Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P33 ppt

are not common knowledge and that are specifically within the knowledge of persons whose experience or study enables them to testify with authority on the subjects in question; and (2) matters as to which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on professional or scientific knowledge not within the range of ordinary training or intelligence. In the first class, the facts are stated by the experts, and the conclusion is drawn by the jury. In the second class, the expert sets forth the facts and states a conclusion in the form of an opinion which may be accepted or rejected by the jury. Accident RECONSTRUCTION experts typically give testimony that falls into the first class of expert testimony. Such experts may testify as to the speed at vehicles were traveling, the distance before impact at which each driver began applying the breaks, and what, if any, acci- dent-avoidance precautions each driver took. But accident reconstruction experts are not allowed to give their opinion as to which driver was responsible for the accident or testify as to the standard of care required to be exercised by the drivers. Both types of questions are ultimate issues that only a jury can determine. By contrast, in MEDICAL MALPRACTICE cases physicians may provide the jury with testimony regarding the underlying facts of the legal dispute and may aid the jury by describing the standard of care for diagnosis and treatment. The general rule excluding opinion evidence concerning matters of common knowledge or experience, while clear as a matter of principle, is frequently difficult to apply. As a result, courts are given wide latitude in determining whether the opinions of an expert or lay witness are admissible, and appellate courts will not interfere with a lower court’s ruling unless in making that ruling the trial court manifestly abused its discretion to the prejudice of the complaining party. FURTHER READINGS Imwinkelried, Edward J. 2003. “Flawed Expert Testimony: Striking the Right Balance In Admissibility Standards.” Criminal Justice 18, no. 1 (spring). Available online at http://www.abanet.org/crimjust/spring2003/testimony. html; website home page: http://www.abanet.org (accessed July 22, 2009). Keierleber, J.A. 2003. “Reliable Evaluation of Expert Testimony.” Harvard Law Review 116 (May). Martin, Michael M. 2003. “Expert Testimony: ‘Helpfulness’ Rather Than ‘Necessity’ Standard.” New York Law Journal 229 (June 13). West Group. 2004. Corpus Juris Secundum. Eagan, MN: West. EXPLOSIVES The law of explosives covers dangerously volatile substances, including gasoline, oil, dynamite, and blasting caps filled with highly explosive compounds. Under the POLICE POWER given to the states through the TENTH AMENDMENT to the U.S. Constitu tion, state and local governments may regulate the storing, handling, transportation, and use of explosive substances. All states require a person or business to obtain a permit before using explosives, such as for a fireworks display or the demolition of a building. State laws and local ordinances criminalize the unlicensed use, storage, sale, and transportation of explosives. Most states provide that unlicensed explosives may be subject to forfeiture, and their possessors subject to fines or incarceration, or both. States delegate some explosives regulation to municipalities. A municipal corporation may enact provisions for the inspection of explosives and their storage spaces. It may also prescribe the maximum quantity of particular explosives that are allowed to be kept in a particular location. The U.S. Congress has the authority to regulate explosives in interstate commerce. Under 18 U.S.C.A. § 841 et seq., Congress requires a license to import, manufacture, distribute, or store explosive materials that cross state lines. The BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, a division of the U.S. JUSTICE DEPARTMENT, is charged with primary enforcement of the federal laws and regulations regard ing explosives. Explosives are a necessity in a developing world. They allow building contractors to excavate land and clear pathways for road building. However, explosives are inhere ntly dangerous, and, despite strict government regulation, even the authorized use of explosives may cause injuries or property damage. When injury or damag e occurs, an aggrieved person may seek redress in civil court. Under TORT LAW, explosives are considered abnormally hazardous and are subject to STRICT LIABILITY standards. Under strict liability, an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXPLOSIVES 309 explosives operator may be liable for injuries resulting from an explosion regardless of NEGLI- GENCE . Not all explosions give rise to this standard. Strict liability may be mandated by statute for injuries resulting from unlicensed explosions. For licensed explosions and acciden- tal explosions, strict lia bility will be applied where the activity was exceptionally dangerous. For example, a landowner who stores gasoline in a densely populated residential neighborhood may be subject to strict liability, but a business that stores gasoline in an industrial area may not. Strict liabili ty is not imposed on most licensed explosions. A PLAINTIFF suing for damages resulting from a licensed explosion must prove that the operator did not observe a standard of care commensurate wit h the danger. This can be proved by showing that the operator failed to comply with statutes or regulations. The plaintiff must also show that the explosion was the proximate dominant, producing, or moving cause for the injury or property damage. A seller of explosives may be held liable for damage or injury result ing from their use. Manufacturers are held to a higher standard of care than wholesalers or retailers because they are usually more familiar with the formula of the explosive compound and are thus more capable of giving instructions needed for the safe handling, storage, and use of the product. Manufacturers, wholesalers, and retailers must warn buyers of an explosive’s dangerous nature by labeling the packaging and including instruc- tions. A manufacturer, wholesaler, or retailer that sells explosives in violation of a statute may be liable to subsequent purchasers of the explosives. For example, a manufacturer or merchant that sells to a minor will be responsible for any injuries resulting from the explosives. Transporters of explosives may be held liable for damage or injury caused in transit, if they are negligent. Carriers must exercise utmost caution in transporting explosives and follow regulations established by the states. A shipper who hires a carrier for transport may be liable for damage and injury caused by the shipment if the damage and injury were the result of the shipper’s negligence. The chain of manufacturer, seller, shipper, and carrier often leads to civil court battles in which each DEFENDANT seeks to prove that the others were negligent. Fireworks are regulated by state and local governments as explosives or as dangerously volatile substances. HULTON ARCHIVE/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 310 EXPLOSIVES As in any civil case, a defendant in an explosives case may use the defense of “con- tributory negligence” if the injured party was negligent in some way. For instance, a defen- dant may invoke contributory negligence if an operator has been adequately instructed but mishandles the explosives. In a small minority of states, contributory negligence by a plaintiff precludes any recovery. In most states, “com- parative negligence” statutes allow an amount of recovery reduced by a measure of the plaintiff’s negligence. For example, if the plaintiff and defendant were equally at fault, the plaintiff may recover 50 percent of the claim. A defendant may also seek to argue “assumption of the risk.” This means that the injured party was informed of risks but chose to disregard the warnings. For example, a licensed explosives operator who posted notices and warnings according to regulations may escape liability if the plaintiff ignored the signs and entered the explosion site and was subsequently injured in an explosion on the site. Fireworks are a popular, colorful form of low-impact explosives whose regulation varies from state to state. Minnesota, for example, bans all fireworks except for licensed displays and toy pistols and toy guns containing a negligible amount of explosive compound (Minn. Stat. Ann. § 624.20 [West]). Other states are more permissive. Alabama, for example, allows fireworks containing up to 130 milli- grams of explosive composition for aerial devices and 50 milligrams for no naerial devices. Sparklers containing chlorate or perchlorate salts may not exceed a weight of five grams (Ala. Code § 8-17-217). CROSS REFERENCES Assumption of Risk; Dominant Cause; Producing Cause; Proximate Cause. EXPORT-IMPORT BANK OF THE UNITED STATES The Export-Import Ban k of the United States, commonly known as Eximbank, facilitates and helps to finance exports of U.S. goods and services. Eximbank has implemented a variety of programs to meet the needs of the U.S. exporting community, according to the size of the transaction. These programs take the form of direct lending, or the issuance of guarantees and insurance so that exporters and private banks can extend appropriate financing without incurring undue risks. The direct lending program of Eximbank is limited to larger sales of U.S. products and services around the world. The guarantees, insurance, and discount pro- grams have been designed to assist exporters in smaller sales of products and services. Eximbank began as the Export-Import Bank of Washington, authorized in 1934 as a banking corporation organized under the laws of the District of Columbia (Exec. Order No. 6581 [Feb. 2, 1934]), 12 C.F.R. § 401, reprinted in 12 U.S.C.A. § 635. The bank was continued as an agency of the United States by acts of Congress passed in 1935, 1937, 1939, and 1940. It was made an independent agency of the government by the Export-Import Bank Act of 1945 ([12 U.S.C.A. § 635]), which was subsequently amended in 1947 to reincorporate the bank under federal charter. The name was changed to Export-Import BANK OF THE UNITED STATES by the Act of March 13, 1968 (82 Stat. 47). In 2002, Congress reauthorized Eximbank for a four- year period. The mission of Eximbank is to help U.S. exporters to meet government-supported com- petition from other countries and to correct market imperfections so that commercial ex- port financing can take place. The bank considers aiding in the export financing of U.S. goods and services when there is a reasonable assurance of repayment. Eximbank does not compete with private financing, but instead supplements it when adequate funds are not available in the private sector. As stated in the Export-Import Act of 1945, as amended, the loans provided are generally for specific pur- poses and at rates based on the average cost of money to the bank as well as the mandate of the bank to provide competitive financing, and offer reasonable reassurance of repayment. The act further states that financing should be provided for U.S. exports at rates and on terms that are competitive with financing provided by the principal foreign competitors of the United States. Furthermore, in authorizing loans or guarantees, account should be taken of any serious adverse effects upon the competitive position of U.S. industry, the availability of material s that are in short supply in the United States, and employment in the United States. The bank is authorized to have outstanding at any one time loans, guarantees, and insurance GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXPORT-IMPORT BANK OF THE UNITED STATES 311 in an aggregate amount not to exceed $75 billion. The bank is also authorized to have a capital stock of $1 billion and may borrow from the U.S. Treasury up to $6 billion outstanding at any one time. Subsidy costs of the bank’s programs are appropriated on an annual basis. Eximbank operates a loan program and a guarantee program for medium- and long-term export transactions. Both programs provide up to 85 percent financing, operate on the basis of preliminary and final commitments, and are open to any responsible party. Eximbank loans also carry the minimum interest rate allowed by the Organization for Eco nomic Cooperation and Development. To reduce the risks of buyer default for U.S. exporters, Eximbank offers a variety of insur- ance programs. These policies insure against the risk of default in export transactions and are available in a variety of plans that are tailored to the special needs of different types of exporters and financial institutions. Eximbank offers other programs designed primarily to benefit small-business exporters, including the Working Capital Guarantee Program, a loan-guarantee program designed to provide access to working capital loans from commercial lenders. The bank also sponsors the Engineering Multiplier Program, which pro- vides financing to support feasibility studies that have the potential for generating further procurement of U.S. exports. The bank has moved to use technology to improve the delivery of services. Beginning in 2002, customers could apply online for letters of interest as well as Eximbank’s working-ca pital guarantee. Automating insura nce applications and processing will soon be implemented. FURTHER READINGS Becker, William H., and William M. McClenahan, Jr. 2009. The Market, the State,and the Export-Import Bank of the United States, 1934–2000. New York: Cambridge Univ. Press. Export-Import Bank of the United States. 2008. Annual Report 2008. Available online at http://www.exim.gov (accessed July 22, 2009). U.S. Government Manual Website. Available online at http:// www.gpoaccess.gov/gmanual/index (accessed July 21, 2009). EXPOSITORY STATUTE A law executed to explain the actual meaning and intent of a previously enacted statute. Courts have stated that Congress has the power to declare the proper construction of a statute by subsequent legislation. Courts are generally bound to apply subsequent legislative construction in lawsuits involving transactions that occurred after the enac tment of the legislation. Provisions of expository statutes may be litigated due to the potential for a retroactive effect. For example, in Personal Finance Co. of Braddock v. United States,86F. Supp. 779 (D. Dela. 1949), Congress had enacted an expository statute clarifying a definition in a tax statute. The PLAINTIFF sought a refund under the statute, clai ming that it would have recovered the refund based upon judicial interpretations of the original statute. The U.S. district court for the District of Delaware held that the statute, as amended by the expository legislation, could not be inter- preted to have a retroactive effect because the plaintiff’s righ t vested prior to the enactment of the expository act. CROSS REFERENCES Law; Statute. EXPRESS Clear; definite; explicit; plain; direct; unmistak- able; not dubious or ambiguous. Declared in terms; set forth in words. Directly and distinctly stated. Made known distinctly and explicitly, and not left to inference. Manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. The word is usually contrasted with implied. That which is express is laid out in words, such as an expre ss warranty, which is an oral or written affirmation from a seller to a buyer of goods that certain standards will be met. Such a warranty may include the prom ise that any defect which occurs during a certain specified time period will be remedied at the seller’s expense. This is distinguishable from an IMPLIED WARRANTY, which is neither written nor based on any specific oral statement from seller to buyer but is implied through the sale itself. A common example is the implied warranty of merchantability, which implies that an item is fit for the usual purposes for which it was purchased. Express authori ty is plainly or distinctly delegated power to an agent by a principal. For example, the owner of a store may expressly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 312 EXPOSITORY STATUTE give employees the authority to accept deliveries in the owner’s name. EXPRESS TRUST See RESULTING TRUST. EXPROPRIATION The taking of private property for public use or in the public interest. The taking of U.S. industry situated in a foreign country, by a foreign government. Expropriation is the act of a government taking private property; EMINENT DOMAIN is the legal term describing the government’s right to do so. In the United States, this right is granted, indirectly, by the FIFTH AMENDMENT to the Constitution, which states, in part, that “private property [shall not] be taken for public use, without just compensation.” The courts have interpreted this claus e’s limitation of the power to expropriate as implying the existence of the power itself. Two well-known cases of the U.S. govern- ment’s expropriating private property occurred during labor troubles after WORLD WAR II. In the spring of 1946, President HARRY S. TRUMAN found it necessary to seize control of the nation’s railroads to postpone an imminent strike. He justified this action by declaring that the welfare of the country was at stake. Five days after the president’s action, the workers went on strike for three days, until union and manage- ment reached an agreement. Truman hastened the agreement by threatening to draft all railway employees who refused to go back to work. In 1952, faced with an impending strike by steelworkers, President Truman signed EXECU- TIVE ORDER No. 10340, 17 Fed. Reg. 3139, expropriating eighty-eight steel mills across the country. Again, the president defended his action by declaring that the welfare of the country was at stake. He supported this argument by stressing the demands of the war in Korea. He believed that a steel strike would endanger the lives of U.S. soldiers. This time, Truman’s action caused a constitutional crisis that went to the U.S. Supreme Court. In YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Supreme Court ruled 6–3 that the president did not have the power to take private property to settle a labor dispute. The steelworkers’ strike began the same day as the ruling and lasted seven weeks. INTERNATIONAL LAW recognizes the righ t of countries to seize private property to further national welfare, but it requires that both citizens and aliens be treated in the same manner. The issue of JUST COMPENSATION in return for expropriated property differs from country to country. The United States and most Western countries maintain that the expropri- ating country should pay prompt, adequate, and effective compensation. U.S. businesses were expropriated by the governments of both Cuba and Chile during socialist movements in those foreign countries. In May 1959, after Fidel Castro took over the Cuban government, the seizure of many large U.S. properties began. Before the revolution, U.S. corporations had controlled most of Cuba’s resources and over half of its sugar production. In 1960, the first shipment of Soviet oil arrived in Cuba. Under the advice of the U.S. TREASURY DEPARTMENT , U.S. oil companies on the island refused to refine it. These refineries were then taken over by the Cuban government. The expropriation of U.S. property in Cuba and Cuba’s alliance with the Soviet Union eventually led to the United States’ breaking off all diplomatic relations and instituting an embargo. In 1971 the Chilean people elected a socialist president, Salvador Allende. Soon afterward, the Chilean government began to expropriate U.S. businesses located in Chile. President Truman issued an executive order to expropriate 88 steel mills, including this one in Youngstown, Ohio. The Supreme Court held in Youngstown Sheet & Tube Co. v. Sawyer that the president did not have the power to take private property to settle a labor dispute. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EXPROPRIATION 313 The primary U.S. business in Chile at this time was copper mining. When U.S owned mines were seized, in most cases, their owners were provided with adequate and prompt compensa- tion. The El Teniente mine of the Kennecott Company was seized by the gover nment for a much higher price than the book value. In 1970, government control over the industrial sector in Chile had been at 10 percent. One year after the election of President Allende, it was at 40 percent. By 1973, private banks; U.S. copper mines; the steel, cement, and coal industries; and all other vital areas of industry were in the hands of the Chilean state. In both Cuba and Chile, the seized proper- ties remain under the control of the foreign government. FURTHER READINGS Harrington, Matthew P. 2002. “‘Public Use’ and the Original Understanding of the So-Called ‘Takings’ Clause.” Hastings Law Journal 53 (August). Marcus, Maeva. 1977. Truman and the Steel Seizure Case: The Limits of Presidential Power (Constitutional Con- flicts). Durham, NC: Duke Univ. Press. McCullough, David. 1992. Truman. New York: Simon & Schuster. Pritchett, Wendell E. 2003. “The ‘Public Menace’ of Blight: Urban Renewal and Private Uses of Eminent Domain.” Yale Law & Policy Review 21 (winter). CROSS REFERENCE Presidential Powers. EXPUNGE To de stroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information—including criminal records—in files, computer s, or other depositories. EXTENSION An increase in the length of time specified in a contract. A part constituting an addition or enlarge- ment, as in an annex to a building or an extension to a house. Addition to existing facilities. An allowance of additional time for the payment of debts. An agreemen t between a debtor and his or her creditors, by which they allow the debtor further time for the payment of liabilities. A creditor’s indulgence by giving a debtor further time to pay an existing debt. The word extension, when used in its proper and usual sense in connection with a lease, means a prolongation of the previous leasehold estate. The distinction between extension and renewal of lease is chiefly that, in the case of renewal, a new lease is requisite, while, in the case of extension, the same lease continues in force during an additional period upon performance of a stipulat- ed act. An option for renewal implies giving a new lease on the same terms as those of an old lease, while an option for extension contemplates a CONTINUANCE of an old lease for a further period. Request for additional time to file an income tax return beyond the due date. EXTENUATING CIRCUMSTANCES Facts surrounding the commission of a crime that work to mitigate or lessen it. EXTENUATING CIRCUMSTANCES render a crime less evil or reprehensible. They do not lower the degree of an offense, although they might reduce the punishment imposed. Extenuating circumstances might include extraordinary circumstances, which are unusual factors surrounding an event, such as the very young age of a DEFENDANT in a MURDER case. CROSS REFERENCE Mitigating Circumstances. EXTINGUISHMENT The destruction or cancellation of a right, a power, a contract, or an estate. Extinguishment is sometimes confused with merger, though there is a clear distinction between them. Merger is on ly a mode of extinguishment, and applies to estates only under particular circumstances, but extinguish- ment is a term of general application to rights, as well as estates. Extinguishment connotes the end of a thing, precluding the existence of future life therein; in mergers there is a carrying on of the substance of the thing, except that it is merged into and becomes a part of a separate thing with a new identity. Two ways in which the extinguishment of a debt can occur are by release or by payment. Extinguishment of legacy takes place where what has been bequeathed by will ceases to exist. Extinguishment of rent may take place by the tenant purchasing the rented property from the landlord or by grant, release, or surrender of the rental agreement. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 314 EXPUNGE EXTORT To compel or coerce, as in a confession or information, by any means serving to overcome the other’s power of resistance, thus making the confession or admission involuntary. To gain by wrongful methods; to obtain in an unlawful manner, as in to compel payments by means of threats of injury to person, property, or reputation . To exact something wrongfully by threatening or putting in fear. The natural meaning of the word extort is to obtain money or other valuable things by compulsi on, by actual force, or by the force of motives applied to the will, and often more overpowering and irresistible than physical force. EXTORTION The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or unde r color of official right. Under the COMMON LAW, extortion is a MISDEMEANOR consisting of an unlawful taking of money by a government officer. It is an oppressive misuse of the power with which the law clothes a public officer. Most jurisdictions have statutes governing extortion that broaden the common-law defini- tion. Under such statutes, any person who takes money or property from another by means of illegal compulsion may be guilty of the offense. When used in this sense, extortion is synony- mous with BLACKMAIL, which is extortion by a private person. In addition, under some statutes a corporation may be liable for extortion. Elements of Offense Virtually all extortion statutes require that a threat must be made to the person or property of the victim. THREATS to harm the victim’s friends or relatives may also be included. It is not necessary for a threat to involve physical injury. It may be sufficient to threaten to accuse another person of a crime or to expo se a secret that would result in public embarrassment or ridicule. The threat does not have to relate to an unlawful act. Extortion may be carried out by a threat to tell the victim’s spouse that the victim is having an illicit sexual affair with another. Other types of threats sufficient to consti- tute extortion include those to harm the victim’s business and those to either testify against the victim or withhold testimony necessary to his or her defense or claim in an administrative proceeding or a lawsuit. Many statutes also provide that any threat to harm another person in his or her career or reputa- tion is extortion. Under the common law and many statutes, an intent to take money or property to which one is not lawfully entitled mustexistat the time of the threat in order to establish extortion. Statutes may contain words such as “willful” or “pur- poseful” in order to indicate the intent element. When this is so, someone who mistakenly believes he or she is entitled to the money or property cannot be guilty of extortion. Some statutes, however, provide that any unauthorized taking of money by an officer constitutes extortion. Under these statutes, a person may be held strictly liable for the act, and an intent need not be proven to establish the crime. Statutes governing extortion by private persons vary in content. Many hold that a threat accom panied by the intent to acquire the victim’s property is suffi cient to establish the crime; others require that the property must actually be acquired as a result of the threat. Extortion by officials is treated similarly. Some statutes hold that the crime occurs when there is a meeting of the minds between the officer and the party from whom the money is exacted. Extortion by Public Officers The essence of extortion by a public officer is the oppressive use of official position to obtain a fee. The officer falsely claims authority to take that to which he or she is not lawfully entitled. This is known as acting under COLOR OF OFFICE. For example, a highway department officer who collects money from a tax delinquent automo- bile owner in excess of the authorized amount on the pretense of collecting a fine is extorting money under color of office. The victim, although consenting to payment, is not doing so voluntarily but is yielding to official authority. There are four basic ways in which a public officer commits extortion. The officer might demand a fee not allowed by law and accept it under the guise of performing an official duty. He or she might take a fee greater than that allowed by law. In this case the victim must at least believe that he or she is under an obligation to pay some amount. A third metho d is for the officer to receive a fee before it is due. The crime is committed regardless of whether the sum taken is likely to become due in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXTORTION 315 future. It is not criminal, however, for an officer to collect a fee before it is due if the person paying so requests. Finally, extortion may be committed by the officer’s taking a fee for services that are not performed. The service refrained from must be one within the official capacity of the officer in order to constitute extortion. Other Crimes Distinguished As a crime of THEFT, extortion is closely related to ROBBERY and FALSE PRETENSES. Robbery differs from extortion in that the property is taken against the will and without the consent of the victim, unlike extortion, where the victim consents, although unwill- ingly, to surrender money or property. Another distinguishing factor is that the nature of the threat for robbery is limited to immediate physical harm to the victim or his or her home. Extortion, on the other hand, encompasses a greater variety of threats. False pretenses is another crim e that is similar to extortion. The main difference is that in the case of false pretenses, the property is obtained by a lie rather than a threat. Defenses A person who acts under a claim of right (an honest belief that he or she has a right to the money or property taken) may allege this factor as an AFFIRMATIVE DEFENSE to an extortion charge. What constitutes a valid claim of righ t defense may vary from one jurisdiction to another. For example, M, a department store MANAGER, accuses C, a customer, of stealing certain merchandise. M threatens to have C arrested for LARCENY unless C compensates M for the full value of the item. In some jurisdictions it is only necessary for M to prove that he or she had an honest belief that C took the merchandise in order for M to avoid an extortion co nviction. Other jurisdictions apply a stricter test, under which M’s belief must be based upon circum- stances that would cause a REASONABLE PERSON to believe that C took the item. Another, more stringent, test requires that C in fact owe the money to M. Finally, some states entirely reject the claim of right defense on the theory that M’s threat is an improper means of collecting a debt. Punishment Extortion is generally punished by a fine or IMPRISONMENT, or both. When the offense is committed by a public officer, the penalty may include FORFEITURE of office. Under so me statutes, the victim of an extortion may bring a CIVIL ACTION and recover PECUNIARY damages. Federal Offenses Extortion is also a federal offense when it interferes with interstate commerce. It is punishable by a fine, imprisonment, or both. Another federal statute makes it a crime to engage in extortionate credit transactions. FURTHER READINGS Block, Walter, and Gary M. Anderson. 2001. “Blackmail, Extortion, and Exchange: A Critique of Richard Posner.” New York Law School Law Review 44 (summer-fall). Friedman, Lawrence M. 2002. “Name Robbers: Privacy, Blackmail, and Assorted Matters in Legal History.” Hofstra Law Review 30, no. 4 (summer). Available online at http://www.hofstra.edu/PDF/law_friedman. pdf; website home page: http://www.hofstra.edu (accessed July 22, 2009). Jacoby, Neil H., Peter Nehemskis, and Richard Eells. 1977. Bribery and Extortion in World Business: A Study of Corporate Political Payments Abroad. New York: Macmillan. Janal, Daniel S. 1998. Risky Business: How to Protect Yourself from Being Stalked, Conned, Libeled, or Blackmailed on the Web. Indianapolis: Wiley. Katz, Leo. 1998. Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law. Chicago: Univ. of Chicago Press. McClintick, David. 2002. Indecent Exposure: A True Story of Hollywood and Wall Street. New York: Harper Paper- backs. CROSS REFERENCES Blackmail; Civil Action; False Pretenses; Robbery. EXTRA [ Latin, Beyond, except, without, out of, out- side. ] Additional. An extra in a contract would include anything outside of, beyond, or not called for by the contract, such as additional materials. EXTRADITION The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial. Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 316 EXTRA Article IV, Section 2, of the U.S. Constitu- tion provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused “to the State having Jurisdiction of the Crime.” When extraditing an accused from one state to another, most states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state. Extradition from one state to another takes place on the order of the governor of the ASYLUM state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition. In some cases, courts considering extradi- tion from one state to another may go beyond the procedural formalities and look at the merits of the criminal charge or at allegations by the accused that extradition will lead to harmful consequences beyond a prison term. These cases are rare because under the U.S. Constitution, states are not given the power to review the underlying charge. This problem occurred in New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 118 S. Ct. 1860, 141 L. Ed. 2d 131 (1998), in which the state of New Mexico refused to return a fugitive to the state of Ohio. The Supreme Court has identified that a court considering an extradition case can only decide four issue s: (1) whether the extradition documents on their face are in order, (2) whether the PETITIONER has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a “fugitive,” and refused to honor the extradition order from the state of Ohio. The Supreme Court found that New Mexico courts had overstepped their authority and ordered the New Mexico Su- preme Court to return the fugitive. Extradition from one nation to another is handled in a similar manner, with the head of one country demanding the return of a fugitive who is alleged to have committed a crime in that country. Extradition between nations is usually bas ed on a t reaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe and Latin America, and with a few countries in Africa and Asia. To determine whether an individual can be extradited pursuant to a treaty, the language of the particular treaty must be examined. Some treaties list all the offenses for which a person can be extradited; others provide a minimum standard of punishment that will render an offense extraditable. The extradition treaties of most countries fall into the second category, since treaties in the first category must be revised completely if an offense is added to the list. Even if they do not specifically say so, most treaties contemplate that for an offense to be subject to extradition, it must be a crime under the law in both jurisdictions. This is called the doctrine of double criminality. The name by which the crime is described in the two countries need not be the same, nor must the punishment be the same; simply, the require- ment of double criminality is met if the particular act charged is criminal in both jurisdictions (Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66 L. Ed. 956 [1922] ). The doctrine of specialty is also often applied even when not specifically stated in a treaty. It means that once a person has been surrendered, he or she can be prosecuted or punished only for the crimes for which extradition was requested, and not for any other crimes committed prior to the surrender. The doctrine was first established more than a hundred years ago, in United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886). In Rauscher, the DEFENDANT, a U.S. citizen, was extradited from Great Britain for the beating death of a ship’s crew member on a U.S. vessel but was indicted and tried on a charge of CRUEL AND UNUSUAL PUNISHMENT based on the same act. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXTRADITION 317 A sample requisition for extradition. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. Requisition for Extradition Distribution: No Extradition Ordered Distribution: Extradition Ordered Original - Court Original - Court 3rd copy - Sheriff/DOC 1st copy - Defendant (Fugitive) 1st copy - Governor 4th copy - Defendant (Fugitive) Approved, SCAO 2nd copy - Prosecutor 2nd copy - Prosecutor 5th copy - Agent of demanding state STATE OF MICHIGAN CASE NO. JUDICIAL DISTRICT ORDER REGARDING EXTRADITION JUDICIAL CIRCUIT Court address Court telephone no. In the Matter of Defendant's (Fugitive's) name Date of birth Address City State Zip Telephone no. NOTE: This order may be used for either the Uniform Extradition Act or the Interstate Agreement on Detainers proceedings when either a Governor's Warrant or Interstate Agreement on Detainer forms have been filed. ORDER ٗ 1. The defendant has until to file a petition for writ of habeas corpus challenging the legality of his/her arrest or he/she will be ordered extradited. The petition must specify the grounds for the challenge. A hearing on the petition is scheduled for at at . ٗ 2. The defendant has not shown his/her arrest is illegal and is to be turned over to the agents of County, . ٗ 3. The defendant has shown that his/her arrest is illegal and is to be released from this charge. Date Judge Bar no. This order must be sealed with the seal of the court. Date Day and date Time Location State Send Governor's copy to: Governor's Office Attention: Extradition Officer Legal Division Olds Plaza 111 S. Capitol Lansing, MI MC 270 (03/09) ORDER REGARDING EXTRADITION MCL 780.9; MSA 27.1285(9) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 318 EXTRADITION . extradition procedures. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 316 EXTRA Article IV, Section 2, of the U.S. Constitu- tion provides that upon the demand of the governor of the prosecuting. d is for the officer to receive a fee before it is due. The crime is committed regardless of whether the sum taken is likely to become due in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EXTORTION. Critique of Richard Posner.” New York Law School Law Review 44 (summer-fall). Friedman, Lawrence M. 2002. “Name Robbers: Privacy, Blackmail, and Assorted Matters in Legal History.” Hofstra Law Review