation from the employer to the employee in conformity with a schedule for a particular category of injury, provided that the employee is injured during the course of employment. The course of employment encompasses the actual period of employment and the period during which the employee, while on the employer’s premises, prepares to commence or to depart from work, such as by changing clothes. Employer-sponsored recrea- tional activities are also considered part of the course of employment when organized, encour- aged, or supported by the employer for business purposes, such as the promotion of efficiency. The test is whether the recreation inured to the employee’s exclusive benefit or whether the employer had some interest in the activity. Injuries suffered by an employee while observ- ing, participating, or traveling to or from recreational activities sponsored in whole or in part by the employer but conducted on the employee’s time and off the employer’s premises are not compensable. Where the recreationa l activity is part of the employee’s compensation, an injury is compen - sable. If an employer, for business reasons, arranges and pays for an employee to join and participate in a social or athletic club, the employee’s activities are an incident of the course of emplo yment and an injury is, therefore, compensable. The periods during which an employee prepares for work while at home or commutes to his or her place of business are not within the course of employment, and, therefore, are not covered by workers’ compensation laws. COURSE OF PERFORMANCE Evidence of the conduct of parties concerning the execution of obligations under a contract requiring GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 COURSE OF DEALING more than one performance that is used for the purpose of interpreting the contract’s provisions. Course of performance refers to the system- atic and uniform conduct in which parties engage after they enter into a contract. The intent of the parties in regard to the meaning of the agreement is reliably ascertainable through the application of course of performance only when a contract requires a repetitive series of performances. There must be more than one performance, but no particular number is required. The fewer the performances, the more probable it is that such performances cannot constitute a course of performance. If a party accepts a course of performance without objection, his or her acquiescence is relevant to determining the meaning of the contract. The recipient of the performance need not expressly assent to the performance; the lack of an objection is sufficient. Unless there has been acceptance without objection, a party who performs cannot benefit from the applica- tion of course of performance. Sometimes the acts of the parties may be inconsistent with the pertinent contractual language. A party may argue that the meaning of the agreement is unequivocal—that the course of pe rformance is inconsistent with the contract provisions—and, therefore, that the express terms of the contract should predominate over the course of performance. The prevailing view is that no contractual term is so clearly defined that a party cannot demonstrate the way in which the parties actually applied it. Purs uant to the admissibility of the course of performance, and assuming that this evidence is credible, the language selected by the parties has the meaning that they had ascribed to it, and, therefore, no inconsis- tency exists between the contract provisions and the course of performance. A minority of jurisdictions hold that some words have a plain meaning and, conse quently, that course of performance is inadmissible to show their meaning when they are not ambigu- ous. Other courts reason that it is relevant to show that there has been either a waiver, an intentional relinquishment of a known right, or a modification of the contract before the application of course of performance. The concept of course of performance in the context of contract law, along with such concepts as COURSE OF DEALING and TRADE USAGE, is derived largely from the work of ARTHUR LINTON CORBIN . One of the leading theorists in the field of contract law in the twentieth century, Corbin did not believe that courts should be bound by a formal reading of the “four corners” of the contract. Corbin was instrumental in the drafting of the UNIFORM COMMERCIAL CODE (UCC), which governs com- mercial agreements and transactions in most states. Under the UCC, courts may consider course of performance of the parties in order to determine, for example, whether the parties have formed a contract for the sale or lease of goods (U.C.C. §§ 2-208, 2A-207). CROSS REFERENCE Plain-Meaning Rule. COURT A court is a judicial tribunal established to administer justice. It is also an entity in the government to which the administration of justice is delegated. In a broader sense, the term may also refer to a legislative assembly; a deliberative body, such as the General Court of Massachusetts, which is its legislature. The words court, judge, or judges, when used in laws, are often synonymous. A kangaroo court is a mock legal proceeding that disregards law and justice by issuing a biased, predetermined judgment regardless of the evidence presented before it. Judicial courts are created by the govern- ment through the enactment of statutes or by constitutional provisions for the purpose of enforcing the law for the public good. They are impartial forums for the resolution of contro- versies between parties who seek redress from a violation of a LEGAL RIGHT. Both civil and criminal matters may be heard in the same court, with different court rules and procedures for each. The public has a right to attend judicial proceedings. This right ensures that the pro- ceedings will be conducted in a fair and unbiased manner. Anyone who wants may attend trials as a spectator unless a judge has closed a courtroom for particular proceedings in order to maintain order, to assure DUE PROCESS OF LAW , or to protect a witness’s identity. The U.S. Judicial System consists of 52 separate court systems, plus TERRITORIAL COURTS, in the United States. All states and the District of Columbia have their own independent systems, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT 253 and the United States government maintains federal courts throughout the country. The federal courts and state courts are inde pendent of each other. The federal courts are authorized by Article III, Section 2, of the Constitution to hear controversies that especially affect federal interests. Sometimes the existence of two parallel court systems in every state creates a strain and raises important issues concerning federalism, the relationship between the states and theUnited States. For some of these questions, the SUPREME COURT OF THE UNITED STATES makes the final determination that is binding on everyone. Most courts have a multilevel structure. A few states have a two-tiered system, but the federal government and most states use a three-tiered model. All litigants have an opportunity to argue their cases before a trial-level court, and subse- quently they may be able to pursue the matter further up through two levels of appeals courts. In the federal court system the trial-level court is the district court. Each state contains at The First Virtual State Court U B .S. courts have adopted various new technol- ogies that can assist in the administration of justice, but the state of Michigan took the most radical step in 2002 when it authorized the creation of the first fully functioning cybercourt in the country. This virtual court, once fully operational, would have allowed attorneys to file court appear- ances, briefs, and other court documents online. Specially trained district and circuit judges would have served three-year assignme nts on this court. The cybercourt in its first incarnation was to be limited in jurisdiction to business disputes with an amount in controversy exceeding $25,000. The court would not use juries, as it was designed to assist businesses that need quick resolutions of disputes, such as those involving trade secrets. Critics pointed out that the system would not allow judges to examine evidence physically or even to view evidence with any certainty, given the limitations in viewing screen resolution in many video or real-time communications. In addition, critics contended that many business disputes involve issues of federal law and diversity jurisdiction, thereby denying this court the opportunity to hear many cases. The Michigan Supreme Court proposed new rules to govern the operation of the cybercourt. These rules addressed: the filing of pleadings and other documents via the Internet; the prevention of tampering with electronic documents; how testimony would be given via the Internet, videoconferencing, or interactive video; how serving notice on parties to a lawsuit via e-mail will work; and how court proceedings will be made accessible to the public. The Michigan cybercourt was supposed to be operational by late 2002, but by 2003 it became apparent that the legislature would not fund it. Though no state has pursued a similar cybercourt, many state and federal jurisdictions have since adopted the electronic filing of documents, the electronic scanning of hardcopy documents, and the use of interactive television (ITV) for court hearings. With improved video resolution, the day may come when such an integrated cybercourt is a reality. FURTHER READINGS Issenberg, Doug. 2001. “See You in Cybercourt?” Internet World (April 1). “Michigan Bill Will Create Cybercourt.” 2002. Associated Press (January 9). Available online at www.ap.org (accessed September 1, 2003). “Michigan House Battles Over Cybercourt Funding.” Michigan Technology News. Available online at www.mitechnews. com/registry/technews/breakingnews.htm (accessed July 1, 2003). “Michigan Wants to Speed Business Dispute Resolution with Cybercourt.” 2001. Associated Press (February 23). Avail- able online at www.ap.org (accessed September 1, 2003). Stephens, Gene. 2001. “Trial Run for Virtual Court.” Futurist (November-December). “Website of the Week.” 2002. National Law Journal (February 11). “Wired Future for Courtrooms.” 2001. Associated Press (March 1). Available online at www.ap.org (accessed September 1, 2003). CROSS REFERENCES Courtroom Television Network; Internet GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254 COURT least one district court, and most of these courts have more than one judge available to try cases. Litigants may file an appeal with the U.S. court of appeals that has jurisdiction over that district if they are unhappy with the lower court’s decision, and the decision is the type that may be appealed. The United States is divided into 13 judicial circuits, and one court of appeals sits in each of twelve geographical circuits. The Court of Appeals for the Federal District sits in the thirteenth district to hear cases formerly enter- tained in the COURT OF CLAIMS and the Court of Customs and Patents Appeals, which were abolished by the enactment of the Federal Courts Improvement Act of 1982 (28 U.S.C.A. § 1 note). Each court of appeals has four or more judges who sit either as panels of three or as a whole to review the decisions of district courts and to review or enforce the orders of many federal administrative agencies. If a court sits as a whole, it is called an EN BANC court. Litigants who lose a cause in a court of appeals may be able to carry the appeal to the U.S. Supreme Court. Cases in state courts may also proceed from the trial-level court up through appeals in an appellate court and then to a state supreme court. Different systems assign different functions to the state supreme court, which is usually the court of LAST RESORT, but this is not the case in every state. When an issue based on the federal Constitution, a treaty, or a federal statute is involved, the U.S. Supreme Court may agree to hear an appeal from the state supreme court. The organization ofacourtand itspersonnel is determined by the law that created that court and by the court’s own rules. Generally, the papers for each lawsuit must be filed with the clerk of the court. The clerk and his or her staff organize all of the records for the judges assigned to the court. Each judge may have a law secretary or law clerk, or there may be several clerks who perform legal research and assist in the drafting of decisions, orders, and memoranda. Court officers, court attendants, or bailiffs are available to give information and to maintain order and peace around the courthouse. Interpreters may be kept on call to translate for witnesses and parties who do not speak English well. A county sheriff or federal marshal has the responsibility for enforce- ment of various judicial orders. Probation officers are usually civilian employees who assist the court by administering the probation system for crimi- nal offenders and supervisecourt-ordered custody or payments of money, especially CHILD SUPPORT.A court stenographer, or COURT REPORTER,createsa written record of proceedings word for word. Attorneys are called OFFICERS OF THE COURT because they have a dual responsibility to protect the integrity of the legal system and pursue their clients’ claims. An attorney who has been admitted to the bar in one state is entitled to practice in the courts of that state but that does not entitle him or her to practice in the courts of another state, in a federal court, or in the Supreme Court. In order to do so, he or she must qualify and be sworn in separately. A term is the time during which a court is authorized to hear cases, and a session is one of those periods in a term when a judge is actually hearing cases. A regular term is one called for by law, and a special term may be called by a judge or other official when the circumstances warrant it. A jury may hear a case during the jury term while a motion for relief may be made to the court during the motion term.Ageneral term sometimes means the time that all of the judges of a court sit together, or en banc, but occasionally it refers to a single judge’s hearing all of the cases on a particular subject. Laws or court rules fix the particular terms or sessions when a court is open for judicial business. If none is fixed, a court is open at all times. Any JUDICIAL ACTION taken by a judge of the court is not invalid in such circumstances because of the time when it was taken, but it does not necessarily mean that the courthouse doors are unlocked 24 hours per day. Rules of CIVIL PROCEDURE and of CRIMINAL PROCEDURE regulate practice in the courts. The rules spell out rights and the manner of proceeding in regard to a court’s jurisdiction and venue, the commencement of an action, parties, motions, subpoenas, pretrial discovery, juries, evidence, the order of a trial, provisional remedies, judgments, and appeals. FURTHER READINGS Hume, Robert J. 2009. How Courts Impact Federal Administrative Behavior. New York: Routledge. Yackle, Larry W. 2009. Federal Courts 3d ed. Durham, N.C.: Carolina Academic Press. CROSS REFERENCE Judicial. COURT ADMINISTRATOR An officer of the judicial system who performs administrative and clerical duties essential to the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT ADMINISTRATOR 255 proper operation of the business of a court, such as tracking trial dates, keeping records, entering judgments, and issuing process. A go-between for judges, attorneys, and clients, the court administrator essentially runs the court’s business. The behind-the-scenes work of this position ranges from scheduling trial dates to handling all official correspon- dence. Courts produce volumes of paper; the administrator’s office processes them, accepting lawsuit filings, authenticating court documents, and issuing writs and summonses. Formerly known as the clerk, the post has evolved since the mid-1980s as technology has streamlined some elements of the justice system. State and county administrators do essen- tially the same job. Unlike those in past decades, nearly all administrators in the early 2000s are appointed by judges. Judicial appointment has helped take politics out of this powerful position, and by the mid-1990s, only the state of Montana still preserved an elected post for its court administrator. State administrators oper- ate under statutory authority that entitles them to execute court affairs and provides an annual staff budget. County-level administrators are generally chosen by committee, with funding for their offices commonly generated by court fees. Contemporary trends in court management have reshaped this traditional office. Technolo- gy has led the change: where once courts relied entirely on paper records, computer databases are fast becoming the norm. For example, using computer software to track trial dates has begun to rep lace the ancient practice of relying on the court docket. Beyond allowing for greater flexibility, this new method also turns the tables on lawyers who have customarily controlled the pace of cases. A related trend in the mid-1990s, introduced by Minnesota, is toward uniformity: the state’s General Rules of Practice place all jurisdictions under the same uniform rules, aiming to save time in scheduling as well as ensuring that local attorneys have no advantage over out-of-state attorneys. COURT COMMISSIONERS Persons appointed by a judge to find facts, to hear testimony, or to perform a specific function connected with certain types of cases. An attorney, a judge, a retired judge, or any person with the background necessary to com- prehend complex legal matters may be a court commissioner, although a court commissioner is not a judge. The court that the court commissioner serves ordinarily reviews his or her decisions. Commissioners may take testimony in hearings to determine the validity of a will; proceedings concerning the entry of default judgments or stipulations; pretrial conferences in criminal cases; or proceedings involving family court petitions to modify alimony or CHILD SUPPORT. State law governs the powers of court commissioners. COURT HAND In old English practice, the peculiar style and form of writing in which court records were transcribed from the earliest period to the reign of George II, circa 1760. This form of Latin shorthand was character- istically concise, strong, and absolutely uniform even though it was handwritten. Due to the numerous and unusual abbreviations and con- tractions, proficiency in the art of court hand was an important step in entering the “clerkship” profession. Court hand imported to the ancient record the essential quality of durability. COURT-MARTIAL A tribunal that tries violations of military criminal law. It often refers to the entire military justice pro- cess, from actual court proceedings to punishment. First established in eighteenth-century U.S. law, the court-martial is today the result of tremendous modernization that has made it similar to a trial in federal district court. Defendants are presumed innocent until proven guilty, accorded considerable legal protections, and guaranteed the right to appeal. The court- martial is governed by the UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C.A. §§ 801–940), a federal law that Congress originally passed in 1950, but that legislators, presidents, and the U.S. Supreme Court have since changed several times. Significant reforms of the court-martial now grant military defendants esse ntially the same due process rights that are afforded defendants in civilian courts. The Uniform Code of Military Justice vests in the PRESIDENT OF THE UNITED STATES the authority to draft and to amend the Manual for Courts- Martial, United States (10 U.S.C.A. §§ 801-946). This document includes a number of procedural rules in the military justice system, including the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 COURT COMMISSIONERS Rules for Courts-Martial and Military Rules of Evidence. These rules are practiced by judge advocates, who serve as the attorneys in the military justice system. Whereas many of the rules are similar or analogous to procedural rules in the civil justice system, such as the Federal Rules of CRIMINAL PROCEDURE and the FEDERAL RULES OF EVIDENCE , the military rules provide specific rights and procedures that do not have civil counterparts. In 1998 President WILLIAM JEFFERSON CLINTON approved several amend- ments to the Manual, including those related to pre- an d post-trial confinement, trials, sentencing, substantive criminal offenses and defenses, post-trial procedures, and the au- thority of the JUDGE ADVOCATE General. Three levels of courts exist in the military justice system: military trial courts, courts of military review, and the U.S. Court of Military Appeals. Courts-martial are handled by the lowest courts, which are presided over by military trial judges who are quite similar to U.S. district court judges. These judges are commissioned officers selected by judge advo- cates according to rules established by Congress, and their responsibility for individual cases begins and ends with the court-martial process. The military trial courts are organized by the type of courts-martial that they address— summary, special, and general, which reflect increasingly serious charges and punishments. Just as trials in civilian criminal courts are the result of work by police officers and prosecutors, courts-martial are preced ed by a formal investigation. During questioning, mili- tary suspects have the same FIFTH AMENDMENT right to remain silent, as do civilians, as well as some additional rights. Civilian police officers must read a suspect the Miranda rights at the time of arrest. Article 31 of the Uniform Code of Military Justice requires military investigators to go even further: As soon as suspicion focuses on a suspect during interrogation, they must advise him or her of the right to remain silent. This stringent requirement places a higher burden on military investigators to protect suspects’ rights, and later it can become grounds for the dismissal of charges if it is not followed. Military laws provide generous protections to defendants before a case goes to trial. These include complete pretrial discovery, allowing defendants free access to witnesses and evi- dence, as well as a requirement that prosecutors reveal the names of witnesses who will be called during all stages of the trial. In addition, the government must provide defendants with expert witnesses at its own expense; judges may delay or dismiss trials if prosecutors fail to do so. The military judge is empowered to hear pretrial motions on a broad range of issues, ranging from alleged violations of the defen- dant’s constitutional rights to the admissibility of evidence. Before the case is heard, defendants have the choice of trial by judge or jury, and enlisted members can request that at least one- third of the court be enlistees. Defendants may also elect to be provi ded with military counsel or to hire a civilian attorney. The court-martial closely resembles a trial in federal court. Military judges have the same authority as federal judges to rule on all matters of law and to give orders to the prosecution and the defense on such procedural matters as arguments, motions, and challenges. Two differ- ences are particularly significant. First, whereas few civilian courts allow jurors to pose questions to witnesses, military courts have long permitted the practice. Jurors may submit written ques- tions, which both the prosecution and the defense read in order to prepare any possible objections, which also must be in writing. The judge then decides which questions to allow. Second, military judges have a greater duty than do federal judges to review a defendant’s entry of a guilty PLEA. This duty is designed to protect defendants from pleading guilty because of coercion, which could be more likely in the military because of its strict code of discipline and obedience to authority. MILITARY LAW requires judges to reject the plea at any stage of a proceeding if any hint of coercion is found. The right to appeal convictions in military courts is different from that in civilian courts. Options for appeal are determined by the type of court-martial: Summary court-martial convictions, which are for lesser offenses, offer only the right to appeal to the commander who convened the court, and to make a further petition for review to the judge advocate general. Convictions in special and general courts-martial can be appealed to higher authorities, but the type of sentence handed down also governs a convicted party’s rights. If the sentence is less than six months’ confinement or a bad-conduct discharge, the case is reviewed by a legal officer in the convening authority’s staff judge advocate’s office, with no further appeals other than a right to petition the judge advocate general. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT-MARTIAL 257 . so will support a CAUSE OF ACTION for breach of contract. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COUPON 251 COURSE OF DEALING A clearly recognizable pattern of previous conduct between. requiring GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 COURSE OF DEALING more than one performance that is used for the purpose of interpreting the contract’s provisions. Course of performance. currency. Federal law also prohibits producing counterfeit postmarks, postage stamps, military papers, or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 COUNTERCLAIMS AND SETOFFS AGAINST SOVEREIGNS government