Although the specialty principle was not specifically enumerated in the treaty that allowed the extradition, the U.S. Supreme Court held that an accused “shall not be arrested or tried for any other offense than that with which he was charged in those proceedings.” Extradition treaties often provide exceptions under which a nation can refuse to surrender a fugitive sought by another nation. Many nations will not extradite persons charged with certain political offenses, such as TREASON, SEDITION, and ESPIONAGE. Refusal to extradite under such circumstances is based on the policy that a nation that disagrees with or disapproves of another nation’s political system will be reluc- tant to return for prosecution a dissident who likewise has been critical of the other nation. But, of course, not every criminal act will necessarily be protected. For example, some treaties provide that certain crimes, such as the ASSASSINATION of a head of a foreign government, do not constitute political offenses that are exempt from extradition. The rise in airplane HIJACKING, TERRORISM, and hostage taking in the late twentieth century led many nations to enter into multilateral conventions in which the signing countries mutually agreed to extradite individuals who committed such crimes. Since the 1980s, the international extradition process has been viewed by law enforcement authorities as too time-consuming, expens ive, and compl icated. It has also been criticized for frequently failing to bring fugitives to justice. As a result, some countries, including the United States, have turned to ABDUCTION to return a fugitive to a nation to be tried. Although its legality is questionable, abduction has sometimes been justified to combat drug trafficking and to ensure national security. In 1989, for example, the United States invaded Panama in an attempt to bring General Manuel Noriega to the United States to face charges related to drug trafficking. The George H. W. Bush administration asserted that the invasion was necessary to protect national interests in the Panama Canal and to prevent an armed attack by Panama. Noriega was eventually brought to the United States to stand trial, where he contested the validity of the federal district court’s jurisdiction over him (United States v. Noriega, 746 F. Supp. 1506 [S.D. Fla. 1990]). The court rejected his contention, holding that Noriega could be tried in the United States, despite the means that were used to bring him to trial. The court declined to address the underlying legality of Noriega’s capture, concluding that, as an unrecognized head of state, Noriega lacked standing (the LEGAL RIGHT) to challenge the invasion as a violation of INTERNATIONAL LAW in the absence of protests from the legitimate government of Panama over the charges leveled against him. In United States v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992), the Supreme Court held that Humberto Alvarez-Machain’s forcible abduction did not prohibit his criminal trial in the United States. Alvarez, a citizen of Mexico and a physician, was accused by the U.S. government of participating in the KIDNAPPING, torture, and MURDER of a U.S. DRUG ENFORCEMENT ADMINISTRA- TION agent and the agent’s airplane pilot, and was indicted for these crimes. Alvarez was later kidnapped from his office and flown by private plane to El Paso, Texas. The Mexican govern- ment objected to the abduction and protested it as a violation of the extra dition treaty between the United States and Mexico. It asked that the law enforcement agents responsible for the kidnapping be extradited to Mexico, but the United States refused to do so. Alvarez sought to dismiss the INDICTMENT, claiming that the federal district court lacked jurisdiction to try him because his abduction Manuel Noriega was brought to the United States to stand trial after a U.S. invasion of Panama, not through standard extradition procedures. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EXTRADITION 319 violated the extradition treaty. The district court agreed and dismissed the indictment. The U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the abduction violated the treaty’s underlying purpose of providing a legal means for bringing a person to the United States to face criminal charges. On appeal, the U.S. Supreme Court rejected the lower courts’ use of the treaty as the basis for prohibiting Alvarez’s trial. Justice WILLIAM H. REHNQUIST, writing for the majority, found in the treaty no provisions stating that abductions were forbidden. He further maintained that the treaty was “not the only way in which one country may gain custody of a national of the other country for the purposes of prosecution.” Thus, he concluded, the ab duction did not prohibit Alvarez’s trial in a U.S. court on criminal charges. Justice JOHN PAUL STEVENS filed a strong dissenting opinion in which Justices HARRY BLACKMUN and Sandra Day O’Connor joined. According to the dissent, Alvarez’s abduction was a gross violation of international law, intruding on the territorial integrity of Mexico. Other nations have also struggled with high- profile extradition cases. For example, in 2000 officials in Britain refused to extradite former Chilean dictator Augusto Pinochet to Spain where he would face trial f or thousands of murders and other atrocities during his rule from 1973 to 1990. Whereas Pinochet had absolute IMMUNITY from prosec ution in Chile, other nations, including Spain, were free to charge him with his alleged crimes. When Britain refused to extradite him, he was able to return to Chile and avoid prosecution. Roman Polanski I B n 1977, Polish film director Roman Polanski fled the United States after pleading guilty to statutory rape. The 13-year-old girl had accused Polanski of sexually assaulting her during a photo shoot, but her parents convinced prosecutors to reduce the charge to statutory rape so she would not have to testify at trial. Polanski served 42 days in jail prior to his plea, but fled to France after learning from his lawyer that the judge intended to sentence him to additional prison time. After leaving the United States, Polanski continued to be a successful film and theater director, as w ell as an opera producer. He became a French citizen. The state of California issued an arrest warran t after he left and a European arrest warrant was issued in 2005. Polanski was safe in France and only visited countries that were unlikely to extradite him to the United States. Therefore, it was surprising that Swiss police arrested him in September 2009, at the request of U.S. authorities. Polanski owns a chalet in Switzerland and has vi sited it numerous times over the years. Polanski has always claimed he left the United States because of prosecutorial an d judicial misconduct. In February 2009, his lawyers asked a California trial ju dge to throw out his case based on these grounds. Though the judge agreed that there was “substantial” misconduct surrounding the 1977 prosecution, he declined to grant the motion because of the principle of fugitive disentitlemen t. This nineteenth-century doctrine holds that a defendant who disobeys the law by fleeing a jurisdiction c annot then ask the court for help. Polanski would have to return to the state to make his case. Polanski appealed this decision, and the California Court of Appeals heard oral argu- ments in December 2009. In another twist, his victim, now aged 42, asked the court to throw out Polanski’s conviction, stating that the publicity surrounding the case had disrupted he r family life and health. Swiss authorities jailed Polanski and refused numerous requests from him to post bail. They considered him a flight risk. Finally, in late November 2009, the Swiss court agreed to release Polanski after he posted $4.5 million bail and agreed to stay in his chalet with electronic monitoring. Legal commentators were surprised that bail was granted, given his record of fleeing justice. Moreover, now that Polanski was out of jail, it waslikelyhewoulddoeverythingpossibletoslow down the extradition process. 320 EXTRADITION FURTHER READINGS Homrig, Brigette Belton. “Abduction as an Alternative to Extradition—A Dangerous Method to Obtain Jurisdic- tion over Criminal Defendants.” 1993. Wake Forest Law Review 28. Marcus, Paul. 2001. Criminal Procedure in Practice. Notre Dame, IN: National Institute for Trial Advocacy. McWhirter, Robert James. 2006. The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers. 2d ed. Chicago: American Bar Association. CROSS REFERENCES Fugitive from Justice; Jurisdiction; Presidential Powers; Trial. EXTRAJUDICIAL That which is done, given, or effected outside the course of regular judicial proceedings. Not founded upon, or unconnected with, the action of a court of law, as in extrajudicial evidence or an extrajudi- cial oath. That which, though done in the course of regular judicial proceedings, is unnecessary to such proceedings, or interpolated, or beyond their scope, as in an extrajudicial opinion. An extrajudicial statement is an out-of-court utterance, either written or oral. When offered into court as evidence, it is subject to the hearsay rule and its exceptions. An extrajudicial oath is one that is not taken during judicial proceedings but taken formally before a proper officer or magistrate, such as a NOTARY PUBLIC. EXTRAORDINARY REMEDY The designation given to such writs as habeas corpus, mandamus, and quo warranto, deter- mined in special proceedings and granted only where absolutely necessary to protect the legal rights of a party in a particular case, as opposed to the customary relief obtained by the maintenance of an action. Most states have eliminated extraordinary remedies. The relief formerly provided by them can be sought through an ordinary actio n. EXTRATERRITORIALITY The operation of laws upon persons existing beyond the limits of the enacting state or nation but who are still amenable to its laws. Jurisdiction exercised by a nation in other countries by treaty, or by its own ministers or consuls in foreign lands. In INTERNATIONAL LAW, extraterritoriality exempts certain diplomatic agencies and per- sons operating in a foreign country from the jurisdiction of the host country. Instead, the agency or individual remains accountable to the laws of the native country. The effects of extraterritoriality extend to troops in passage, passengers on war vessels, individuals on mission premises, and other agencies and persons. The concept of extraterritoriality stems from the writings of French legal theorist and jurist Pierre Ayraut (1536–1601), who proposed the theory that certain persons and things, while within the territory of a foreign sovereign, remained outside the reach of local judicial process. Classical writers such as HUGO GROTIUS (1583–1645) and Samuel von Pufendorf (1632– 94) gave Ayraut’s ideas greater circulation. In 1788, the multilingual translation of Georg Friederich von Martens’s Summary of the Law of Nations put the actual word extraterritoriality into the international vocabulary. Extraterritoriality for ambassadors and other diplomatic representatives gained widespread acceptance during the reign of Queen Anne of Great Britain (1665–1714). In this period, British officials arrested a Russian ambassador who had run up substantial debt to the British government. An international incident ensued as Russian officials and others throughout the world objected to Britain’s disregard for the diplomat’s immunity. Because of the outcry, Britain passed the Act Preserving the Privileges of Ambassadors in 1708. Other nations followed Britain’s example, and the United States enacted an essentially identical statute in 1790. In the modern world, the UNITED NATIONS has held a key position in upholding extraterri- torial law. In a 1961 agreement made in Vienna, the U.N. Conference on Diplomatic Intercourse and Immunities extended exemp- tion from the laws of host countries to the staff and family of DIPLOMATIC AGENTS.In addition, officials of the United Nations and the members of the delegations of its member states receive extensive procedural, fiscal, and other immunities from the jurisdiction of the host country. Separate and special arrangements govern the United States and Switzerland because the United States hosts the U.N. headquarters and Switzerland has U.N. offices in Geneva. EXTRATERRITORIALITY 321 The general laws binding nations to extra- territorial agreements still rest on principle more than established order. The modern, global marketplace has put an additional dimension into extraterritoriality. The United States has consistently held that unless interna- tional jurisdiction conflicts are managed or mitigated, they have the potential to interfere seriously with the smooth functioning of international economic relations. The United States has therefore declared that it cannot disclaim its authority to act where needed in defense of its national security, foreign policy, or law enforcement interests. The policies of the United States with respect to extra territoriality have caused crises in other nations. In 2002, two U.S. servicemen allegedly killed two young girls in a traffic accident in South Korea. Despite protests from South Koreans to have the servicemen tried in a Korean court, the soldiers were tried—and acquitted—by a U.S. military court. The treatment of the men caused anti-American protests throughout South Korea FURTHER READINGS Castel, Jean-Gabriel. 1988. Extraterritoriality in International Trade. Toronto: Butterworths. Fairley, H. Scott. 2008. “Introduction to: Perspectives on Universal Jurisdiction, Extraterritoriality and the Future of Alien Tort Statute Litigation.” American Bar Association. Available online at http://www.abanet.org/ intlaw/spring08/materials/Fairley%20-%20Introduc- tion.pdf; website home page: http://www.abanet.org (accessed September 2, 2009). Hermann, A. H. 1982. Conflicts of National Laws with International Business Activities: Issue of Extraterritoriality. London: British-North American Committee. Kaiser, Hanno, David Fischer, and Manfred Gabriel. 2009. “Archive for the ‘Extraterritoriality’ Category.” Antitrust Review (February 23). CROSS REFERENCES Ambassadors and Consuls; Diplomatic Agents; Diplomatic Immunity. EXTREMIS A description of the state of being ill beyond the hope of recovery, with death imminent. An individual who is so seriously ill as to be dying is said to be in extremis. EXTRINSIC EVIDENCE Facts or information not embodied in a written agreement such as a will, trust, or contract. Extrinsic evidence is similar to extraneous evidence, which is not furnished by the document in and of itself but is derived from external sources. In contract law, PAROL EVIDENCE is extrinsic evidence since it is not within a contract but, rather, is oral and outside the instrument. CROSS REFERENCE Parol Evidence. EYEWITNESS An individual who was present during an event and is called by a party in a lawsuit to testify as to what he or she observed. The state and FEDERAL RULES OF EVIDENCE, which govern the admissibility of evidence in civil actions and criminal proceedings, impose requirements that must be met before the testimony of an eyewitness can be presented during trial. For example, an eyewitness must be COMPETENT (legally fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the controverted event occurred will be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence. 322 EXTREMIS FAA See FEDERAL AVIATION ADMINISTRATION. FACE The external appearance or surface of anything; that which is readily observable by a spectator. The words contained in a document in their plain or obvious meaning without regard to external evidence or facts. The term is applied most frequently in business law to mean the apparent meaning of a contract, paper, bill, bond, record, or other such legal document. A document might appear to be valid on its face, but circumstances may modify or explain it, and its meaning or validity can be altered. FACE VALUE A readily ascertainable amount of money deter- minable from the words of a written instrument alone without the aid of any other source. The face value of an instrument such as a financial document is only the amount shown on it, without the inclusion of interest or fees customarily added or reference to its actual market value. FACSIMILE An exact replica of a document that is copied so as to preserve all its original marks and notations. FACT Incident, act, event, or circumstance. A fact is something that has already been done or an action in process. It is an event that has definitely and actually taken place, and is distinguishable from a suspicion, innuendo, or supposition. A fact is a truth as opposed to fiction or mistake. A QUESTION OF FACT in litigation is concerned with what actually took place. During a trial, questions of fact are generally left for the jury to determine after each opposing side has pre- sented its case. By contrast, a QUESTION OF LAW is ordinarily decided by a judge, who must deal with applicable legal rules and principles that affect what transpired. FACT AND LAW A term used to denote issues or events that have taken place and the legal jurisdiction that governs how they areviewed. Fact in legal terms, is the event, while law refers to the actual rules that determine how facts are viewed by the courts. Lawyers and courts may separate fact and law to differentiate them; thus, a question of fact concerns the actual events of a case as they might be examined by a jury, while a question of law focuses on the legal rule s and principles as determined by a judge, and applied to the facts by a jury. FACT SITUATION A concise description of all the occurrences or circumstances of a particular case, without any F 323 discussion of their consequences under the law. The fact situation, sometimes referred to as a fact pattern, is a summary of what took place in a case for which relief is sought. The fact situation of one case is alm ost always distinguishable from that of another case. When one case with a particular fact situation has been decided, an attorney may use it as precedent and relate it to another similar case on which he or she is currently working. FACTOR An event, circumstance, influence, or element that plays a part in bringing about a result. A factor in a case contributes to its causation or outcome. In the area of NEGLIGENCE law, the factors,orchain of causation, are imp ortant in determining whether liability ensues from a particular action done by the DEFENDANT. FACTORS People who are employed by others to sell or purchase goods, who are entrusted with possession of the goods, and who are compensated by either a commission or a fixed salary. A factor is a type of agent who sells goods owned by another, called a principal. The fact or engages more frequently in the sale of merchan- dise than the purchase of goods. A factor is distinguished from a mere agent in that a factor must have possession of the principal’s property, while an agent need not. The factor-principal relationship is created by a contract. Both parties are expected to comply with the terms of the agreement. The contract is terminable by the factor, by the principal, or by OPERATION OF LAW. The merchandise entrusted to the factor is called a consignment, and a factor is often synonymously called a consig nee. The factor is sometimes referred to as a commission mer- chant when his or her compensation is based on a percentage of the sale price. Factorage is defined as the compensation paid to factors. A home factor is the name given to a factor who resides in the same state or country as the principal; a foreign factor is one who lives in a state or country other than that of the principal. Factor-Principal Relationship Absent any special authority, a factor can bind the principal only in the ordinary course of business. The factor cannot delegate his or her duty to another individual without the knowl- edge and consent of the principal, unless custom and usage allow otherwise. He or she has the implied power to do everything reasonably necessary to sell the goods entrusted to him or her, and may even make the sale in his or her own name without disclosing the name of the principal. The factor has the power to receive payment and to give a receipt to the purchaser. There is no authority given to the factor to use the goods for personal benefit, to make an exchange for other merchandise, to cancel a completed sale, or to extend the time of payment after a sale. A factor must exercise reasonable care, skill, and diligence in selling the goods and is responsible for losses resulting from failure to meet this standard. He has a duty to act with GOOD FAITH and loyalty for the protection and advancement of the interests of the principal and may not make a secret profit for himself. Unless the principal agrees, the factor may not purchase the merchandise. The factor must faithfully execute the principal’s instructions and is liable for any loss resulting from failure to do so. No liability will be imposed if the instructions are vague, ambiguous, impossible to perform, or illegal, or if the factor is obstructed from following them due to NO FAULT of his or her own. The factor has a duty to inform the principal of any events that necessitate taking protective mea- sures to ensure the safety of the goods; this stems from the obligation to care for the goods. A factor who cares for the merchandise in a reasonable manner is not responsible for business losses not due to his fault. He must not mingle the principal’s goods with his own or with those of other people. The factor has the authority to insure the goods and may do so in his name. He must obtain insurance when instructed to do so by the principal, by the purchaser, or when custom imposes that obligation and must exercise reasonable pru- dence and diligence in securing adequate insurance coverage. In the absence of specific instructions, a factor may sell in such a manner and on such terms as he considers appropriate, generally within a REASONABLE TIME and at his business establishment. When the time and location of the sale are specified in the agreement, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 324 FACTOR factor must exercise reasonable diligence to sell within the allotted time or at the authorized place. If the principal fails to designate a desired price, the factor then has an obligation to sell with reasonable skill and diligence so as to obtain the highest price possible in the current market. When instructed to sell at a specified price, he must do so, barring some unforesee- able event. Goods are generally sold for cash upon delivery. When instructed to sell on credit, a factor must exercise reasonable care and secure collateral to ensure payments. He is not liable for any loss with regard to payment that occurs through no fault of his own, unless he specifically is made liable in the contract with the principal. Authority to arrange credit terms customary in the market in which the goods are sold is i mplied. The factor must ascertain the financial stability of a purchaser on credit and must diligently advise the principal of any adverse change in the creditor’s financial standing. He has no duty to divulge the name of a purchaser who buys on credit unless the information is needed for the principal to act on the sale. Reasonable care and diligence must be taken in collecting the price of merchandise sold on credit. A factor must account to the principal for the proceeds and apply them in the instructed manner. He or she must not commingle the proceeds with his or her own money or with the funds of another, unless there is an existing custom of COMMINGLING to which the principal consents. The proceeds are held subject to the principal’s direction and, unless required by agreement or prior COURSE OF DEALING , it is not necessary for the factor to immediately tender them. A factor is liable to the principal when he deals with the goods in a manner that is inconsistent with the right of the principal. A violation of instructions, breach of duty, misconduct, and FRAUD are grounds upon which the principal may recover for damages incurred. Interest is recoverable if the factor delays in remitting payment for goods after a sale. There is a duty to keep regular and accurate accounts of all transactions, and the principal has a right to inspect the accounts. A factor has no authority to settle a claim against the principal, to subm it a claim to ARBITRATION,or to reship goods to another market in order to sell them. He may, however, give a warranty with respect to the quality of the goods. States regulate the activities of a factor by requiring licenses and imposing taxes. To ensure the diligent performance of duties, some states have a factor post a bond before being allowed to conduct his business. The primary purpose of the regulation is to protect persons who dea l with factors against dishonest or unscrupulous person s. Compensation for Services Compensation is a contractual right, and, subject to the terms and conditions of the agreement, commissions are paid when a sale is made. When an express agreement or statute does not fix the amount of compensation, the factor is entitled to the just and reasonable remuneration customarily charged for these services. In the absence of a customary rate, the factor has a right to receive a fee that is fair and reasonable. Acts of fraud, misconduct, GROSS NEGLIGENCE, and breach of contract would cause the factor to forfeit the right to compen- sation. The advancement of money due for the cost of freight depends on the contract or course of dealing between the factor and principal. When a factor advances funds in connection with the goods in his care and is not reimbursed by the principal, the factor has a right to sell the goods in order to satisfy the expenditures. Any excess must be returned to the principal. The factor is entitled to interest on any advances but forfeits the right to reimbursement and interest if his NEGLIGENCE, fraud, or misconduct results in a loss for the principal. Enforcement A factor has a general LIEN for all commissions due him and for all expenditures, including advances plus interest, properly incurred. A factor’s lien secures the compensation, expenses, advances, and liabilities incurred by him for the principal. A factor is not entitled to a lien unless he has fulfilled all contractual and statutory requirements. He must have actual or constructive possessio n of the goods before the lien attaches; and if the factor has constructive possession of the goods, he must have control over the property before a lien attaches. Once attached, a lien is waived only by express terms or by clear implication, such as when the factor acts in a manner that is inconsistent with its GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FACTORS 325 continuance. Fraud or misconduct in transact- ing the principal’s business are other grounds for waiving a lien. A factor may enforce his lien by retaining the entrusted property until his claims are liquidated, or he may sell the goods in order to satisfy his claims, returning any excess to the principal. FACTUM [Latin, Fact, act, or deed.] A fact in evidence, which is generally the central or primary fact upon which a controversy will be decided. FAILURE OF CONSIDERATION As applied to contracts, this term does not necessarily mean a want of consideration, but implies that a consideration, originally existing and good , has since become worthless or has ceased to exist or been extinguished, partially or entirely. It means that sufficient consideration was contemplated by the parties at the time the contract was entered into, but either on account of some innate defect in the thing to be given, or nonperformance in whole or in part of that which the promisee agreed to do, nothing of value can be or is received by the promisee. FAILURE OF ISSUE Dying without having any children or without surviving children. Children are commonly referred to at law as issue of a marriage. Whether or not a person has any issue becomes important in determining the heirs upon his or her death. FAILURE TO STATE A CLAIM Within a judicial forum, the failure to present sufficient facts which, if taken as true, would indicate that any violation of law occurred or that the claimant is entitled to a legal remedy. Failure to state a claim is frequently raised as a defense in civil litigation. In some jurisdic- tions, such as California, the defense is called a DEMURRER. The successful invocation of this defense will result in the dismissal of the case. Courts will not dismiss a complaint in which the PLAINTIFF has a legal basis for a claim but has made a technical error that renders the complaint invalid. In such a case, courts allow the PETITIONER to amend the complaint. The defense of failure to state a claim is provided for in Federal Rule of CIVIL PROCEDURE 12(b)(6) and in similar state court rules. Rule 12 (b) states that defenses should be presented in the defendant’s response to the complaint. However, the rule allows some defenses to be asserted in a separate motion to the court, including the defense that the plaintiff does not state a claim upon which relief can be granted. The purpose of theseexceptions is toallow a DEFENDANT torespond to procedural flaws in the filing of the complaint without responding to the merits of the case. Allowing the defendant to respond in a separate motion also allows the court to dismiss quickly civil claims that are without legal merit. Dawson v. Wilheit, 735 P.2d 93 (1987), illustrates the dismissal of a suit for failure to state a claim. In Dawson, the plaintiff brought The Tudor line of English monarchs ended in 1603 when Queen Elizabeth I died wiithout issue. She was succeeded by her cousin, King James VI of Scotland, who became James I of England. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 326 FACTUM suit against Farmington, New Mexico, police officers as well as the city of Farmington and a vehicle-towing service. The suit was based on a chain of events that had begun on November 20, 1983, when the son of the plaintiff had been killed by two men, who had placed his body in the trunk of a car owned by one of the men. Shortly thereafter, the car owner had been arrested for driving while intoxicated. Under police department policy, a police officer should have conducted an inventory of the vehicle with an employee of the towing service, but this did not happen. After his release from jail on the drunk-driving charge, the car owner drove away from the lot and dumped the body in a remote area, where it was not discovered for six months. The plaintiffs sued, seeking COMPENSATORY DAMAGES for negligent infliction of emotional distress caused by the failure to conduct an inventory and the resulting delay in finding the body. The district court dismissed the com- plaint on the ground that the plaintiffs had failed to state a claim. On appeal, the Court of Appeals of New Mexico affirmed the dismissal. Under basic NEGLIGENCE law, no person may be liable for the injuries of another unless he or she breached a duty of care owed to the victim. According to the state’s high court, the police department’s inventory policy was in place to protect the police and towing company from claims of THEFT, and the police owed no duty to the plaintiffs to find a body when they were unaware of a killing. Thus, the plaintiffs had no basis for their complaint, and their case had been rightly dismissed for failure to state a claim. FAIR COMMENT A form of qualified privilege applied to news media publications relating to discussio n of matters that are of legitimate concern to the community as a whole because they materially affect the interests of all the community. A term used in the defense of libel actions, applying to statements made by a writer (e.g., in the news media) in an honest belief in their truth, relating to official acts, even though the statements are not true in fact. Fair comment must be based on facts truly stated, must not contain imputations of corrupt or dishonorable motives except as war- ranted by the facts, and must be an honest expression of the writer’s real opinion. Fair comment is a privilege under the FIRST AMENDMENT to the Constitution and also applies to invasions of the right of privacy. In order for a statement to fall into the category of a fair comment, it must not extend beyond matt ers of concern to the public. It must be a mere expression of the opinion of the commentator. CROSS REFERENCE Freedom of the Press. FAIR CREDIT REPORTING ACT The Fair Credit Reporting Act (FCRA) is legislation embodied in title VI of the CONSUMER CREDIT PROTECTION ACT (15 U.S.C.A. § 1681 et seq. [1968]), which was enacted by Congress in 1970 to ensure that reporting activities relating to various consumer transactions are conducted in a manner that is fair to the affected individual, and to prote ct the consu- mer’s right to privacy against the informational demands of a credit reporting company. FCRA represents the first federal regulation of the consumer reporting industry, covering all credit bureaus, investigative reporting compa- nies, detective and collection agencies, lenders’ exchanges, and computerized information reporting companies. The consumer is guaranteed several rights under the FCRA, including the right to a notice of reporting activities, the right of acces s to information contained in consumer reports, and the right to the correction of erroneous information that may have been the basis for a denial of credit, insurance, or employment. When a consumer is denied an extension of credit, insurance, or employment owing to information contained in a credit report, the consumer must be given the name and address of the CREDIT BUREAU that furnished the credit report. Consumers are also entitled to see any report that led to a denial, but agencies are not required to disclose risk scores to them. Risk scores (or other numerical evaluation, however named) are assigned by consumer reporting agencies to help clients interpret the agency’s report. Credit agencies may not report adverse information older than seven years or bank- ruptcies older than ten years. The provisions of the FCRA apply to any report by an agency relating to a con- sumer’s creditworthiness, credit standing, credit capacity, charact er, general reputation, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FAIR CREDIT REPORTING ACT 327 personal characteristics, or mode of living. The FCRA covers information that is used or expected to be used in whole or part as a factor in establishing the consumer’s eligibility for one of four purposes: (1) employment; (2) credit or insurance for personal, family, or household use; (3) government benefits and licenses to operate partic ular businesses or practice a profession; and (4) other legitimate business needs. Under the FCRA, an agency may also furnish a report in response to a court order or a federal GRAND JURY SUBPOENA,toawritten authorization from the consumer, or t o a summons from the INTERNAL REVENUE SERVICE. The FCRA creates civil liability for consumer reporting agencies and users of consumer reports that fail to comply with its requirements. For example, the Joneses, owners and operators of a real estate APPRAISAL business, sued a consumer reporting agency under the FCRA. The Joneses claimed that the agency incorrectly reported a judgment against their business. The Supreme Court of Appeals upheld a jury’s award, which included compensatory and PUNITIVE DAMAGES (Jones v. Credit Bureau of Huntington, Inc., 184 W.Va. 112, 399 S.E.2d 694 [1990]). A consumer reporting agency includes any person or corpo- ration that, for monetary fees, dues, or on a cooperative nonprofit basis, regularly assembles or evaluates credit information or other infor- mation on consumers for the purpose of furnishing consumer reports to third parties, and uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. A retail depart- ment store or another comparable business that furnishes information to consumer reporting agencies based on its experience with consumers is not considered a consumer reporting agency under the FCRA (DiGianni v. Stern’s, 26 F.3d 346 [2d Cir. 1994], cert. denied, 513 U.S. 897, 115 S. Ct. 252, 130 L. Ed. 2d 173). Since its enactment, the FCRA has not undergone major reform. However, legislation has been proposed to address the issues that have arisen from a technological explosion created by a large increase in consumer debt and the information that it generates. In addition, states have enacted comparable sta- tutes covering consumer’s ri ghts. FURTHER READINGS Askew, Kim J. 2001. “The Fair Credit Reporting Act: Congress Expands the Privacy Rights of Employees.” Corporate Counsel’s Quarterly 17 (April). “Bank’s Reporting to a Local Credit Bureau of Its Own Credit Experience with a Delinquent Borrower Was Not Covered by the Fair Credit Reporting Act.” 1995. The Banking Law Journal. Blair, Roger D., and Virginia G. Maurer. 1984. “Statute Law and Common Law: The Fair Credit Reporting Act.” Missouri Law Review 49 (spring). Jacquez, Albert S., and Amy S. Friend. 1993. “The Fair Credit Reporting Act: Is It Fair for Consumers?” Loyola Consumer Law Reporter. Jamer, C.T. 1998. “The SEC Speaks.” Practising Law Institute. Corporate Law and Practice Course Hand- book Series. Porter, J. Isaac. 1994. “Protecting against Disclosure of Consumer Data: A Complicated Issue.” Banking Policy Report. Worsley, David E. 2002. “Fair Credit Reporting Cases Illustrate Risks for Credit Reporting Agencies, Cred- itors, and Lawyers.” Consumer Finance Law Quarterly Report 56 (winter). CROSS REFERENCES Consumer Credit; Consumer Protection. FAIR HEARING A judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality. During a fair hearing, authority is exercised according to the principle of DUE PROCESS OF LAW. Fair hearing means that an individual will have an opportunity to present evidence to support his or her case and to discover what evidence exists against him or her. In CRIMINAL LAW, when an individual is arrested, a fair hearing means the right to be notified of the charge being brought against him or her and the chance to meet that charge. In order for a hearing to be fair and comply with due process requirements, it must be held before an impartial tribunal; however, a hearing can be unfair without any intention that it be that way. A fair hearing must provide a rea- sonable opportunity for an individual to be present at the designated time and place, during which time he or she may offer evidence, cross- examine opposition WITNESSES, and offer a defense. Formalities of a court action need not be strictly complied with in order for a proceeding to be considered a fair hearing. A fair hearing is not necessarily a fair trial. The hearing might be an administrative one before the IMMIGRATION Board or the NATIONAL LABOR RELATIONS BOARD , for example , but fairness is still required. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 328 FAIR HEARING . King James VI of Scotland, who became James I of England. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 326 FACTUM suit against Farmington, New Mexico, police officers as. business establishment. When the time and location of the sale are specified in the agreement, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 3 24 FACTOR factor must exercise reasonable diligence. implication, such as when the factor acts in a manner that is inconsistent with its GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FACTORS 325 continuance. Fraud or misconduct in transact- ing the