Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P7 docx

the academic battlefield . The differing views on the descendibility of the right of publicity can largely be attributed to divergent courts’ views on the nature of the right. The underlyi ng source of the dichotomy can be traced to the right of publicity’s early roots. Although the right of publicity and the right of privacy are recognized as protecting fun damentally differ- ent interests that must be analyzed separately, the right of publicity’s root in the right of privacy has caused confusion. Another example of the post-mortem con- cept involves its relation to invasions of privacy. Generally (although the COMMON LAW recognizes no PROPERTY RIGHT in a dead body), there is a privacy right in the NEXT OF KIN to have the corpse delivered for burial without mutilation. [Keyes v. Konkel, 119 Mich. 550, 78 N.W. 649 (1899); Doxtator v. Chicago & W.M. Ry. Co., 120 Mich. 596, 79 N.W. 922. The No-fault Motor Vehicle Insurance Act provides that post mortem work loss benefits may be awarded after an insured’s death. [40 P.S. §§ 1009.101-1009.701.] POSTAL SERVICE See U.S. POSTAL SERVICE. POSTCONVICTION REMEDIES A variety of relief sought by a convicted criminal to have his or her sentence vacated, set aside, or corrected because such a sentence was based upon some violation of rights under the U.S. Constitu- tion, such as a forced confession. Among the most common postconviction remedies available are the collateral proceedings. A convict might petition for a writ of HABEAS CORPUS to investigate the propriety of their confinement (per pursuant to 28 U.S.C.A. § 2241 or 2254), or for a w rit of CORAM NOBIS if they have already served their sentence and may be seeking to have PROBATION set aside, or to have various rights restored. Following conviction, a direct APPEAL to a higher court may also be possible, although it is likely to take longer than other options. Other postconviction options, depending on the case, may include a motion for a new trial (i.e., a motion that the trial court declare a MISTRIAL) or a motion for ACQUITTAL. FURTHER READINGS Cammack, Mark, and Norman M. Garland. 2006. Advanced Criminal Procedure in a Nutshell. 6th ed. St. Paul, Minn.: West. POSTDATE To designate a written instrument, such as a check, with a time or date later than the actual time or date it is made. For example, a person who may be going out of town might give a postdated check for rent to their landlord before departing if rent is not quite due, and funds are not yet available due to pay schedule. POSTHUMOUS CHILD An infant who is born subsequent to the death of the father or, in certain cases, the mother. At COMMON LAW and by the laws of various states, governing DESCENT AND DISTRIBUTION,a posthumous child inherits from a deceased parent’s estate as an heir, provided that the infant is born alive following a gestation period that shows that the child was conceived prior to the death of the father who has died INTESTATE. Under some statutes, it is necessary that the child be born within a nine-month period subsequent to the intestate father’s death in order for the infant to be considered a posthumous child. Laws addressing a posthumous child are rapidly becoming obsolete as medical advances extend the time period over which reproduction can occur. For example, sperm and eggs may be preserved in a frozen state past the lives of their donors. It is also possible to remove sperm or eggs, or perform a Caesarian section, after a person’s death. A good example of how the law is changing regarding posthumous children can be found in the 2004 case of Gillett-Netting v. Barnhart, 371 F.3d 593, 04 Cal., in which the U.S. Court of Appeals for the Ninth Circuit determined that children conceived by in vitro fertilization utilizing sperm deposited by a father who later died were entitled to the father’s SOCIAL SECURITY benefits. It determined this despite the fact the children were born ten months after the father’s death. The court noted in that case that “Developing reproductive technology has out- paced federal and state laws, which currently do not address directly the legal issues created by posthumous conception.” POSTING In accounting, the act of transferring an original entry to a ledger (which may entail record-keeping compliance requirements, such as for tax purposes). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 POSTAL SERVICE The act of mailing a document. A form of substituted SERVICE OF PROCESS consisting of displaying the process in a prominent place when other forms of service are unavailing. In connection with TRESPASS statutes, the act of placing or affixing signs (typically reading, “posted”) on private property in a manner to give notice of the property status and thus the trespass. A criminal defendant who produces a court- determined payment, following a bail hearing, will often post a bond, with the assistance of a bond agent, to guarantee future court appear- ances. The amount may be very high, or even unattainable, depending on the severity of the offense in question. FURTHER READINGS Boss, Barry; Ed Marek; and Jeffrey Rutherford. 2009. Federal Criminal Practice. Costa Mesa, Calif.: James Publishing Holgate, Peter. 2006. Accounting Principles for Lawyers. New York: Cambridge University Press POSTMARITAL AGREEMENT A postmarital agreement is made between spouses concerning the rights and responsibilities of the parties upon DIVORCE or the death of one of the spouses. Postmarital agreements, also called postnup- tial agreements, are agreements made between spouses. Postmarital agreements concern the rights and responsibilities of each spouse in the event that the other spouse dies or the couple divorces. All states allow postmarital agreements, but courts must review these agreements for procedural and substantive fairness before they can be executed. In most states the law on postmarital agreements is similar to the law on premarital agreements. Both parties must make full disclosure of their earnings and their property, and the agreement must be in writing and signed by both parties. If FRAUD, duress, or coercion was involved in the formation of the contract, a court may declare the agreement void. Some states declare that, when creating a postmarital agreement, both parties must be represented by an attorney in order for the agreement to be valid. Courts are free to strike down provisions in postmarital contracts that violate PUBLIC POLICY. Some states have special laws for postmarital agreements. In Minnesota, for example, the agreement may not address CHILD SUPPORT, CHILD CUSTODY , or child visitation issues, and neither party may commence an action for separation or DIVORCE within two years of the execution of the agreement. A section in Minnesota’s statute also provides that no couple with a NET WORTH of less than $1.2 million may fashion a postmarital agreement (Minn. Stat. Ann. § 519). In Florida, if a postmarital agreement waives a spouse’s rights upon the death of the other spouse, each spouse must make full and fair disclosure of assets. No such disclosure is required in Florida for similar premarital agreements (Fla. Stat. Ann. § 732.702). Postmarital agreements are distinct from separation agreements. Separation agreements are intended to govern the rights and duties of the spouses upon separation and until a court orders a divorce decree or until a court recognizes the separation. Postmarital agree- ments, by contrast, are intended to govern the rights and duties of the spouses after a divorce. Postmartial agreements also differ from PROP- ERTY SETTLEMENT agreements or martial termina- tion agreements because spouses enter into postmartial agreements while the spouses are still living together. FURTHER READINGS Mercing, Christine S. 1990. “The Uniform Premarital Agreement Act: Survey of Its Impact in Texas and Across the Nation.” Baylor Law Review 42 (fall). Mullin, William E., and Judith T. Younger. 1994. “Pre- marital and Postmarital Agreements.” Bench and Bar. (December). Practising Law Institute (PLI). 1989. Tax Aspects of Spousal Rights: Pre- and Post-Mortem, by Ronald S. Kochman. Tax Law and Estate Planning Course Handbook series, PLI order no. D4-5206. Rice, Larry. 2005. The Complete Guide to Divorce Practice: Forms and Procedures for the Lawyer. Chicago: American Bar Association. Wilson, Robin Fretwell, ed. 2006. Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution. New York: Cambridge University Press. CROSS REFE RENCES Husband and Wife; Property Settlement. v POUND, ROSCOE Roscoe Pound was one of the leading figures in twentieth-century legal thought. As a scholar, teacher, reformer, and dean of Harvard Law School, Pound strove to link law and society through his sociological JURISPRUDENCE and to improve the administration of the judicial system. In the early decades of the twentieth GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POUND, ROSCOE 49 century, Pound was viewed as a radical thinker for arguing that the law is not static and must adapt to the needs of society. By the 1930s, however, he was seen as a more conserva- tive figure, fighting the growth of federal government. Pound was born on October 27, 1870, in Lincoln, Nebraska. The son of a judge, Pound attended the University of N ebraska, earning a Bachelor of Arts degree in botany in 1888. His father convinced him to attend Harvard Law School, but he stayed only one year. The death of his father led Pound to return to Lincoln, where he passed the Nebraska BAR EXAMINATION and was admitted to the bar in 1890. From 1890 to 1903 Pound practiced law, taught at the University of Nebraska, earned a doctorate in botany from the university, and served as the director of the state botanical survey. In addition, he helped organize the Nebraska Bar Association in 1900. A gifted scholar, Pound could have had a distinguished career in the sciences, but his appointment in 1901 as a commissioner of appeals for the Nebraska Supreme Court permanently shifted his career to the law. As a commissioner, he acted as a temporary appel- late judge, helping to reduce a backlog of cases. His opinions emphasized substance over proce- dure and reflected a concern with the practic al effect of the law. In 1903 Pound was appointed dean of the Nebraska College of Law. His academic interests merged with his experience as a court commis- sioner in 1906 when he addressed the annual convention of the AMERICAN BAR ASSOCIATION in St. Paul. His speech, titled “The Causes of Popular Dissatisfaction with the Administration of Justice,” was a call to improve court adminis- tration and a preview of his theory of law, called sociological jurisprudence. The speech, which has remained a central statement on JUDICIAL ADMINIS- TRATION , attracted the attention of JOHN HENRY WIGMORE , the dean of Northwestern University School of Law. He asked Pound to join his faculty in 1907. Pound’s two-year association with the school was marked by his organization of the First National Conference on CRIMINAL LAW and CRIMINOLOGY, which gathered participants from Roscoe Pound. LIBRARY OF CONGRESS Roscoe Pound 1870–1964 ▼▼ ▼▼ 18501850 19001900 19251925 19501950 19751975 18751875 ❖ ❖ ◆◆◆◆ ◆ ◆◆ 1861–65 U.S. Civil War 1870 Born, Lincoln, Neb. 1890 Admitted to Nebraska bar 1900 Helped organize the Nebraska Bar Association 1901 Appointed commissioner of appeals for the Nebraska Supreme Court 1903 Appointed dean of the Nebraska College of Law 1910 Joined Harvard Law School faculty 1914–18 World War I ◆ 1950–53 Korean War 1939–45 World War II 1961–73 Vietnam War 1964 Died, Cambridge, Mass. 1959 Jurisprudence published 1937 Appointed first university professor at Harvard; FDR failed in attempt to expand Supreme Court 1916–36 Served as dean of Harvard Law School 1933 Jerome N. Frank's Law and the Modern Mind published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50 POUND, ROSCOE many professions to discuss ways to reform the criminal law. The conference was one of the first of Pound’s efforts to give practical application to sociological jurisprudence. In 1910, after having spent a year at the University of Chicago, Pound joined the faculty at Harvard Law School. He was appointed dean in 1916 and served until 1936. During this period Pound’s views and influence were at their zenith. Pound’s contribution to U.S. jurisprudence was to further the work that Oliver Wendell Holmes Jr. had begun in debunking the legal theories that had dominated the nineteenth century. The work of Holmes and Pound has been associated with that of BENJAMIN CARDOZO. Homes, Pound, and Cardozo have been described as progressives, associated with what is referred to as sociological jurisprudence. Their work has been contrasted with that of CHRISTOPHER COLUMBUS LANGDELL, who empha- sized formal logic. Pound fought the notion that an unchang- ing and inflexible NATURAL LAW formed the basis for the COMMON LAW. He did believe that some constant principles exist in the common law, particularly those dealing with methods, to which he gave the name “taught legal tradition.” Pound firmly belie ved that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth. Pound placed his sociological jurisprudence in opposition to what he termed “mechanical jurisprudence,” which he characterized as a common but odious practice whereby judges woodenly applied precedent to the facts of cases without regard to the consequences. For Pound, the logic of previous precedent alone would not solve jurisprudential problems. Despite his desire to see the law adapt to the needs of society, Pound believed that the common law should develop slowly and that it should only follow changes in society. Certainty in the law, especially in areas such as commercial and PROPERTY LAW, was often more beneficial than attempts at practical alteration. He revealed a more conservative cast of mind in his distrust of legislative statutes, arguing that the slow development of judge-made law was preferable to the radical changes often brought by legisla- tion. His study of biology led him to believe that the law, like nature, was a seamless web and that changes in one part might produce totally unexpected and undesirable results in a distant part. Pound’s sociological jurisprudence fell out of favor in the 1930s, when the LEGAL REALISM movement attacked his philosophy. Though the legal realists and Pound had much in common, the realists, especially JEROME N. FRANK, differed over the nature of judicial decision making. Where Pound believed that judges, with the objective application of his principles of socio- logical jurisprudence, could logically produce the result in a given case, Frank, in his book Law and the Modern Mind (1933), argued otherwise. Frank maintained that not logic but the unique psychological makeup of judges was the most important factor in the resolution of a lawsuit. The realists pointed out, after analyzing many court decisions, that often a judge could support a decision for either side on a given legal issue. Therefore, they argued, judges w ere forced to decide cases on the basis of their subjective feelings of what was fair and then turn to the applicable part of the CASE LAW to furnish legal fig leaves to hide what they had actually done. Pound reacted angrily to this analysis in a series of LAW REVIEW articles. He believed that the rules of law, especially rules of COMMERCIAL LAW and property, could be determined with cer- tainty and even attain the logical coherence of the propositions of Euclid. Pound conceded that it was important to study the psychology of judging, but only to prevent the aberrations the realists claimed were common. Pound thought that the realists emphasized the oddities, and not the central factors, in their analysis of the judicial system. He disliked how the realists discounted the importa nce of the common law and how they were willing to advocate that the law be used to change society. For Pound, the legal system worked best when the law followed society. Any attempt to make society follow the law was futile. Pound resigned as dean of the Harvard Law School in 1936. He was appointed the first university professor of Harvard in 1937, an appointment that permitted him to teach in any of the academic units of Harvard. An opponent THE LAW MUST BE STABLE , BUT IT MUST NOT STAND STILL . —ROSCOE POUND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POUND, ROSCOE 51 of much of President Franklin D. Roosevelt’s NEW DEAL legislation, Pound was actively in- volved in attempts to stop the great expansion of federal administrative agencies. He continued writing during his later years, publishing his monumental five-volume Jurisprudence in 1959. He died on July 1, 1964, in Cambridge, Massachusetts, at the age of ninety-th ree. FURTHER READINGS Carrington, Paul D. 1999. “The Obsolescence of the United States Courts of Appeals: Roscoe Pound’s Structural Solution.” Journal of Law & Politics 15 (summer). Grey, Thomas C. 1996. “Modern American Legal Thought.” Yale Law Journal 493. Hull, N. E. H. 1997. Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence. Chicago: Univ. of Chicago Press. Lasser, Mitchel. 2002. “Comparative Readings of Roscoe Pound’s ‘Jurisprudence.’” American Journal of Compar- ative Law 50 (fall). CROSS REFEREN CES “Causes of Popular Dissatisfaction with the Administration of Justice” (Appendix, Primary Document); Jurisprudence; Legal Realism; “Mechanical Jurisprudence” (Appendix, Primary Document). POUR-OVER A clause in a WILL or TRUST that provides that, upon the death of the creator of the trust, his or her assets will be transferred into some other existing trust. A pour-over will collects the decedent’s assets and marshals them for placement in a trust at the time of the testator’s death. The trust will have been created prior to the testator’s death, for this eventual purpose. A pour-over trust is useful as a receptacle for disposition of testamentary assets trans- ferred from the PROBATE estate. A settlor who has created a trust du ring his or her lifetime may wish to leave, at his or her death, probate assets to that trust in order to coordinate the disposition of all of his or her property. This type of plan may avoid duplication of trusts, avoid court supervision over a testamentary trust, reduce administrativ e costs, and provide privacy with regard to the ultimate distribution of the settlor’s assets. A pour-over trust, likewise, can be beneficial if significant amounts of life insurance will be paid upon the settlor’s death. It can also serve as a receptacle for the receipt of pension or profit-sharing sums that would be distributed to minor children. FURTHER READINGS The American Bar Association Guide to Wills & Estates: Everything You Need to Know about Wills, Estates, Trusts and Taxes. New York: Random House. Mennell, Robert L. and Sherri L. Burr. 2007. Wills and Trusts in a Nutshell. St. Paul Minn.: Thomson. Pennel, Jeffrey N., Alan Newman. 2005. Estate and Trust Planning. Chicago: Section of Real Property, Probate, and Trust Law, American Bar Association. v POWELL, ADAM CLAYTON, JR. Adam Clayton Powell Jr. was a prominent African American congressman, serving his district in New York City’s Harlem neighbor- hood from 1945 to 1970. A flamboyant and often controversial political figure, Powell played a key role in passing many federal education and social welfare programs in the 1960s. Near the end of his tenure, however, Powell was embroiled with the House of Representatives over alleged ethical lapses. Adam Clayton Powell Jr. 1908–1972 ▼▼ ▼▼ 1900 1975 1950 1925 ❖ ◆◆◆◆◆ ◆◆◆◆◆◆◆◆ 1908 Born, New Haven, Conn. 1914–18 World War I 1930 Graduated from Colgate University 1939–45 World War II 1936 Became minister of the Abyssinian Baptist Church in Harlem 1947 Appointed to House Education and Labor Committee 1950–53 Korean War 1958 Charged with income tax evasion 1961 Became chair of the House Committee on Education and Labor 1967 Powell stripped of committee chairmanship and excluded from Congress 1968 Reelected to his old seat, but House refused to recognize his seniority 1969 Supreme Court disallowed Powell's 1967 exclusion from Congress in Powell v. McCormick 1970 Lost Democratic primary for reelection 1971 Retired as minister of Abyssinian Baptist Church 1972 Died, Miami, Fla. 1961–73 Vietnam War 1944 Elected as a Democrat to U.S. House 1941 Elected as independent to the New York City Council GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 POUR-OVER Powell was born in New Haven, Connecticut, on November 29, 1908. When he was less than a year old, his father moved the family to New York City’s Harlem neighborhood to acce pt the ministry at the Abyssinian Baptist Church. The church, which was a hundred years old, expanded under the elder Powell’sleadership, in time becoming one of the largest congrega- tions in the United States. Powell graduated from Colgate University in 1930 and received a master of arts degree in religious education from Columbia University in 1931. He served as assistant minister and business manager of the Abyssinian Church in 1930 and succeeded his father as minister in 1936. He remained minister of the church for thirty-five years. During the Great Depression of the 1930s, Powell acted aggressively to address racial and social injustice in New York City. In 1930 he organized picket lines and mass meetings to demand reform of Harlem Hospital, which had fired five African American doctors because of their race. Powell also used the church as an instrument of social welfare, distributing food, clothing, and temporary jobs to thousands of Harlem’s destitute residents. Powell soon was recognized as a charismatic CIVIL RIGHTS leade r, adept at forcing restaurants, retail stores, bus companies, utilities, and phone companies either to hire or begin promoting African American employees. He transferred his efforts into the political arena in 1941, when he was elected as an independent to the New York City Council. During WORLD WAR II he worked for the New York State Office of Price Admin- istration and the Manhattan Civilian Defense, as well as publishing a weekly newspaper, The People’s Voice. In 1944 he was elected as a Democrat to Congress, representing the Twenty-second (later Eighteenth) District. In 1947 he took a seat on the Education and Labor Committee, which was to become the base of his power and prestige. During the 1940s and 1950s, Powell challenged racial SEGREGATION in and out of the halls of Congress. He took black constituents to the House dining room that had been informally restricted to white representatives. He intro- duced legislation to outlaw LYNCHING and to ban discrimination in the armed forces, housing, transportation, and employment. He became famous for attaching an antidiscrimination amendment to many pieces of legislation. The so-called Powell Amendment was always unsuc- cessful, but it was a way to raise the issue of racial inequality before a House that was generally hostile to Powell’s stand on civil rights. His frustration at the Democratic Party’s reluctance to move forward on civil rights led him in 1956 to endorse Republican President DWIGHT D. EISENHOWER for a second term. New York City DEMOCRATIC PARTY leaders were out- raged at this act of disloyalty and waged a hard- fought campaign to defeat him in the 1958 primary election. Powell’s loyal Harlem con- stituents rebuffed this effort. In 1961 Powell became chairman of the Committee on Education and Labor. He proved to be an effective, if at times difficult, point man for the Kennedy and Johnson administrations. More than 50 pieces of major legislation were passed out of Powell’s committee, including the school lunch program, education and training for the deaf, student loan programs, vocational training, and MINIMUM WAGE increases. Powell was instrumental in passing legislation to aid elementary and secondary education. By 1966, however, Powell had alienated many House members because of his poor management of the committee budget, numer- ous and well-publicized government-funded trips abroad, and excessive absenteeism. These Adam Clayton Powell Jr. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION POWELL, ADAM CLAYTON, JR. 53 congressional problems were compounded by problems in his private life. Powell, despite being a minister, liked the high life. Married three times and attached to other women, he enjoyed his playboy image. Many members of Congress were shocked by this attitude. More seriously, Powell had been charged with income TAX EVASION in 1958, but the trial ended in a hung jury. In 1960 he appeared on a New York City television show and lambasted POLICE CORRUPTION. He had previously charged on the floor of the House that a constituent, Esther James, worked for ORGANIZED CRIME in Harlem. Statements made on the House floor are covered by congressional IMMUNITY, and Powell knew he could not be sued for slander. On the television show he repeated his charge and labeled James a Mafia “bag woman.” James proceeded to sue Powell, setting in motion a chain of legal and political misfor- tunes for him. After James won her slander suit and obtained damages of $46,000, Powell refused to pay the judgment. He also ignored subpoenas to appear and explain his financial records. Finally the court issued two civil CONTEMPT arrest warrants for his recalcitrance. After the warrants were issued, Powell would only return to his Harlem district to preach on Sundays, when it was illegal to serve a civil contempt warrant. The trial court then imposed a thirty-day jail sentence for failing to appear. On appeal, the New York state appellate court allowed Powell more time to comply with the subpoena but agreed with the trial court that Powell’s jail sentence was not barred by congressional immunity (James v. Powell, 26 A.D. 2d 295, 274 N.Y.S .2d 192 [1966]). Powell was not to settle the case with James until 1969. The James episode and allegations of congressional misconduct led the House to strip Powell of his committee chair in January 1967. In addition, the full House refused to seat him until the Judiciary Committee com- pleted its investigation of his affairs. In February 1967 the committee recommended that Powell be censured, fined, and deprived of seniority. The full House disagreed, voting 307 to 116 to exclude him from Congress. Powell then ran in the special election to fill his vacant seat. When he won in April, he refused to take his seat. He ran again in the November 1968 election and was reelected. This time the House seated him but denied him his seniority. Powell refused to take his seat under this condition. Following his exclusion in 1967, Powell filed a lawsuit against the House of Representatives, arguing that the House had no constitutional basis for excluding him. Typically federal courts do not entertain such lawsuits, because they deal with matters constitutionally delegated to the legislative branch. Although it appeared Powell’s lawsuit was barred by the “political question” doctrine, the U.S. Supreme Court ultimately decided that it could intervene. In Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), the Court held that the House of Repr esentatives could not exclude Powell, a duly elected member, who met all the constitutional qualifications of age, citizenship, and residence prescribed by the Constitution. Powell took his House seat after the Supreme Court decision, but he lost his 22 years of seniority. His victory was short-lived. He lost in the June 1970 primary election and failed to get on the ballot as an independent. He retired as minister at the Abyssin ian Baptist Church in 1971 and died in Miami, Florida, on April 4, 1972. RESOURCES Hamilton, Charles V. 2002. Adam Clayton Powell, Jr.: The Political Biography of an American Dilemma. New York: Cooper Square. Haskins, James. 1992. Adam Clayton Powell: Portrait of a Marching Black. Trenton, NJ: Africa World Press. Haygood, Wil. 1993. King of the Cats: The Life and Times of Adam Clayton Powell, Jr. Boston: Houghton Mifflin. Powell, Adam Clayton, Jr. 2002. Adam by Adam: The Autobiography of Adam Clayton Powell, Jr. New York: Kensington. CROSS REFEREN CE Congress of the United States. v POWELL, LEWIS FRANKLIN, JR. Lewis Franklin Powell Jr. served as an associat e justice of the U.S. Supreme Court from 1972 to 1987. Powell, who came to the Court as one of the most distinguished lawyers in the United States, was a moderate conservative who became a key “swing” vote on a Court that grew divided between conservatives and liberals. Powell was born on September 19, 1907, in Suffolk, Virginia. A descendant of Virginia families who reached back to the settlement of Jamestown in 1607, Powell attended Washington THESE ARE THE DAYS FOR STRONG MEN TO COURAGEOUSLY EXPOSE WRONG . —ADAM CLAYTON POWELL JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 POWELL, LEWIS FRANKLIN, JR. and Lee University in Lexington, Virginia. He graduated with a bachelor’s degree in 1929 and a law degree in 1931. He earned a master’sdegree from Harvard Law School in 1932. Powell first entered law practice in Richmond, where he remained until he was appointed to the U.S. Supre me Court in 1971. His legal career was interrupted by WORLD WAR II,duringwhich he served as a U.S. Army Corps intelligence officer. Powell’s reputation grew nationally during the 1950s and 1960s. He was elected president of the AMERICAN BAR ASSOCIATION in 1964 and president of the American College of Trial Lawyers in 1968. Unlike many U.S. Supreme Court appoin- tees, Powell did not enter politics. He did, however, distinguish himself as a member and president of the Richmond Public School Board from 1952 to 1961, and later he was a member of the Virginia Board of Education. In the wake of BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), which prohibited state-imposed racial SEGREGATION in public schools, many southern communities pledged to defy or evade the Court decision. Some school boards closed the schools and encouraged attendance at white-only private schools, and others refused to integrate. Powell, as president of the Richmond Public School Board, peacefully integrated the school system and publicly called for cooperation rather than resistance to the INTEGRATION of society. In August 1971 Powell sent the U.S. CHAMBER OF COMMERCE a confidential report that cam e to be known as the Powell Memorandum. Entitled “Attack on the American Free Enterprise System,” Powell called for “constant surveil- lance” of textbook content and television programming, as well as the eradication of left-wing influence. President RICHARD M. NIXON nominated Powell to the high court in October 1971. Nixon had offered him earlier appointments, but Powell had refused. He was easily confirmed and took his seat in January 1972. He joined a Court that was moving from a liberal majority to a more conservative makeup. Powell was a conservative on crime and law enforcement and a strong defender of integration and CIVIL RIGHTS.Inthe 1980s, as the Court grew more conservative, Powell moved to the center and often provided the vote that broke a 4–4 deadlock. ▼▼ ▼▼ Lewis Franklin Powell Jr. 1907–1998 1900 1950 1975 2000 1925 ❖ 1914–18 World War I 1939–45 World War II ◆ 1950–53 Korean War 1961–73 Vietnam War 1907 Born, Suffolk, Va. ◆ ◆ ◆ ◆ ❖ 1932 Earned LL.M. from Harvard Law School; entered private practice in Richmond, Va. 1942–46 Served in the U.S. Air Force 1954 U.S. Supreme Court outlawed "separate but equal" education in Brown v. Board of Education 1952–61 Served on the Richmond Public School Board 1998 Died, Richmond, Va. 1987–96 Served on 4th U.S. Court of Appeals 1987 Retired from Supreme Court 1986 Wrote majority opinion in Batson v. Kentucky 1972–87 Served as associate justice of the Supreme Court 1978 Wrote majority opinion in Regents of University of California v. Bakke 1964–65 Served as president of the American Bar Association 1968–70 Served as president of the American College of Trial Lawyers Lewis F. Powell Jr. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION POWELL, LEWIS FRANKLIN, JR. 55 Powell played a key role in REGENTS OF UNIVERSITY OF CALIFORNIA V . BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), which concerned the legality of AFFIRMATIVE ACTION plans to remedy past RACIAL DISCRIMINATION. Powell wrote the opinion of the Court, holding that a university may consider the race of an applicant as part of its admission procedures. Powell also found, however, that the particular admissions program at issue in the case had unlawfully discriminated against Allen Bakke, a white applicant, by denying him admission to medical school solely on the basis of his race. Powell also wrote the majority opinion in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which prohibited prosecutors from excluding prospect ive jurors on the basis of race. Under the Batson test, a DEFENDANT may object to a prose cutor’s PEREMP- TORY CHALLENGE (a removal of a prospective juror without offering a reason). The PROSECUTOR then must “come forward with a neutral explanation for challenging black jurors.” If a neutral explanation cannot be made, the juror will not be excused. Powell was the swing vote in Bowers v. Hardwick, 478 U.S. 186 (1986), siding with the majority in favor of upholding Georgia’s SODOMY laws. Powell followed the advice of a conserva- tive clerk in supporting the ban but expressed concern in a concu rring opinion at the length of the prescribed prison sentences. Seventeen years later, the Court overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). Powell retired from the Supreme Court in 1987 but sat on the Fourth U.S. Court of Appeals until 1996. He died in Richmond, Virginia, in 1998. FURTHER READINGS Jeffries, John C. 2001. Justice Lewis F. Powell Jr. New York: Fordham Univ. Press. Stephens, Otis H., Jr., and John M. Scheb, II. 1993. American Constitutional Law. St. Paul, Minn.: West Group. CROSS REFEREN CES Jury; School Desegregation. POWELL V. ALABAMA Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), is a watershed case in CRIMINAL LAW. The Powell case marked the first time that the U.S. Supreme Court reversed a state court conviction because the lower court failed to appoint counsel or give the defendants an opportunity to obtain counsel. On March 25, 1931, nine young black men were traveling on a freight train through Alabama. Haywood Patterson, Eugene Williams, and brothers Roy and Andy Wright were friends, having grown up together in Chattanooga, Tennessee. Ozie Powell, Olen Montgomery, Charley Weems, Willie Roberson, and Clarence Norris all hailed from different parts of Georgia. Also on the train were seven white men and two white women. During the ride a fight broke out, and six of the seven white men were thrown off the train. The trai n stopped near Scottsboro, Ala bama, and a sheriff’s posse comprised of private citizens seized the young black men. The white females, Victoria Price and Ruby Bates, claimed that they had been raped. The bewildered black youths were roped together, herded into a truck, and driven to Scottsboro, the Jackson County seat. That night, an unruly mob demanded to lynch the youths, but Sheriff M. L. Wan n kept them safe. The youths were indicted on char ges of rape on March 31, 1931. They were arraigned the same day in the Jackso n County Circuit Court, where they entered pleas of not guilty. Although they faced rape charges, a capital offens e at the time, they were held without an opportunity to communicate with the outsid e world, and no attorney came to see them. Most of the defendants were illiterate, and none had even a rudimentary knowledge of criminal law. The court ordered that the defendants be tried in groups, with four trials in all. The trials began on April 6, 1931, just six days after the indictments were entered and less than two weeks after the defendants were arrested. The gallery in the courtroom was packed with spectators. Outside the courtroom, a parade band supplied by the Ford Motor Company played popular tunes for the thousands who could not get a seat in the gallery. At the beginning of the first trial, Judge Alfred E. Hawkins asked the defendants if they were ready to proceed to trial. Although Hawkins previously had ordered members of the local bar to assist the defendants, no attorney answered for the defendants except Scottsboro lawyer Milo Moody and Stephen Roddy, a lawyer from Chattanooga. Moody was 70 years old. Roddy was not a member of the THE GUARANTEE OF EQUAL PROTECTION CANNOT MEAN ONE THING WHEN APPLIED TO ONE INDIVIDUAL AND SOMETHING ELSE WHEN APPLIED TO A PERSON OF ANOTHER COLOR .IF BOTH ARE NOT ACCORDED THE SAME PROTECTION , THEN IT IS NOT EQUAL . —LEWIS F. P OWELL JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 56 POWELL V. ALABAMA Alabama bar or a criminal defense attorney, and he was unfamiliar with the court rules and laws of Alabama. Roddy and Judge Hawkins engaged in a murky exchange that made only two things clear: The defendants had not seen an attorney until the day of trial, and they would not be receiving effective representation in their capital trials. Roddy represented the defendants in a perfunctory fashion, and the court excluded evidence helpful to the defendants. Each trial lasted less than one day, and to the no isy delight of onlookers, eight of the nine defendants were convicted and sentenced to death. Only 13- year-old Roy Wright was spared: His case ended in a mistrial when the jury held out for the death penalty, which could not be enforced against a juvenile. The convictions sparked a national debate over the fairness of the proceedings. The defendants came to be called the “Scottsboro Boys,” and the U.S. Communist Party led the cause to free them. After their convictions, the youths were represented by George W. Chamlee Sr. and Joseph R. Brodsky from the Interna- tional Labor Defense, an organization domi- nated by Communists. On appeal to the Supreme Court of Alabama, Chamlee and Brodsky argued that the defend ants had not received fair trials for various reasons. Specifi- cally, Chamlee and Brodsky argued that the convictions should be reversed because the crowd outside the courthouse had influenced the jurors, the juries in Alabama contained no black persons, and the defendants had not received adequate LEGAL REPRESENTATION. The Supreme Court of Alabama reversed the conviction of Eugene Williams on the grounds that he may have been a juvenile and should have been tried as one, but the court affirmed the other seven convictions. On March 24, 1932, the Supreme Court of Alabama ordered that the seven defendants be put to death by electrocution on August 31, 1932. The execu- tions were postponed when the U.S. Supreme Court decided to hear the appeals. Called in to prevent a mob lynching, National Guard troops surround the young men accused in the Scottsboro rape case: (l-r) Clarence Norris, Olen Montgomery, Andy Wright, Willie Roberson, Ozie Powell, Eugene Williams, Charlie Weems, Roy Wright, and Haywood Patterson. BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION POWELL V. ALABAMA 57 . as for tax purposes). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 POSTAL SERVICE The act of mailing a document. A form of substituted SERVICE OF PROCESS consisting of displaying the process. any of the academic units of Harvard. An opponent THE LAW MUST BE STABLE , BUT IT MUST NOT STAND STILL . —ROSCOE POUND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POUND, ROSCOE 51 of much of. of University of California v. Bakke 1964–65 Served as president of the American Bar Association 19 68 70 Served as president of the American College of Trial Lawyers Lewis F. Powell Jr. COLLECTION OF THE SUPREME