Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P28 pdf

Greater convictions are automatically appealed to a court of military review, which considers matters of FACT AND LAW. Consisting largely of higher-ranking military judges, these courts exist for each branch of the military and have a total of 31 appellate military judges. The Uniform Code of Military Justice requires them to review serious sentences such as confinement of one year or more, dishonor- able discharge, or dismissal of officers or cadets. Sentences to general officers and flag officers are also reviewed automatically. In all cases, defendants are granted free counsel for their appeals. At the next level, the Court of Military Appeals—composed of five civilian judges who Any Last Words? The Evolution of the Court-Martial T hroughout most of its 200-year history, the court-martial was the ogre of U.S. law. Modeled on sixteenth- century European ideas about discipline and punishment, courts-martial worked smoothly. Commanders ran them, defendants had few rights, and punish- ments were arbitrary: disobedient sol- diers were fined, jailed, or discharged, and deserters flogged or hanged. CONSTI- TUTIONAL LAW rarely got in the way. Between 1775 and 1950, the U.S. military scarcely altered its methods. It was not until the VIETNAM WAR era that reform came at the hands of federal lawmakers and judges. In the early 2000s the military tribunal resembles the average federal court. Historically, the military justice sys- tem has always been distinct from the civilian court system. It formally began in 1775 when the CONTINENTAL CONGRESS enacted the first American ARTICLES OF WAR , closely modeled on the British Articles of War, which had their roots in sixteenth-century Europe. Under the articles, military justice had a simple two–sided goal: to promote GOOD BEHAV- IOR and punish bad behavior. It specified civilian offenses such as MURDER and LARCENY, and military offenses such as disobedience, disrespect to officers, and desertion. To try defendants for viola- tions, it established a simple tribunal made up of officers under the control of their commander. Accused parties had few if any of the due process and appeal rights enjoyed by defendants in civilian courts. No standard rules for punish- ment existed; as with all matters in a court-martial, punishment was decided completely at the discretion of the commander. Free from the constraints of civilian courts, early courts-martial produced stark results. General GEORGE WASHINGTON, like other commanders, understood the court-martial’s potential for keeping order in the ranks. During the Revolu- tionary War, he ordered his troops to watch the execution of fellow soldiers who had been convicted of desertion. Discipline—often severe—remained the hallmark of the court-martial for the next century. Few citizens or politicians objected because military culture was highly esteemed. Soldiers who brought shame on the service were thought to deserve whatever they got. Despite earnest efforts, few early critics of the court-martial achieved much. By the mid-1800s, scholarly calls for reform began with the work of John O’Brien, an Army lieutenant who wrote A Treatise on American Military Laws, and the Practice of Courts Martial: with Suggestions for Their Improvements in 1846. O’Brien argued for lessening the influence of commanders, enacting more uniform rules, and clearly establishing specific punishments. But neither law- makers nor the courts were very impressed. Congress had always accepted the distinction between civilian and military justice, and in a number of decisions, the U.S. Supreme Court con- sistently upheld the constitutionality of the court-martial system. The onset of WORLD WAR I brought changes in the form of new Articles of War (Act of August 29, 1916, ch. 418, §§ 3–4, 39 Stat. 619, 650). Defense counsel was guaranteed “if such counsel be reasonably available,” but there was no provision for appealing convictions. The author of the revision, JUDGE ADVOCATE General Enoch H. Crowder, had scoffed at the latter idea in testimony before the U.S. Senate: In a military code there can be, of course, no provision for courts of appeal. Military disci- pline and the purposes which it is expected to [serve] will not permit of the vexatious delays…. However, we safeguard the rights of an accused, and I think we effectively safeguard them, by requiring every case to be appealed in [the] sense [that commanding generals must approve every sentence, and sentences of death or dismissal require additional confirmation by the president] (S. Rep. No. 130, 64th Cong., 1st Sess. 34–35). As a startling example soon showed, these protections had little if any value. In November 1917 a court-martial tried 63 members of the all-black Twenty- fourth Infantry Division of the U.S. Army who were charged with a variety of offenses, including mutiny and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 258 COURT-MARTIAL are appointed by the president of the United States—may decide to hear any petition from an unsuccessful appeal to a court of military review. Finally, once military remedies have been exhausted, federal courts, including the U.S. Supreme Court, will review a court-martial conviction for claims of denial of constitutional rights. FURTHER READINGS Ferris, Andrew M. 1994. “Military Justice: Removing the Probability of Unfairness.” Univ. of Cincinnati Law Review (fall). Fuger, Stanley T. 1992. “Military Justice: Variation on a Theme.” Connecticut Bar Journal 66 (June). Konecke, Eric J. 1995. “The Appointments Clause and Military Judges: Inferior Appointment to a Principal Office.” Seton Hall Constitutional Law Journal 5 (spring). murder, stemming from a race riot in Houston in which over a dozen people had died. The court-martial convicted 58 men. Thirteen were sentenced to death and hanged the following morn- ing. Despite General Crowder’s assur- ances, neither the president nor even the military authorities in Washington, D.C., had been informed. According to regu- lations, the authority of a department commander was sufficient in time of war to confirm death sentences and the commander’s order needed no further confirmation because he was the con- vening authority who had started the court-martial. The Houston hangings prompted an immediate tightening of the rules for death sentences, but the experience of drafted men in World War I and WORLD WAR II brought about greater change. Called up to fight in the millions—and also court-martialed in the millions— civilians disliked their taste of military justice. As a result of public outcry, Senate hearings in 1917 led to a 1920 revision of the Articles of War. This revision provid- ed for preliminary investigations, defense counsel, the presence of a legally trained member at every court-martial, and higher review of all sentences of death, dismissal, or dishonorable discharge. The right to defense counsel for soldiers was ahead of its time; civilians would not have this right universally recognized by the U.S. Supreme Court for several more decades. The new Articles of War also provided for automatic appellate review of convictions. In practice, not all the provisions of the new articles were followed. Resources for carrying them out were limited, and commanders could not always be counted on to depart from tradition. The aftermath of World War II, in which some 2 million soldiers faced court-martial, brought even greater calls for reform. Major reform began in 1950. Con- gress passed the UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C.A. §§ 801–940), a sweeping reform of the military justice system applying to all branches of the service. This code created the Court of Military Appeals, a three-judge civilian body designed to review certain convic- tions. The code also extended greater protections to defendants: lawyers had to be assigned to defend them, and they now enjoyed significant due process rights. On the other hand, the military retained all other authority over the administration of military justice. The code kept the traditional hierarchy of three courts convened by commanders at increasingly higher command levels with escalating punishments—summary, spe- cial, and general courts-martial. It estab- lished “law officers” who functioned like judges, but it retained much of the traditional model of command control, which gave to commanders the power to appoint the investigating officer, counsel, and court members (with the enlisted accused having the right to request that one-third be enlisted members). And it extended court-martial jurisdiction over both service members and certain classes of civilians. Further reform came through the courts and Congress. In 1955 the U.S. Supreme Court held that discharged service members could not be court- martialed for crimes committed while they were on active duty (United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8). In 1969 the Court held that a case could be tried at court-martial only if the offense was connected to the defen- dant’s military service in O’Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291. In 1970 the Court of Military Appeals held that civilian employees of the military overseas could not be subjected to court-martial (United States v. Averette, 19 U.S.C.M.A 363). Congress brought reform with the Military Justice Act of 1968 (Pub. L. 90- 632, Oct. 24, 1968, 82 Stat. 1335), which revamped the Uniform Code of Military Justice. It accomplished several key changes: (1) court-martial procedures were made to resemble more closely those of U.S. district courts; (2) the law officer was changed to a military judge, with functions and powers like those of a federal district judge; (3) the military judge was protected from influence by military authorities; (4) new intermediate appellate courts of military review were created in each service; and (5) defen- dants were given the choice of trial by judge or by jury. Additional reform came in the Military Justice Act of 1983 (Pub. L. 98-209, Dec. 6, 1983, 97 Stat. 1393), which specifically provided for review of Court of Military Appeals decisions by the U.S. Supreme Court. By 1987 military justice had improved to the point that the U.S. Supreme Court overturned O’Calla- han and returned to the military greater authority to conduct courts-martial (Solorio v. United States, 83 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364). In the early twenty-first century, the court-martial functions smoothly as a system governed by law. In every signifi- cant way, the modern court-martial is at least the equivalent of a federal criminal trial. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT-MARTIAL 259 Wiener, Frederick B. 1990. “American Military Law in the Light of the First Mutiny Act’s Tricentennial.” Military Law Review 126 (fall). COURT OF APPEAL An intermediate federal judicial tribunal of review that is found in thirteen judicial districts, called circuits, in the United States. A state judicial tribunal that reviews a decision rendered by an inferior tribunal to determine whether it made errors that warrant the reversal of its judgment. U.S. COURTS OF APPEALS were created by Congress in 1891 and were known until 1948 as U.S. Circuit Courts of Appeals. Such courts have appellate jurisdiction over the majority of cases decided by U.S. District Courts except those cases in which the court has made an interlocutory order regarding an injunction; such cases are directly reviewable by the SUPREME COURT OF THE UNITED STATES . federal courts of appeals are also empowered to review orders of many federal administrative agencies, such as the NATIONAL LABOR RELA TIONS BOARD. Cases before the court of appeals are usually heard by a panel of three judges, but in some circuit cases, actions involving significant con- stitutional questions are heard EN BANC,withall the judges serving on the court present to decide the case by a majority vote. In 1982 Congress enacted the Federal Courts Improvement Act (96 Stat. 25; 28 U.S.C.A. § 1 note) creating the Court of Appeals for the Federal Circuit which commenced hearing cases on October 1, 1982, and constitutes the thirteenth circuit in the United States. The Court of Appeals for the Federal Circuit provides a national forum for the uniform application and enforcement of law in cases involving similar issues, particularly those involving patent and public contracts law, which in the past were often decided differently from circuit to circuit, necessitating appeal to the Supreme Court for a definitive answer. This court was established from the merger of the Federal COURT OF CLAIMS and the Court of Customs and Patent Appeals. Although struc- turally similar to the 12 other courts of appeals, it differs from them in that its intermediate appellate jurisdiction is based upon subject matter, not geography, and it hears appeals from all federal circuits. This topical approach toward adjudication results from the new court assuming appellate jurisdiction from cases for- merly brought before the Court of Claims and the Court of Patent Appeals. The court also enter- tains appeals from the Court of International Trade, the PATENT AND TRADEMARK OFFICE, the MERIT SYSTEMS PROTECTION BOARD , and other agencies. In some states, the court of appeals is an intermediate appellate tribunal that reviews the decisions of lower courts on appeal. Its decisions are, however, subject to review by the highest appellate tribunal in the state if the unsuccessful party files an appeal and the justices agree to hear the case. When the state court of appeals is the intermediate level of appellate review, it possesses mandatory jurisdiction; litigants have a statutory right to appeal their cases to it. State Courts of appeals are frequently courts of LAST RESORT when their decisions are final and are not subject to review by any other state tribunal. When it is the highest appellate court in the state, the court of appeals has discretionary jurisdiction; it selects the decisions it will review. If a case presents questions involving federal statutes or the Constitution, the U.S. Supreme Court might accept the case for review of the judgment rendered by the state courts of appeals. There might be two separate systems of state courts of appeals: one for the review of civil cases and one for the appeal of criminal matters. CROSS REFERENCES Appellate Court; Federal Courts. COURT OF CLAIMS A state judicial tribunal established as the forum in which to bring certain types of lawsuits against the state or its political subdivisions, such as a county. The former designation given to a federal tribunal created in 1855 by Congress with original jurisdic- tion—initial authority—to decide an action brought against the United States that is based upon the Constitution, federal law, any regulation of the executive department, or any express or implied contracts with the federal government. Such courts are created by statute or consti- tution and can entertain only actions specified by law, such as those involving violations of provisions of the state constitution or law or based upon breach of government contracts. The federal courts Improvement Act of 1982 (28 U.S.C.A. § 1 et seq.) abolished the U.S. Court of Claims and established the Court of Appeals for the Federal Circuit and the U.S. Claims Court to shar e various aspects of the jurisdiction of the former court. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 260 COURT OF APPEAL COURT OF PROBATE A judicial body that exercises jurisdiction over the acceptance of wills as valid documents and over the management and settlement of the estates of minors or of spendthrifts, of mentally incompetent persons, and of habitual drunkards. Such courts possess a limited jurisdiction in civil and criminal cases in some states. In some jurisdictions, they are also called orphans’ courts and surrogate courts. COURT OPINION A statement that is prepared by a judge or court announcing the decision after a case is tried; includes a summary of the facts, a recitation of the applicable law and how it rela tes to the facts, the rationale supporting the decision, and a judgment; and is usually presented in writing, though occasionally an oral opinion is rendered. Court opinions are the pronouncements of judges on the legal controversies that come before them. In a common-law system, court opinions constitute the law by which all controversies are settled. Attorneys analyze prior opinions on similar legal issues, attempt- ing to draw parallels between their case and favorable court opinions and to distinguish unfavorable opinions. Judges study relevant opinions in rendering their decisions. The majority of court opinions are not released for publication. Those that are released by the courts are collected in law books called reporters. Each state has at least one reporter that contains the opini ons of its courts, and the nation has several reporte rs that contain the opinions of the federal courts. All published opinions are similar in format. At the top of each reporter page appears the name of the reporter preceded by the volume number. In the upper outside corner of the page is the page number. The volume, reporter name, and page number constitute the citation, which is used to locate the opinion or to refer to it. This citation may be abbreviated; for example, the citation “100 Cal. Rptr. 600” is a shorthand reference to the opinion that appears in volume 100 of the California Reporter at page 600. Many opinions are published in more than one reporter. In that situation, the additional citations are called parallel citations. The first segment of the court opinion itself is the title of the action. It identifies the parties to the case and their roles in the action, such as PLAINTIFF or DEFENDANT. If the opinion is from an appellate court, the party who appealed the lower court’s decision is identified as appellant, and the party who is defending the lower court’sdecisionis identified as respondent. In a criminal case, the plaintiff is usually the state prosecuting the crime—or the United States, if the federal government is prosecuting. After the title, a docket or calendar number assigned by the court appears, followed by the name of the court delivering the opinion and the date of the decision. After this identifying information, most reporters insert a summary of the facts and the decision. In addition, some reporters classify the points of law applied by the court into individual paragraphs, called headnotes, that help the reader extract and analyze each legal concept discussed. The summary and headnotes are written by the publisher of the reporter for the convenience of the reader and are not part of the court’s opinion. The court’s discussion of the case is often preceded by a syllabus, w ritten by the COURT REPORTER , which briefly summarizes the case. After the syllabus, the court identifies the attorneys representing the parties. Finally, the text o f the opinion is presented. It usually opens with the name of the judge who wrote it. If the words per c uriam or by the c ourt appear at this point, they mean that the court chose not to identify any individual judge as the author. If the opinion is d esignated a memorandum opinion, it is usually a concise opinion of the entire court. At the beginning of the opinion, the court briefly recounts the facts and issues involved in the case. Then, it delineates the applicable rules of law and explains how they relate to the facts of the case. In determining what the applicable law is, the court first looks for any relevant statutes. If no statute governs the action, the court relies on past decisions in similar cases, or precedent. If it is a case of first impression— that is, no existing statute or precedent governs the case—the court bases its opinion on similar decisions and on its own reasoning. A court opinion may be as brief as a few sentences or as long as severalhundred pages.Inits course, the judge or the court may make observations or express convictions that do not contribute to the final holding in the case. These statements are called dicta and have no binding or precedential force. After the discussion of the facts GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT OPINION 261 Who’s Suing Whom? Terms and Abbreviations in Case Titles T B he titles of court cases frequently contain terms and abbreviations t hat help to indicate the nature of the dispute. The accompanying chart identifies and explains many of the terms that may appear in case titles. Term Definition Example ad hoc For this; for this purpose Capital City Press v. Mouton, Judge ad Hoc ad litem For the suit; for the litigation Estate of Langhorn v. Laws, Administrator Ad Litem adm’r Administrator Grievance Adm’r v. Lange adm’r de bonis non Administrator of the remainder of a partially settled estate. Vogel, Adm’r De Bonis Non v. Wells ad valorem According to value; a tax imposed on value of property Aerospace Workers Inc. v. Dept. of Revenue, Division of ad Valorem Taxes a.k.a., a/k/a Also known as Luis Barras, a.k.a. Luis Ramos v. State of Texas alter ego The other self (Alter ego asserts that the defendants are one for purposes of liability) Ledford v. Mining Specialists, Inc., and Its Alter Ego, Point Mining, Inc. am icus curiae Friend of the court; one with an interest in the case, but not a party Livingston v. Guice. United States of America, Amicus Curiae appellant Party appealing a court’s decision to a higher court Moore, Appellant v. Derwinski, Appellee appellee Party against whom an appeal is taken Moore, Appellant v. Derwinski, Appellee certiorari, cert. Writ requiring a certified record of a case from a court In re Petition of Johnson for a Writ of Certiorari complainant One who applies to a court for legal redress Florida Bar, Complainant v. Clement, Respondent d.b.a., d/b/a Doing business as M./t/L. Rendleman d.b.a. Commercial Insulators, Inc. v. Clarke de facto In fact; in deed; actually McMullen, a De Facto Guardian v. Muir defendant Party defending against or denying allegations Gretencord, Plaintiff v. Ford Motor Co., Defendant defendant in error Appellee May v. State of Wisconsin, Defendant in Error duces tecum A command to produce certain evidence In re Grand Jury Subpoena Duces Tecum et alius, et allii, et al. And another; and others City of Lubbock et alius v. Knox et uxor; et ux. And wife Kostohryz et ux. v. McGuire et vir And husband Broadwater v. Dorsey et vir ex officio By virtue of the office Tenneco Oil Co. v. Stephens, Ex Officio Tax Collector GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 262 COURT OPINION Term Definition Example ex parte By or for one party Ex parte Johnson ex’r Executor Marilyn Haudrich as Ex’r v. Howmedica ex relatione, ex rel. On information or on behalf of an interested party State ex rel. Miller v. Miller feme sole A single woman Holman, Feme Sole v. Stephen F. Austin Hotel guardian ad litem Guardian for the suit or litigation (concerning an incompetent or minor) Grace M., as Guardian ad Litem for Laurie M., a Minor v. Oakland Unified School District habeas corpus Writ commanding that a person be released from unlawful detention In re Writ of Habeas Corpus for Martinez in personam Against the person Claudio v. United States and Ken’s Marine Service, Inc., in personam in re In the matter of In re Estate of Lange in rem Against the thing; against the property Scindia Steam Navigation Co., Ltd. v. 3,952.536 Metric Tons Peerless Eagle Coal, in rem, et al. inter alia Among others Kot v. Inter a lia, North Ea st Detective Division inter vivos Between the living Rudd v. Ruth inter vivos Family Trust mandamus Writ commanding the performance of an act or the restoration of illegally deprived rights Ex parte Sierra Club Petition for WritofMa ndamus v. Alabama Environmental Management Commission n.k.a., n/k/a Now known as Bernasek n.k.a. Staron v. Bernasek nunc pro tunc After a deadline and given retroactive effect Application of West for Admission to the Bar nunc pro tunc pendente lite Pending the suit; during the litigation Parsley, Adminis-trator Pendente Lite v. Harlan petitioner Party filing a petition Walton, Petitioner v. Walton, etc., et al., Respondents plaintiff Party bringing a civil action by filing a complaint Oetting, Plaintiff v. United States, Defendant plaintiff in error Appellant Miles, Plaintiff in Error v. Justice of the Peace Court #13 pro forma As a matter of form Pentecostal Church of God of America, a Pro Forma Corporation v. Hughlett pro hac vice For this occasion Mohawk Assoc. and Furlough, Inc., as Owner Pro Hac Vice of the Tug Mohawk for exoneration from liability pro se For one’s own behalf; appearing for oneself Loftin, Individually, pro se v. United States quasi As if; analogous to Mount Carbon Metropolitan District, a Quasi-Municipal Corporation, v. Lake George Co. respondent Appellee Forehand, Petitioner v. Fogg, Respondent sub nom Under the name Jones v. Lujan, sub nom. Hodel versus , vs., v. Against Roe v. Wade B GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT OPINION 263 and the applicable law, the opinion announces the holding, which is the legal principle or principles derived from the opinion. Only the holding is binding precedent in subsequent cases. Each reported decision may comprise one opinion written by one judge on behalf o f the entire court, or several o pinions w ritten by individuals or groups of judges. No t all t he opinions i n a ca se have the same l egal force. The most s ignificant is a majority opinion, in which a majority of the members o f the court agree both with the reasoning and with the hold ing. A majority opinion has the most conclusive precedential value of any opinion. An opinion agreed upon by the largest number of judges but fewer than a majority of those on the court i s a plurality opinion. A plurality may occur where, for e xample, f our o f n ine j ustices join one opinion, two others write concurrences, and three write dissents. A plurality opinion constitutes the holding of the court, since it i s joined b y the largest number of justices, but it carries less precedential valuethanamajorityopinionbecauseitisnot agreed upon by a majority of the court. If a judge or judgesagreewiththeoutcomeofthecasebutnot with the majority’s reasoning, they may write a separate concurring opinion. Conversely, a dissent- ing opinion may be written by a judge or judges who disagree with the decision of the court. Neither a c oncurrence n or a dissent has precedential value. The last segment of a majority or plurality opinion sets forth the judgment of the court. The judgment is the official decision of the court on the rights and claims of the parties and resolves the controversy between them. It may be a final determination, or it may remand the case (send it back) to a lower court for further action. A judgment may be completely in favor of one party, or partly in favor of one and partly in favor of another. It may be a straightforward affirmance or reversal of a lower court’s decision, or it may affirm on some questions, reverse on others, and rem and on still others. FURTHER READINGS Ochs, Linnea L. 1987. Webster’s New World Legal Word Finder. 2d ed. Englewood Cliffs, N.J.: Prentice-Hall. Statsky, William P. 2008. Introduction to Paralegalism: Perspectives, Problems, and Skills. 7th ed. Farmington Hills, Mich.: Cengage Learning. Wren, Christopher G., and Jill R. Wren. 1999. The Legal Research Manual: A Game Plan for Legal Research and Analysis. 2d ed. Madison, Wisc.: Legal Education. CROSS REFERENCES Canons of Construction; Stare Decisis. COURT REPORTER A court reporter is an individual who transcribes spoken or recorded speech in court proceedings and depositions. Court reporters have played a significant role in the U.S. legal system, transcribing testimony in court proceedings as well as in depositions. Prior to the introduction of mechanical and electronic transcribing devices, court reporters recorded speech by writing in shorthand. There are different methods of shorthand, which all rely on symbols and abbreviations to speed the recording process. With the introduction of machines, shorthand symbols were transferred to a series of keys, that when depressed, produced the appropriate abbreviation. Court reporters are called on during proceedings to read back testimony. When a trial transcript or deposition must be produced, the court reporter uses the shorthand note to assemble the full written record. In the early 2000s, the use of computer technology and digital audio recording have had a significant impact on court reporting. Becoming a court reporter requires inten- sive training. Private business schools offer court reporting classes, and the length of study ranges from one to three years, as students develop listening skills, concentration habits, and mastery of the shorthand language. Because lawyers and judges rely on speedy and accurate transcription, some state court systems will not hire a reporter without a certification from a national court reporting organization. The National Court Reporters Association (NCRA) and the National Verbatim Court Reporters Association (NVRA) are the major accrediting organizations. To become certified, the NCRA requires a reporter to type at least 225 words per minute, and the NVRA requires 250 words per minute. In addition, both associations require a candidate to pass a four-part exam that includes written and skills components. Though most court reporters are hired by trial court judges, there are freelance reporters who specialize in taking civil depositions, record- ing arbitration hearings, and filling in for official court reporters when they are unable to be in court. Court reporters also work for the television industry, performing real time closed-captioning of live programs for the hearing impaired. Traditionally, court reporters have been confidential employees of trial judges, though GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 264 COURT REPORTER some appellate courts retain reporters to tran- scribe oral arguments. In some states, court reporters have joined unions so that they can negotiate benefits and resolve disputes with judges and court administrators. Official court reporters are government employees, but they are also independent contractors. When a lawyer requires the preparation of a trial transcript for an appeal or some other purpose, the lawyer must make financial arrangements with the court reporter or reporters who took notes. Court reporters charge on a per page basis; the actual amount of text on a transcript page is usually quite small, which results in more income for the reporter. Official reporters are not allowed to produce transcripts while working at the court but must do so in the evenings and on weekends. Appellate courts set deadlines for the preparation of transcripts, which places additional stress on reporters. Therefore, the income of a court reporter comes from two sources, which is unique for a government employee. However, reporters are required to purchase their transcribing equipment and software, which is expensive. Because court reporting relies on keystrokes, reporters are vulnerable to repetitive stress injuries. They may receive workers’ compensa- tion awards for their injuries. Court adminis- trators advise judges to give reporters frequent courtroom breaks and to forbid reporters from going back to their offices and typing during these breaks. Computer technology has helped reduce the keystrokes needed to prepare a transcript. The computer program produces a rough draft that the reporter edits. The supply of certified court reporters has not met the demand since the 1990s. Fewer individuals train to be reporters, and so me of those who complete their training are unable to pass the national certification tests. Some court systems have waived the certification require- ment, either permanently or for the first few years of employment; reporters can be dis- charged if they have not obtained the certifica- tion at the end of the designated period. Beginning in the 1980s, court systems began experimenting with video and audio technology to eliminate the need for a court reporter. Court administrators argued that only a fraction of cases are appealed, making the transcription of every trial proceeding a wasteful expense. In the 1980s, Kentucky courts set up video cameras and multiple microphones to videotape court proceedings. A court clerk operated the tape machine, and if there was a question about testimony, the clerk would replay the tape on a courtroom monitor. The tape was archived and if there was an appeal, a typist would listen to the audio and prepare a transcript. Since then other courts have found ways to eliminate court reporters. There are a growing number of digital courtrooms, where audio is recorded to computer hard drives. As with videotape, transcripts can be produced by typists, thereby reducing costs. As voice recognition software improves, the time is anticipated when a rough draft of a transcript will be produced by the computer. Nevertheless, many judges refuse to part with their court reporters. They see the reporter as an integral part of the judicial unit. Appellate courts rely on timely and accurate transcripts. Problems can occur when multiple reporters worked on a lengthy trial. The parties cannot write their legal briefs until all the transcripts are filed; if one court reporter is tardy, the appellate process cannot move forward. Appellate courts have the authority to issue orders compelling a court reporter to prepare a transcript immediately but use this power sparingly. Another problem occurs when a court reporter becomes ill, dies, or is otherwise unavailable. If the reporter’snotes are available, another reporter can prepare a transcript. However, the accuracy of this transcript may be questioned by a party. If the notes are unavailable, appellate co urt rules provide that the parties prepare a statement of proceedings that details the trial testimony as accurately as possible. The trial judge reviews the statement and certifies it as accurate. FURTHER READINGS Aikman, Alexander. 2006. The Art and Practice of Court Administration. Boca Raton, Fla.: CRC Press. Knapp, Mary, and Robert McCormick. 1998. TheCompleteCourt Reporter’s Handbook. 3d. ed. New York: Prentice Hall. Ostrom, Brian. 2007. Trial Courts as Organizations. Philadelphia: Temple Univ. Press. COURTROOM TELEVISION NETWORK The Courtroom Television Network (Court TV) was a cable network devoted to explaining law to the layperson. Changes in the media and the law paved the way for Court TV. From the 1960s to the 1980s, reporting on legal affairs was largely the business of two markets: specialized publications for lawyers and daily newspapers. The former was highly detailed; the latter took a broad, general approach. Televisiontookthe most sparing look at GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURTROOM TELEVISION NETWORK 265 the law, usually in small slices of news broadcasts. But as state laws increasingly permitted television cameras in state courtrooms, the role of television increased. At the same time, another trend transformed television itself: the p ublic’s appetite for so-called reality programming, a format popularized by shows such as the National Broadcasting Company’s Unsolved Mysteries and the Fox Network’s Cops and America’sMost Wanted. Cheaper to make than dramas and sitcoms, this programming subsequently glutted the airwaves in the form of cops-and-criminals shows, tabloid journalism, and infotainment (the combination of information and entertainment). Court TV was founded in 1991, a novel venture in television programming and a long shot: Few thought a twenty-four-hour-per-day, seven-day-per-week diet of live trials and legal analysis would succeed. Within two years, though, the network ranked fourth in the Nielsen Company’s daytime cable ratings. It built this record with gavel-to-gavel coverage of civil and criminal trials, including a string of highly publicized cas es in the e arly 1990s, a s well as with a mixture of regular programs that exam- ined in simple language how the legal system works. This nuts-and-bolts approach coincided with—and, to an extent, helped influence— controversial changes in legal journalism. Law- yers, judges, and the media are divided over whether the public is served or misled by the Court TV approach, and this debate only intensified after comprehensive coverage of the O. J. SIMPSON MURDER trial in 1995. Court TV was created by legal publisher Steven Brill. Known as an innovator, Brill had founded American Lawyer magazine in 1978. Neither as technical as law journals nor as cursory as the mainstream press, the trade magazine critically profiled attorneys and law firms, dealt with matters such as how juries reach decisions, and generally modeled its methods on investiga- tive journalism. It emphasized the inner workings of the law—taking an approach that, ten years later, television was avidly pursuing with law enforcement. In July 1991, with the financial backing of Time Warner, Brill launchedCourt TV. The network initially broadcast an obscure Florida murder trial but soon had high profile cases to cover, including the prosecution of murderer- cannibal Jeffrey Dahmer and the trials of accused parent murderers Erik and Lyle Menendez. Court TV’saudienceslowlyincreased. In addition to essentially live trial broad- casts—delayed by ten seconds to preserve confidential information about jurors, witnesses, and attorney-client privilege—Court TV devel- oped legal affairs programs. Other programs condensed entire trials into two-hour highlights or followed accused persons from jail to court in what the network called “the ultimate lesson on how the judicial process works, outlining legal failures and successes through the lives of those who are players in the system.” It also featured a weekly debate program, Washington Watch, which featured important legal figures. Steven Brill’s decision in 1997 to sell his stake in Court TV to his partners, Time Warner and Liberty Media, changed the direction of the channel. CEO Henry Schleiff decided to expand into new areas, worried that the network’s reliance on trials was turning it into a niche network such as C-SPAN or the Golf Channel. He also disliked that ratings were dependent on the availability of a so-called hot trial. For example, ratings dropped dramatically after the O.J. Simpson trial ended—down 80 percent by 1997. Court TV moved to purchase programming from the broadcast networks to syndicate to its viewers and then began producing its own legally focused reality programming in 2000. In 2007 Turner Broadcasting purchased the network and renamed it truTV. Though the network vowed to keep broadcasting trials for six hours each day, its Marc Juris, executive vice president of truTV, formerly known as the Courtroom Television Network. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 266 COURTROOM TELEVISION NETWORK evening program would largely abandon true crime for subjects like feuding neighbors, oil drillers, and renegade snowboarders. FURTHER READINGS Larson, Megan. 2002. “Out-of-Court Settlement: Ratings, Sales Improving as Court TV Moves away from Trials, Acquired Shows.” Mediaweek (July 29). truTV Newtork. Available online at;www.trutv.com (accessed October 12, 2009). CROSS REFERENCES Broadcasting; Cameras in Court; Simpson, O. J. COURTS OF REQUEST Inferior judicial tribunals in England, created by special enactments of Parliament, that possessed local jurisdiction to determine actions involving claims for small debts. These courts were abolished in 1846 and replaced by county courts. COVENANT An agreement, contract, or written promise between two individuals that frequently constitu- tes a pledge to do or refrain from doing something. The individual making the promise or agreement is known as the covenantor, and the individual to whom such promise is made is called the covenantee. Covenants are really a type of contractual arrangement that, if validly reached, is enforce- able by a court. They can be phrased so as to prohibit certain actions and in such cases are sometimes called negative covenants. There are two major categories of covenants in the law governing real property transactions: covenants RUNNING WITH THE LAND and covenants for title. Covenants Running with the Land A c ovenant is s aid to run with the land i n the event that the covenant is annexed to the estate and cannot be separated from the land or the land transferred w ithout it. Such a covenant exists if the original owner as well as e ach successive owner of the property is either s ubject to itsburd en or entitled to its benefit. A c ovenant running with the land i s said to touch a nd concern the property. For example, an individual might own property subject to the restriction that it is only to be used for church purposes. When selling the land, the person can only do so upon an ag reement by the buyer that he or she, too, will only use the land for church purposes. The land is thereby burdened or encumbered by a RESTRICTIVE COVENANT, because the covenant specifically limits the use to which the land ca n b e put. In a ddition, the covenant runs with the land because it remains attached to it despite subsequent c hanges in its ownership. This type of covenant is also called a covenant appurten ant. Certain easements also run with the land. An easement, for example, that permits one landowner to walk across a particular portion of the property of an adjoining landowner in order to gain access to the street would run with the land. Subsequent owners of both plots would take the land subject to such easement. A covenant in gross is unlike a covenant running with the land in that it is personal, binding only the particular owner and not the land itself. A subsequent owner is not required to keep the promise as one would with a covenant appurtenant. Covenants for Title When an individual obtains title to, or posses- sion and ownership of, real property, six covenants are ordinarily afforded to him or her. They are (1) covenant for seisin; (2) covenant of the right to convey; (3) covenant against encumbrances; (4) covenant for QUIET ENJOYMENT ; (5) covenant of general warranty; and (6) covenant for further assurances. A deed to real property that provides for usual covenants generally includes the first five of these covenants. When a deed provides for full cove- nants, it is regarded as giving such protection as is extended pursuant to all six covenants. Covenants for seisin and of the right to convey are ordinar ily regarded as being the same thing. Essentially, they make a guarantee to the grantee that the grantor is actually the owner of theestatethatheorsheistransferring. The covenant against encumbrances pro- mises to the grantee that the property being conveyed is not subject to any outstanding rights or interests by other parties, such as mortgages, liens, easements, profits, or restrictions on its use that would diminish its value. The existence of zoning restrictions do not constitute breach of this covenant; however, the existence of a violation of some type of zoning or building restriction might be regarded as a breach thereof. The covenants of quiet enjoyment and general warranty both have the legal effect of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COVENANT 267 . tried 63 members of the all-black Twenty- fourth Infantry Division of the U.S. Army who were charged with a variety of offenses, including mutiny and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 258. at least the equivalent of a federal criminal trial. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COURT-MARTIAL 259 Wiener, Frederick B. 1990. American Military Law in the Light of the First Mutiny. husband Broadwater v. Dorsey et vir ex officio By virtue of the office Tenneco Oil Co. v. Stephens, Ex Officio Tax Collector GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 262 COURT OPINION Term