FURTHER READINGS Amar, Akhil Reed. 2001. “Abraham Lincoln and the American Union.” Univ. of Illinois Law Review (Octo- ber). Available online at http://islandia.law.yale.edu/ amar/lawreview/2001Abraham.pdf; website home page: http://islandia.law.yale.edu (accessed August 7, 2009). Cottrell, John. 1966. Anatomy of an Assassination. New York: Muller. Eisenschiml, Otto. 2008. Why Was Lincoln Murdered? Reprint. Yakima, WA: Gleed. Good, Timothy S., ed. 1995. We Saw Lincoln Shot: One Hundred Eyewitness Accounts. Jackson, MS: Univ. Press of Mississippi. Keneally, Thomas. 2008. Abraham Lincoln. New York: Penguin. Pinsker, Matthew. 2002. Abraham Lincoln. Washington, D.C.: CQ Press. Pitman, Benn. 1865. The Assassination of President Lincoln and the Trial of the Conspirators. Reprint, 2007. Whitefish, MT: Kessinger. Roscoe, Theodore. 1959. The Web of Conspiracy: The Complete Story of the Men Who Murdered Abraham Lincoln. Englewood Cliffs, NJ: Prentice-Hall. Stephens, Otis H., Jr., and John M. Scheb II. 2002. American Constitutional Law. Belmont, CA: Wadsworth. Stone, Geoffrey R. 2003. “Abraham Lincoln’s First Amend- ment.” New York Univ. Law Review 78, no. 1 (April). Tidwell, William A. 1995. Confederate Covert Action in the American Civil War, April ‘65. Kent, OH: Kent State Univ. Press. Weichmann, Louis J. 1975. A True History of the Assassina- tion of Abraham Lincoln and the Conspiracy of 1865. New York: Knopf. Zane, John Maxcy. 2003. Lincoln, the Constitutional Lawyer. Clark, NJ: Lawbook Exchange. CROSS REFE RENCES “Emancipation Proclamation,”“Gettysburg Address,” “House Divided Speech,” and “Second Inaugural Address” (Appendix, Primary Documents). v LINCOLN, LEVI Levi Lincoln was a U.S. attorney general under President THOMAS JEFFERSON.Heheld various political posts, including that of sixth governor of Massachusetts. He was among the creators of the first state constitu tion. As a trial lawyer, Lincoln was involved in a set of landmark cases in the struggle against SLAVERY. He was also the father of Massachusetts statesman and state supreme court justice Levi Lincoln, Jr. (1782–1 868). Lincoln was born May 15, 1749, in Hingham, Massachusetts. His father was a farmer, and as a youth Lincoln was apprenticed to a blacksmith. However, because Lincoln was an avid student, his father al lowed him to continue studying in preparation for college. His initial studies were in theology, but after hearing JOHN ADAMS argue a case in Boston, his interests turned to law. Lincoln graduated from Harvard in 1772 and then worked in the office of Joseph Hawley, in Northampton, Massachusetts. Until the outbreak of the Revolu tionary War, he was active in politics and a prominent figure in the Massachusetts movement to abolish slavery. After the Battle of Lexington, in 1775, he traveled with the militia for a brief period before moving to Worcester, Massachusetts. He was admitted to the bar in 1775 and set up his law practice in Worcester, where he remained a resident for the rest of his life. Lincoln quickly became prominent as a successful trial lawyer and s erved in various civil offices during the years of the Revolution- ary War. In 1775 he was a state court judge, and from 1777 to 1781 h e was a probate court judge. In 1779 Lincoln was a delegate to the Massachusetts state constitutional convention, which drew up the first state constitution. In 1781 he married Martha Waldo, with whom he had nine children. Also in 1781 Lincoln served as a defense counsel in three cases concerning the question Levi Lincoln 1749–1820 ▼▼ ▼▼ 17501750 18251825 18001800 17751775 ◆◆◆◆◆◆ ❖ ❖ 1749 Born, Hingham, Mass. 1772 Graduated from Harvard College 1775 Admitted to Mass. bar and set up practice in Worcester 1777–81 Served as probate court judge 1781 Served as defense counsel in Jenison cases, which resulted in ban on slavery in Mass. 1775–83 American Revolution 1796–97 Served in Massachusetts House and Senate 1802 Letters to the People, by a Farmer, published 1801–04 Served as U.S. attorney general under Pres ident Jefferson 1808 Elected governor of Mass. 1812–14 War of 1812 1812 Declined associate judgeship on Supreme Court 1820 Died, Worcester, Mass. [THE PRESIDENT] IS ACCOUNTABLE ONLY TO HIS COUNTRY … AND TO HIS CON- SCIENCE .TO AID HIM IN THE PERFORMANCE OF THESE DUTIES , HE IS AUTHORIZED TO APPOINT CERTAIN OFFICERS , WHO ACT BY HIS AUTHORITY AND IN CONFORMITY WITH HIS ORDER .IN SUCH CASES THEIR ACTS ARE HIS ACTS . —LEVI LINCOLN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 358 LINCOLN, LEVI of the right to hold slaves. The cases— Walker v. Jenison, Jenison v. Caldwell, and Commonwealth v. Jenison—addressed the issue of slavery in light of the BILL OF RIGHTS in the 1780 Massachusetts Constitution. Lincoln and co–defense counsel Caleb Strong argued against the legality of slavery in Massachusetts. Their position prevailed, and slavery was made illegal in the state. Lincoln, a leading Republican, became a key adviser to President Jefferson on matters of Federalist-Republican logistics and diplomacy, specifically regarding introducing laws or poli- cies likely to be unpopular in New England. Lincoln served in the Massachusetts state House of Representatives in 1796 and was a state senator the following year. From 1800 to 1801, he was a member of the U.S. Congress. Lincoln served as U.S. attorney general under President Jefferson from 1801 to 1804. Early in his term, he also fulfilled the duties of SECRETARY OF STATE, because personal illness and a death in the family delayed the arrival in Washington, D.C., of secretary of state appoin- tee JAMES MADISON. As attorney general Lincoln was one of two men to whom Jefferson frequently turned for advice regarding his New England constituency; the other was Postmaster General Gideon Granger. For example, Jefferson, a rigid secular- ist, drafted a letter of support in response to an appeal from a minority group in Connecticut known as the Danbury Baptists, who were seeking stronger church-state separation in their state. Jefferson’s draft declared that because of the Constitution’s FIRST AMENDMENT prohibi- tions, a “wall of separation” had been built between church and state. The draft also noted that because of this strong separation, Jefferson refrained from prescribing “even occasional performances of devotion,” such as days of fasting or thanksgiving, as his predecessors had done. Before releasing the paper, Jefferson asked the advice of both Granger and Lincoln. Granger proposed leaving the draft as it was written. Lincoln argued that the phrase regard- ing days of thanksgiving might anger the eastern states because their governors frequently pro- claimed such days. Based on Lincoln’s advice, Jefferson removed the phrase. Because of his Republican partisanship, Lincoln was the subject of frequent criticism by Federalist newspapers and clergy representa- tives. His book Letters to the People, by a Farmer, published in 1802, in which he attacked the political role of the clergy, was written in response to this criticism. Lincoln resigned his post as attorney general in 1805 and resumed his political career in Massachusetts. In 1807 he served as lieutenant governor of Massachusetts. The following year he was elected governor. He was on the governor’s council in 1806 and from 1810 to 1812. In 1812 he was offered a position in the U.S. Supreme Court, which he refused because of failing eyesight. In recommending Lincoln for the position to President Madison, Je fferson called Lincoln a highly desirable appointee because of his legal abilities, his integrity, and his unimpeachable character. Lincoln spent the rest of his life on his farm in Worcester. He died there April 14, 1820. FURTHER READINGS Justice Department. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: GPO. Available online at http://www.usdoj.gov/ag/attygeneraldate.html; website ho me page: http://www.usdoj.gov (accessed July 8, 2009). Malone, Dumas. 1970. Jefferson the President: First Term, 1801–1805. Charlottesville, VA: Univ.of Virginia Press. Sheehan, Nancy. City Hall Chamber Named for Levi Lincoln Jr. Worcester (MA) Telegram & Gazette (December 27, 2008). Available online at http://www.telegram.com/ article/20081227/NEWS/812270350/-1/NEWS; website home page: http://www.telegram.com (accessed Sep- tember 6, 2009). CROSS REFERENCE Massachusetts Constitution of 1780. v LINCOLN, ROBERT TODD Robert Todd Lincoln was a lawyer, a presiden- tial elector for the Illinois branch of the REPUBLICAN PARTY in 1880, secretary of war in the cabinets of Presidents JAMES GARFIELD and CHESTER A. ARTHUR, U.S. minister to Great Britain from 1889 to 1893, president and chairman of the board for the Illinois-based Pullman Palace Car Company, and the son of President ABRAHAM LINCOLN . Lincoln was born August 1, 1843, in Springfield, Illinois. At the age of 13, he began attending classes at Illinois State University. Lincoln subsequently enrolled in the Phillips Exeter Academy, a prominent preparatory school, and then attended Harvard. His years there were concurrent with his father’s presi- dency, between 1861 and 1865. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LINCOLN, ROBERT TODD 359 Lincoln graduated from Harvard on July 20, 1864, and in September of that year he enrolled in Harvard Law School. He then opted to enlist in the army. On February 11, 1865, Lincoln was appointed captain and assistant adjutant genera l of Union Army Volunteers. In his service, he witnessed the surrender of General Robert E. Lee at Appomattox, Virginia, on April 9, 1865. In the 1880 presidential election, Lincoln was active on behalf of the Republican Party. He supported Ulysses S. Grant’s attempt to win the presidency for a third time and was chosen to be a presidential elector. James Garfield won the presidency that year. Garfield respected Lincoln’s political abilities and on March 5, 1881 appointed him secretary of war. In 1881 a disappointed office seeker shot President Garfield. Garfield died from his wound in September of that year, and Chester A. Arthur became president. Lincoln continued in his cabinet duties until March 1885. By then he had re-emerged as a possible Republican candi- date for president. However, this was not a position in which Lincoln had a great interest, and ultimately he did not run for the office. Lincoln nevertheless continued to serve in important federal positions. In 1889 he served as minister to Great Britain. In 1892 his name was discussed for a final time as a potential nominee for president. Lincoln appeared more interested in resuming his work as a lawyer, however. Lincoln returned to private life, serving as president of the Pullman Palace Car Company until 1911, and then as the chairman of its board. In the ensuing years, his health began to fail, and he made few public appearances. He saw the dedication of the Lincoln Memori al on May 30, 1922, but he declined to speak. Lincoln died in his sleep at the family estate in Hildene, Vermont, where he was found by his butler on July 26, 1926. His remains were moved from Manchester, Vermont, to Arlington National Cemetery, outside of Washington, D.C., in 1928. FURTHER READINGS Donald, David Herbert. 1995. Lincoln. New York: Simon & Schuster. Goff, John S. 1969. Robert Todd Lincoln: A Man in His Own Right. Norman: Univ. of Oklahoma Press. Mearns, David C., ed. 1948. The Lincoln Papers. Vol. 1. Garden City, NY: Doubleday. Oates, Stephen B. 1994. With Malice toward None: A Life of Abraham Lincoln. New York: Harper Perennial. ▼▼ ▼▼ Robert Todd Lincoln 1843–1926 1850 1900 1925 1875 ◆◆◆◆◆ ❖❖ 1843 Born, Springfield, Ill. 1861–65 U.S. Civil War 1864 Graduated from Harvard University; joined Union Army 1865 Witnessed surrender of Lee at Appomattox, Va.; father Abraham Lincoln assassinated 1867 Admitted to Illinois Bar Association 1872 Formed partnership, Isham, Lincoln, and Beale 1881–85 Served as secretary of war under Presidents Garfield and Arthur 1889–92 Served as minister to Britain 1894–1911 Served as president of the Pullman Company 1914–18 World War I 1926 Died, Manchester, Vt. 1922 Attended dedication of Lincoln Memorial Robert Todd Lincoln. LIBRARY OF CONGRESS UNDERSTAND THAT I STILL DO NOT LIKE THE ‘HONEST ABE’ BUSINESS AT ALL, BUT I AM ACTING ON THE UNDERSTANDING THAT THERE IS NO ESCAPE FROM THAT PART OF IT . —ROBERT TODD LINCOLN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 360 LINCOLN, ROBERT TODD Sandburg, Carl. 1939. Abraham Lincoln: The War Years. 4 vols. New York: Harcourt, Brace. LINDBERGH ACT The LINDBERGH ACT is a federal law (48 Stat. 781) that makes it a crime to kidnap—for ransom, reward, or otherwise—and transport a victim from one state to another or to a foreign country, except in the case of a minor abducted by his or her parent. The Lindbergh law provides that if the victim is not released within 24 hours after being kidnapped, there is a REBUTTABLE PRESUMP- TION that he or she has been transported in interstate or foreign commerce. The punish- ment for violation of the Lindbergh Act is imprisonment for a term of years or for life. CROSS REFERENCES Kidnapping ; Lindbergh Kidnapping. LINDBERGH KIDNAPPING The kidnapping of Charles A. and Anne M. Lindbergh’s twenty-month-old son horrified the United States, and even the world. In 1927, at age 25, Lindbergh achieved international fame with the first solo crossing of the Atlantic Ocean by air, and in the bleak years of the late 1920s, the young aviator became a symbol of courage and success . The disappearance of Charles Augustus Lindbergh, Jr., on March 1, 1932, and the discovery of his corpse ten weeks later, led to a riotous trial, significant changes in federal law, and a tightening of courtroom rules regarding cameras. Lindbergh’s historic flight from New York to Paris in The Spirit of St. Louis brought him both adulation and wealth. By the end of 1930, he was estimated to be worth over $1.5 million. His was an enviable life, with more than enough justifications for the nickname Lucky Lindy: world fame; the Congressional Medal of Honor; foreign nations sponsoring his long-distance flights; positio ns with several airlines; a publish- ing career; and, in 1929, MARRIAGE to the daughter of the U.S. ambassador to Mexico, the writer Anne Spencer Morrow. The couple made their home in New Jersey, where their first child, Charles, Jr., was born in 1930. In the context of 1930s crime, the kidnap- ping of Charles Jr. was not unique. But because he was the Lindberghs’ son, his disappearance provoked weeks of well-publicized ag onizing. Lindbergh led the search effort and even nego- tiated with ORGANIZED CRIME figures. All hopes ended when the child’s body was found near the family estate. Nearly two years passed before Bruno Richard Hauptmann, a carpenter, was arrested as the prime suspect in the murder. Haupt- mann’s trial, held between 1934 and 1935, was a sensation. Nearly 700 reporters and photogra- phers flocked to the New Jersey town that was the site of the trial. Inside the courtroom, where flashbulbs popped and a concealed newsreel camera whirred, order was seldom possible. Equally beset were the Lindberghs themselves, and Charles Lindbergh, despite his fame, developed a hatred for the media. After Hauptmann was convicted and, in 1936, executed, the couple left the United States to live in England. The AMERICAN BAR ASSOCIATION (ABA) viewe d the trial as a media circus and called for reform. In 1937 the ABA included a PROHIBITION on courtroom photography in its Canons of Professional and Judicial Ethics. All but two states adopted the ban, and the U.S. Congress amended the Federal Rules of CRIMINAL PROCE- DURE to ban cameras and broadcasting from federal courts. The ban on photography in courtrooms prompted by the trial would last nearly four decades. Another important result of the kidnapping was the passage of the 1932 Federal Kidnapping Act (U.S .C.A. §§ 1201–1202 [1988 & Supp. 1992]), popularly called the Lindbergh Law. This statute made it a federal offense to kidnap someone with the intent to seek a ransom or reward. The law has since been modified several times not only to increase penalties but to make the investigative work of federal agents easier. FURTHER READINGS Bradley, Craig M. 1984. “Racketeering and the Federaliza- tion of Crime.” American Criminal Law Review 22 (fall). Gardner, Lloyd C. 2004. The Case That Never Dies: The Lindbergh Kidnapping. New Brunswick, NJ: Rutgers Univ. Press. Kennedy, Ludovic. 1996. Crime of the Century: The Lindbergh Kidnapping and the Framing of Richard Hauptmann. New York: Penguin. Limbaugh, Steven. 2000. “The Crime of the Century: The Lindbergh Kidnapping and the Framing of Richard Hauptmann.” UMKC Law Review 68 (summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LINDBERGH KIDNAPPING 361 Silverman, Barbara Sheryl. 1983. “The Search for a Solution to Child Snatching.” Hofstra Law Review 11 (spring). CROSS REFE RENCE Cameras in Court. v LINDSEY, BENJAMIN BARR Benjamin Barr Lindsey achieved prominence for his work in the juvenile court. Lindsey was born November 25, 1869, in Jackson, Tennes- see. He received honorary degrees from the University of Denver and Notre Dame Univer- sity and was admitted to the bar in 1894. In 1928 he was also admitted to the California bar. In 1900 Lindsey became judge of the juvenile court of Denver, remaining on the bench until 1927. He is credited with the founding of the juvenile court system in the United States. Many of his ideas were adopted internationally. As a recognized expert in the field of juvenile delinquency, Lindsey initiated many successful programs concerned with rehabilita- tion of minors. For example, he introduced the honor system, first used at the Industrial School in Golden, Colorado , which allowed boys the freedom to be unattended. Out of several hundred boys there, only five did not adhere to the code of honor. He was also instrumental in the enactment of legislation in Colorado that recognized the negligence of parents as a contributory factor to the delinquency of juveniles. In 1928 Lindsey moved to California where, in 1934, he sat on the bench of the superior court. In 1939 he became the first judge of the California Children’s Court of Conciliation, a court he helped to create. Lindsey was the author of many publica- tions, in cluding: Problems of the Children (1903); The Beast and the Jungle (1910); The Revolt of Modern Youth (1925); The Companionate Marriage (1927); and The Dan- gerous Life (a 1931 autobiography). He died March 26, 1943, in Los Angeles, California. FURTHER READINGS Harris, Leslie J., and Lee E. Teitelbaum. 2007. Children, Parents, and the Law: Public and Private Authority in the Home, Schools, and Juvenile Courts. Frederick, MD: Aspen. Lindsey, Benjamin, and Rube Borough. 1974. The Dangerous Life. New York: Ayer. Polakow, Valerie. 2000. The Public Assault on America’s Children: Poverty, Violence, and Juvenile Injustice. New York: Teachers College. CROSS REFERENCE Juvenile Law. ▼▼ ▼▼ Benjamin Barr Lindsey 1869–1943 18501850 19001900 19251925 19501950 18751875 ◆◆◆◆◆◆◆ ❖❖ 1861–65 U.S. Civil War 1869 Born, Jackson, Tenn. 1894 Admitted to Colorado bar 1903 Problems of the Children published 1900–27 Presided over juvenile court of Denver 1914–18 World War I 1925 The Revolt of Modern Youth published 1928 Moved to California 1931 The Dangerous Life, an autobiography, published 1934 Appointed to California Superior Court 1939 Appointed judge of the Children's Court of Conciliation 1939–45 World War II 1943 Died, Los Angeles, Calif. Benjamin B. Lindsey. LIBRARY OF CONGRESS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 362 LINDSEY, BENJAMIN BARR LINE OF CREDIT The maximum borrowing power granted to a person from a financial institution. Line of credit denotes a limit of credit extended by a bank to a customer, who can avail himself or herself of its full extent in dealing with the bank but cannot exceed this limit. It most frequently covers a series of transactions, in which case, when the customer’slineofcredit is nearly exhausted or not replenished, the customer is expected to reduce the indebtedness by submitting payments to the bank before making additional use of the line of credit. LINEAL That which comes in a line, particularly a direct line, as from parent to child or grandparent to grandchild. LINEUP A criminal investigation technique in which the police arrange a number of individuals in a row before a witness to a crime and ask the witness to identify which, if any, of the individuals commit- ted the crime. In a police lineup, a witness to a crime, who may be the victim, observes a group of indi- viduals that may or may not include a suspect in the crime. The witness is not visible to those in the lineup. The witness is asked to identify which, if any, of the individuals committed the crime. A lineup places greater demands on the memory of the witness than does a viewing of a single suspect, and is believed to reduce the chances of a false identification. For example, assume a witness saw a man with a beard and a cap run across an alley near a crime scene. If the police show this witness one man who has a beard and a cap, the witness might make a positive identification. If they instead show the witness several men with a beard and a cap, the witness must make a more detailed identification and may not identify the same man. In Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the U.S. Supreme Court held that the FIFTH AMENDMENT constitutional privilege against self- incrimination—the right not to be made a witness against oneself in a criminal case—does not apply to appearance in lineups. That privilege, held the Court, protects accused people only from being compelled to testify against themselves or to otherwise provide the state with evidence of a testimonial or commu- nicative nature. The Constitution does afford an accused individual the RIGHT TO COUNSEL at a post- indictment lineup, and the right not to have testimony from a suggestive lineup admitted at trial. The constitutional right to the presence OF COUNSEL at a lineup or for counsel to receive notice of a lineup attaches, or becomes available, when a formal charge, indictment, PRELIMINARY HEARING , or arraignment is issued or conducted. Post-indictment lineups are considered a critical part of proceedings because the filing of a charge initiates adversary proceedings, triggering the right to counsel (United S tates v. Wa de, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 [1967]). Counsel observes the lineup to decide whether to offer information about it during trial in order to cast doubt on an in-court identification. (In an in-court identification, the prosecution asks the witness whether he or she identified anyone in a lineup prior to trial and if so, whether that person is present in the courtroom.) According to Wade,an“intelligent waiver” of counsel and of notice to counsel may be made by the accused. Police lineups that are conducted prior to the filing of a formal charge or the issuance of an indictment are not regarded as occurring at a critical stage of a criminal proceeding and do not require the presence of counsel. The Due Process Clause of the Constitution requires that a lineup not be unduly suggestive or conducive to irreparable mistaken identifica- tion. An unduly suggestive lineup might be one in which the defendant was the only female. Some characteristics that courts have consid- ered in determining suggestiveness is whether the others in the lineup were of similar age, skin coloration, and physical characteristics such as height and weight. Courts examine on a case-by-case basis the question of whether a lineup was unduly suggestive or created a likelihood of misidenti- fication. In making this determination, they look at the “totality of circumstances.” The totality-of-circumstances test was announced by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). This test considers whether the witness or victim had an opport unity to observe the criminal at the time of the crime; the accuracy of the prior description of the accused as well as the degree of attention given to that description; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LINEUP 363 the level of certainty demonstrated by the victim or witness at the confrontation; and the length of time between the crime and the confronta- tion. Generally, if the court finds that a lineup violated due process, testimony as to the fact of identification is inadmissible. If the lineup complied with constitutional standards, a per- son who has identified the defendant in the lineup can testify to that fact at trial. FURTHER READINGS Headley, Michael R. 2002. “Long on Substance, Short on Process: An Appeal for Process Long Overdue in Eyewitness Lineup Procedures.” Hastings Law Journal 53 (March). Susssman, Jake. 2001. “Suspect Choices: Lineup Procedures and the Abdication of Judicial and Prosecutorial Responsibility for Improving the Criminal Justice System.” New York Univ. Review of Law & Social Change 27 (December). Yob, Dori Lynn. 2002. “Mistaken Identifications Cause Wrongful Convictions: New Jersey’s Lineup Guidelines Restore Hope, but Are They Enough?” Santa Clara Law Review 43 (winter). CROSS REFE RENCES Criminal Law; Criminal Procedure; Due Process of Law. LIQUID ASSETS Cash, or property immediately conver tible to cash, such as securities, notes, life insurance policies with cash surrender values, U.S. savings bonds, or an account receivable. Although the ownership of real property is considered an asset, it is not a liquid asset because it cannot be readily converted into cash upon sale. LIQUIDATE To pay and settle the amount of a debt; to convert assets to cash; to aggregate the assets of an insolvent enterprise and calculate its liabilities in order to settle with the debtors and the creditors and apportion the remaining assets, if any, among the stockholders or owners of the corporation. LIQUIDATED DAMAGES Monetary compensation for a loss, detriment, or injury to a person or a person’s rights or property, awarded by a court judgment or by a contract stipulation regarding breach of contract. Generally, contracts that involve the ex- change of money or the promise of performance have a liquidated damages STIPULATION. The purpose of this stipulation is to establish a predetermined sum that must be paid if a party fails to perform as promised. Damages can be liquidated in a contract only if (1) the injury is either “uncertain” or “difficult to quantify”;(2)theamountis reasonable and considers the actual or anticipat- ed harm caused by the contract breach, the difficulty of proving the loss, and the difficulty of finding another, adequate remedy; and (3) the damages are structured to function as damages, not as a penalty. If these criteria are not met, a liquidated damages clause will be void. The American Law Reports annotation on liquidated damages states, “Damages for breach by either party may be liquidated in the agreement but only at an amou nt that is reasonable in light of the anticipated or actual harm caused by the breach…. A term fixing unreasonably large liquidated damages is unen- forceable on grounds of PUBLIC POLICY as a penalty” (12 A.L.R. 4th 891, 899). A penalty is a sum that is disproportionate to the actual harm. It serves as a punishment or as a deterrent against the breach of a contract. Penalties are granted when it is found that the stipulations of a contract have not been met. For example, a builder who does not meet his or her schedule may have to pay a penalty. Liquidated damages, on the other hand, are an amount estimated to equal the extent of injury that may occur if the contract is breached. These damages are determined when a contract is drawn up, and serve as protection for both parties that have entered the contract, whether they are a buyer and a seller, an employer and an employee or other similar parties. The principle of requiring payments to represent damages rather than penalties goes back to the EQUITY courts, where its purpose was to protect parties from making unconscionable bargains or overreaching their boundaries. Today section 2-718(1) of the UNIFORM COMMER- CIAL CODE deals with the difference between a valid liquidated damages clause and an invalid penalty clause. Liquidated damag es clauses possess several contractual advantages. First, they establish some predictability involving costs, so that parties can balance the cost of anticipated performance against the cost of a breach. In this way liquidated damages serve as a source of limited insurance for both parties. Another GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 364 LIQUID ASSETS contractual advantage of liquidated damages clauses is that the parties each have the opportunity to settle on a sum that is mutually agreeable, rather than leaving that decision up to the courts and adding the costs of time and legal fees. Liquidated damages clauses are commonly used in REAL ESTATE contracts. For buyers, liquidated damage clauses limit their loss if they default. For sellers, they provide a preset amount, usually the buyer’s deposit money, in a timely manner if the buyer defaults. The use and enforcement of liquidated damages clauses have changed over the years. For example, cases such as Colonial at Lynnfield v. Sloan, 870 F.2d 761 (1st Cir. 1989), and Shapiro v. Grinspoon , 27 Mass. App. Ct. 596, 541 N. E. 2d 359, 1989), have granted courts permission to compare the amount set forth in the liquidated damages provision against the actual damages caused by a breach of contract. These “second-look” rulings have led several courts to honor the liquidated damages clauses only if they are equal to, or almost equal to, the actual damages. FURTHER READINGS Brizzee, David. 1991. “Liquidated Damages and the Penalty Rule: A Reassessment.” Brigham Young Univ. Law Review 1991. Calamari, John D., and Joseph M. Perillo. 1998. Contracts. Eagan, MN: West. Daniszewski, Robert M., and Jeffrey W. Sacks. 1990. “One View Too Many: Courts Take a ‘Second Look’ at Liqui- dated Damages Provisions.” Boston Bar Journal 34 (April). LIQUIDATION The collection of assets belonging to a debtor to be applied to the discharge of his or her outstanding debts. A type of proceeding pursuant to federal BANKRUPTCY law by which certain property of a debtor is taken into custody by a trustee to be sold, the proceeds to be distributed to the debtor's creditors in satisfaction of their claims. The settlement of the financial affairs of a business or individual through the sale of all assets and the distribution of the proceeds to creditors, heirs, or other parties with a legal claim. The liquidation of a corporation is not the same as its dissolution (the termination of its existence as a legal entity). Depending upon statute, liquidation can precede or follow dissolution. When a corporation undergoes liquidation, the money received by stockholders IN LIEU OF their stock is usually treated as a sale or exchange of the stock resulting in its treatment as a capital gain or loss for INCOME TAX purposes. LIQUORMART V. RHODE ISLAND The U.S. Supreme Court has stringently LIMITED government regulation of noncommercial ex- pression, citing the First Amendment’s guaran- tee of freedom of expression. Before the mid- 1970s, however, the Court regarded the regula- tion of commercial speech as simply an aspect of economic regulation, entitled to no special FIRST AMENDMENT protection. After that time the Court made it more difficult for government to restrict advertising. In 44 Liquorm art v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996), the Court ruled that the state of Rhode Island could not prohibit the public advertising of liquor prices, as doing so would abridge the liquor retailer’s right to FREEDOM OF SPEECH . After Liquormart the ability of the government to restrict truthful, nondeceptive advertising was extremely limited. Commercial speech is a broad category including but not limited to the advertising of services and products. The constitutional protec- tion of commercial expression emerged in the 1970s, when the Supreme Court struck down state laws that banned the advertising of ABORTION services, prescription drug prices, and attorneys’ fees. Constitutional expression was not consid- ered absolute, and the Court allowed reasonable regulation to prevent FRAUD and deception. A standard was first set in Central Hudson Gas & Electric Corp. v. Public Service Commis- sion, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). In Central Hudson the Court noted that commercial speech serves the economic interests of the speaker but also helps consumers and society overall. It outlined a four-part test for judicial evaluation of the regulation of commer- cial speech. First, if the commercial speech is to receive FIRST AMENDMENT protection, the Court must determine that it concerns a lawful activity and is not misleading. Second, the Court must determine whether the asserted government interest is substantial. Third, if the answer to the second part of the test is yes, the Court must determine if the regulation directly advances the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LIQUORMART V. RHODE ISLAND 365 asserted government interest. Fourth, the Court must decide if the regulation is more extensive than is necessary to serve that purpose. Central Hudson represented a compromise between one approach that emphasized con- sumer protection and another that stressed a free marketplace of ideas. Only five justices fully joined in the MAJORITY opinion, and the viability of the test has been called into question. In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 106 S. Ct. 2698, 92 L. Ed. 2d 266 (1986), the Court upheld a law prohibiting advertisements inviting residents of Puerto Rico to gamble legally in local casinos. Justice WILLIAM H. REHNQUIST emphasized Puerto Rico’s substantial interest in reducing the demand for casino gambling among its citizens and noted that the regulation at issue directly advanced this objective. In addition, he maintained that because the legislature could have banned all gambling by local residents, this legislative power included the lesser power to ban advertising of casino gambling. Justice JOHN PAUL STEVENS dissented, arguing that Puerto Rico had blatantly discrimi- nated in punishing speech “depending on the publication, audience, and words employed.” The Liquormart c ase raised issues re garding the viability of b oth the Central Hudson tes t and the Posadas reasoning. In 1956 the Rhode Island legislature enacted laws that prohibited the public advertising of alcoholic beverages. Prices could be advertised only inside a licensed liquor retail establishment ( R.I. Ge n. Laws §§ 3–8–7, 3 –8–8.1). 44 Liquormart, a Rhode I sland r etailer o f a lcoholic beverages, and the Rhode Island Liquor Stores Association challenged the law in 1993, alleging that the ban violated the First Amendment. The state of Rhode Island argued that competitive pricing woul d lower prices and that lower prices would produce more sales, thus encouraging alcohol consumption. It claimed that under Central Hudson it had a substantial government interest in controlling the con- sumption of alcohol and in the laws that directly advance that interest. Apart from Central Hudson, the state asserted that under the TWENTY-FIRST AMENDMENT , which repealed the Eighteenth Amendment’s prohibition on the sale of alcoho- lic beverages, the states were given the power to regulate the sale of alcohol, including the power to prohibit sales altogether. Citing Posadas, Rhode Island said it was in the same position as the Puerto Rican legislature. Because the state could prohibit the sale of alcohol, it could restrict liquor advertising. Though the Supreme Court unanimously agreed that Rhode Island’s laws on liquor advertising were an unconstitutional restraint on protected First Amendment expression, the Court split in its reasoning for the decision. Justice Stevens, with a shifting coalition of three to four justices in various sections of the opinion, moved away from the Central Hudson test, indicating concern about any test that might permit a total ban on truthful, noncoer- cive advertising. Stevens reasoned that such a ban “usually rest[s] solely on the offensive assump- tion that the public will respond ‘irrationally’ to the truth. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” Though skeptical about Central Hudson, Stevens applied its four-p art test and found the state ’s position deficient. Stevens concluded that Rhode Island had failed to provide any evidence that its advertising restrictions signifi- cantly reduced the consumption of alcohol. The state could not prove that the ban “advanced the substantial state interest,” and the ban was “more extensive than necessary” to address the issue of alcohol consumption. Stevens pointed out that the state’s goal of promoting temper- ance could be achieved through “higher prices maintained either by direct regulation or by increased taxation.” Educational campaigns against excessive use might produce better results. Any of these approaches would not infringe on First Amendment expression. Stevens also dismissed Rhode Island’s use of the Posadas case—a move that was not surpris- ing in light of his vigorous dissent in that case. He stated that “Posadas clearly erred in conclud- ing that it was ‘up to the legislature’ to choose suppression over a less speech-restrictive policy.” Therefore, the Court declined to give force to its “highly deferential approach.” In addition, a unanimous Court rejected the state’s argument that the Twenty-first Amend- ment tilted the First Amendment analysis in its favor. It ruled that the Twenty-first Amendment “does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment.” Justice CLARENCE THOMAS, in a concurring opinion, went further than the rest of the Court, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 366 LIQUORMART V. RHODE ISLAND advocating that Central Hudson be discarded. In Thomas’s view, the four-part balancing test had no role to play when “the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace.” According to Thomas such an interest is “per se illegitimate and can no more justify regulation of ‘com- mercial’ speech than it can justify regulation of ‘noncommercial’ speech.” On the other hand, Justice Sandra Day O’Connor, in a concurring opinion joined by three other justices, argued that the case could be resolved more narrowly by applying only the Central Hudson test. Applying the test O’Connor concluded that the law failed because it was more extensive than necessary to serve Rhode Island’s interest. The Liquormart decision revealed that the Court was divided over the question of whether Central Hudson is the right test to apply to commercial expression cases. It also demonstrat- ed that the Court was fully committed to First Amendment protection of commercial expres- sion. The practical result was that Rhode Island and other states with similar laws could not prohibit liquor advertising. The decision put in doubt whether existing and proposed prohibi- tions on tobacco advertising were constitutional. FURTHER READINGS Murchison, Kenneth M. 1994. Federal Criminal Law Doctrines: The Forgotten Influence of National Prohibi- tion. Durham, NC: Duke Univ. Press. Pegram, Thomas R. 1999. Battling Demon Rum: The Struggle for a Dry America, 1800–1933. Chicago: Dee. Schmoll, Aaron A. 1998. “Sobriety Test: The Court Walks the Central Hudson Line Once Again in 44 Liquormart, but Passes on a New First Amendment Review.” Federal Communications Law Journal 50 (May). Available online at http://www.law.indiana.edu/fclj/pubs/v50/ no3/schmoll.html; website home page: http://www. law.indiana.edu (accessed August 8, 2009). Stone, Marrie K. 1997. “The Price Isn’t Right: 44 Liquormart, Inc. v. Rhode Island Promotes Free Speech in Commercial Advertising.” Loyola of Los Angeles Entertainment Law Journal 18 (fall). CROSS REFERENCES Least Restrictive Means Test; Legal Advertising. LIS PENDENS [Latin, Pending lawsuit.] A reference to the jurisdiction (or control) that courts obtain over property in a suit awaiting action. A notice filed in the office of public records that the ownership of real property is the subject of a legal controversy and that anyone who purchases it takes it subject to any claims asserted in the action and thereby its value might be diminished. LISTING An agreement that represents the right of a real estate agent or broker to handle the sale of real property and to receive a fee or commission for services. There are various types of REAL ESTATE listings. A general or open listing is a right to sell that may be given to more than one agent or broker simultaneously. An exclusive agency listing is the right of one real estate agency to be the sole party, with the exception of the owner, who is permitted to sell the property during a particular period. Through an exclusive authorization to sell listing, one agency is given the sole authority to sell the property during a certain time period. The agency WILL receive a commission even if the owner finds the b uyer during th e time period. A multiple listing takes place when an agent with an exclusive listing provides a number of members of a real estate association with infor- mation about the property and shares the com- mission with the agent who is able to find a buyer. A net listing is an arrangement whereby the seller establishes a minimum price that will be taken for the property, and the agent’s commis- sion is the amount for which it sells above such minimum. LITCHFIELD LAW SCHOOL The first law school in America, founded by Tapping Reeve ( b. October 1744, in Southhold, Long Island, New York; d. December 13, 1823, in Litchfield, Connecticut) in 1784 in Litchfield, Connecticut. It continued operation until 1833. In 1778 Tapping Reeve, a young attorney recently admitted to the bar, settled in Litchfield to practice law. Born in Southhold, Long Island, New York, in 1744, the son of Reverend Abner Reeve, a Presbyterian minister, he graduated from Princeton College in 1763 and immedi- ately taught at a grammar school affiliated with the college. He spent seven years in that position and as a tutor in the college itself. He then moved to Connecticut to study law, entering the office of Judge Elihu Root, who was at that time a practicing attorney in Hartford, and, subse- quently, a judge of the Supreme Court. From GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LITCHFIELD LAW SCHOOL 367 . 1 861 and 1 865 . GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LINCOLN, ROBERT TODD 359 Lincoln graduated from Harvard on July 20, 1 864 , and in September of that year he enrolled in Harvard Law. UMKC Law Review 68 (summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LINDBERGH KIDNAPPING 361 Silverman, Barbara Sheryl. 1983. “The Search for a Solution to Child Snatching.” Hofstra Law. time of the crime; the accuracy of the prior description of the accused as well as the degree of attention given to that description; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LINEUP 363 the