Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P42 docx

Court began revisiting the relationship between state and federal governments on issues other than race relations. In New York v. United States (505 U.S. 144, 112 S. Ct. 2408, 120 L. Ed. 2d 120 [U.S. 1992]), the state of New York brought a suit challenging parts of the Low-Level Radioactive Waste Policy Amendments Act (42 U.S.C.A. § 2021e[d][2][C]). The Supreme Court held that the act’s “take title” provision, which required states either to regulate low-level radioactive waste according to congressional regula- tions or to take ownership of the waste, was unconstitutional. The Court rea- soned that the “take title” provision was outside the authority delegated to Con- gress under the Constitution and that the regulation was an attempt to “compel the States to enact or administer a federal regulatory program.” Such attempts to compel state behavior, the Court said, violate the federal structure of the government as embodied in the Tenth Amendment. Three years later, the Supreme Court invalidated the Gun-Free School Zones Act in United States v. Lopez (514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 [U.S. 1995]). The act had made it a federal offense for any individual to knowingly possess a firearm in a place that the individual knows or has reason- able cause to believe is a school zone (18 U.S.C. § 922[q]). Without explicitly overruling Wickard v. Filburn, the Court ruled that Congress exceeded its authority under the commerce clause, since possession of gun in a local school zone was not economic activity that might, through repetition elsewhere, substan- tially affect any sort of interstate com- merce, and the statute contained no jurisdictional element to ensure, through a case-by-case inquiry, that possession of firearm had any concrete tie to interstate commerce. In Printz v. United States (521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 [U.S. 1997]), a sheriff sought to enjoin provisions of the Brady Handgun Vio- lence Prevention Act (Pub. L. 103-159, 107 Stat. 1536). The act established a system of national instant background checks. Local authorities were required to participate in the system by perform- ing background checks on behalf of the federal government. The Supreme Court ruled that Congress had no authority under the commerce clause to enlist local authorities to enforce the provisions of a federal law. That same year, the Supreme Court continued chipping away at congressio- nal power in Seminole Tribe of Florida v. Florida (517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 [U.S. 1997]), a case in which an Indian tribe filed suit against Florida to compel the state to NEGOTIATE under the federal Indian Gambling Regulatory Act (25 U.S.C. § 2710[d][l7]). The act required states to negotiate in GOOD FAITH towards the creation of a compact between the tribe and the state allowing for certain gambling activities. States could be sued in federal court for violating the act and compelled by federal courts to comply with its mandates. The Supreme Court found that, while Congress intended to abro- gate the states’ sovereign immunity in the statute, the “Eleventh Amendment prohibits Congress from making the states capable of being sued in federal court.” In Florida Prepaid Postsecondary Education Expense Board v. College Sav- ings Bank (527 U.S. 627, 119 S. Ct. 2199, 144 L. Ed. 2d 575 [1999]), the Court ruled that the state of Florida could invoke its sovereign immunity to block federal lawsuits against it by a bank charging it with patent and trademark law violations. In Alden v. Maine (527 U.S 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 [1999]), the Court decided that a group of state employees could not sue their state employer using the provisions of the FAIR LABOR STANDARDS ACT (29 U.S.C.A. 201 et seq.). This was followed by Kimel v. Florida Board of Regents (528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 [2000]), where the Court found that the AGE DISCRIMINATION in Employment Act of 1967 (ADEA) (29 U.S.C.A. §§621-634) did not apply to state governments. Finally, the court invalidated the appli- cation of part of the Americans with Disabilities Act (ADA) (Pub. L. 101-336 [1990]) to state government. In University of Alabama v. Garrett (531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 [2001]), the Court struck down ADA applicability to damage lawsuits involving alleged disabil- ity employment DISCRIMINATION by state governments. Since the ADA decision, the Court has not addressed congressional powers in the context of federalism. All of the decisions, beginning with Seminole Tribe of Florida, were made during the tenure of Chief Justice WILLIAM REHNQUIST. Rehnquist was a legal conservative who championed federalism and sovereign immunity. As of early 2010, it was unclear if the Court would continue to go down this road under the leadership of Chief Justice JOHN ROBERTS. Some commentators contend that these decisions are likely to have minimal lasting effect. Congress has at its disposal, these commentators argue, a variety of mechanisms by which it can blunt the effects of these rulings. For example, Congress can fund studies that will offer proof that the subject matter of proposed federal laws intimately touch upon interstate commerce, thereby defeating in advance any arguments to the con- trary. In the wake of the SEPTEMBER 11, 2001, TERRORIST ATTACKS in New York City and Washington, D.C., other commen- tators predicted that the pendulum of federalism would swing in the other direction to allow the federal government to more adequately address concerns over homeland security. FURTHER READINGS “Commerce Clause: Past, Present, and Fu- ture.” 2003. Arkansas Law Review 55 (winter). “Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future.” 2003. Indiana Law Journal 78 (winter-spring). “Conservative Judicial Activism.” 2002. University of Colorado Law Review 73 (fall). “Federalism and Rights.” 2002. Human Rights. 29 (fall). “Perspectives: Federal Jurisprudence, State Autonomy.” 2003. Albany Law Review 66 (spring). CROSS REFERENCE States’ Rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEDERALISM 399 Tanielian, Matthew J. 1995. “Separation of Powers and the Supreme Court: One Doctrine, Two Visions.” Admin- istrative Law Journal of the American University. 8 (winter). Vause, W. Gary. 1995. “The Subsidiarity Principle in European Union Law—American Federalism Com- pared.” Case Western Reserve Journal of International Law 27 (winter). Wiessner, Siegfried. 1993. “Federalism: An Architecture for Freedom.” New Europe Law Review 1 (spring). CROSS REFERENCES Commerce Clause; Constitution of the United States; Original Intent. FEDERALIST PAPERS A collection of 85 essays by Alexander Hamilton (1755–1804), James Madison (1751–1836), and John Jay (1745–1829) that explain the philosophy and defend the advantages of the U.S. Constitution. The essays that constitute The Federalist Papers were published in various New York newspapers between October 27, 1787, and August 16, 1788, and appeared in book form in March and May 1788. They remain important statements of U.S. political and legal philosophy as well as a key source for understanding the U.S. Constitution. The Federalist Papers originated in a conten- tious debate over RATIFICATION of the U.S. Constitution. After its completion by the Constitutional Convention on September 17, 1787, the Constitution required ratification by nine states before it could become effective. A group known as the Federalists favored passage of the Constitution, and the Anti-Federalists opposed it. To secure its ratification in New York State, Federalists Hamilton, Madison, and Jay pub- lished the Federalist essays under the pseudo- nym Publius, a name taken from Publius Valerius Poplicola, a leading politician of the ancient Roman republic. Their purpose was to clarify and explain the provisions of the Constitution, expounding its benefits over the existing system of government under the ARTICLES OF CONFEDERATION. Hamilton, a New Yorker who served as treasury secretary under President GEORGE WASHINGTON from 1789 to 1795, was the principal architect of The Federalist Papers. Hamilton conceived the idea for the book and enlisted the aid of Madison and Jay. He is thought to have written fifty-one of the essays: numbers 1, 6–9, 11–13, 15–17, 21–36, 59– 61, and 65–85. Madison, who served two terms as the PRESIDENT OF THE UNITED STATES, from 1809 to 1817, probably authored twenty-six of the papers: 10, 14, 37–58, and 62–63. Madison and Hamilton probably wrote papers 18–20 together. Jay, who sat as the first chief justice of the U.S. Supreme Court, from 1789 to 1795, wrote five essays: 2–5 and 64. The essays presented a number of argu- ments with great importa nce for the founding of the U.S. government. They forcefully made the case for a strong union between the states (numbers 1–14); the ineffectiveness of the Articles of CONFEDERATION (15–22); the advan- tages of a strong, or “energetic,” central government (23–36); and a republican govern- ment’s ability to provide political stability as well as liberty (35–51). The later essays exam- ined the roles of the three branches of government—the legislative (52–66), the exec- utive (67–77), and the judicial (78–83)—as well as the issue of a BILL OF RIGHTS (84). The last essay consists of a closing summary (85). In making their arguments, the authors also discussed the benefits of federalism, under which the state and federal governments would each have a distinct sphere of power. Several of the essays have been especially influential in U.S. political history and philoso- phy. The most famous, Federalist, no. 10, by Madison, concerns the dangers and remedies of factionalism for a republic an government. Madison, seeking a “republic an remedy for the diseases most in cident to republican govern- ment,” argued that a large republic of the kind envisioned by the Constitution will be less likely to fall victim to disputes between different factions than will a small republic. Here and in essay 51, Madison claimed that the diversity, or “plurality,” of interests that exist in a large commercial republic will prevent any one faction from uniting to deprive the rights of a smaller faction. The essays on the role of the federal judiciary have had a lasting influence on U.S. law. Essay 78 contains an important defense of the principle of JUDICIAL REVIEW, the power that allows the U.S. Supreme Court to strike down laws passed by Congress. In number 80, Hamilton argued for the establishment of a system of federal courts separate from state courts, an idea that was realized several years later. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 400 FEDERALIST PAPERS Federalist, No. 78, and the Power of the Judiciary “W B e proceed now to an examination of the judiciary department of the proposed government.” So begins Federalist, no. 78, the first of six essays by Alexander Hamilton on the role of the judiciary in the government established by t he U.S. Constitution. Hamilton made two principal points in the essay. First, he argued for the indep endence of the judiciary from the other two branches of govern- ment, the executive and the legislative. In present- ingacaseforthejudiciary,hereachedhissecond major conclusion: that the judiciary must be empowered to strike down laws passed by Con- gress that it deems “contrary to the manifest tenor of the Constitution.” In presenting his argument for the indepen- dence of the judiciary, Hamilton claimed that it was by far the weakest of the three branches. It did not, he said, have the “sword” of the executive, who is commander in chief of the nation’sarmed forces, nor the “purse” of the legislature, which approves all the tax and spending measures of the national government. It had, according to Hamilton, “neither FORCE nor WILL but merely judgment.” As a result of this weakness, the U.S. Constitu- tion protects the judiciary from the other two branches by what Hamil ton called “permanency in office.” Article III, Section 1, of the Constitution declares, “Judges shall hold their Office s during good Behaviour.” By making the tenure of federal judges permanent and not temporary, Hamilton argued, the Constitution ensures tha t judges will not be change d according to the interests or whims of another branch of govern- ment. According to Hamilton, permanent tenure also recognizes the complexity of the law in a free society. Few people, he believed, will have the knowledge and the integrity to ju dge the law, and those deemed adequate to the office mu st be retained rather than replaced. The judiciary must also be independent, according to Hamilton, so that i t may fulfill its main purpose in a constitutional government: the protec- tion of the “particular rights or privileges” of the people a s set forth by the Constitution. Here, Hamilton made his second major point. To protect those rights, he procl aimed, the judiciary must be given the power of judicial review to declare as null and void laws that it de ems unconstitutional . Critics of the Constitution claimed that judicial review gave the ju diciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no. 78, by arguing that both branches are inferior to the power of the people and that the judiciary’s role is to ensure that the legislature remains a “servant” of the Constitution and the people who created it, not a “master”: There is no position which depends on clearer principles than that every act of a delegated authority, con trary to the tenor of the commi ssion under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, c an be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves. Although judicial review is not explicitly men- tioned in the Constitution, the U.S. Supreme Court established the legitimacy of the concept when it struck down an act of Congress in the 1803 case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. The courts had embraced judicial review by the twentieth century, leading some critics to maintain that the overly active use of judicial review had given the courts too much power. Whether or not the courts have demonstrated “judicial activism” by striking down legislation, Hamilton was correct in foreseeing that the U.S. Supreme Court and lower courts would protect the rights defined by the people in their Constitution. CROSS REFERENCES Marbury v. Madison; Marshall, John. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEDERALIST PAPERS 401 FURTHER READINGS Bailyn, Bernard. 1998. The Federalist Papers. Washington, D.C.: Library of Congress. Hamilton, Alexander, James Madison, and James Jay. The Federalist Papers. Ed. Terence Ball. 2003.New York: Cambridge Univ. Press. Helfman, Tara. 2002. “The Law of Nations in ‘The Federalist Papers’.” Journal of Legal History 23, no. 2 (August). Martinez, J. Michael, and William D. Richardson. 2000. “The Federalist Papers and Legal Interpretation.” South Dakota Law Review 45 (summer). CROSS REFERENCES Constitution of the United States; “Federalist Papers” (Appendix, Primary Document). FEDERALIST PARTY The Federalist Party was an American political party during the late eighteen th and early nineteenth centuries. It originated in the loosely affiliated groups advocating the creation of a stronger national government after 1781 and culminated with the laws and policies estab- lished by Federalist lawmakers from 1789 to 1801. These laws and policies laid the founda- tion for a strong central government in the United States, thereby securing the transition from the provisional national government established during the Revolutionary War and continuing under the ARTICLES OF CONFEDERATION to the intricate system of checks and balances contemplated for the three branches of govern- ment in the U.S. Constitution. The Federalist party’s early leaders included ALEXANDER HAMILTON, JOHN JAY, JAMES MADISON, and GEORGE WASHINGTON. These men provided much of the impetus and organization behind the movement to draft and ratify the federal Constitution. Their support came from the established elites of old wealth in the commer- cial cities and in the less rapidly developing rural regions. Even before the Articles of CONFEDERATION were ratified by the original 13 states in 1781, prominent Americans were criticizing the document for having failed to create a strong federal government. In 1783 George Washington, as commander in chief of the army, sent a circular to state governors discussing the need to add tone to our federal government. Three years later Washington and his political allies were referring to those who opposed strength- ening the power of the central government under the Articles of Confederation as anti- federal. At the Constitutional Convention in 1787, those favoring a stronger central government drafted a Constitution that greatly increased the powers of Congress and the executive. Debate over RATIFICATION of the Constitution sharpened the lines separating those who called themselves federalists and those who called themselve s antifederalists. Much of this debate was formal- ized in The Federalist, later called The Federalist Papers. Originally written as 85 tracts under the name Publius, the pro-Federalist essays were published in New York City newspapers between October 27, 1787, and May 28, 1788. Each essay was written to persuade the people of New York to elect delegates who would ratify the federal Constitution in the forthcoming state convention. Alexander Hamilton and James Madison were the principal authors, while John Jay wrote five essays. The Federalist Papers are considered America’s most impor- tant political treatise and the most authoritative source for understanding the ORIGINAL INTENT of the Founding Fathers. After the Constitution was ratified, the Federalist party dominated the national govern- ment until 1801. The Federalists believed that the Constitution should be loosely interpreted to build up federal power. They were generally pro-British, favored the interests of commerce and manufacturing over agriculture, and wanted the new government to be developed on a sound financial basis. Accordingly, Secre- tary of Treasury Hamilton proposed tax increases and the establishment of a national bank. During their 12-year reign, the Federalist party settled the problems of the revolutionary debt, sought closer relations with Great Britain in Jay’s Treaty of 1794, and tried to silence their domestic critics with the ALIEN AND SEDITION ACTS of 1798. These repressive laws cost the Federal- ist party mu ch of its support, including that of Madison, who with THOMAS JEFFERSON organized the DEMOCRATIC-REPUBLICAN PARTY. The Democratic-Republicans, also known as just the Republicans, opposed the policies and laws of the Federalist party at every turn . Republicans were generally pro-French and pro-agriculture. They believed that the Consti- tution should be strictly interpreted, favored GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 402 FEDERALIST PARTY strong, independent states at the expense of the federal government, and opposed the creation of a national bank. The Federalist party lost control of the national government when Jefferson became president in 1801. The Federalists conti nued to diminish in popularity for the next 20 years. The party’s last significant political victory came in the IMPEACHMENT trial of SAMUEL CHASE, associate justice to the U.S. Supreme Court and staunch Federalist, who had been impeached by a Republican-controlled House of Representatives for what they called judicial misconduct. However, in his trial before the Senate, Chase and his atto rney convinced enough Senators that the impeachment charges boiled down to little more than partisan politics and that convicting Chase would imperi l the independence of the federal judiciary. Chase was thus acquitted on all eight ARTICLES OF IMPEACHMENT . The Federalist party ceased to exist as a national organization after the election of 1816, in which Republican JAMES MONROE defeated Federalist Rufus King. However, the party remained influential in a number of states until it disappeared completely during the 1820s. Most Federalists, such as DANIEL WEBSTER, joined the National REPUBLICAN PARTY in the 1820s and later the WHIG PARTY in the 1830s. FURTHER READINGS Boyer, Paul S. 2001. Oxford Companion to United States History. New York: Oxford Univ. Press. Hall, Kermit L. 2005. Oxford Companion to the Supreme Court of the United States. 2d ed. New York: Oxford Univ. Press. Lenner, Andrew. 1996. “A Tale of Two Constitutions: Nationalism in the Federalist Era.” American Journal of Legal History 40 (January). Lynch, Joseph M. 2000 “The Federalists and The Federalist: A Forgotten History.” Seton Hall Law Review 31 (winter). CROSS REFERENCES Republican Party; Whig Party. FEDERATION A joining together of states or nations in a league or association; the league itself. An unincorporated association of persons for a common purpose. FEE A compensation paid for particular acts, services, or labor, generally those that are performed in the line of official duties or a particular profession. An interest in land; an estate of inheritance. An estate is an interest in land, and a fee, in this sense, is the shortened version of the phrase FEE SIMPLE. A fee simple is the greatest estate that an individual may have in the land because it is total ownership of the land including all structures attached thereto. It is complete ownership absent all conditions, limitations, or restrictions upon alienation, which is its sale or transfer to another. FEE SIMPLE The greatest possible estate in land, wherein the owner has the right to use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and take its fruits. A fee simple represents absolute ownership of land, and therefore the owner may do whatever he or she chooses with the land. If an owner of a fee simple dies intestate, the land will descend to the heirs. The term fee used independently is an adequate designation of this type of estate in land. The term simple is added to distingu ish clearly this estate from other interes ts in real property. FEE TAIL An estate in land subject to a restriction regarding inheritance. A fee tail is an interest in real property that is ordinarily created with words such as “to A and the heirs of his body.” It may be limited in various ways, such as to male or female heirs only, or to children produced by a particular spouse. A fee tail is passed by inheritance from generation to generation to the heirs of the body of the initial owner. Since no one is an heir of the living, the children of the owner of a fee tail are merely heirs apparent. Such children, therefore, have no transferab le interest during their lifetimes. A fee tail can endure until the holder dies without surviving issue, but it cannot be passed on to COLLATERAL heirs. A reversion remains in the original owner whenever a fee tail is created. Thus, if a tenant in fee tail dies without heirs, the property reverts back to the original grantor who initially created the fee tail estate. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEE TAIL 403 The power of the holder of a fee tail is limited, since the holder can use the land during the course of his or her lifetime but cannot prohibit its passing to his or her bodily heirs if any exist upon his or her death. Many jurisdictions have abolished the fee tail estate since it restricts the ready alienation, or transfer, of property. Such states have transformed it into a FEE SIMPLE through statute. FELLATIO A sexual act in which a male places his penis into the mouth of another person. At COMMON LAW, fellatio was considered a crime against nature. It was classified as a FELONY and punishable by IMPRISONMENT and/or dea th. Currently it is a crime in some states, sometimes punishable as a form of the more encompassing crime of SODOMY, the act of unnatural sexual relations between two persons or between a person and an animal. Under both the common law and present- day statutes, there must be actual insertion of the male organ into the mouth of another for the crime to be committed. Any penetration, however slight, is sufficient. Emission is not a necessary element of the offense under most modern statutes. If the offense is committed by two persons who mutually consent to engage in the act, both are guilty of the offense. If one party is below the AGE OF CONSENT, only the adult is guilty. The U.S. Supreme Court has held that the regulation of unnatural sexual conduct or activity is within the POLICE POWER of the state. The penalty for fellatio in many states is a fine, imprisonment, or both. Some states, however, do not treat it as an offense. In New York, a penal law prohibiting consensual sodom y was held unconstitutional by the highest state court on the grounds that it violated the constitution- al rights of privacy and EQUAL PROTECTION of the law. Statutory definitions of fellatio may exempt from prosecution spouses who engage in such sexual conduct within the confines of the ir MARRIAGE. Fellatio is among several sexual acts that remain illegal in many jurisdictions, but are rarely prosecuted when consensual and engaged in in private. FELLOW-SERVANT RULE A common-law rule governing job-related injuries that prevents employees from recovering damages from employers if an injury was caused by the negligence of a coworker. In the mid-nineteenth century, a rise in industrial accidents brought to U.S. law an English idea about respon sibility. The fellow- servant rule said simply, workers who are hurt by a coworker—a fellow servant—should blame the responsible coworker, not their employer. After first appearing in a U.S. decision in 1842, the rule had a powerful effect on the law for the next century. Its tough-luck notion of fairness protected employers and doomed injured employees, who often had no other hope for recovering damages after serious accidents. In allowing employers to invoke the defense, courts wanted to help the nation’s industries grow at a time of vast expansion, when the dangerous jobs of factory work and railroad building needed bodies that could be injured without repercussions to employers. Only in the early and mid-1900s did lawmakers undermine the rule, through passage of federal and state workers’ compensation laws. The fellow-servant rule broke from general common-law principles of liability. Traditionally, courts had treated cases of job-related accidents under TORT LAW (a tort is a civil wrong that causes harm to a person or property). Specifi- cally, these claims came under the tort of negligence—the failure to do what a REASONABLE PERSON would do under the same circumstances. Certain suits were seen as acceptable. For example, if a man named John were injured by a negligent worker named Bill, and Bill worked for an employer with whom John had no preexisting relationship, John could readily sue the employer for Bill’s NEGLIGENCE.But everything changed if John and Bill worked for the same employer; then, the employer could invoke the fellow-servant rule as his defense, and courts would dismiss the suit. The fellow-servant rule first appeared in 1837, in Great Britain, in Priestly v. Fowler (150 Eng. Rep. 1030 [1837]). In that case, an overloaded delivery van driven by one employee overturned and fractured the leg of another employee. The injured employee’s lawsuit against their common employer succeeded, but it was overturned by the Court of Exche- quer. The magistrate, Lord Abinger, scoldingly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 404 FELLATIO held that the injured employee “must have known as well as his master, and probably better” about the risks he undertook in van delivery. Moreover, concerns about the public good steeled the magistrate against the PLAINTIFF. If suits such as Fowler were permitted against employers, workers would soon forget about their duty not to hurt themselves. U.S. law was quick to learn this lesson in employers’ immunity to liability. Only five years later, in 1842, the Supreme Judicial Court of Massachusetts announced it in the landmark case Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49. The case came during the nation’s greatest burst of industrial develop- ment, as it transformed from an agrarian society to an industrial society. Few state judges appreciated this shift as keenly as the Massa- chusetts court’s chief justice, LEMUEL SHAW (1781–1861). Nearing the end of a remarkable life in law, Shaw grasped economic considera- tions better than social ones, and his plainspo- ken opinions were tremendously influential. Chief Justice Shaw’s decision in Farwell had blunt logic. Although a railroad employee had lost his hand through the negli gence of a fellow worker, Shaw looked beyond the loss of limb to the dangerous precedent that a finding of employer liability would pose to growing industries at a crucial moment in history. He wanted to encourage this growth. So he imported the fellow-servant rule, justifying it in purely economic terms. Whereas Lord Abinger had reminded employees of their duty to be cautious, Shaw observed that employee alertness was also compensated: Workers in more dangerous jobs would be taken care of by the market, through higher wages. Further- more, employees entered such jobs voluntarily and therefore chose to put themselves at risk. Thus, a contract of employment existed, and it could not place liability on the employer’s shoulders except when the employer was personally responsible—and certainly not when a fellow employee was clearly to blame for the injury. The reverberations of this decision were felt throughout the rest of the nineteenth century. Shaw was not the only judge whose sympathies lay with industry. As more courts adopted the fellow-servant rule, the doctrine had a drastic effect on workers. An 1858 Illinois Supreme Court decision succinctly echoed Shaw’s reasoning: “[E]ach servant, when he engages in a particular service, calculates the hazards incident to it, and contracts accordingly. This we see every day—dan gerous service generally receiving higher compensation than a service unattended with danger or any considerable risk of life or limb” (Illinois Central R.R. v. Cox, 21 Ill. 20). The industrial revolution was not an age of safety: laborious work, long hours, crude training, and rough tools led to accidents involving workers. Injured workers sued their employers because employers arguably bore some responsibility and always had deeper pockets than fellow workers. But employers needed only to point out that a coworker’s negligence was partly or wholly the cause of the injury, and the nation’s courts stood ready to uphold the fellow-servant rule. Injured employees could rarely win these suits. A slight hope existed: If an employer was notified of a careless worker’s behavior but failed to take disciplinary or corrective action, the employer became directly liable for mishaps that the careless worker caused. But to prove this in court required testimony. Who would intervene? Worried about losing jobs, few coworkers would testify. Thus, the fellow- servant rule along with two related defense s, contributory negligence and ASSUMPTION OF RISK, came to be dubbed “the three wicked sisters of the common law, ” because together they left the burden on the injured and powerless employee (48 Vand. L. Rev. 1107 [May 1995]). The twentieth century brought change. Even by the early 1900s, the fellow-servant rule had begun to crumble. Courts had new ideas. The mere existence of a rule safeguarding employers’ interests had failed to stop workers from having accidents and bringing compelling cases. To permit certain lawsuits to proceed, courts created exceptions to the fellow-servant defense. Some courts permitted suits where the coworker was a supervisor; others limited the defense to employees working in the same department. As a resu lt, employers could at last be held liable for some on-the-job injuries caused by coworkers. Through the efforts of the labor movem ent, two further reactions against the fellow-servant rule sapped it of most of its force. The first was a change in federal law. In 1908 Congress passed the Federal Employers’ Liability Act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FELLOW-SERVANT RULE 405 (45 U.S.C.A. § 51 et seq.), designed to protect railroad employees. Its protections were extended to maritime workers with the JONES ACT (46 U.S.C.A. § 688). The major development to undermine the fellow-servant rule was the passage of workers’ compensation laws in states, which ensured that employees would receive compensation for injury or illness incurred at work. By 1949, every state had passed workers’ compensation laws. By the late twentieth century, the fellow- servant rule was largely dead, although a few loopholes remained in some occupations, chiefly farming. At that point, the rule’s rare appearance in court provoked surprise, as in the 1989 case of Pomer v. Schoolman, 875 F.2d 1262, 7th Cir., which moved federal appellate judge RICHARD A. POSNER to remark in his opinion, “[I]t is up to Illinois to plug what to many observers will seem an anachronistic and even cruel gap in the state’s law of industrial accidents.” FURTHER READINGS Cahill, Kelly Ann. 1995. “Hooters: Should There Be an Assumption of Risk Defense to Some Hostile Work Environment Sexual Harassment Claims?” Vanderbilt Law Review (May). Chase, Anthony R. 1995. “Race, Culture, and Contract Law: From the Cottonfield to the Courtroom.” Connecticut Law Review (fall). Irwin, Shirley A. 1994. “Glass v. City of Chattanooga: The Abolishment of the Fellow Servant Doctrine in Tennessee.” Univ. of Memphis Law Review (fall). Lienhard, Rosanne. 1996. “Negligent Retention of Employ- ees: An Expanding Doctrine.” Defense Counsel Journal (July). Wertheim, Frederick. 1986. “Slavery and the Fellow Servant Rule: An Antebellum Dilemma.” New York Univ. Law Review (December). FELON An individual who commits a crime of a serious nature, such as burglary or murder. A person who commits a felony. FELONIOUS Done with an intent to commit a serious crime or a felony; done with an evil heart or purpose; malicious; wicked; villainous. An AGGRAVATED ASSAULT, such as an ASSAULT with an intent to MURDER, is a felonious assault. A simple assault, such as one done with an intent to frighten, is not felonious. FELONY A serious crime, characterized under federal law and many state statutes as any offense punishable by death or imprisonment in excess of one year. Under the early COMMON LAW, felonies were crimes involving MORAL TURPITUDE, those which violated the moral standards of a community. Later, however, crimes that did not involve mortal TURPITUDE became included in the definition of a FELONY. Presently many state statutes list various classes of felonies with penalties commensurate with the gravity of the offense. Crimes classified as felonies include, among others, TREASON, ARSON, MURDER, RAPE, ROBBERY, BURGLARY, MAN- SLAUGHTER , and KIDNAPPING. FELONY-MURDER RULE A rule of law that holds that if a killing occurs during the commissio n or attempted commission of a felony (a major crime), the person or persons responsible for the felony can be charged with murder. Generally an intent to kill is not necessary for felony-murder. The rule becomes operative when there is a killing during or a death soon after the FELONY, and there is some causal connection between the felony and the killing. The felony-murder rule originated in Eng- land under the COMMON LAW. Initially it was strictly applied, encompassing any death that occurred during the course of a felony, regard- less of who caused it. Therefore, if a police officer attempting to stop a ROBBERY accidentally shot and killed an INNOCENT passerby, the robber could be charged with MURDER. In the early twenty-first century most jurisdictions have limited the rule by requiring that the felony must be a dangerous one or that the killing is foreseeable, or both. Statutes that restrict the application of the rule to dangerous felonies usually enumerate the crimes. BURGLARY, KIDNAPPING, RAPE, and robbery are typical felonies that invoke the rule. Under a number of statutes, the felony must be a PROXIMATE CAUSE of the death. In other words, the killing must have been anaturaland DIRECT consequence of the felony. Felony-murder cannot be charged if all the elements of the felony are included in the elements of murder. This is known as the merger doctrine, which holds that if the underlying felony merges with the killing, the felony cannot GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 406 FELON constitute felony-murder. For example, all of the elements of ASSAULT AND BATTERY with a deadly weapon are included in murder. If a killing, therefore, occurred during the course of this crime, the accused would be charged with murder. The future of the felony-murder rule is in doubt. Some jurisdictions have abolished the rule and others continue to limit its application. In the 1982 case of Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140, the Supreme Court ruled that the imposition of the death penalty upon an ACCOMPLICE who neither kills, attempts to kill, or intends that a killing occur or lethal force be used in the commission of a felony-murder constitutes CRUEL AND UNUSUAL PUNISHMENT . In those states that have retained the offense, it is usually classified as murder in the first degree, for which the penalty might be death or IMPRISONMENT. FEMA See FEDERAL EMERGENCY MANAGEMENT AGENCY. FEMINIST JURISPRUDENCE A philosophy of law based on the political, economic, and social equality of the sexes. Overview Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and critiques the law by examining the relationship between gender, sexuality, power, individual rights, and the judicial system as a whole. As a field of legal scholarship and theory, feminist jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important and vital part of the law, informing many debates on sexual and DOMESTIC VIOLENCE, inequality in the workplace, and gender-based DISCRIMINATION at all levels of U.S. society. Feminist jurisprudence intersects with a number of other forms of critical theories, most notably critical race theory and the study of GAY AND LESBIAN RIGH TS . Moreover, the form of feminist thought that focuses on legal theory draws from feminism in other disciplines, including sociology, political science, history, and literature. Leaders in the feminist jurispru- dence camps thus do not focus exclusively upon purely legal aspects of feminism. A Brief History of Feminism The feminist political movement began in the nineteenth century with a call for female SUFFRAGE. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Rights and Sentiments. This document, modeled on the language and structure of the DECLARATION OF INDEPENDENCE , was a BILL OF RIGHTS for women, including the right to vote. Throughout the late 1800s, feminist leaders SUSAN B. ANTHONY and ELIZABETH CADY STANTON were persistent critics of male society’s refusal to grant women political and social equality. In the mid-nineteenth century, many state legislatures passed married women’s separate property acts. These acts gave women the LEGAL RIGHT to retain ownership and control of property they brought into the MARRIAGE. Until these enactments a husband was permitted to control all property, which often led to the squandering of a wife’s estate. Finally, when the NINETEENTH AMENDMENT to the U.S. Constitution was ratified in 1920, women gained voting rights in the United States. The modern feminist movement began in the 1960s. In 1966 BETTY N. FRIEDAN, author of The Feminine Mystique (1963), organized the first meeting of the NATIONAL ORGANIZATION FOR WOMEN (NOW). In 1968 NOW staged a protest at the Miss America Pageant. By 1970 Robin Morgan had enough material on feminism to publish a popular anthology, Sisterhood Is Powerful. Women who had become CIVIL RIGHTS and antiwar activists in the 1960s soon turned their attention to gender discrimination and inequality. The decision in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which defined the choice of ABORTION as a fundamental constitutional right, became a touchstone for feminists who argued that women must have reproductive rights. To many feminists, Roe v. Wade meant more than the choice to have an abortion. The Court recognized the FUNDAMENTAL RIGHT of choice, albeit with limitations, concerning a woman’s right to make decisions regardin g her body. Maternity, noted the Court, “may force upon the woman a distressful life and future,” including psychological, mental, and physical health factors. The holding was a dramatic shift from traditional male-dominated jurisprudence that often sought to protect women in a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEMINIST JURISPRUDENCE 407 paternal sense but did not recognize the rights of women to make fundamental choices on matters concerning their own well-being. Accordingly, feminists have remained staunchly supportive of the Roe v. Wade decision, despite a heated national debate regarding abortion. Nineteen years after Roe, feminists rallied to support the decision when the Supreme Court reconsidered its decision in Planned Parenthood of Southeastern Pennsylva- nia v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). Although the Court permitted certain restrictions upon abortions, it held intact the fundamental right of choice announced in Roe. The 1960s and 1970s also saw a revival in the interest in adopting a CONSTITUTIONAL AMENDMENT to provide greater protection of women’s rights than those in the Fifth and Fourteenth Amendments of the U.S. Constitu- tion. The EQUAL RIGHTS AMENDMENT, which was originally conceived in the early 1920s, was introduced to the states in 1972. The text of the amendment read: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Supporters of the amendment believe d it would overcome weaknesses in federal statutes and judicial interpretations of the Constitution with regard to the protection of women’s rights. The proposal eventually failed to garner the neces- sary votes from three-fourths of the states. With the rise of the women’s movement and a growing percentage of women attending law school, feminist critiques of the law soon emerged. One criticism concerned the way history was written. According to feminists, traditional historians wrote from the male point of view and excluded that of the female. These historians did not inquire into women’s role in making history, structuring society, and living their own lives. Feminists point out that male- written history has created a male bias regard ing concepts of human nature, gender potential, and social arrangements. Scholarship in Feminist Jurisprudence Feminists also criticize mainstream jurispru- dence as patriarchal. They say that male- dominated legal doctrine defines and protects men, not women. By discounting gender differences, the prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social, economic, and political power, they use the system to subordinate women in the public sphere s of politics and economics as well as in the private spheres of family and sex. The language, logic, and structure of the law are male created, which reinforces male values. Most troubling, these concepts and values are presented as and are widely perceived to be both neutral and objective. For example, in determining liability in NEGLIGENCE actions, the law crafted the “reason- able man” test. This “man” was a hypothetical creature whose hypothetical action, reaction, or inaction in any situation was the law’s standard of reasonable conduct for real people in similar circumstances. The gender-biased term man has been replaced by person in the name for this test, which might seem to resolve the problem. But some feminist legal scholars have argued that a gender-neutral label merely avoids the fact that the test is based on assumptions of what a male would do in a situation. They propose that when an action involves a female, a court should apply a “reasonable woman” test. By doing so, the court would recognize the differences in how males and females react to situations. Feminists challenge biological determinacy, the belief that the biological makeup of men and women is so different that certain behavior can be attributed on the basis of sex. They believe that biological determinacy curtails women’s powe r and their options in society. They argue that gender is created socially, not biologically. Sex determines matters such as genitalia and reproductive capacity but not psychological, moral, or social traits. In analyzing the workings of gender in the law, feminist sch olars share certain common commitments. Politically, they seek equality between men and women. Analytically, they make gender a category by w hich to reconstitute legal practices that have excluded women’s interests. Methodologically, they use women’s experiences to describe the world and to demonstrate the need for change. They rely primarily on an experiential discourse for analyzing gender hierarchy, sexual objectifica- tion, and social structures. Though feminists have much IN COMMON, they are not uniform in their approaches. One school of feminist legal thought views women as GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 408 FEMINIST JURISPRUDENCE . fee tail estate. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEE TAIL 40 3 The power of the holder of a fee tail is limited, since the holder can use the land during the course of his or her. for the establishment of a system of federal courts separate from state courts, an idea that was realized several years later. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 40 0 FEDERALIST PAPERS Federalist,. jurisprudence that often sought to protect women in a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEMINIST JURISPRUDENCE 40 7 paternal sense but did not recognize the rights of women to make