Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P24 doc

money is being handled. A trust or CONSTRUCTIVE TRUST can be ordered by a judge to place the care and management of property with one person for the benefit of another. A partition is an order dividing property held between two or more persons. Declaratory relief is granted when a judge declares the rights of certain parties. The effect of a DECLARATORY JUDGMENT is to set future obligations between the parties. Under the remedy of specific performance, a judge may order one party to perform a specific act. This type of relief is often used to resolve contractual dispute s involving unique property. For example, the purchaser of a house may not wish to obtain money damages if the seller breaks a contract for sale of the house. This may be so because a house is considered unique and thus the damage is irreparable— that is, it cannot be fully redressed by mere money damages. If the court agrees that money damages would be inadequate redress for the buyer, the judge may order a completion of the sale to the buyer, instead of money damages, for the seller’s breach of contract. Equitable contract remedies offer a judge an array of choices. Rescission discharges all parties to a contract from the obligations of the contract. The remedy of rescission restores the parties to the positions they held before the formation of the contract. Restitution is an order directing one party to give back some- thing she or he should not be al lowed to keep. These two remedies may be sought together. For example, if a buyer purchases an antique piano on credit and later discovers it is a fake, the buyer may sue for rescission and restitution. Under such a dual remedy, the buyer would return the piano to the seller, and the seller would return any payments made by the buyer. Reformation is an equitable way to remedy a contractual mistake. Suppose, for example, that a buyer agrees to order 5,000 units of a product but mistakenly signs a contract ordering the shipment of 50,000 units. If the seller refuses to provide fewer than 50,000 units and demands payment for 50,000, the buyer may sue the seller for reforma- tion of the contract. In such a case, the court may change the terms of the contract to reflect the amount of product actually agreed upon. Equitable relief has long been considered an EXTRAORDINARY REMEDY, an exception to the general rule of money damages. Modern courts still invoke the rule that equitable relief is available only where money damages are inappropriate; in practice, however, courts rarely insist on monetary relief when equitable relief is requested by a plaintiff. Equitable Defenses The doctrine of clean hands holds that the plaintiff in an equity claim should be innocent of any wrongdoing or risk dismissal of the case. Laches proposes that a plaintiff should not “sleep on his or her rights”—that is, if the plaintiff knows of the defendant’s harmful actions but delays in bringing suit, and the delay works against the rights of the defendant, the plaintiff risks dismissal of the case. Under modern law, such defenses are available in any civil case. They are nevertheless considered equitable because they invoke notions of fairness; are not provided in statutes; and are decided only by a judge, not by a jury. Other Equitable Doctrines Many of the equitable doctrines listed here are codified in statutes. This does not make the issues they concern “legal” as opposed to “equitable.” Such issues, whether codified by statute or not, are left to the discretion of a judge, who makes a decision based on principles of fairness. Equitable Adoption Equitable adoption is the adoption of a child that has not been formally completed but that the law treats as final for some purposes. Generally, a child cannot be adopted without the fulfillment of certain procedures. However, it is sometimes fair and in the best interests of the child to imply that an adoption has taken place. If an adult has performed parental duties and has intended to adopt the child but has failed to fulfill formal adoption procedures, a court may order that for some purposes, the child should be considered part of the adult’s family. The most common purpose of an equitable adoption is to give a child the ri ght to inherit from the estate of an equitably adoptive parent. Equitable Conversion Equitable conversio n completes a land sale when the death of a seller occurs between the signing of the sale agree- ment and the date of the actual sale. In such a case, a judge will convert the title to the purchaser. This is in fulfillment of the time- honored maxim that “Equity looks upon that as done which ought to have been done.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EQUITY 219 Equitable Distribution Equitable distribution can describe a fair allotment of anything. In the law, equitable distribution is a TERM OF ART that describes a method used to divide the property of a husband and wife upon divorce. Under this method, the needs and contributions of each spouse are considered when property is divided between them. This differs from the process used under the COMMUNITY PROPERTY method, where all marital property is simply divided in half. Equitable Estoppel Under the doctrine of equitable ESTOPPEL, a person is prevented, or estopped, from claiming a LEGAL RIGHT,outof fairness to the opposing party. For example, suppose that a person willfully withholds infor- mation in order to avoid defending a lawsuit. If the withheld information causes the lawsuit to be brought later than the STATUTE OF LIMITATIONS requires, the person may be estopped from asserting a statute-of-limitations defense. Equitable Lien A lien is an interest in property given to a creditor to secure the satisfaction of a debt. An equitable lien may arise from a written contract if the contract shows an intention to charge a party’s property with a debt or obligation. An equitable lien may al so be declared by a judge in order to fairly secure the rights of a party to a contract. Equitable Recoupmen t Equitable recoupment prevents a plaintiff from collecting the full amount of a debt if she or he is holding something that belongs to the defendant debtor. It is usually invoked only as a defense to mitigate the amount a defendant owes to a plaintiff. For example, if a taxpayer has failed to claim a tax refund within the time period prescribed by the statute of limitations, the taxpayer may regain, or recoup, the amount of the refund in defending against a future tax claim brought by the government. Equitable Servitude An equitable servitude is a restriction on the use of land or a building that can be continually enforced. When a land buyer is aware of an agreement that restricts the use of the land, the buyer may be held to the terms of the restriction, regardless of whether it was written in the deed. Equity in Property Equity in property is the value of real estate above all liens or claims against it. It is used to describe partial owner- ship. For example, suppose the fair market value of a home is $80,000. If the homeowner has a mortgage and owes $50,000 on the mortgage, the equity amount is $30,000. The recognition of equity in property allows a property owner to borrow against a portion of the property value, even though the owner cannot claim complete and final ownership. Equity of Redemption EQUITY OF REDEMPTION is the right of a homeowner with a mortgage (a mortgagor) to reclaim the property after it has been forfeited. Redemption can be accom- plished by paying the entire amount of the debt, interest, and court costs of the foreclosing lender. With equity of redemption, a mortgagor has a specified period of time after default and before foreclosure, in which to reclaim the property. Equity Financing When a corporation raises capital by selling stock, the financing is called equity financing because the corporation is offering stockholders a partial interest in its ownership. By contrast, debt financing raises capital by issuing bonds or borrowing money, neither of which conveys an ownership in the corporation. An equity security is an equitable ownership interest in a corporation, such as that accompanying common and preferred shares of stock. FURTHER READINGS Chancery Court: Mississippi. Available online at http:// www.co.jackson.ms.us/DS/ChanceryCourts.html; web- site home page: http://www.co.jackson.ms.us (accessed July 21, 2009). Delaware State Courts, Court of Chancery. Available online at http://www.courts.state.de.us/chancery; web- site home page: http://www.courts.state.de.us (accessed July 21, 2009). Laycock, Douglas. 1993. “The Triumph of Equity.” Law and Contemporary Problems 56 (summer). CROSS REFERENCE Discretion in Decision Making. EQUITY OF REDEMPTION The right of a mortgagor, that is, a borrower who obtains a loan secured by a pledge of his or her real property, to prevent foreclosure proceedings by paying the amount due on the loan, a mortgage, plus interest and other expenses after having failed to pay within the time and according to the terms specified therein. This right is based upon the equitable principle that it is only fair that a borrower have a final opportunity to keep his or her GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 220 EQUITY OF REDEMPTION property even if he or she has failed to make payments on the mortgage, since the property is to be sold in foreclosure proceedings. The equity of redemption must be exercised by a mortgagor within a certain time after having defaulted on an obligation. It exis ts only from the time of default to the time that foreclosure proceedings are commenced. ERGO Latin, therefore; hence; because. ERIE RAILROAD CO. V. TOMPKINS A 1938 landmark decision by the Supreme Court, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, that held that in an action in a federal court, except as to matters governed by the U.S. Constitution and acts of Congress, the law to be applied in any case is the law of the state in which the federal court is situated. Harry J. Tompkins was walking on a footpath alongside railroad tracks on land owned by the Erie Railroad Company when he was struck and injured by a passing train. He claimed that his injuries resulted from the NEGLIGENCE of the railroad in operating the train. Tompkins wanted to sue the railroad and recover monetary damages for his injuries. He was a citizen of Pennsylvania, and the Erie Railroad Company was a New York corpora- tion. He instituted an action in federal court, which was empowered, by virtue of its diversity jurisdiction, to hear the case because the PLAINTIFF and the DEFENDANT were citizens of different states. The issue before the court was what law to apply in deciding the case. The court would have applied a federal statute to decide whether Tompkins was entitled to damages, but none existed. The court would have applied a state statute since there was no federal statute, but Pennsylvania did not have one. The highest court of Pennsylvania had established a rule to be followed in state courts whenever a case like this occurred. The Penn- sylvania rule was that people who use pathways along railroad right-of-ways, not railroad cross- ings, are trespassers to whom railroads were not to be held liable unless the trespassers were intentionally injured by the reckless and wanton acts of the railroads. The trial judge refused to apply the Pennsylvania rule. He found that SWIFT V. TYSON, 41 U.S. (16 Pet.) 1, 10 L. Ed. 865 (1842), which held that there was a body of federal common law to be applied in such cases, gave federal judges the right to ignore state rules that were not enacted as statutes by their state legislatures. He held that it was more important for all federal courts to follow a uniform rule, rather than for each federal court to apply local state rules when there was no statute to resolve the case. He allowed a jury to decide whether the railroad company was negligent, and the jury returned a VERDICT of $30,000 fo r Tompkins. The Supreme Court reversed the decision and struck down the rule that allowed federal judges to ignore state court decisions in diversity cases. Although this rule had been followed since Swift v. Tyson was decided in 1842, the Supreme Court ruled that it was inequitable. According to the old rule, Tompkins could obtain monetary damages if he sued in federal court, but not if he initiated his lawsuit a few blocks away in the Pennsylvania state court. If the plaintiff and defendant were citizens of different states, the plaintiff could take advantage of the right to sue in federal court. There the plaintiff might win, even if he or she had been trespassing on railroad property. If the plaintiff and defendant were both citizens of Pennsylva- nia, the plaintiff could not sue in federal court. Pennsylvania courts would all be bound to follow the rule that prevented recoveries for those who used paths alongside railroad tracks. The Supreme Court held that it was unjust for the plaintiff’s chances of winning to depend on the fact that the railroad was a Pennsylvania corporation. The new rule of Erie Railroad Co. v. Tompkins provided that federal courts do not have the power to formulate their own rules of law. The federal courts must apply appropriate federal statutes in diversity cases. When there is no federal law to resolve the question in a lawsuit, they must follow the law of the state that is involved. That includes state statutes and controlling decisions made by the highest court of that state. As a result of this case, the decisions of federal courts are truly uniform only when a question of federal law is involved. Otherwise, the states are free to develop their own law and have it applied to state questions that come into GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ERIE RAILROAD CO. V. TOMPKINS 221 federal court because the parties are from different states. FURTHER READINGS Deeks, Ashley S. 1997. “Raising the Cost of Lying: Rethinking Erie for Judicial Estoppel.” Univ. of Chicago Law Review 64 (summer). Timpa, Andrea V. 2002. “In Re Orso: There is No Need to Erie-Guess When the Law is Clear and Unambiguous.” Loyola Law Review 48 (fall). Younger, Irving. 1978. “What Happened in Erie.” Texas Law Review 56. CROSS REFERENCE Diversity of Citizenship. ERRATUM [Latin, Error.] The term used in the Latin formula for the assignment of mistakes made in a case. After reviewing a case, if a judge decides that there was no error, he or she indicates so by replying, “In nollo est erratum,” which means, “no error was committed.” The plural is errata. ERROR A mistake in a court proceeding concerning a matter of law or fact, which might provide a ground for a review of the judgment rendered in the proceeding. The nature of the error dictates the availability of a legal remedy. Generally speak- ing, mistaken or erroneous application of law will void or reverse a judgment in the matter. Conversely, errors or mistakes in facts, upon which a judge or jury relied in rendering a judgment or VERDICT, may or may not warrant reversal, depending upon other factors involved in the error. However, appellate decisions make a distinction—not so much between fact and law, but rather, betw een HARMLESS ERROR and reversible error—in deciding whether to let stand or vitiate a judgment or verdict. In litigation, a harmless error means that, despite its occurrence, the ultimate outcome of the case is not affected or changed, and the mistake is not prejudicial to the rights of the party who claimed that the error occurred. In other words, the party claiming error has failed to convince an appellate court that the outcome of the litigation would have been different if the error had not occurred. Most harmless errors are errors of fact, such as errors in dates, times, or inconsequential details to a factual scenario. In contrast, error that is deemed harmful in that it biased the ultimate decision of a jury or judge, constitutes reversible error, i.e., error that warrants reversal of a judgment (o r modification, or retrial). A reversible error usually refers to the mistaken application of a law by a court, as where, for example, a court mistakenly assumes jurisdiction over a matter that another court has exclusive jurisdiction over. A court may erroneously apply laws and rules to admit (or deny the admission of) certain crucial evidence in a case, which may prove pivotal or dispositive to the outcome of the trial and warrant reversal of the judgment. Occasionally, a court may charge the jury with an instruction that applies the wrong law, or with an improper interpretation of the correct law. If the party claiming error can prove that the error was prejudicial to the outcome of the case or to the party’s rights, the error will most likely be deemed reversible. An example of potential harmful or revers- ible error of both law and fact might involve the age of a RAPE victim in a criminal trial for statutory rape, (where guilt is premised upon the actual age of the victim, and not on whether the sexual conduct was consensual). In appellate practice, a party may not appeal an error that it induced a court to make (as by petitioning or moving the court to make a ruling which is actually erroneous). Appellate decisions refer to this as an invited error and will not permit a party to take advantage of the error by having the decision overruled or reversed. The general use of the term error is often distinct from the use of the word mistake, especially in the law of contracts. In such cases, a MISTAKE OF LAW or fact (in the making of a contract, or performance thereupon) might result in a finding of harmless or reversible error, but the terms are not transitio nal. CROSS REFERENCES Clerical Error; Plain-Error Rule. v ERVIN, SAMUEL JAMES, JR. Samuel J. Ervin Jr. had a long career in law and politics including 20 years in the U.S. Senate. He is most famous, however, for presiding over the Senate Select Committee on Presidential Cam- paign Activities, popularly known as the WATER- GATE Committee. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 222 ERRATUM Ervin was born September 27, 1896, in Morganton, North Carolina. He received an A.B. from the University of North Carolina in 1917 and served as an infantryman in France during WORLD WAR I. When he returned from France, he went to Harvard Law School where he received an LL.B. in 1922. After law school, Ervin returned to North Carolina where for the next 30 years he practiced law, ventured into politics, and served as a county and state judge. Ervin’s political career began in 1923 when he was elected to the North Caroli na General Assembly; he served two more terms in the legislature in 1925 and 1931. His most notable achievement in the legislature came in 1925 when he helped defeat a bill that would have prohibited the teaching of the theory of evolution in North Carolina public schools. From 1935 until 1937 Ervin served as a judge in the Burke Coun ty Criminal Court and, from 1937 until 1943, in the Superior Court. He resigned the latter post to return to his law practice. In 1946–47 he served part of a term in the U.S. House of Representatives, completing the term of his brother who had died after being elected to office. Ervin chose not to run for reelection when the term was over and returned to North Carolina. In 1948 he became a judge on the North Carolina Supreme Court, a position that he held until 1954. In 1954 the governor of North Carolina appointed Ervin to complete the term of a U.S. senator who had died. Ervin continued to be elected to the Senate until his retirement in 1974. As a senator, Ervin fought against measures that he believed would endanger individual liberty. This led him to oppose most CIVIL RIGHTS legislation—which he believed would confer freedom on some at the expense of others—as well as to be instrumental in stopping a proposed CONSTITUTIONAL AMENDMENT that would have permitted prayer in the public schools. For the same reason, he oppos ed a government proposal to maintain computerized files on persons who participated in political protests. Such records, said Ervin, raised the specter of a police state. On social issues, he usually voted Samuel J. Ervin Jr. LIBRARY OF CONGRESS Samuel James Ervin Jr. 1896–1985 ❖ 1896 Born, Morganton, N.C. ◆ 1917 Joined U.S. Army ◆ 1948–54 Served on North Carolina Supreme Court 1923 Elected to North Carolina General Assembly 1963 U.S. Supreme Court banned school prayer 1954–74 Represented North Carolina in U.S. Senate 1985 Died, Winston- Salem, N.C. ❖ ◆◆ ◆ 1925 Scopes trial; helped defeat bill that would have prohibited teaching of evolution in N.C. schools 1980 The Whole Truth: The Watergate Conspiracy published 1984 Autobiography Preserving the Constitution published 1914–18 World War I 1961–73 Vietnam War 1939–45 World War II 1950–53 Korean War ▼▼ ▼▼ 19001900 19501950 19751975 20002000 19251925 1935–43 Served as judge in Burke County Criminal and Superior Courts 1973 Presided over the Senate Watergate hearings ◆ ◆ ◆ 1974 President Nixon resigned from office THERE IS NOTHING IN THE CONSTITUTION THAT AUTHORIZES OR MAKES IT THE OFFICIAL DUTY OF A PRESIDENT TO HAVE ANYTHING TO DO WITH CRIMINAL ACTIVITIES . —SAMUEL ERVIN JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ERVIN, SAMUEL JAMES, JR. 223 with the more conservative members of the Senate. He opposed the EQUAL RIGHTS AMEND- MENT , and, as a member of the Senate ARMED SERVICES Committee, he supported U.S. involve- ment in Vietnam. Ervin was widely respected in the Senate for his knowledge of the Constitution, which he described as one of the greatest works in the English language and said should be taken like mountain whiskey—undiluted and untaxed. Nonetheless, he might not have become a national figure had it not been for his role in the Senate Watergate hearings in 1973. As Ervin presided over the nationally televised hearings, he became familiar to millions of viewers. Known among his fellow senators for his wit and erudition, Ervin liked to describe himself as “just an ol’ country lawyer.” He published several books, including The Whole Truth: The Watergate Conspiracy (1980), Humor of a Country Lawyer (1983), and an autobiography titled Preserving the Constitution (1984). Ervin died April 23, 1985, in Winston-Salem, North Carolina. CROSS REFERENCES Nixon, Richard Milhous; Watergate. ESCALATOR CLAUSE A stipulation contained in a union contract stating that wages will be raised or lowered, based upon an external standard such as the cost of living index. A term, ordinarily in a contract or lease, that provides for an increase in the money to be paid under certain conditions. Escalator clauses frequently appear in busi- ness contracts to raise prices if the individual providing a particular service or type of merchandise is forced to pay more for labor or materials. Such clauses are also often part of con- tracts or leases executed subject to price- control regulations. When this type of provi- sion is in a lease, a landlor d has the po wer to collect the maximum amount of rent allowed under rent regulations that are in effect at the time of the lease. The escalator clause provides that if the rent regulations are altered during thetimeofthelease,thetenantmustpaythe new rental fee computed pursuant to the revised regulations. ESCAPE The criminal offense of fleeing legal custody without authority or consent. In order for an individual who has been accused of escape to be convicted, all elements of the crime must be proved. Such elem ents are governed by the specific language of each state statute. The general common-law principles may be incorporated within a statute, or the law may depart from them in various ways. Federal statutes also make it a crime to escape from federal custody. Ordinarily, the crime of escape is committed either by the prisoner or by the individual who has the responsibility for keeping the prisoner in custody. The custodian of the prisoner is not ordinarily a warden for the entire prison, but is generally the person who has immediate responsibility for guarding the prisoner. Certain states currently punish negligent guards ad- ministratively, such as by divesting them of their rank or seniority, or by firing them. Criminal punishment is generally reserved for guards who actively cooperate in facilitating a prison- er’s escape. An escape takes place when the prisoner is able to remove himself or herself from the lawful control of an authorized custodian. An individual can be found guilty of escape even in the event that his or her initial arrest was wrongful, since an unla wful arrest must prop- erly be argued in court. The theory is that in order for the process of justice to operate in an orderly manner, a prisoner must not be given the privilege of determining whether or not he or she should be confined. If an arrest is totally unlawful, however, an individual cannot be guilty of escape. This might occur, for example , if a store security guard has no grounds to arrest a shoplifter but does so anyway. In order to prove that a criminal escape took place, it is ordinarily unnecessary to show that the accused party w as actually confined within prison walls. Once an arrest has taken place, the prisoner cannot leave of his or her own volition. Frequently the degree of the crime is increased when the escape is from a particular kind of confinement. For example, the law might deal more harshly with an individual who escapes from armed prison guards while working on a chain gang than with an individual who runs away while an arresting officer interrogates witnesses. In other jurisdictions, the degree of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 224 ESCALATOR CLAUSE criminal escape is dependent upon the nature of the crime that initially precipitated the prison- er’s confinement. It is ordinarily necessary to prove that an escaped prisoner was actually attempting to evade legal confinement. For example, if the prisoner went to the wrong place by mistake, he or she will probably not be found guilty of a criminal escape. Other crimes are related to escape, such as the offense of aiding escape, which is committed by a person who, for example, smuggles a prisoner out of jail. Ordinarily a conviction for aiding escape is punishable by a sentence for the number of years specified by the criminal statute. In some states it is a separate crime to harbor or conceal an escaped prisoner. To obtain a conviction against the individual accused of this crime, it must be shown that the individual believed that he or she was aiding an escaped prisoner with the intent to help him or her get clear of lawful custody. It does not constitute a defense to assert that the prisoner never should have been arrested. Prison breach is an escape committed through the use of force and is more heinous than simple escape. It is not a separate crime, however, and the state may regard it as a more serious degree of criminal escape. An attempt to commit escape or any of the related crimes is punishable, even though such an attempt might not have been successful. ESCHEAT The power of a state to acquire title to property for which there is no owner. The most common reason that an escheat takes place is that an individual dies intestate, meaning without a valid will indicating who is to inherit his or her property, and without relatives who are legally entitled to inherit in the absence of a will. A state legislature has the authority to enact an escheat statute. In feudal England, escheat was a privilege exclusively given to the king. The policy of inheritance was to preserve the wealth of noble families by permitting one individual to inherit an entire estat e. There was no writing of wills that would leave property to several heirs because that would have the effect of breaking up the estate. In addition, the law established a hierarchy of heirs who stood in line to inherit the estate. If there was no living person of a designated class to inherit, the king took the property by escheat. Historically, reasons existed for escheat apart from the absence of heirs to inherit a decedent’s property. When corporations were subject to strict regulation, it was unlawful for a corporation to own property in any way not permitted by its state-granted charter. Any property beyond that needed by the corporation for the operation of its business , or in excess of the amount designated in its charter, or held for a period of time beyond that which was permitted, was subject to escheat. Certain states mandated escheat of property belonging to religious societies that either promoted POLYGAMY or neglected to incorporate as required by law. Additionally, where public lands were provided for settlers, statutes fre- quently made provisions for escheat when one individual took possession of more than the permitted acreage or did not properly cultivate the homestead. Dissimilarities Escheat is distinguishable from forfeiture even though both terms refer to a relinquishment of property. Forfeiture can be applied to any type of property interest, including possession, the right to inherit, or the right of reversion. In addition, forfeiture often is used as a penalty against an individual who has an interest in property, for an illegal act. An escheat takes place due to the lack of any person with a valid interest in the property, and is not usually linked to any illegality or wrongdoing. Succession is the passing of a decedent’s property to his or her heirs. Escheat is not treated in law like succession; the two concepts are completely separate. Property Subject to Escheat Ordinarily, the property subject to escheat is all the property within the state belonging to the original owner upon his or her death. Although initially the doctrine was applicable solely to real property, it presently extends to personal property, including such intangibles as bank accounts and shares of stock. Certain other types of property can be the subject of escheat for lack of a known owner. The determination is contingent upon state law. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESCHEAT 225 Unclaimed or abandoned property escheats to the state under some statutes. However, the state cannot merely declare property abandoned and appropriate it. Such laws must function within co nstitutional limits by observing the requirements imposed by due process. The state is required to adopt a routine procedure for notifying the public and must provide potential claimants an opportunity to argue that the property might belong to them. Without declaring that certain abandoned property has been escheated, the state may lawfully possess the property and hold it for a period of time so that claims can be asserted. A state is not mandated to take over unclaimed property but may choose to exercise the power to escheat only when the value of the property does not exceed the expense of LEGAL PROCEEDINGS. Items subject to escheat under various statutes include abandoned bank accounts, deposits left with utility companies, stock divi- dends whose owners cannot be found; unpaid wages; unclaimed legacies from the estate of a deceased relative; insurance money to unknown beneficiaries; and unclaimed money retained by employers or public officials. Certain statutes specify that the property of charitable or religious institutions escheats upon dissolution if its donors have not retained the right to recover it when it is no longer used for religious or charitable objectives. Procedure Escheat statutes vary by state, but all prescribe a procedure for location of the rightful owner. In some states title to certain types of property automatically passes to the state when it escheats for lack of a proper claimant. In other states, a required period of time must elapse prior to the commencement of escheat pro- ceedings. This does not bar a claimant from stating his or her claim before completion of the escheat proceedings. Some laws require clai- mants to assert their rights within a period of time or forfeit them. Often, states mandate that individuals administering estates notify the state government of the existence of property that might be subject to escheat. The primary burden of proving that there is no proper individual entitled to own the property in question rests with the state, and the general rules regarding the admissibility of evidence are applicable. Rules of presumption, such as the common-law presumption of death after a seven-year disappearance, can be used to support the case of the state. After the state has proved a legally sufficient case, any individual claiming a right to the property has an opportunity to go forward and argue against the evidence submitted by the state. Some states offer money to informers who notify the state of property that might be subject to escheat. Informers might be required to provide evidence and pursue the case to a conclusion before they will be entitled to a fee. Other states provide compensation for an escheater, a person appointed by the court to manage the claim of the state for escheat. An escheater is entitled to be paid a reasonable amount even if he or she does not succeed in recovering the property for the state. FURTHER READINGS Andreoli, Anthony L., and J. Brooke Spotswood. 2002. Unclaimed Property: Laws, Compliance, and Enforce- ment. Chicago: CCH. Haines, Martin L. 2000. “Change May Be in Offing for Rules Governing Abandoned Money.” New Jersey Law Journal 162 (October 2). Ramasastry, Anita. 2001. “State Escheat Statutes and Possible Treatment of Stored Value, Electronic Currency, and Other New Payment Mechanisms.” Business Lawyer 57, no. 1 (November). Woodards, Shantee. 2003. “Unclaimed Property Piles Up.” Detroit News (September 13). ESCOBEDO V. ILLINOIS One of three important cases decided by the U.S. Supreme Court in the 1960s on the subject of the RIGHT TO COUNSEL, Escobedo v. Illinois 378 U.S. 478, 4 Ohio Misc. 197, 84 S.Ct. 1758, 12 L. Ed.2d 977 (U.S.Ill. 1964), was a far-reaching decision which held for the first time that defendants had a right to counsel even before they were indicted for a particular crime. However, the decision was overshadowed by the high court’s Miranda decision two years later, and later decisions by both the Supreme Court and lower courts indicated the applica- tion of the decision in Escobedo was to be limited to its facts. Nevertheless, the Supreme Court has never directly overruled Escobedo. The case involved Danny Escobedo, who was arrested on the night of January 19, 1960, for the MURDER of his brother-in-law, but was released after contacting his lawyer. The lawyer told him not to answer any more questions if the police rearrested him. Ten days later, he was arrested a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 226 ESCOBEDO V. ILLINOIS second time and made a request to contact his attorney repeatedly. This request was denied. His attorney then arrived at the police station and requested to see Escobedo but was refused permission to see him. The police then told Escobedo that his alleged coconspirator in the shooting of his brother-in-law had con- fessed and implicated Escob edo. Escobedo demanded to confront his coconspirator, and when he was brought face-to-face with him he said, “I didn’t shoot Manuel (Escobedo’s brother-in-law), you did it.” After this admis- sion of his involvement in the crime, police were able to obtain a more elaborate written confes- sion, and Escobedo was eventually convicted of murder. Escobedo appealed his conviction, claiming his confession was obtained without his lawyer being present in violation of his right to counsel, and should be thrown out. Escobedo’s case reached the Supreme Court at a precipitous time. Just six weeks before, the high court had decided MASSIAH V. UNITED STATES, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (U.S.N.Y. 1964), in which the Court ruled for the first time that the SIXTH AMENDMENT right to counsel in order to exclude a confession. That case involved a DEFENDANT who made a statement to an accomplice after he had been indicted, gotten an attorney, and had been released on bail. Unknown to the defendant, his accomplice was working with the police. The Court held that the defendant’s Sixth Amendment rights had been violated because the police had used the accom- plice to elicit incriminatory statements after the right to counsel had attached. The Supreme Court in Escobedo reached a similar result in a 5 to 4 decision. Writing for the majority, Justice ARTHUR GOLDBERG first stated that Escobedo’s right to counsel did not depend on whether, at the time of interrogation, the authorities have secured a formal indictment. In overturning Escobedo’s conviction and ruling that his right to counsel had been violated, Goldberg then enunciated a somewhat compli- cated holding that set out numerous benchmarks in determining whether a defendant’sSixth Amendment right to counsel had been violated. Wrote Goldberg: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statemen ts, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘The Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The high court decision in Escobedo had many observers theorizing the Court would try to establish a broad right to counsel utilizing the Sixth Amendment whenever police took a suspect into custody. However, two years later, the high court changed course in MIRANDA V. ARIZONA 384 U.S. 436, 10 Ohio Misc. 9, 86 S.Ct. 1602, 16 L. Ed.2d 694 (U.S.Ariz. 1966), using the FIFTH AMENDMENT right against self-incrimination to hold that statements obtained from defen dants during incommunic ado inter rogation in a police-dominated atmosphere, without full warning of constitutio nal rights, we re inadm is- sible. Miranda made the crucial question whether a defendant was in custody or otherwise significantly deprived of his freedom of move- ment, rather than the “focus of investigation” test enunciated in Escobedo. Since the Miranda decision, most Supreme Court and lower court cases mentioning the right to counsel have relied on the Fifth Amendment and Miranda, and those that have relied on the Sixth generally lean on the earlier Massiah decision, rather than the more complex tests of Escobedo. Escobedo has been limited by the Supreme Court and lower courts to only apply to the facts of its case, and since those facts were unusual, it is rarely invoked by a court as primary law when determining whether the right to counsel exists. FURTHER READINGS Cook, Joseph. 2002. Constitutional Rights of the Accused— Pre-trial Rights. Eagan, MN: West. Israel, Jerold H., and Wayne R. LaFave, eds. 2006. Criminal Procedure: Constitutional Limitations in a Nutshell. 7th ed. Eagan, MN: West. Romans, Neil T. 1974. “The Role of State Supreme Courts in Judicial Policy Making: Escobedo, Miranda and the Use of Judicial Impact Analysis.” The Western Political Quarterly 27. CROSS REFERENCE Prisoners’ Rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESCOBEDO V. ILLINOIS 227 ESCROW Something of value, such as a deed, stock, money, or written instrument, that is put into the custody of a third person by its owner, a grantor, an obligor, or a promisor, to be retained until the occurrence of a contingency or performance of a condition. An escrow also refers to a writing deposited with someone until the performance of an act or the occurrence of an event specified in that writing. The directions given to the person who accepts delivery of the document are called the escrow agreement and are binding between the person who promises and the person to whom the promise is made. The writing is held in escrow by a third person until the purpose of the underlying agreement is accomplished. When the condition specified in the escrow agreement is performed, the individual holding the writing gives it over to the party entitled to receive it. This is known as the second delivery. Any written document that is executed in accordance with all requisite legal formalities may properly be deposited in escrow. Docu- ments that can be put in escrow include a deed, a mortgage, a promise to pay money, a bond, a check, a license, a patent, or a contract for the sale of real property. The term escrow initially applied solely to the deposit of a formal instrument or document; however, it is popu- larly used to describe a deposit of money. The escrow agreement is a contract. The parties to such an agreement determine when the agreement should be released prior to making the deposit. After the escrow agreement has been entered, the terms for holding and releasing the document or money cannot be altered in the absence of an agreement by all the parties. A depositary is not a party to the escrow agreement, but rather a custodian of the deposit who has no right to alter the terms of the agreement or prevent the parties from altering them if they so agree. The only agreement that the depositary must make is to hold the deposit, subject to the terms and conditions of the agreement. Ordin arily, the depositary has no involvement with the underlying agreement; however, an interested party may, in a few states, be selected to be a depositary if all parties are in agreement. In all cases, a depositary is bound by the duty to act according to the trust placed in him or her. If the depositary makes a delivery to the wrong person or at the wrong time, he or she is liable to the depositor. The document or the money is only in escrow upon actual delivery to the depositary. Ordinarily, courts are strict in their requirement that the terms of the agreement be completely performed before the deposit is release d. A reasonable amount of time must generally be allotted for performa nce. Parties may, however, make the agreement that time is of the esse nce, and in such a case, any delay beyond the period specified in the agreement makes the individual who is obligated to act forfeit all his or her rights in the property in escrow. ESPIONAGE The act of securing information of a military or political nature that a competing nation or organization holds secret. It can involve the analysis of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under secret identity to gather classified information on behalf of another entity or nation. In the United States, the organization that heads most activities dedicated to espionage is the Central Intelligence Agency (CIA). Espionage, commonly known as “spying,” is the practice of secretly gathering information about a foreign government or a competing enterprise, with the purpose of placing one’sown government or corporation at some strategic or financial advantage. Federal law prohibits espio- nage when it jeopardizes the national defense or benefits a foreign nation (18 U.S.C.A. § 793). Criminal espionage involves betraying U.S. government secrets to other nations. Despite its illegal status, espionage is commonplace. Through much of the twentieth century, international agreements implicitly accepted espionage as a natural political activity. This gathering of intelligence benefited compet- ing nations that wished to stay one step ahead of each other. The general public never hears of espionage activities that are carried out correct- ly. However, espionage blunders can receive national attention, jeopardizing the security of the nation and the lives of individuals. Espionage is unlikely to disappear. Since the late nineteenth century, nations have allowed each other to station so-called military attachés in their overseas embassies. These figures collect intelligence secrets about the armed forces of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 228 ESCROW . arresting officer interrogates witnesses. In other jurisdictions, the degree of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 2 24 ESCALATOR CLAUSE criminal escape is dependent upon the nature of the. other types of property can be the subject of escheat for lack of a known owner. The determination is contingent upon state law. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ESCHEAT 225 Unclaimed. to have been done.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EQUITY 219 Equitable Distribution Equitable distribution can describe a fair allotment of anything. In the law, equitable distribution