In a 7–2 decision delivered on November 7, 1932, the Court reversed all seven convictions. Justice GEORGE SUTHERLAND, writing for the majority, began the opinion by recounting the procedural history of the case and reciting the paltry and sometimes inaccurate record of the case. Sutherland noted that the record indicated that the defendants had been repre- sented by counsel at the ARRAIGNMENT, “But no counsel having been employed the record does not disclose when, or under what circum- stances, an appointment of counsel was made, or who was appointed.” Sutherland also referred to the mob surrounding the defendants. Sutherland wrote that “it does not appear that the defendants were seriously threatened with mob violence; but it does appear that the attitude of the community was one of great hostility.” Although the intimidating atmosphere played a part in the opinion, the Supreme Court was more concerned with the procedures employed by the trial court. Judge Hawkins had appointed the entire bar of Scottsboro to represent the defendants, but he did not require the attorneys to accept the case. Sutherland quoted the colloquy between Hawkins and Roddy that occurred just before the trial, which revealed that no attorney was prepared to take the case. Nevertheless, Hawkins allowed the trials to go forward, “and in this casual fashion,” Sutherland lamented, “the matter of counsel in a capital case was disposed of.” Sutherland began the Court’s legal analysis by declaring that, although the defendants may have appeared guilty, they were nonetheless presumed to be innocent. Sutherland then proceeded to frame the issue in the case as whether the defendants were denied the assis- tance of counsel and, if so, whether such a denial was an infringement of their rights under the FOURTEENTH AMENDMENT to the U.S. Consti- tution, the amendment that makes DUE PROCESS requirements applicable to the states. Sutherland concluded that states were obliged under the Con stitution to provide the righttoanattorneyinacriminalcaseandthat the r ight had not been extended to the defendants. Sutherland cited S upreme Court PRECEDENT for the p roposition that due process can be determined by asc ertaining “what were the settled usages and modes of proceeding under the common and statute law of England before the Declaration of I ndependence.” He then examined the history of the criminal defendant’s right to an attorney and concluded that such a right did not exist in England until the mid-nin eteenth century, that the English rule was assailed by legal analysts in England and rejected by 12 of the 13 colonies, and that it was a necessary in cident to due process of law. The denial of counsel, Sutherland declared, “is so outrageous and so obviously a perversion of all sense of proportion that the rule was constantly, vigorously and sometimes passionately assailed by English statesmen and lawyers.” Sutherland still had to make the requirement of counsel applicable to the states. The passage of the Fourteenth Amendment in 1868 forbid states to “deprive any person of life, liberty, or property, without due process of law,” but it remained for the court to determine precisely what procedures constituted due process. Quot- ing Hebert v. State of Louisiana, 272 U.S. 312, 47 S. Ct. 103, 71 L. Ed. 270 (1926), Sutherland explained that due process was required if a right was “of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’” Sutherland noted that it was well established that due process in a criminal case necessarily included an opportunity to be heard. Such an opportunity could not be achieved even by intelligent laypersons. Having established that the right to an attorney was a fundamental due process right applicable to the states, Sutherland applied the law to the facts of the case. The defendants were held incommunicado and prevented from obtaining counsel of their own choice. Suther- land declared that because of the ignorance and illiteracy of the defen- dants, their youth, the circumstances of public hostility, the imprisonment, and close surveillance of the defendants by military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all [because] they stood in deadly peril of losing their lives—we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process. Thefailureofthetrialcourttoappoint counsel was likewise a denial of due proce ss. Hawkins h ad made an attempt to appoint attorneys, but it was a f eeble one. Sutherland GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 58 POWELL V. ALABAMA declared that the attorneys were not “given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar.” The Powell holding declared that the Due Process Clause of the Fourteenth Amendment required that state courts g ive defen dants an opportunity to obtain counsel. It also created the rule that due process requires state courts to appoint counsel for indigent defendants in all capital cases an d that a free attorney for indigent defendants in noncapital cases is required if an unfair trial would result without the appointment. Powell was used as precedent for other Supreme Court decisions expanding the RIGHT TO COUNSEL,aswellasdecisions establishing that the legal representation defen- dants receive should not fall below a minimum standard of effectiveness . The defendants were retried again and again after the Supreme Court reversed their convic- tions. In 1935 the High Court again intervened in the prosecutions, reversing the convictions based on the fact that there were no blacks on the jury rolls (Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 [1935] ). In 1937 four of the defendants were released, but the other five defendants remained in prison. Each eventually gained release through either PAROLE or escape. In 1976 Alabama officials took a new look at the case, and Governor GEORGE WALLACE pardoned Clarence Norris. Norris, the last surviving defendant, had violated his parole by fleeing Alabama and had been at large for more than 30 years. FURTHER READINGS Geimer, William S. 1995. “A Decade of Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel.” William and Mary Law Review 4. Goodman, James. 1994. Stories of Scottsboro: The Rape Case That Shocked 1930’s America and Revived the Struggle for Equality. New York: Pantheon. Haskins, James. 1994. The Scottsboro Boys. New York: Holt. Horne, Gerald. 1997. Powell v. Alabama: The Scottsboro Boys and American Justice. New York: Franklin Watts. White, Welsh S., and James J. Tomkovicz. 2004. Criminal Procedure: Constitutional Restraints upon Investigation and Proof. New York: LexisNexis. CROSS REFERENCES Capital Punishment; Criminal Procedure; Fourteenth Amendment; Incorporation Doctrine; Right to Counsel. POWER The right, ability, or authority to perform an act. An ability to generate a change in a particular legal relationship by doing or not doing a certain act. In a restricted sense, a liberty or authority that is reserved by, or limited to, a person to dispose of real or PERSONAL PROPERTY, for his or her own benefit or for the benefit of others, or that enables one person to dispose of an interest that is vested in anothe r. POWER OF ATTORNEY A written document in which one person (the principal) appoin ts another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. It is sometimes called an “attorney-in-fact,” as the person authorizing the other to act is the principal or granter (of the power), and the one authorized to act is the agent or attorney-in-fact. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. Powers of attorney can be written to be either general (full) or limited to special circumstances. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time. One special type of power of attorney that is used frequently is the “durable” power of attorney. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. The two types of durable power of attorney are immediate and “springing.” The first type takes effect as soon as the durable power of attorney is executed. The second is intended to “spring” into effect when a specific event occurs, such as the disability of the principal. Most often, durable powers of attorney are created to address decisions involving either property management or health care. Durable powers of attorney have become popular because they enable the principal to have his or her affairs handled easily and inexpensively after he or she has become incapacitated. Before the durable powerof attorney wascreated, the only way to handlethe affairs of an incapacitated person wasto appoint a guardian, a process that frequently involves complex and costly court proceedings, as well as the often humiliating determination that the principal is who lly incapable and in need of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POWER OF ATTORNEY 59 A sample document granting power of attorney. Date: __________________ I, _____________________________________________ , the undersigned, of ____________________________________________ , do hereby confer full power of attorney on ___________________________________________________________________________ of __________________________________________________________________ as true and lawful attorney-in-fact for me and in my name, place and stead, and on my behalf, and for my use and benefit, regarding the following: FIRST: To ask, demand, litigate, recover, and receive all manner of goods, chattels, debts, rents, interest, sums of money and demands whatsoever, due or hereafter to become due and owing, or belonging to me, and to make, give and execute acquittances, receipts, satisfactions or other discharges for the same, whether under seal or otherwise; SECOND: To make, execute, endorse, accept and deliver in my name or in the name of my aforesaid attorney all checks, notes, drafts, warrants, acknowledgments, agreements and all other instruments in writing, of whatever nature, as to my said attorney - in - fact may seem necessary to conserve my interests; THIRD: To execute, acknowledge and deliver any and all contracts, debts, leases, assignments of mortgage, extensions of mortgage, satisfactions of mortgage, releases of mortgage, subordination agreements and any other instrument or agreement of any kind or nature whatsoever, in connection therewith, and affecting any and all property presently mine or hereafter acquired, located anywhere, which to my said attorney-in-fact may seem necessary or advantageous for my interests; FOURTH: To enter into and take possession of any lands, real estate, tenements, houses, stores or buildings, or parts thereof, belonging to me that may become vacant or unoccupied, or to the po ssession of which I may be or may become entitled, and to receive and take for me and in my name and to my use all or any rents, profits or issues of any real estate to me belonging, and to let the same in such manner as to my attorney shall seem necessary and proper, and from time to time to renew leases; FIFTH: To commence, and prosecute on my behalf, any suits or actions or other legal or equitable proceedings for the recovery of any of my lands or for any goods, chattels, debts, duties, and to demand cause or thing whatsoever, due or to become due or belonging to me, and to prosecute, maintain and discontinue the same, if he or she shall deem proper; SIXTH: To take all steps and remedies necessary and proper for the conduct and management of my business affairs, and for the recovery, receiving, obtaining and holding possession of any lands, tenements, rents or real estate, goods and chattels, debts, interest, demands, duties, sum or sums of money or any other thing whatsoever, located anywhere, that is, are or shall be, by my said attorney-in-fact, thought to be due, owing, belonging to or payable to me in my own right or otherwise; SEVENTH: To appear, answer and defend in all actions and suits whatsoever that shall be commenced against me and also for me and in my name to compromise, settle and adjust, with each and every person or persons, all actions, accounts, dues and demands, subsisting or to subsist between me and them or any of them, and in such manner as my said attorney-in-fact shall think proper; hereby giving to my said attorney power and authority to do, execute and perform and finish for me and in my name all those things that shall be expedient and necessary, or which my said attorney shall judge expedient and necessary in and about or concerning the premises, or any of them, as fully as I could do if pers onally present, hereby ratifying and confirming whatever my said attorney shall do or cause to be done in, about or concerning the premises and any part thereof. Powers conferred on said attorney-in-fact shall not be restricted or limited by the aforementioned specifications regarding situation of representation. The rights, powers and authority of said attorney-in-fact granted in this instrument shall commence and be in full force and effect on ____________, (Month & Day) _____, (Year) and such rights, powers and authority shall remain in full force and effect thereafter until I give notice in writing that such power is terminated. It is my desire, and I so freely state, that this power of attorney shall not be affected by any subsequent disability or incapacity that may befall me. FURTHERMORE, upon a finding of incompetence by a court of appropriate jurisdiction, this power of attorney shall be irrevocable until such time as said court determines that I am no longer incompetent. __________________________________ Signature Power of Attorney FULL POWER OF ATTORNEY [ continued ] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 60 POWER OF ATTORNEY protection. With a durable power of attorney, on theother hand, a principal can appointsomeone to handle his or her affairs after he or she becomes incompetent, and the document can be crafted to confer eit her general power or power in certain limited circumstances. Because no judicial pro- ceedings are necessary, the p rincipal save s time a nd money and avoi ds the stigma of being de clared incompetent. The concept of the durable power of attorney was created in 1969 when the National Conference of Commissioners on Uniform State Laws promulgated the UNIFORM PROBATE CODE (U.P.C. § 5–501). Ten years later, the provisions of the code concerning the durable power of attorney were modified and published as the Uniform Durable Power of Attorney Act (UDPA). All fifty states recognize some version of the durable power of attorney, having adopted either the UDPA or the Uniform Probate Code, or some variation of them. Versions of the durable power of attorney vary from state to state. Certain powers cannot be delegated, including the powers to make, amend, or revoke a will; change insurance beneficiaries; contract a marriage; and vote. FURTHER READINGS Insel, Michael S. 1995. “Durable Power Can Alleviate Effects of Client’s Incapacity.” Estate Planning 22 (February). Lynn, Robert, and McCouch, Grayson. 2004. Introduction to Estate Planning in a Nutshell. 5th Ed. St. Paul, Minn.: West. CROSS REFERENCE Living Will POWER OF SALE A clause commonly inserted in a mortgage and deed of trust that grants the creditor or trustee the right and authority, upon default in the payment of the debt, to advertise and sell the proper ty at public auction, without resorting to a court for authorization to do so. Once the creditor is paid out of the net proceeds, the property is transferred by deed to the purchaser, and the surplus, if any, is returned to the debtor. The debtor is thereby completely divested of any interest in the property and has no subsequent right of redemption—recovery of property by paying the mortgage debt in full. POWER OF TERMINATION A future interest in real property whereby the grantor conveys an estate to another, called the grantee, subject to a particular condition, the breach of which forfeits the grantee’s interest in the property. For example, A, owner of Blackacre, might convey the land “To B, but if liquor is sold on the premises, then A may reenter and repos- sess.” A has the power to terminate the interest of B in the land if the condition occurs. A power of termination is also known as a right of reentry. CROSS REFERENCE Right of Reentry. I, __________________________, whose name is signed to the foregoing instrument, having been duly qualified according to the law, do hereby acknowledge that I signed and executed this power of attorney; that I am of sound mind; that I am eighteen (18) years of age or older; that I signed it willingly and am under no constraint or undue influence; and that I signed it as my free and voluntary act for the purpose therein expressed. __________________________________ Signature My commission expires on _______ _______________________ ___________________________________ Notary Public Power of Attorney A sample document granting power of attorney (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION POWER OF TERMINATION 61 PRACTICE Defined to be the appearance as an advocate in a representative capacity or the drawing of papers, pleadings, or documents or the performance of any act in such capacity in connection with proceed- ings pending or prospective before any court of record, commissioner, referee or any body, board, committee, or commission constituted by law or having authority to settle controversies. States are very consistent in the way they generally define the PRACTICE OF LAW.The California Supreme Court, in People ex rel. Lawyers Institute of San Diego v. Merchants’ Protective Corp. 189 Cal. 531, 209 P. 363, stated that the practice of law “is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.” Among the activities the state of Georgia defines as practicing law include: (1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body; (2) Conveyancing; (3) The preparation of legal instruments of all kinds whereby a LEGAL RIGHT is secured; (4) The rendering of opinions as to the validity or invalidity of titles to real or PERSONAL PROPERTY; (5) The giving of any legal advice; and (6) Any action taken for others in any matter connected with the law. PRACTICE OF LAW The professional tasks performed by lawyers in their offices or in court on a day-to-day basis. With the growth of specialization, it has become difficult to generalize about the practice of law. Nevertheless, common elements can be identified in the disparate typical workday of, for example, a criminal defense attorney and a probate attorney. Most jurisdictions require lawyers to pass comprehensive bar examinations to engage in the practice of law. To be eligible for a state’s bar exam, a person must first graduate from a law school approved by the respective state bar. A candidate must also undergo a background check to ensure that the candidate is fit to practice. If the cand idate has been convicted of a crime—especially one involving fraud—the candidate may be disqualified from taking the bar exam. Passing the bar exam in one state generally only allows a lawyer to practice law in that state. Some states have reciprocity agreements under which lawyers in one state may also practice in adjacent states. A lawyer wanting to practice in federal court must complete a separate licensing procedure. The practice of law depends on lawyers having clients. Therefore, lawyers must spend time with clients or potential clients. In these meetings lawyers are expec ted to do more than just listen to their clients’ concerns and desires. Lawyers must ask questions that help identity the legal issues at stake and use the answers to make an initial assessment of the case. If the legal and factual issues are simple, a lawyer may be able to offer the client legal advice. If the issues are more complex or the facts are unclear, the lawyer will defer offering advice. At the end of the meeting, the client or the lawyer may decide they do not want to pursue the matter any further. If they agree to proceed, the client will often sign a retainer agreement that specifies what the lawyer will charge and how payments will be made. Once a legal problem or issue has been identified, the lawyer must act on the client’s behalf and research the law of the state or jurisdiction. If the client wants a will or contract prepared, the lawyer will draft the document. If the client has a dispute with a party, the lawyer may contact that party or the party’s attorney to discuss the situation. If the problem cannot be resolved in formally the lawyer may file a civil lawsuit with a local court and begin the LITIGATION process. These types of actions are mirrored in the CRIMINAL LAW, where prosecutors represent the state and defense lawyers repre- sent those persons charged with crimes. If a criminal matter cannot be resolved through a plea bargain, the case must be tried in court. The practice of law is most public when a matter is tried befo re a court. In both civil and criminal hearings and trials lawyers must understand rules of procedure and evidence. Lawyers select jurors, challenge the introduction of evidence, make arguments to the judge and jury, propose jury instructions and do whatever is necessary to represent their clients. Lawyers also may file appeals on behalf of their clients if they lose in the trial court. Appeals require the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 62 PRACTICE preparation of a brief and oral argument in front of APPELLATE judges. An overlooked part of the practice of law is the collection of money on behalf of the client. Once a court issues a final judgment awarding damages, court costs, and attorneys ’ fees, an attorney must secure payment from the other party. If the party fails to pay the judgment, then the attorney can garnish the wages of the party and attach the party’s PERSONAL PROPERTY in order to obtain the money to which the client is legally entitled. Lawyers must comply with professional ethics rules that have been adopted in each state. These rules cover a variety of topics involved in the practice of law. For instance, the rules cover lawyer advertising, handling client funds, and withdrawing from representation. A lawyer who violates these rules may be subject to discipline, including disbarment. FURTHER READINGS Bogus, Carl T. 2001. Why Lawsuits are Good for America: Disciplined Democracy, Big Business, and the Common Law. New York: New York Univ. Press. Foonberg, Jay G. 1999. How to Start and Build a Law Practice. 4th ed. Chicago: American Bar Association. Giesel, Grace M. 2009. Mastering Professional Responsibility. Durham, NC: Carolina Academic Press. Gillers, Stephen. 2009. Regulation of Lawyers: Problems of Law and Ethics. 8th ed. New York: Aspen Publishers. Hobson, Wayne K. 1986. The American Legal Profession and the Organizational Society, 1890–1930. New York: Garland. Walton, Kimm Alayane. 2000. What Law School Doesn’t Teach You But You Really Need to Know. New York: Harcourt Brace Legal and Professional Publications. CROSS REFERENCES Admission to the Bar; Attorney; Attorney-C lient Privilege; Attorney Misconduct; Bar Association; Canon s of Ethics; Ethics, Legal; Examination; Lawyer; Legal Malpractice; Professional Responsibility; Unauthorized Practice. PRAECIPE [Latin, Give an order.] A request for a writ of summons; one of the forms of legal process used to commence an action. A praecipe was drawn up in the alternative and commanded the defendant to do what was ordered or to appear and show why he or she had not done it. An order that commands the clerk of a court to issue a formal writ of execution directing the enforcement of a judgment already rendered and commanding a public officer to seize the defendant’s property in order to satisfy the debt. Not all lawsuits will involve pracecipes. PRAYER The request contained in a bill in EQUITY or a civil COMPLAINT that the court grant the process, aid, or relief that the plaintiff or countersuing defendant seeks (such as the type of remedy, either money damages or an injunction, and the form or dollar amount). Following the pleading’s description of the conflict and allegations, the prayer tends to begin with “Wherefore,” followed by the specific action or award wanted. PREAMBLE A clause at the beginning of a constitution or statute explaining the reason s for its enactment and the objectives it seeks to attain. Generally a preamble is a declaration by the legislature of the reasons for the passage of the statute, and it aids in the interpretation of any ambiguities WITHIN THE STATUTE to which it is prefixed. It has been held, however, that a preamble is not an essential part of an act, and it neither enlarges nor confers powers. CROSS REFERENCE Constitution of the United States. PRECATORY LANGUAGE Words in a will or a trust used by the testator (the person making the will) or settlor (the person making a trust) to express a wish or desire to have his or her property disposed of in a certain way or to have some other task undertaken, which do not necessarily impose a mandatory obligation upon anyone to carry out the wish . Precatory language in a will or trust usually includes such term s as the testator’s “request,” “hope,” or “desire” that property be given to a certain person or be disposed of in a particular manner. Whether such language can be viewed as mandatory, thus creating an enforceable will or trust, or whether it merely expresses the testator’s wish to have something done has been a difficult issue for the courts. The court must look to the intent of the testator to determine whether the precatory language establishes an enforceable agreement. The court usually examines a number of factors, including other language used in the will or trust, to determine the testator’s intent. For example, if in her will Anne says only that she “w ishes” or “would like” her house to be sold to her cousin Bill on her death, the court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRECATORY LANGUAGE 63 may find the language to be precatory and thus unenforceable because Anne was merely expres- sing a wish or a recommendation. But if elsewhere in the will a definite selling price is indicated, the court may conclude that Anne, despite the precatory terms used, did intend for her co usin to be offered the house because she took the additional step of specifying the price for which the property was to be disposed of at her death. In addition to examining other language in the will or trust for clues to the testator’sintent, the court may look to the relationship of the parties involved. For instance, if Tom puts language in a trust “requesting” that his daughter receive money or a particular gift, a judge may be more apt to enforce the trust. In doing so, the court acts on the assumption that Tom and his daughter share a close personal relationship and that he would want her to be provided for following his death even if he was less than definite in the language he used in the trust. Furthermore, language in a will or trust making a gift to charity may sometimes be upheld even if it appears to be precatory. For example, if Sue states in her will that she “would like” some of her money to be used for a particular program at a university, a court may view her language as mandatory. When a charitable organization is involved, courts, as a policy matter, tend to construe language liberally to make the gift effective. The litigation that often results from precatory language in wills and trusts can be avoided by the careful use of clear and definite language that leaves no doubt as to how the testator wishes to dispose of her or his property. Seeking legal advice when drafting a w ill or trust may be the best way to pre vent litigation. FURTHER READINGS DiRusso, Alyssa A. 2007. “He Asks, She Says: Gender, Language, and the Law of Precatory Words in Wills.” Wisconsin Women’s Law Journal 22. McElwee, L. A. 1992. “Precatory Language in Wills: Mere Utterances of the Sibyl?” Probate Law Journal 11. PRECEDENT A court decision that is cited as an example or analogy to resolve similar QUESTIONS OF LAW in later cases. The Anglo-American common-law tradi- tion is built on the doctrine of STARE DECISIS (“stand by decided matters”), which directs a court to look to past decisions for guidance on how to decide a case before it. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute. The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides notice of what a person’s rights and obligations are in particular circumstances. A person contemplating an action has the ability to know beforehand the legal outcome. It also means that lawyers can give legal advice to clients based on settled RULES OF LAW. The use of precedent also stabilizes the law. Society can expect the law, which organizes social relationships in terms of rights and obligations, to remain relatively stable and coherent through the use of precedent. The need is great in society to rely on legal rules, even if persons disagree with particular ones. Justice LOUIS D. BRANDEIS emphasized the impor- tance of this when he wrote, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right” (Burnet v. Coronado Oil & Gas Co., 285 U.S . 393, 52 S. Ct. 443, 76 L. Ed. 815 [1932]). Reliance upon precedent also promotes the expectation that the law is just. The idea that like cases should be treated alike is anchored in the assumption that one person is the legal equal of any other. Thus, persons in similar situations should not be treated differen tly except for legally relevant and clearly justifiable reasons. Precedent promotes judicial restraint and limits a judge’s ability to determine the outcome of a case in a way that he or she might choose if there were no precedent. This function of precedent gives it its moral force. Precedent also enhances efficiency. Reli- ance on the accumulation of legal rules helps guide judges in their resolution of legal disputes. If judges had to begin the law anew in each c ase, they would add more time to the adjudicative process and would duplicate their efforts. The use of precedent has resulted in the publication of law reports that contain case decisions. Lawyers and judges conduct legal research in these reports seeking precedents. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 64 PRECEDENT They try to determine whether the facts of the present case precisely match previous cases. If so, the application of legal precedent may be clear. If, however, the facts are not exact, prior cases may be distinguished and their precedents discounted. Though the application of precedent may appear to be mechanical, a simple means of matching facts and rules, it is a more subjective process. Legal rules, embodied in precedents, are generalizations that accentuate the impor- tance of certain facts and discount or ignore others. The application of precedent relies on reasoning by analogy. Analogies can be neither correct nor incorrect but only more or less persuasive. Reasonable persons may come to different yet defensible conclusions about what rule should prevail. The judicial system maintains great fidelity to the application of precedents. There are times, however, when a court has no precedents to rely on. In these “cases of first impression,” a court may have to draw analogies to other areas of the law to justify its decision. Once decided, this decision becomes precedential. Appellate courts typically create precedent. The U.S. Supreme Court’s main function is to settle conflicts over legal rules and to issue decisions that either reaffirm or create prece- dent. Despite the Supreme Court’s reliance on precedent, it will depart from its prior decisions when either historical conditions change or the philosophy of the court undergoes a major shift. The most famous reversal of precedent is BROWN V . BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), in which the Supreme Court repudiated the “separate but equal” doctrine of PLESSY V. FERGUSON, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). This doctrine had legitimated racial SEGREGATION for almost sixty years but finally gave way in Brown, when a unanimous court ruled that separate but equal was a denial of EQUAL PROTECTION of the laws. CROSS REFERENCES Case Law; Court Opinion. PRECEPT A standard or rule of conduct. In old French law, a kind of letter issued by the king in subversion of the laws, being orders to the judges to do or tolerate things contrary to law. PRECINCT A constable’s or police district. A small geographi- cal unit of government. An election district created for convenient localization of polling places. A county or municipal subdivision for casting and counting votes in elections. PRECIPE See PRAECIPE. PRECLUSION ORDER A court sanction that prevents a party who has not complied with a direction to supply information in the discovery stage of a lawsuit from later supporting or challenging designated claims or defenses related to the facts that he or she withheld. Rule 37 of the Federal Rules of Civil Procedure governs the granting of preclusion orders in actions brought in federal courts. CROSS REFERENCE Civil Procedure. PREEMPTION A doctrine based on the SUPREMACY CLAUSE of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law. A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law. Article VI, Section 2, of the U.S. Constitu- tion provides that the “ Constitution, and the Laws of the United States shall be the supreme Law of the Land.” This SUPREMACY CLAUSE has come to mean that the federal government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The federal preemption doctrine is a judicial response to the conflict between federal and state legislation. When it is clearly established that a federal law preempts a state law, the state law must be declared invalid. A state law may be struck down even when it does not explicitly conflict with federal law, if a court finds that Congress has legitimately occupied the field with federal legislation. Questions in this area require careful balancing of important state and federal interests. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PREEMPTION 65 A sample preclusion order. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Preclusion Order SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF_________________ _____________________________________________________ X Plaintiff, -against- Defendant. _____________________________________________________ X J.: Index No.: _________________ In this matrimonial action, plaintiff / defendant moves by order to show cause for an order precluding plaintiff / defendant from introducing at trial any evidence not previously disclosed pertaining to ___________________________. The plaintiff / defendant opposes the motion. The plaintiff / defendant motion regarding discovery is granted to the extent of directing that the plaintiff / defendant may not introduce evidence with respect to ___________________________ that has not been produced at least ten (10) days after service of a copy of this order with notice of entry. This constitutes the decision and order of the court. Dated: ___________________________ ________________________________________ Justice Supreme Court Preclusion Order February, 2004 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 66 PRECLUSION ORDER Problems arise when Congress fails to make its purpose explicit, which is often the case. The court must then draw inferences based on the presumed objectives of federal law and the supposed impact of related STATE ACTION. Preemption is not limited to the application of federal statutes. A state law may also be preempted by a treaty, an executive agreement, or an administrative regulation. Thus, for instance, regulations promulgated pursuant to the OCCUPA- TIONAL SAFETY AND HEALTH ACT OF 1970 preempt any state laws that conflict with those regulations. The federal right to regulate interstate commerce under the COMMERCE CLAUSE of the U.S. Constitution has resulted in federal preemption of state labor laws. Likewise, the SUPREME COURT,inBurbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), declared that state and local laws that interfere with comprehensive federal environmental laws and regulations are invalid. In California v. Federal Energy Regulatory Commission, 495 U.S. 490, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990), the Supreme Court held that state regulations imposing minimum flow rates on rivers used to generate hydroelectric power were preempted by the Federal Power Act (16 U.S.C.A. § 791 et seq.). In Mississippi Power and Light Company v. Mississippi ex rel. Moore, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322 (1988), the Court held that the Federal Energy Regulatory Commission’s regulations preempted astate’s authority to set electric power rates. At the state lev el, preemption occurs when a state statute conflicts with a local ordinance on the same subject matter. Preemption within the states varies according to individual state constitutions, provisions for the powers of political subdivisions, and the decisions of STATE COURTS . For example, if a state legislature enacts gun-control legislation, and the intent of the legislation is to occupy the field of GUN CONTROL, then a municipality is preempted from enacting its own gun-control ordinance. The issue of preemption has dominated litigation over the right of states to require insurance companies and Health Maintenance Organizations (HMOs) to accept “any willing [healthcare] provider” rather than to force consumers to stay within the health providers’ exclusive networks. HMOs and insurance companies have argued that the 1974 federal EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA) preempted these state laws. ERISA is an extremely complex and technical set of provisions that seek to protect employee benefit programs, which include pension plans and healthcare plans. Healthcare providers have pointed to the comprehensive nature of ERISA as demonstrating the intent of Congress to maintain a uniform national system. Therefore, they have argued, state laws must be preempted to affect this purpose. The U.S. Supreme Court rejected the ERISA preemption argument in two cases involving health insurance. In Moran v. Rush Prudential HMO, Inc., 536 U.S . 355, 122 S. Ct. 2151, 153 L. Ed. 2d 375 (2002), the Court in a 5–4 decision upheld an Illinois law that required HMOs to provide independent review of disputes between the primary care physician and the HMO. In Kentucky Association of Health Plans, Inc. v. Miller, 538 U.S. 329, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), the Court tackle d the “any willing provider rule.” In a unanimous decision, the Court held that Kentucky laws were not preempted by ERISA. The Court concluded that the laws did not concern employee benefit plans as defined by ERISA but instead were insurance regulations. This was an important distinction because state insurance regulations are not preempted by ERISA. FURTHER READINGS Hoenig, Michael. 2002. “Supreme Court Teaches Preemp- tion Lessons.” New York Law Journal 228 (December). “Interstate Commerce—Preemption.” 2002. New Jersey Law Journal 169 (July). Walsh, Edward. 2003. “Supreme Court Sides with States on HMOs: Groups Can Be Opened to All Providers.” Washington Post (April 3). CROSS REFERENCES Federalism; States’ Rig hts. PREEMPTIVE RIGHT The privilege of a stockholder to maintain a proportionate share of the ownership of a corporation by purchasing a proportionate share of any new stock issues. In most jurisdictions, an existing stock- holder has the right to buy additional shares of a new issue to preserve EQUITY before others have a right to purchase shares of the new issue. PREFERENCE The act of an insolvent debtor who pays one or more creditors the full amount of their claims or a larger amount than they would be entitled to receive on a pro rata distribution. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PREFERENCE 67 . the often humiliating determination that the principal is who lly incapable and in need of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POWER OF ATTORNEY 59 A sample document granting power of attorney. Date: . clients. Lawyers also may file appeals on behalf of their clients if they lose in the trial court. Appeals require the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 62 PRACTICE preparation of a. of EQUAL PROTECTION of the laws. CROSS REFERENCES Case Law; Court Opinion. PRECEPT A standard or rule of conduct. In old French law, a kind of letter issued by the king in subversion of the laws,