Statutory forfeiture, or forfeiture based on written laws, was the only kind of English forfeiture recognized in the American colonies. In other words, the colonies did not order the forfeiture of property unless it was required pursuant to a law passed by the legislature. However, the written laws in the colonies sustained the concept of deodand, and this concept survives to the present day. Although forfeiture laws have existed in the United States since the colonial period, they have not always been favored. Early cases of forfeiture usually involved extraordinary cir- cumstances, such as the SEIZURE of pirate ships or warring ships. After the Civil War, forfeitures were used for tax-revenue violations, but government-impo sed forfeiture was a rarity. In 1970 Congress enacted the Comprehen- sive Drug Abuse Prevention and Control Act (21 U.S.C.A. § 881), also known as the Forfeiture Act. The Forfeiture Act authorized federal prosecutors to bring civil forfeiture actions against certain properties that were owned by persons who had been convicted in federal court of dealing drugs. This act was seldom used because it limited forfeiture to the property of persons who had been convicted of participating in continuing criminal enterprises. In 1978 Congress amended the Forfeiture Act to allow the forfeiture of anything of value used or that was intended to be used by a person to purchase illegal drugs (Psychotropic Substances Act of 1978 [Pub. L. No. 95-633, tit. III, § 301(a), 92 Stat. 3768, 3777 (codified as amended at 21 U.S.C.A. § 8821(a)(6))]). This change expanded the Forfeiture Act to allow the forfeiture of all proceeds and property that were traceable to the purchase of an illegal drug. Under the 1978 amendments, the federal government was authorized to proceed IN REM against property. In rem forfeiture actions are taken against the property itself, not against its owner. In such proceedings, the guilt or innocence of the property owner regarding any criminal activity is ir relevant. Thus, under the Forfeiture Act, the government may remove property from persons it suspects of a crime, without ever charging them with a crime. The basis of this kind of forfeiture is traced back to the deodand doctrine of the English common law. The Forfeiture Act was again amended in 1984, when the Comprehensive Crime Control Act (Pub. L. No. 98-473, § 306, 98 Stat. 1837, 2050 [codified as amended at 21 U.S.C.A. § 881 (a)(7)]) expanded it to authorize the in rem forfeiture of real property, or land and build- ings. Under the 1984 act, federal authorities may seize any real property that is purchased, used, or intended to be used to facilitate narcotics trafficking. Although the LEGISLATIVE HISTORY of the 1984 act sugges ts that Congress intended real property forfeiture to apply only to drug manufacturing or storage facili- ties, courts have construed the act to allow the seizure of any real property, including fraternity houses, hotels, ranches, and private residences. Furthermore, courts have allowed real property forfeiture regardless of whether the property was used to store or manufacture drugs. Forfeiture under the Forfeiture Act begins with either the constructive or actual seizure of property after a district court has issued a warrant. This warrant must be based on a reasonable belief that the property was used in a crime subject to forfeiture, but this reasonable belief can be based entirely on hears ay and CIRCUMSTANTIAL EVIDENCE. After the property is seized, the court holds it until the case is resolved. Forfeiture proceedings may be either crimi- nal or civil. If the government seeks forfeiture pursuant to criminal charges, it must establish the defendant’s guilt BEYOND A REASONABLE DOUBT. If acquitted, the defendant is entitled to retrieve the seized property. To initiate a civil forfeiture proceeding, the government need only show reasonable grounds to believe that the property was used in, or derived from, certain prohibited activities. If the defendant fails to rebut the showing of PROBABLE CAUSE with sufficient evidence, the government may keep the property. At trial, the govern- ment’s standard in a civil forfeiture is proof by a preponderance of the evidence, a lesser burden than a criminal case’s REASONABLE DOUBT standard. The Forfeiture Act also allows law enforce- ment agencies to receive a portion of the proceeds from property forfeiture. Many legal scholars claim that this is a perver sion of the police function because it detracts from the more compelling, traditional police function of fighting violent crime. These critics also argue that law enforcement agencies may become GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORFEITURE 499 financially dependent on the very drug activity that they are supposed to curtail. Proponents of this budgetary scheme argue that drug activity is the source of much violent crime. They further note that the proceeds both benefit community programs and increase the capacity to fight violent crime. The Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C.A. §§ 1961 et seq.) is another vehicle for forfeiture in federal court. Enacted as title IX of the ORGANIZED CRIME Control Act of 1970 (Pub. L. No. 91-452, 84 Stat. 922), RICO allows federal authorities to seize the property of persons engaged in a pattern of RACKETEERING. Persons who commit MURDER, kidnapping, perjury, extortion, ARSON, ROBBERY, BRIBERY, gambling, or narcotics offenses two or more times within a ten-year period thus may be forced to forfeit all property that is traceable to the crimes. In a 1984 amendment, Congress added the violation of federal and state obscenity laws to the list of racketeering offenses. The case against Ferris Alexander illu strates the way in which federal authorities exercise the forfeiture provisions of RICO (Alexander v. United States, 509 U.S. 544, 113 S. Ct. 2766, 125 L. Ed. 2d 441 [1993]). Alexander, the owner of more than a dozen stores and theaters offering sexually explicit materials in Minneapolis, was charged in 1989 with operating a racketeering enterprise in violation of RICO. He was convicted based on the jury’s determination that four magazines and three videotapes from his enterprises were obscene. The trial court sentenced Alexander to six years in prison, fined him $100,000, and ordered him to pay the cost of his prosecution, incarceration, and super- vised release. After the conviction, federal authorities sought the forfeiture of all assets related to Alexander’s businesses. The jury made findings to identify precisely what was owned by Alexander. Based on those findings, the trial court ordered Alexander to forfeit $8.9 million in cash and inventory, ten bookstores valued at a total of $2 million, his interests in 18 other businesses, and proceeds from 15 other busi- nesses. Law enforcement officers later burned the merchandise from Alexander’s businesses. Alexander appealed to the U.S. Court of Appeals for the Eighth Circuit, which affirmed. On appeal to the U.S. Supreme Court, Alexander argued, in part, that the forfeiture had been excessive. He also argued that the forfeiture was a form of PRIOR RESTRAINT,in violation of his free speech rights. According to the Court, the forfeiture did not violate Alexander’s free speech rights because it did not prevent him from publishing non-obscene material in the future. However, the Court also held that the amount of the forfeiture should have been examined to see whether it violated the Eighth Amendment’s prohibition of exces- sive fines. The U.S. Supreme Court remanded the case to the Eighth Circuit for review on the excessive-fines issue. The appeals court sent the case to the trial court. In March 1996 the district court affirmed the original forfeiture of approximately $8.9 million in property. To many scholars, the Alexander case stands as a serious threat to freedom-of-speech rights. Although Alexander’s businesses dealt specifi- cally in PORNOGRAPHY, the decision nevertheless puts artists who create material with a sexual content in danger of losing their property. Many legal analysts also maintain that the forfeiture was excessive when compared with the offenses for which Alexander was convicted. Proponents maintain that the forfeiture helped to create cleaner, safer city neighborhoods. Most states maintain statutes allowing forfeiture upon conviction of certain crimes. For example, Volume 15 of the Maine REVISED STATUTES Annotated, section 5821, authorizes the forfeiture of prohibited drugs; materials related to prohibited drugs; property that is used to contain, defend, protect, guard, or secure prohibited drugs; firearms; and vehicles used in the violation of litter laws. Real property used in connection with illegal drugs is also subject to forfeiture under section 5821, with the excep- tion of real property connected to marijuana offenses. Maine does not provide for the forfeiture of property that is used for PROSTITUTION or the solicitation of prostitution, but many states do. For example, section 600.3801 of the Michigan Compiled Laws Annotated authorizes state law enforcement to seize property that has been used to support or to solicit prostitution. In the 1990s, the application of this statute inspired a challenge that went all the way to the U.S. Supreme Court (Bennis v. Michigan, 516 U.S. 442, 116 S. Ct. 994, 134 L. Ed. 2d 68 [1996]). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 500 FORFEITURE In Bennis v. Michigan, Tina B. Bennis brought suit against the state of Michigan after it seized the 1977 Pontiac that she owned jointly with her husband, John Bennis. Her husband had been arrested and convicted in Michigan state court of gross indecency in connection with his encoun ter with a prostitute. The county PROSECUTOR filed a complaint alleging that the Pontiac was a public nuisance and subject to abatement, or forfeiture. An order of abatement was entered by the trial court. On appeal by Bennis, the appeals court reversed. On subse- quent appeal by the state of Michigan, the Michigan Supreme Court also reversed. Bennis appealed to the U.S. Supreme Court. The high court affirmed the decision of the Michigan Supreme Court. Bennis argued that the forfeiture was a violation of the Due Process Clause of the FOURTEENTH AMENDMENT because she had not known that the Pontiac would be used for prostitution. The Court cited a long line of cases supporting the proposition that a person may be deprived of property if it has been put to criminal use, regardless of the owner’s knowledge or participation. The Court also dismissed Bennis’s argument that the forfeiture violated the Fifth Amend- ment’s Takings Clause, which generally requires compensation for property seized by the government. According to the Court, the government is under no obligation to reimburse a person for property it has seize d pursuant to government authority other than the power of EMINENT DOMAIN. Ultimately, Bennis lost her ownership of the Pontiac, despite being inno- cent of any wrongdoing. In a strong dissent, Justice JOHN PAUL STEVENS argued that “neither logic nor history supports the Court’s apparent assumption that [a person’s] complete inno- cence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction.” Defendants have cultivated several defenses to forfeiture, and some have been successful. If the initial seizure is not preceded by notice and a hearing before a co urt, a defendant may argue that a forfeiture violates the Due Process Clause of the Fifth and Fourteenth Amendments. Despite the decision in the Alexander case, if a massive, estate-depleting forfeiture is dispro- portionate to the offense that gave rise to it, it may be found to violate the Excessive Fines Clause of the EIGHTH AMENDMENT. In addition, Congress has enacted an “innocent owner” defense in civil drug for- feitures (21 U.S.C.A. § 881(a)(6) [2000]). These are cases in which forfeiture is sought without prosecution of the owner. A defendant in a civil forfeiture case may invoke this defense if the property was connected with the illegal drugs without the owner’s knowledge or consent. Supporters of forfeiture laws cite the laws’ effectiveness in fighting crime and stripping criminals of their resources. Many legal obser- vers argue that the increasing use of government forfeiture is a flagrant violation of several constitutional rights. The state of forfeiture in contemporary law has been compared to “an Orwellian nightmare” (Aznavoorian 1995, 553), creating a climate that has “turned police agencies into bounty hunt ers, who, in their quest for cash, have harmed inno cent citizens or those guilty of only minor offenses” (Henry 1994, 52). By the early 1990s, the federal government was prosecuting only 20 percent of the individuals from whom they had seized property through forfeiture. Congress finally responded by passing the Civil Asset Forfeiture Reform Act of 2000 (Pub.L. No. 106-185, 114 Stat. 202), which requires federal prosecutors to show a substantial connection between the property and the crime. In addition, it allows the property to be released by the district court pending final disposition of the case when the owner can demonstrate that possession by the government causes a hardship to the owner. Finally, the law permits property owners to sue the government for any damage to the property if they prevail in a civil forfeiture action. FURTHER READINGS Aznavoorian, Vartan. 1994. “Using Racketeering Laws to Control Obscenity: Alexander v. United States and the Perversion of RICO.” Boston College Law Review 36. Campbell, Christopher Zemp. 1995. “Excessive Means: Applying the Eighth Amendment to Civil In Rem Forfeitures under United States v. Chandler.” North Carolina Law Review 73. Henry, Sarah. 1994. “The Thin Green Line.” California Law 46 (September 14). Hyde, Henry. 1995 Forfeiting Our Property Rights: Is Your Property Safe from Seizure? Washington, D.C.: Cato Institute. Lieske, Robert. 1995. “Civil Forfeiture Law: Replacing the Common Law with a Common Sense Application of the Excessive Fines Clause of the Eighth Amendment.” William Mitchell Law Review 21. Nelson, Scott Alexander. 1994. “The Supreme Court Takes a Weapon from the Drug War Arsenal: New Defenses to Civil Drug Forfeiture.” St. Mary’s Law Journal 26. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORFEITURE 501 Zarkowsky, Aaron. 1994–1995. “The RICO Threat to Artistic Freedoms: An Indirect Consequence of the Anti-Pornography Crusade?” DePaul-LCA Journal of Art and Entertainment Law 5. CROSS REFERENCE Drugs and Narcotics. FORGERY The creation of a false written document or alteration of a genuine one, with the intent to defraud. Forgery consists of filling in blanks on a document containing a genuine signature, or materially altering or erasing an existing instru- ment. An underlying intent to defraud, based on knowledge of the false nature of the instrument, must accompany the act. Instru- ments of forgery may include bills of exchange, bills of lading, promissory notes, checks, bonds, receipts, orders for money or goods, mortgages, discharges of mortgages, deeds, public records, account books, and certain kin ds of tickets or passes for transportation or events. Statutes define forgery as a felony. Punish ment generally consists of a fine or imprisonment, or both. Methods of forgery include handwriting, print- ing, engraving, and typewriting. The related crime of uttering a forged document occurs when an inauthentic writing is intentionally offered as genuine. Some modern statutes include this crime with forgery. Perhaps the most famous case of forgery in the twentieth century took place in 1983 with the “discovery” of the Hitler diaries. The diaries supposedly contained passages written by Ger- man dictator ADOLF HITLER between 1932 and 1945. Gerd Heidemann, a German reporter for Stern magazine, had claimed the writings as genuine and sold them. He had obtained them from Konrad Kujau, a Stuttgart dealer in military memorabilia and documents. The magazines Newsweek and Paris Match, along with other media, paid more than $5 million for the documents. Major news sources around the world quickly published major stories detailing the historical information that the diaries allegedly contained. Investigative experts from around the world later conducted forensic examinations on the diaries and found the documents to be fake. Kujau then admitted forging the diaries, and news sources immedi- ately retracted their coverage. Both Kujau and Heidemann were sentenced to four and a half years in a German prison— but not before Kujau embarrassed the media even further by forging Hitler autographs for spectators at his circuslike trial. In the United States, the Mormon Bible forgeries resulted in more extreme conse- quences. Beginning in the early 1980s, Mark Hofmann, a disillusioned Salt Lake City Mor- mon and part-time dealer in historical docu- ments, forged documents of major importance to Mormon history. He sold most of the creations to the MORMON CHURCH and to others interested in Mormon religious history. Hof- mann reaped hundreds of thousands of dollars from his fraud. His boldest forgery, the White Salamander letter, cast doubt on the credibility of the Mormon Church’s founder, Jose ph Smith. In this letter, Hofmann portrayed Smith as a dabbler in folk magic and the occult, which greatly distressed the Mormon community. When individuals within Hofmann’s ring of buyers raised doubts about the authenticity of one of his later creations, Hofmann murdered one buyer and the spouse of another before their suspicions became public. Hofmann was charged with MURDER and fraud. Prosecutors relied on EXPERT TESTIMONY regarding the authenticity of the documents. When the experts declared that the documents were worthless , Hofmann’s attorneys offered to PLEA bargain on the counts of forgery and second-degree murder. The prosecution agreed to negotiate the charges to avoid an embarras- sing trial for the Mormon Church. Hofmann pleaded guilty to murder. In January 1988 the Utah BOARD OF PARDONS sentenced Hofmann to life in prison without parole. Most forgeries are less sensational than those in the Hitler diaries and Mormon Bible cases. Common forgery usually involves manufacturing or tampering with documents for economic gain. The intent to defraud remains essential. COUNTERFEITING, often associated with forg- ery, is a separate category of fraud involving the manufacture, alteration, or distribution of a product that is of lesser value than the genuine product. FURTHER READINGS Bowman, Frank O. III. 2001. “The 2001 Federal Economic Crime Sentencing Reforms: An Analysis and Legislative History.” Indiana Law Review 35 (winter). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 502 FORGERY Bozeman, Pat. 1990. Forged Documents: Proceedings of the 1989 Houston Conference. New Castle, DE: Oak Knoll. Brayer, Ruth. 2000. Detecting Forgery in Fraud Investigations: The Insider’s Guide. Alexandria, VA: ASIS International. Nickell, Joe. 2005. Detecting Forgery: Forensic Investigation of Documents. Lexington, KY: Univ. Press of Kentucky. Perez, Jacob. 1992. Forgery and Fraud-Related Offenses in Six States, 1983–1988. Justice Department, Bureau of Justice. Washington, D.C.: U.S. Government Printing Office. Rendell, Kenneth W. 1994. Forging History. Norman, OK: Univ. of Oklahoma Press. U.S. Dept. of the Treasury, Secret Service. 1991. Counter- feiting and Forgery. Washington, D.C.: U.S. Govern- ment Printing Office. FORM A prototype of an instrument to be employed in a legal transaction or a judicial proceeding that includes the primary essential matters, the appro- priate technical phrases or terms, and any addition- al material required to render it officially accurate, arranged in suitable and systematic order, and conducive to adaptation to the circumstances of the particular case. The expression form of the statute signifies the language or structure of a statute, and, therefore, the restriction or command that it might include, as used in the phrase in criminal PLEADING “against the form of statute in that case made and provided.” A matter of form, as distinguished from a matter of substance—with respect to pleadings, affidavits, indictments, and other legal instru- ments—entails the method, style, or form of relating the applicable facts; the selection or arrangement of terms; and other such matters without influencing the essential sufficiency or validity of the instrument, or without reaching the merits. FORMAL PARTY A person who has no interest in the dispute between the immediate litigants but has an interest in the subject matter that can be expeditiously settled in the current proceedings and thereby prevent additional litigation. The rules of CIVIL PROCEDURE of the various states determine who constitutes a formal party and define the rights and obligations of other categories of parties. FORMED DESIGN In criminal law, and especially in regard to homicide, the kill ing of one human being by the instigation, act, or omission of another, who has a deliberate and fixed intention to kill, whether or not directed against a certain person. FORMS OF ACTION The old common-law patterns for different kinds of lawsuits. A PLAINTIFF could start an action only if it was possible to state the claim in words that followed one of the forms. The forms of action governed all COMMON-LAW PLEADING. Origin of the Forms of Action The common-law forms of action were not planned and enacted like a statute, but they developed over hundreds of years out of the struggle to centralize justice in England. They were the first writs by which the king’s courts took notice of a dispute and asserted its authority to resolve it. When William the Conqueror first established the English throne in 1066 there were already local courts that handled most legal disputes. The king’s courts began to hear cases involving the assertion of royal rights and disputes between high noble- men. In time, dissatisfied litigants from the community courts appealed to the king’s courts for review of the decisions. The king’s courts became one of his tools for consolidating his power, and the scope of the authority of the court reflected political struggles through the centuries. A person who thought he had been wronged had to serve notice on the defendant, but something more was needed to engage the legal process that led to judgment. A court would examine the substance of the claim only if it were cast in the correct form. As courts were organized beyond the local level in medieval England, writs were design ed to give recogni- tion to the sort of disputes that were most important to the king. The possibility of obtaining relief, then, depended on the plain- tiff’s ability to fit his grievance into one of the available writs. Real Actions Royal power was first and most vigorously asserted in disputes involving land because all of society was organized under the land tenure system of the feudal law. The foundation of this system was the principle that no one should be GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORMS OF ACTION 503 deprived of his interest in real property without a fair judgment against him, and no one should be made to answer a challenge to his rights without the king’s command in a writ. The protection of these individual rights was so important to the stabi lity of the society that the procedures for resolving land disputes became very formal. The forms for these lawsuits, called REAL ACTIONS, determined the way facts co uld be presented to constitute a legal CAUSE OF ACTION, the defenses to such claims, and the remedies available for a successful plaintiff. Personal Actions By the earlypart ofthethirteenthcentury, PERSONAL ACTIONS were allowed. A litigant could sue for money due on an account, make a demand for a certain sum of money, or demand a specific item of PERSONAL PROPERTY.TheactionofREPLEVIN appeared for the recovery of personal goods wrongfully taken or withheld from the plaintiff. The ACTION OF COVENANT covered disputes arising from agreements under seal, originally covering leases of land but eventually contributing to the development of all contract law. The most important form of action, the action of TRESPASS, appeared later in the thirteenth century. The great legal scholar FREDERIC WILLIAM MAITLA ND once called trespass “that fertile mother of actions.” It might have had its roots in the CRIMINAL LAW, a sort of appeal to redress the harm caused by the defendant’s violence. The action of trespass became very popular because a form allowing the claim that force had been wrongfully used could cover a wide variety of injuries. By the fourteenth century, forms were firmly established for trespass vi et armis (“with force and arms”) for injuries to the plaintiff or his property, trespass de bonis asportatis (“for goods carried away”), and trespass quare clausum fregit (“whereby he broke the close”) for an unlawful entry on the premises. The jurisdiction of the courts was thus enlarged and the chance of finding legal relief substantially increased. The justification for extending the authority of the royal courts to cover personal actions for private wrongs was the claim that the trespass was committed vi et armis et contra pacem Domini Regis (“with force and arms and against the peace of the Lord King”). During the fifteenth century, this principle supported an additional form of action for cases where the plaintiff’s injury was a more indirect result of the defendant’s conduct. This action was called trespass on the case, ACTION ON THE CASE,a trampling on the plaintiff’s legal rights, or his case. Sometimes the action was simply called “case,” and different fo rms were used for special circumstances, for deceit and for defamation, for example. This form gave birth to our entire modern system of negligence law. The next important innovation was the action of TROVER, by which the ownership of personal property could be challenged. Origi- nally, the claim was good only when the plaintiff had lost his goods and the defendant had found them, but later the action required no more than a claim that the defendant refused to turn over personal property that belonged to the plaintiff. By the sixteenth century the action of assumpsit took over as the dominant form of action for recovering damages for a broken contract that was not under seal. Special assumpsit was an action brought on an express contract or promise, and general assumpsit allowed monetary damages for the failure to perform an obligation that arose out of the facts of the situation and was implied by the law. The modern law of contracts developed from the old action of assumpsit. Forms of Action in the United States American colonies under English rule were less restrained by complicated distinctions among the various forms of action, probably because legal systems in the United States were less formal until a time when dissatisfaction with the technicalities of the forms was beginning to peak. For example, there were lawsuits where both trespass and case were used for the recovery of real property and for specific items of personal property. Trover and assumpsit frequently were used interchangeably. As a result of the Federal Rules of CIVIL PROCEDURE applicable in federal courts and adopted to a large degree by many state courts, there is only one form of action, a CIVIL ACTION. FURTHER READINGS Gordley, James. 2000. “The Common Law in the Twentieth Century: Some Unfinished Business.” California Law Review 88 (December). Available online at http://www. law.berkeley.edu/journals/clr/library/gordley01.html; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 504 FORMS OF ACTION website home page: http://www.law.berkeley.edu (accessed July 25, 2009). Hazard, Geoffrey C., Jr. 1988. “Forms of Action under the Federal Rules of Civil Procedure.” Notre Dame Law Review 63 (winter). Maitland, F.W. 1909. “The Forms of Action at Common Law.” Available online at http://www.fordham.edu/ halsall/basis/maitland-formsofaction.html; website home page: http://www.fordham.edu (accessed Sep- tember 4, 2009). CROSS REFERENCES Action on the Case; Civil Procedure; Feudalism. FORNICATION Sexual intercourse between a man and a woman who are not married to each other. Under the COMMON LAW, the crime of fornication consisted of unlawful sexual inter- course between an unmarried woman and a man, regardless of his MARITAL status. If the woman was married, the crime was ADULTERY. In the early 2000s, statutes in a number of states declare that fornication is an offense, but such statutes are rarely enforced. On the theory that fornication is a victimless crime , many states do not prosecute persons accused of the offense. Under modern-day legislation, if one of the two persons who engage in sexual intercourse is married to another person, he (or she) is guilty of adultery. Statutes in some states declare that if the woman is married, the sexual act constitutes adultery on the part of both persons, regardless of the man’s marital status. Fornication is an element of a number of SEX OFFENSES such as RAPE, incest, and seduction. Although penalties are seldom enforced, they usually consist of a fine, imprisonment, or both. In November of 1996 an Idaho PROSECUTOR brought fornication charges against a teenage couple in an effort to curb teen pregnancy. FORSWEAR In criminal law, to make oath to that which the deponent knows to be untrue. This term is wider in its scope than perjury, for the latter, as a technical term, includes the idea of the oath being taken before a competent court or officer and relating to a material issue, which is not implied by the word forswear. v FORTAS, ABE Abe Fortas served as a justice of the U.S. Supreme Court from 1965 to 1969. A renowned and powerful Washington, D.C., attorney before he joined the Court, Fortas resigned from the bench in disgrace after allegations of unethical behavior led to calls for his impeachment. Fortas was born June 19, 1910, in Memphis, to English immigrant Jews. He graduated from Southwestern College, in Memphis, in 1930 and received a law degree from Yale Law School in 1933. An outstanding student at Yale, Fortas became a protégé of WILLIAM O. DOUGLAS,a member of the school’s faculty and a future Supreme Court justice. Following graduation Fortas divided his time between Yale and Washington, D.C., serving as an assistant professor at the school and working in several federal government agencies. Fortas’s arrival in Washington, D.C., coin- cided with President Franklin D. Roosevelt’s Abe Fortas 1910–1982 ▼▼ ▼▼ 19001900 19751975 19501950 19251925 ❖ ◆ 1910 Born, Memphis, Tenn. 1914–18 World War I 1933–37 Held assistant professorship at Yale 1939–45 World War II 1938–46 Served in various government positions 1950–53 Korean War 1961–73 Vietnam War ❖ ◆ ◆ 1963 Argued Gideon v. Wainwright before Supreme Court 1967 Wrote opinion for In re Gault, which gave children many of the same constitutional safeguards afforded adults in judicial proceedings 1969–82 Practiced law with firm of Fortas and Koven 1969 Resigned from Supreme Court 1982 Died, Washington, D.C. 1965–69 Served on U.S. Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORTAS, ABE 505 N- E- W D- E- AL a- d- ministration. Under Roosevelt the federal gov- ernment greatly expanded as it assumed more regulatory power over the national economy. Fortas severed his connections with Yale in 1937 and went to work full-time for the SECURITIES AND EXCHANGE COMMISSION , which w as chaired by Douglas. Fortas proved to be an effective administra- tor. He joined the DEPARTMENT OF THE INTERIOR in 1939 and soon became a confidant of Secretary of the Interior Harold L. Ickes. Ickes, a powerful member of the Roosevelt administration, named Fortas undersecretary in 1942. Fortas served in that position until 1946, when he left government to start a PRIVATE LAW firm. Fortas and Thurman W. Arnold, a former law professor and chief of the Antitrust Division of the JUSTICE DEPARTMENT, created the firm of Arnold and Porter to help corporations and other powerful interest groups deal with the new federal bureaucracy. Fortas knew his way around the halls of power and became an influential lobbyist and interpreter of govern- ment regulations in post-World War II Washington, D.C. His path to the Supreme Court began in 1948, when he led the legal team that fought to place Lyndon B. Johnson’s name on the Texas election ballot for U.S. senator. Johnson, a Texas congressman in the 1940s, got to know Fortas while Fortas was at the Department of the Interior. The 1948 Texas Democratic primary election gave Johnson an 87-vote margin of victory, but his opponent, Coke R. Stevenson, alleged that Johnson’s supporters had stuffed the ballot box with phony ballots. After Stevenson filed suit in federal court, a judge removed Johnson’s name from the final election ballot, pending an investigation into the alleged election irregularities. Fortas convinced Justice Hugo L. Black of the Supreme Court to order the restoration of Johnson’s name, pursuant to Black’s judicial power to review the actions of the federal courts in Texas. Johnson was elected to the Senate and became majority leader in 1955. He was elected vice PRESIDENT OF THE UNITED STATES in 1960 and became president on Novemb er 22, 1963, following the ASSASSINATION of President JOHN F. KENNEDY. Though Fortas served the powerful, he also provided PRO BONO (unpaid) legal services to those with pressing legal issues. His most famous pro bono case was GIDEON V. WAIN- WRIGHT , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). A Florida court had convicted Clarence Gideon, a drifter and small-time gambler, of breaking into a poolroom and removing the change from a vending machine. Gideon could not afford an attorney and the court would not appoint one. Gideon prepared his own appeal to the U.S. Supreme Cour t, arguing that denial of legal counsel because a person could not afford an attorney was unconstitutional. The Court accepted his appeal and appointed Fortas to serve as his attorney. Fortas convinced the Court to overrule its precedent in Betts v. Brady, 316 U.S. 455, 62 S. Ct. 125 2, 86 L. Ed. 1595 (1942), in which the Court held that an ordinary person charged with a felony could do an adequate job of representing himself or herself and was not entitled to the appointment of an attorney. In his majority opinion for Gideon, Justice Black ruled that an indigent defendant in a criminal trial has a constitutional right to a court- appointed attorney. In so ruling, the Court incorporated through the FOURTEENTH AMEND- MENT the Sixth Amendment’s RIGHT TO COUNSEL, thus making that right applicable to state as well as federal criminal proceedings. When Johnson assumed the presidency, he looked to Fortas as a confidential adviser. Johnson wished to appoint Fortas to the Supreme Court, but there were no vacancies. He convinced Justice ARTHUR J. GOLDBERG to resign from the Court in 1965 to become U.S . ambassador to the UNITED NATIONS. Goldbe rg left Abe Fortas. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 506 FORTAS, ABE the Court reluctantly, and Johnson nominated Fortas to fill its so-called Jewish seat. The “Jewish seat” began with the 1939 appointment of FELIX FRANKFURTER, who was Jewish, to succeed Justice BENJAMIN CARDOZO, also Jewish. It was assumed that for political reasons, Democratic presidents would appoint a Jewish person to that vacancy. This tradition ended with the appointment of Fortas. Fortas fit in well with the liberal Court, then headed by Chief Justice EARL WARREN. Concerned with policy more than precedent, Fortas was a strong defender of CIVIL RIGHTS and civil liberties. His two most significant opinions dealt with the rights of children. The 1967 landmark case In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, changed the nature of the JUVENILE LAW system. Fortas and the Court essentially made the juvenile courts adhere to standards of due process, applying most of the procedural safe- guards enjoyed by adults accused of crimes. Under Gault juvenile courts were to respect the right to counsel, the ri ght to freedom from compulsory SELF-INCRIMINATION, and the right to confront hostile witnesses. TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT , 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), accorded juveniles FIRST AMENDMENT rights. Des Moines high school officials had suspended students for wearing black armbands to school to PROTEST U.S. involvement in the VIETNAM WAR. On appeal Fortas rejected the idea that the school’s response was reasona ble because it was based on the fear that a disturbance would result from the wearing of armbands. Fortas ruled that the wearing of armbands was “closely akin to ‘pure speech’ which is entitled to comprehensive protection under the First Amendment.” He added that public school officials could not ban expression out of the “mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint.” In June 1968, Chief Justice Warren an- nounced that he would retire. President John- son nominated Fortas to succeed Warren, but the political mood of the Senate was hostile to the nomination. It had been an open secret in Washington, D.C., that Fortas continued to advise the president after joining the Court. Fortas was a key participant in Vietnam War policymaking. Some senators were troubled by his breach of the SEPARATION OF POWERS; others, especially conservatives, attacked his liberal voting record on the Court. Republicans hoped to derail the nomination so as to give RICHARD M. NIXON, then running for the presidency, the opportunity to appoint a more conservative chief justice. Johnson, who had already an- nounced he would not run for reelection , was a LAME DUCK and could do nothing to help Fortas. Opponents conducted a filibuster when the appointment was brought to the Senate floor. In October, Fortas, sensing defeat, asked that his name be withdrawn from consideration. War- ren remained on the Court until 1969, when President Nixon appointed WARREN E. BURGER as chief justice. Matters worsened for Fortas in 1969, when Life magazine reported that he had accepted a $20,000 fee from a foundation established by the family of Louis Wolfson, a financier under federal investigation for securities violations. The fee was the first of a series of annual payments that were to be made to Fortas for the duration of his life, and thereafter to his widow until her death, in exchange for Fortas’s guidance of the foundation’s programs. The arrangement was terminated in 1966 when Fortas returned the money upon Wolfson’s indictment. Despite Fortas’s ultimate return of the money, his initial acceptance of it troubled many senators. It was alleged that Fortas had done more than foundation work, giving Wolfson legal advice. The Life article noted that Wolfson had used Fortas’s name in the hope of helping himself. Fortas issued an ambiguous statement that did not resolve the situation. The Nixon administration and Republican senators hinted that Fortas should be impeached for his actions, which were contrary to the ethical provision that judges must be free of the appearance of impropriety. Fortas ended the controversy by resigning from the Court May 14, 1969, though he contended he had done nothing wrong. This was the first time in U.S. history that a justice resigned under the threat of impeachment. Following his resignation Fortas sought to return to his old law firm. When the firm refused to take him back, he set up his own law practice, Fortas and Koven. He resumed advis- ing corporate clients on how to do business in Washington, D.C., and he continued his pro bono work. FOR A JUSTICE OF THIS ULTIMATE TRIBUNAL [THE U.S. S UPREME COURT], THE OPPORTUNITY FOR SELF -DISCOVERY AND THE OCCASION FOR SELF -REVELATION IS GREAT . —ABE FORTAS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORTAS, ABE 507 Fortas continued to practice law until he died from a ruptured aorta on April 5, 1982, in Washington, D.C. FURTHER READINGS Babington, Charles. “Filibuster Precedent? Democrats Point to ‘68 and Fortas.” The Washington Post (March 18, 2005). Available online at http://www.washingtonpost. com/wp-dyn/articles/A45149-2005Mar17.html; website home page: http://www.washingtonpost.com (accessed September 2, 2009). Fortas, Abe. 1968. Concerning Dissent and Civil Disobedience. New York: Signet. Kalman, Laura. 1992. Abe Fortas: A Biography. New Haven, CT: Yale Univ. Press. CROSS REFERENCE Children’s Rights. FORTHWITH Immediately; promptly; without delay; directly; within a reasonable time under the circumstances of the case. 44 LIQUORMART V. RHODE ISLAND See LIQUORMART V. RHODE ISLAND. FORUM A court of justice where disputes are heard and decided; a judicial tribune that hears and decides disputes; a place of jurisdiction where remedies afforded by the law are pursued. The appropriate forum for a lawsuit depends upon which court has jurisdiction over the parties and the subjec t matter of the case, a matter governed mostly by statutes and court rules. For example, rules of procedure provide that disputes involving a certain dollar amount or disputes between citizens of different states may be heard in a particular court. When a contract is the subje ct of the litigation, the parties may have included in the contract a forum selection clause that designates the court where any disputes arising from the contract may be heard. A forum selection clause will generally be upheld by a court unless the party resisting it can show that enforcement of the clause would be unfair or unreasonable under the circumstances of the particular case. When more than one court is the appropri- ate forum to hear a dispute, the PLAINTIFF may engage in forum shopping. In this situation, the plaintiff seeks to have a dispute heard in the court that the plaintiff believes will render the most favorable VERDICT or judgment, regardless of whether that forum imposes hardship or inconvenience on the opposing party. The defendant may even be unable to appear in the forum selected by the plaintiff, thus permitting the plaintiff to win the action by default. Forum shopping is frowned upon by the courts. Many federal and state procedural rules, as well as federal and state statutes, discourage this practice by limiting a plaintiff’s choice of forum to locations reasonably convenient to both parties. The Uniform CHILD CUSTODY Jurisdiction Act, for example, limits the exercise of jurisdiction over child custody decrees to the home state of the child. A court that has jurisdiction may decline to exercise it when the parties and the interests of justice would benefit if the action were heard in another court that also has jurisdiction over the matter. This is called the doctrine of forum non conveniens (Latin for “forum not convenient”). A defendant seeking to invoke the doctrine of forum non conveniens must make a motion to have the action dismissed even though the original forum has jurisdiction to hear the action. The court, in its discretion, will consider a number of factors in deciding whether to grant or deny the motion, including whether the necessary witnesses can be compelled to attend the proceedings and the cost of obtaining their attendance; ease of access to evidence pertinent to the dispute, including the distance from the site of the events that resulted in the litigation; and any other prac tical factors that would facilitate the trial of the lawsuit. For instance, if a lawsuit is brought in Alaska but all the witnesses live in Washington State, and the property that is the subject of the dispute is also in Washington, t hen the court may conclude that it is more convenient to litigate the case in Washington than in Alaska. In some states, however, the court will rarely dismiss an action on the grounds of forum non conveniens when the plaintiff is a resident of the forum state. In addition, to protect the plaintiff ’s interests, a court will permit dismissal of the action only if the plaintiff consents to the trial of the lawsuit in the more conveni ent forum. In the federal court system and within many states, statutes have been enacted to allow a court to transfer a case to another court that operates within the same system or state and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 508 FORTHWITH . because all of society was organized under the land tenure system of the feudal law. The foundation of this system was the principle that no one should be GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORMS. application of this statute inspired a challenge that went all the way to the U.S. Supreme Court (Bennis v. Michigan, 516 U.S. 44 2, 116 S. Ct. 9 94, 1 34 L. Ed. 2d 68 [1996]). GALE ENCYCLOPEDIA OF AMERICAN. St. Mary’s Law Journal 26. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FORFEITURE 501 Zarkowsky, Aaron. 19 94 1995. “The RICO Threat to Artistic Freedoms: An Indirect Consequence of the Anti-Pornography