Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P9 docx

Suppose a debtor owes three creditors $5,000 each. All three are equally entitled to payment, but the debtor has only $12,000 in assets. Instead of paying each creditor $4,000, the debtor pays two creditors in full and pays the third creditor the remaining $2,000. The COMMON LAW does not condemn such a preference. Some state statutes prescribe that certain transfers are void—of no legal force or binding effect—because of their preferential character. If a state anti-preference provision protects any actual creditor of the debtor, the trustee in BANKRUPTCY can take advantage of it. Bankruptcy law does condemn certain preferences. The bankruptcy trustee can void any transfer of property of the debtor if the trustee can establish the following: 1. The transfer was “to or for the benefit of a creditor.” 2. The transfer was made for, or on account of, an “antecedent debt”—that is, a debt owed prior to the time of the transfer. 3. The debtor was insolven t at the time of the transfer. 4. The transfer was made within 90 days before the date of the filing of the bankruptcy petition or was made between 90 days and one year before the date of the filing of the petition to an insider who had reasonable cause to believe that the debtor was insolvent at the time of the transfer. 5. The transfer has the effect of incre asing the amount that the transferee would receive in a liquidation proceeding under chapter 7 of the bankruptcy law (11 U.S.C.A. § 701 et seq.).11 U.S.C.A. § 547. Under this language, the court must focus on the relative distribution between classes as well as the amount that will be received by the members of the class of which the creditor is a member. The language also requires the court to focus on the allowability of the claim for which the preference was made. If the claim would have been entirely disallowe d, for exam- ple, then the transfer will be voided, because the creditor would have received nothing under the distributive provisions of the bankruptcy code. Other statutory provisions, however, create exceptions; if a transfer comes within an exception, the bankruptcy trustee cannot inval- idate the transfer even though the aforemen- tioned five elements exist. For example, to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was made in the ordinary course of business or financial affairs of the debtor and the transferee, or made according to ordinary business terms, the transfer may not be voided. PREFERRED STOCK Stock shares that have preferential rights to dividends or to amounts distributable on liquida- tion, or to both, ahead of common shareholders. Preferred stock is given preference over COMMON STOCK. Holders of preferred stock receive dividends at a fixed annual rate. The earnings of a corporation are applied to this payment before common stockholders receive dividends. If corporate earnings are insufficient for the fixed annual dividend, the preferred stock will absorb the total amount of earnings, and the common stockholders will be precl uded from receiving a dividend. When corporate income exceeds the amount that is needed to pay preferred stockholders, the remainder is generally paid to common stockholders. In special situations, the remainder may be distributed PRO RATA to both classes of stock, in which case the preferred stock is said to “participate” with the common stock. Preferred stock can be cumulative or noncumulative. If it is cumulative, and if the fixed divide nd remains unpaid, it becomes a debit upon the surplus earnings of succeeding years. Accumulated dividends must be paid in full before common stockholders can receive dividends. When preferred stock is noncumula- tive, its preference is extinguished by the failure of the corporation to have sufficient earnings to pay the fixed dividend in a given year. Preferred stock made headlines during the economic downturn of 2008. Amid the global economic recession, the U.S. Treasury partially nationalized several financial institutions for the purpose of stabilizing them and quieting the growing panic among bank customers. The Treasury did this by giving those institutions more than $250 billion in exchange for shares of preferred stock. The officers and directors of those companies also agreed to limits on executive compensation. By 2009 many of those financial institutions had paid back the loans and reclaimed ownership of the stock. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 68 PREFERRED STOCK PREJUDICE A forejudgment; bias; partiality; preconceived opinion. A leaning toward one side of a cause for some reason other than a conviction of its justice. Juror Prejudice A juror can be disqualified from a case for being prejudiced, if his or her views on a subject, or attitude toward a party, will unduly influence the final decision. Jurors can also be disqualified if they have had communication about the case with any parties, witnesses, lawyers, or court personnel in the case. Assessing this type of juror bias requires consideration of a number of factors, including the nature of the communi- cation, the length of the contact, the possibility of removing juror taint by a limiting instruction by the judge to the rest of the jurors, and the impact of the communication on both the juror involved and the rest of the jury. Judicial Prejudice Judges are also required to be free from prejudice and to avoid the appearance of impropriety when presiding over any legal proceeding. Judges must remove themselves from any case in which they have a bias for or against a party, attorney, or witness in the case. They must also remove themselves from any case in which they have a personal stake in the outcome, as when a judge owns stock in a company that is being sued. Judges who fail to RECUSE themselves from a case in which they have a bias for or against a party may face disciplinary proceedings, and their rulings may be challenged on appeal. Dismissals With and Without Prejudice When a lawsuit is dismissed without prejudice, it signifies that none of the rights or privileges of the individual involved are considered to be lost or waived. The same holds true when an admission is made or when a motion is denied with the designation without prejudice. A dismissal without prejudice permits a new lawsuit to be brought on the same grounds because no decision has been reached about the controversy on its merits. The whole subject in LITIGATION is as much open to a subsequent suit as if no suit had ever been brought. The purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the DEFENDANT from using the defense of RES JUDICATA in any later action by the same PLAINTIFF on the subject matter. A dismissal with prejudice, however, is a bar to relitigation of the subject matter. A decision resulting in prejudicial error substantially affects an appellant’s legal rights and is often the ground for a reversal of the judgment and for the granting of a new trial. PRELAW EDUCATION A preparatory curriculum comprising introductory law courses and interdisciplinary subjects, offered to undergraduate students to instruct them in and acquaint them with the subject MATTER OF LAW, thereby assisting them in deciding whether to seek admission to law school and facilitating the process of law study in law school. COLLEGES AND UNIVERSI TIES offer several types of prelaw education to undergraduate students who are interested in attending law school. Some institutions offer a prela w major co urse of study leading t o a degree, a few offer a six-year course of study that combines undergraduate and law school education, and almost a ll offer an informal p relaw curriculum that emphasizes skills and knowledge essential to the study a nd PRACTICE OF LAW . The AMERICAN BAR ASSOCIATION does not rec- ommend any particular major for law school. Although political science is a popular prelaw major, there is no specific major preferred by law schools. Law students can major in anything from engineering to history to the fine arts. Some law schools state in their catalogs that they neither recommend prelaw courses nor grant an applicant any additional consideration because he or she pursued a prelaw education. A particular major is not important to a law school admissions committee, but good grades are critical for acceptance. In addition, admis- sions committees seek a diverse first-year class and may look at volunteer and extracurricular activities as well as a college transcript and the results of the LAW SCHOOL ADMISSION TEST (LSAT). Law schools have no prerequisite courses for admission. However, colleges offer courses that help hone the skills that will be important to a law student. Such “lawyering” skills include analytical thinking and problem solving, critical reading, writing, and oral communication. Courses in English, composition, and speech will enhance these means of communication. The legal profession finds its basis in the formation and operation of government institu- tions, and courses in political science and history GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRELAW EDUCATION 69 help develop a better understanding of these institutions. Creative thinking is also an impor- tant skill in the legal profession. Courses in math and, specifically, logic are recommended. Because law is a social science that focuses on human behavior, courses in psychology, sociol- ogy, religion, and philosophy may also be useful. FURTHER READINGS Basch, Margaret, 1998. “Teaching Law, Making Lawyers.” Chicago Daily Law Bulletin. 144 December). Maguire, Daniel L. 2002. “Future Lawyers Faced with Ethical Dilemmas.” Georgia Bar Journal 8 (October). CROSS REFERENCES Case Method; Legal Education. PRELIMINARY HEARING A proceeding before a judicial officer in which the officer must decide whether a crime was commit- ted, whether the crime occurred within the territorial jurisdiction of the court, and whether there is probable cause to believe that the defendant committed the crime. After the police have arrested a crime suspect, the suspect is entitled to a preliminary hearing. Designed as a safeguard against unrea- sonable arrest and detention, the hearing is conducted to determine whether there is sufficient evidence to hold the DEFENDANT for trial. State and federal rules of CRIMINAL PROCE- DURE provide for when a hear ing must be held and what issues must be raised, which depend in large part on whether the crime is a misdemeanor, gross misdemeanor, or felony. The most common preliminary hearing is the initial appearance, which is also called the “first appearance.” Various procedural steps may be taken during the initial appearance. In minor misdemeanor cases, the initial appear- ance may be the only one, if the defendant pleads guilty. When the charge is more serious, the accused at the initial appearance may be informed of the charges, advised of the RIGHT TO COUNSEL and the right to remain silent, warned that any statement made may be used against the suspect in court, and advised of how to seek release on bail. In Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), the U.S. SUPREME COURT held that the right to counsel under the SIXTH AMENDMENT extends to a preliminary hearing. Thus, the amendment grants to the indigent defendant a right to the appointment of counsel for that hearing. In some jurisdictions, including the federal courts, a plea may be entered, and bail may be set at this first appearance. In other jurisdictions, the suspect will not be allowed to make a plea if the offense is a felony or gross misdemeanor, and a preliminary hearing, also called a “preliminary examination,” will be promptly scheduled. The Supreme Court, in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), mandated that persons arrested without a warrant and held by the police must be given a preliminary hearing to determine whether there is PROBABLE CAUSE. Probable cause means that a reasonable ground exists for belief in the facts, and the hearing examines whether a prudent person would believe that the suspect committed the offense in light of those facts. In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), the Court made it a constitution al requirement that a prompt judicial determination of probab le cause follow a warrantless search. It ruled that a determination must be made without unre a- sonable delay, and in no event later than 48 hours after arrest. Therefore, all state and federal warrantless arrests must comply with the holdings of Gerstein and County of Riverside. In gross misdemeanor and felony cases, there is typically a second appearance, which is known as the “preliminary hearing” or “prelim- inary examination.” Rule 5(c) of the Federal Rules of Criminal Procedure and state rules of criminal procedure follow essentially the same process for this type of hearing. Unlike the informality of a first appearance, the prelimi- nary hearing is an adversarial proceeding, which includes the PROSECUTOR and the defendant’s attorney. This hearing tests the existence of probable cause early in the proceedings by allowing the introduction of evidence, the examination and CROSS-EXAMINATION of wit- nesses, and limited forms of discovery (the disclosure of information). Although the fea- tures of a preliminary hearing or examination are similar to those of a trial, the hearing is confined to determining whether the defendant should stand trial or be released. A defendant may challenge the constitutionality of police actions, including searches and seizures, as well as the use of confessions. Under the federal rules, this hearing must be conducted within ten days of the initial appearance if the defendant is in police custody, and within 20 days if the defendant is not in custody. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 70 PRELIMINARY HEARING In felony cases in states where the GRAND JURY INDICTMENT is used to start a criminal proceeding, defendants often waive the pre- liminary hearing, because the grand jury will make the probable cause de termination. How- ever, some defendants request a preliminary hearing because it allows them to gain information about the basis of the prosecu- tion’s case or to move for dismissal of the case. For example, O. J. SIMPSON requested a prelimi- nary hearing in 1994 after being charged with two counts of first-degree MURDER. Although Simpson’s attorney, ROBERT SHAPIRO,failedto secure a dismissal, he was able to elicit information from police and forensic wit- nesses that proved valuable at Simpson’s 1995 murder trial, which ended in Simpson’s acquittal. FURTHER READINGS Battelle, Anthony E. 1999. “Management of the Prelimi- nary Hearing under Construction Rule L-4 for Large, Complex Cases.” Dispute Resolution Journal 54 (February 1): 23. Hammock, Edward R. 1997. How to Handle Your First Criminal Trial. New York: Practising Law Institute. Klotter, John C. 2002. Legal Guide for Police: Constitutional Issues. 6th ed. Cincinnati, Ohio: Anderson Pub. Saltzburg, Stephen A., Daniel J. Capra, and Angela J. Davis. 2009. Basic Criminal Procedure. 5th ed. St. Paul, Minn.: West. CROSS REFERENCE Appearance. PRELIMINARY INJUNCTION A temp orary order made by a court at the request of one party that prevents the other party from ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, Civil Action No. __________________ v. DEPARTMENT OF JUSTICE, Defendant. PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Pursuant to Fed. R. Civ. P. 65, plaintiff Electronic Privacy Information Center respectfully moves for entry of a preliminary injunction to enjoin defendant Department of Justice’s unlawful attempts to impede plaintiff’s efforts to obtain agency records concerning the Administration’s policy of conducting surveillance of domestic communications without the prior authorization of the Foreign Intelligence Surveillance Court. Plaintiff seeks an order requiring defendant to expedite the processing of plaintiff’s Freedom of Information Act request for records concerning the warrantless surveillance program and to complete the processing of plaintiff’s request within 20 days. The grounds for this motion are set forth in the accompanying memorandum of points and authorities. Plaintiff asks that the Court, pursuant to Local Rule 65.1(d), schedule a hearing on this application for a preliminary injunction at the Court’s earliest convenience. Respectfully submitted, DAVID L. SOBEL D.C. Bar No. 360418 MARCIA HOFMANN D.C. Bar. No. 484136 MARC ROTENBERG D.C. Bar. No. 422825 ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, N.W. Suite 200 Washington, DC 20009 Counsel for Plaintiff Preliminary Injunction IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA A sample motion for preliminary injunction. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PRELIMINARY INJUNCTION 71 pursuing a particular course of conduct until the conclusion of a trial on the merits. A preliminary injunction is regarded as extraordinary relief. The party against whom it is sought must receive notice and an opportunity to appear at a hearing to argue that the INJUNCTION should not be granted. A preliminary injunction should be granted only when the requesting party is highly likely to be successful in a trial on the merits and there is a substantial likelihood of irreparable harm unless the injunction is granted. If a party has shown only a limited probability of success, but has raised substantial and difficult questions worthy of additional inquiry, a court will grant a preliminary injunc- tion only if the harm to him or her outweighs the injury to others if the injunction is denied. PREMARITAL AGREEMENT A contract made in anticipation of marriage, specifying the rights and obligations of the parties. Such an agreement typical ly includes terms for property distribution in the event the marriage terminates. A premarital agreement, also known as a prenuptial or antenuptial agreement, is a contract between two persons who intend to marry. All states recognize premarital agree- ments through statutes or court d ecisions. A premarital agreement is an unusual contract. It is an agreement between marrying persons that, at least in part, contemplates the breakup o f the marriage. The subject matter of the agreement is unique: no other contract can address such matters as CHILD CUSTODY,childeducation,or spousal maintenance. The relationship of the parties is special: the contract is made not by two parties operating at arm’slength,butby twopersonswhoarepreparingtomarry.The contract is enforceable without consideration or the exchange of value, whereas most contracts require consideration. Finally, the contract might not be enforced until years after it was first formed. Although they are excep- tional, premarital agreements have become increasingly popular in the United States. The practice of making premarital agree- ments is ancient. Marrying Jews have made marital contracts called ketubahs for more than two thousand years. The modern secular premarital agreements that exist in the United States can be traced back to sixteenth-century England. Many of the first premarital agreements were used by women as a way of protecting their own property. Until the nine- teenth century, women were considered the property of their husbands, and what was the premarital property of a wife became the property of her husband. A premarital agree- ment became the only way for a woman contemplating marriage to retain control and possession of her own property. Initially, the rights of women in premarital agreements were limited. Women had few contractual rights, and courts often struck down premarital agreements that favored women. This situation changed in the mid- to late nineteenth century, when states began to enact Married Women’s Property Acts to protect women’s property rights. After that time, the number of premarital agreements created in the United States steadily increased. Premarital agreements can cover a variety of topics. The most common include property and financial support rights during and after marriage, personal rights and obligations of the couple during marriage, and the education and rearing of children to be born to the couple. A typical premarital agreement is used by one spouse or both spouses to keep PERSONAL PROPERTY and income separate during the marriage or to protect certain property before one spouse embarks on a risky investment or new career. In the absence of a premarital agreement, statutes and the courts may control the property, financial, and child-rearing issues that face a divorcing couple. Under the property- distribution laws in many states, a spouse who brings a large amount of cash, property, and other financial holdings to a marriage and makes them part of the marital estate (combin- ing them with marital assets for the benefit of both parties) may lose much of that property to the other spouse upon DIVORCE. A spouse who brings substantially more money or property to a marriage may want a premarital agreement to protect some or all of those assets in the event the marriage fails. Marrying couples have included a wide assortment of provisions in their premarital agreements. Some agreements identify who will wash dishes, who will dispose of trash, where the couple will shop, and what will occur in the event one spouse is unable to perform sexually. Couples are free to contract on any subject, as GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 PREMARITAL AGREEMENT long as the agreement does not violate PUBLIC POLICY or a criminal statute. Some scholars and social critics argue that the premarital agreement itself is contrary to public policy. They maintain that government should promote marriage and that premarital agreements promote divorce because they anticipate divorce. Supporters counter that premarital agreements actually promote mar- riage because they give married couples the ability to fashion their own relationship. The supporters of premarital agreements have won the argument. Courts in all states recognize that marriage is, in part, a business relationship and that couples should be free to remain autonomous within a marriage. Many This premarital agreement is made on this ____ day of ______, 20___, between ________________ and ________________. Whereas the parties intend to marry under the laws of the state of _______________, and wish to set forth in advance of their marriage the rights and privileges that each will have in the property of the other in the event of death, divorce, or other circumstance which results in the termination of their marriage; Whereas both parties acknowledge that they have read and understand this agreement, have not been subjected to any form of coercion, duress, or pressure, and believe this agreement to be fair and to represent their intentions with regard to their assets and to any estate that shall result from their marriage; The parties hereby agree as follows: 1. Each party shall separately retain all of his or her rights in his or her separate property, free and clear of any claim of the other party, without regard to any time or effort invested during the course of the marriage in the maintenance, management, or improvement of that separate property. 2. At all times, the parties shall enjoy the full right and authority with regard to their separate property as each would have had if not married, including but not limited to the right and authority to use, sell, enjoy, manage, gift, and convey the separate property. 3. The parties agree that each shall be responsible for any tax obligations associated with their separate property. 4. The parties agree that neither shall contest the validity or provisions of any will, account, trust agreement, or other instrument executed by the other that disposes of his or her separate property or that creates any interest therein in another. To the extent that such an action would create any right or interest in the separate property of the other, both parties hereby waive any right in the property of the other. The wife hereby waives any dower interest in the husband’s separate property, and the husband hereby waives any curtesy interest in the wife’s separate property. 5. In the event of separation or divorce, the parties shall have no right against each other for division of property existing of this date. 6. Both parties acknowledge that they possess sufficient education and job skills to adequately provide for their own support, and hereby waive any claim to spousal support (alimony) except in the event that: i. One of the parties suffers medical disability and the other remains both employed and physically able, or the other spouse retires or becomes disabled from working; ii. The parties mutually agree that one of the parties shall reduce his or her work hours, or shall refrain from working, in order to care for any children born during the course of the marriage. 7. In the event of separation or divorce, marital property acquired after marriage shall remain subject to division, either by agreement or by judicial determination. 8. This agreement shall be binding and inure to the benefit of the parties, their successors, assigns, and legal representatives. 9. It is the desire of the parties that all provisions of this agreement be considered as evidence of their intentions by any court, arbitrator, mediator, or other authority which seeks to divide their estate, and that their intentions be respected whatever the legal status of this agreement or any of its terms. Signed this ______________ day of _________________, 20___ ____________________________________________________ Fiancé ____________________________________________________ Fiancée Signed in the presence of: ____________________________________________________ Witness ____________________________________________________ Witness Premarital Agreement A sample premarital agreement. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PREMARITAL AGREEMENT 73 states have adopted the Uniform Premarital AgreementAct (UPAA),aset oflawsonpremarital agreements approved by the Commissioners on Uniform State Laws. The UPAA provides a list of property-related items on which couples may agree. It also includes a provision allowing couples to agree on any matter, including their personal rights and obligations. Although all states recognize premarital agreements, courts tend to closely examine premarital agreements that one of the parties challenges. In many states, the spouse seeking enforcement of a premarital agreement has the burden of proving its validity. Few courts hesitate to strike terms that are contrary to public policy or unconscionably unfair to one of the parties. A court may strike all or part of the agreement if one of the parties agreed to the terms as a result of FRAUD or duress. Courts closely examine asset lists and income schedules to ensure that the parties are being forthright with each other. Couples drafting premarital agreements must be careful to explain in detail any provisions that a court might consider unfair. Courts may strike down all or part of a premarital agreement. To be upheld, the agree- ment must have been procedurally and substan- tively fair at the time of execution, and it must be substantively fair at enforcement. Procedural fairness refers to the manner in which the contract was made. Both parties must give full and complete financial disclosure, and each party should have an opportunity to consult with his or her own lawyer. Although many jurisdictions allow one attorney to represent both parties to a premarital agreement, it is generally better for the parties to have separate counsel. Doing so prevents a later argument that the attorney for both parties was biased in favor of one side. It also gives a party who may be unsure about the agreement a chance to discuss it privately with a competent professional. Courts tend to be more comfortable with premarital agreements made by parties with separate counsel. Substantive fairness means that the actual provisions in the agreement are fair to each party. Because a premarital agreement may be enforced many years after it was created, what seemed fair at the time of execution of the agreement may have become unfair by the time of its enforcement. Such a situation might arise where a wealthy person and a person of limited means married with the agreement that, in the event of a divorce, each would leave with what he or she brought to the marriage. If the marriage was brief, this arrangement may be upheld. However, if the marriage lasted many years, and the spouse formerly of limited means invested substantial time and effort into ad- vancing the couple ’s financial position, the agreement could later appear unfair. Courts tend to closely scrutinize premarital agreements’ provisions relating to children. Children have a special status under the law that gives them greater protection than adults receive, and many states prohibit couples from making premarital agreements that advers ely affect a child’s right to financial support. A court will strike a provision that relates to any other important matter, such as a child’s CUSTODY or education, if it is not in the best interests of the child. In some states, a premarital agreement will terminate once the couple has children unless the parties agree to renew the contract. In some other states, a premarital agreement expires once a couple has been married for a certain period of time. Even where a state’s statute does not contain an explicit SUNSET PROVISION, the parties can agree that the contract will expire after a certain period of time or after some event. FURTHER READINGS Blomberg, Jill. 2001. “Unconscionability: The Heart of the Uniform Premarital Agreement Act.” American Journal of Family Law 15 (summer). Graham, Laura P. 1993. “The Uniform Premarital Agree- ment Act and Modern Social Policy.” Wake Forest Law Review 28 (winter). Krause, Harry D., and David D. Meyer. 2009. Family Law. 4th ed. St. Paul, Minn.: Thomson/West. Lindey, Alexander, and Louis I. Parley. 1999. Lindey and Parley on Separation Agreements and Antenuptial Contracts. 2d ed. New York: M. Bender. Schlissel, Stephen W., et al. 1997. Separation Agreements and Marital Contracts. 2d ed. Charlottesville, Va.: Michie. Younger, Judith T. 2001. “Antenuptial Agreements.” William Mitchell Law Review 28 (fall). CROSS REFERENCES Family Law; Husband and Wife; Postmarital Agreement; Self-Help. PREMEDITATE To think of an act beforehand; to contrive and design; to plot or lay plans for the execution of a purpose. Premeditation refers to the deliberate deci- sion to plan to commit a crime (often, but not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 74 PREMEDITATE exclusively, in the context of a HOMICIDE). A premeditated MURDER is plotted beforehand, but no specific length of time is needed for premeditation. It is an especially pertinent consideration when the DEFENDANT argues that a homicid e was an accident or occurred in SELF- DEFENSE, as it evidences the intent to kill. It can be shown, for example, by acts consistent with the plot, such as the purchase of a weapon or the means to make one. In the case of felony murder, however, a defendant can be found criminally liable for the death of a person killed during the commission of a felony, even though the intent and plan to kill may not have been present. PREMIUM A reward for an act done. The sum paid or agreed to be paid by an insured to the underwriter (insurer) as the consideration for the insurance; a bounty or bonus; a consideration given to invite a loan or a bargain, as the consideration paid to the assignor by the assignee of a lease, or to the transferer by the transferee of shares of stock, etc. In granting a lease, part of the rent is sometimes capitalized and paid in a lump sum at the time the lease is granted, which is refered to as a premium. PREPONDERANCE OF EVIDENCE A standard of proof that must be met by a plaintiff if he or she is to win a civil action. In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the BURDEN OF PROOF, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof BEYOND A REASONABLE DOUBT, is used in criminal cases and very few civil cases. The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof. The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence. Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents’ DUE PROCESS rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard. However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 [1987]). Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children. FURTHER READINGS Orloff, Neil, and Jery Stedinger. 1983. “A Framework for Evaluating the Preponderance-of-the-Evidence Standard.” Univ. of Pennsylvania Law Review 131 (April). Rothstein, Paul F., and Myrna S. Raeder. 2007. Evidence in a Nutshell. 5th ed. St. Paul, MN: West. CROSS REFERENCE Clear and Convincing Proof. PREROGATIVE An exclusive privilege. The special power or peculiar right possessed by an official by virtue of his or her office. In ENGLISH LAW, a discretionary power that exceeds and is unaffected by any other power; the special preeminence that the monarch has over and above all others, as a consequence of his or her sovereignty. The term prerogative is occasionally used by writers of law to refer to the object over which royal powers are exercised, such as fiscal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PREROGATIVE 75 prerogatives, w hich are the revenues of the king or queen. PREROGATIVE WRIT Formerly a court order issued under certain circumstances on the authority of the extraordi- nary powers of the monarch. The prerogative writs were procedendo, MANDAMUS, prohibition, QUO WARRANTO, HABEAS CORPUS , and certiorari. Today these forms of relief are also called extraordinary remedies and are issued on the strength of the inherent powers of the court to enforce its orders and to do justice. The paper granting a petition for an extraordinary remedy is still called a writ. For example, a writ of certiorari grants the petitioner an opportunity to appeal the decision of a lower court in a case where he or she does not have a right to appeal. PRESCRIPTION A method of acquiring a nonpossessory interest in land through the long, continuous use of the land. Prescription refers to a type of easement— the right to use the property of another. It requires the use of the land to have been open, continuous, exclusive, and under claim of right for the appropriate statutory period. It differs from ADVERSE POSSESSION in that adverse posses- sion entails the acquisition of title to the property, whereas prescrip tion relates to a right to use the property of another that is consistent with the rights of the owner. CROSS REFERENCE Statute of Limitations. PRESENT To submit for consideration or action. Immediate, not in the future. Present ability refers to a person’s immediate capacity to do an act. A present conveyance is made with the intention that it take effect at once. In COMMERCIAL PAPER law, to present a check means to submit it to the drawee for acceptance or payment. CLEAR AND PRESENT DANGER applies to FREEDOM OF SPEECH cases, wherein speech used to provoke a sense of clear and present danger is not protected by the FIRST AMENDMENT. PRESENTENCE INVESTIGATION Research that is conducted by court services or a PROBATION officer relating to the prior criminal record, education, employment, and other infor- mation about a person convicted of a crime, for the purpose of assisting the court in passing sentence. A presentence investigation (PSI), al so sometimes referred to as a presentence investi- gation report (PSR), is prepared for persons convicted of serious crimes. In misdemeanor and gross misdemeanor offenses, the court may order a PSI, whereas in felony cases a PSI is mandatory. State and federal statutes (18 U.S.C.A. § 3553(b) [1984]) set PSI req uirements and are supplemented by federal and state rules of CRIMINAL PROCEDURE. The presentence investigation generally consists of an interview with the DEFENDANT,a review of his or her criminal record, and a review of the specific facts of the crime. The PROBATION or court services department prepares a report that contains all of this information and makes a recommendation to the court about the type and severity of the sentence. The court always makes the final decision about the sentence, but it may be limited by federal and state sentencing guidelines, which set standard sentences based on the seriousness of the present crime and the previous criminal history of the convicted person. A sentencing guidelines worksheet is often included in the PSI to assist the court in determining whether to depart from the guidelines and enhance or reduce the severity of the standard sentence. If the court desires more information than is otherwise available to it as a basis for determin- ing the mental condition of the defendant, it may order the defendant to undergo a psychi- atric or psychological examination. Since the 1980s many states have allowed the victims of a crime to participate in the presentencing stage. Some states have victim loss or victim impact forms that give crime victims an opportunity to make people in the criminal justice system aware of the impact a crime has had on their lives. Victims are also encouraged to contact the probation office and provide other relevant information for the PSI. A PSI often contains a mix of public and confidential information. Information about juvenilesandcrimevictims,aswellaspsycho- logical reports, are confidential and must be kept out of the public record. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 PREROGATIVE WRIT Although the PSI report is important in determining the sentence, courts may be required to go beyond the PSI, particularly when the case involves the death penalty or a potentially long prison sentence. The SUPREME COURT , in the 2003 case of Wiggins vs. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471, ruled that the decision OF COUNSEL not to expand their investigation of a man later sentenced to death beyond the PSI fell short of prevailing profes- sional standards. FURTHER READING Green, Celillanne. 1983. “Presentence Investigation, Sen- tencing and Multiple Sentences.” Howard Law Journal 27 (summer). CROSS REFERENCE Sentencing. PRESENTMENT To present before a court a formal statment about a legal matter. In relation to COMMERCIAL PAPER, presentment is a demand for the payment or acceptance of a negotiable instrument, such as a check. The holder of a negotiable instrument generally makes a presentment to the maker, acceptor, drawer, or drawee. Regarding GRAND JURY presentment, the term is defined by statute as a written final recom- mendation by an investigating grand jury that specific persons be charged with specific crimes. Should the investigating grand jury determine that upon the basis of evidence presented to it a presentment should be returned against an individual, the grand jury will direct the attorney for the government to prepare a presentment, which will be submitted to the investigating grand jury for a vote. Should a majority of the full grand jury vote approval for the presentment, it must then be submitted to the super vising judge, who will examine the presentment, and if it is within the authority of the investigating grand jury and is otherwise in accordance with the applicable provisions, will issue an order accepting the presentment. Otherwise, the supervising judge must refuse to accept the presentment and will order that the investigating grand jury take further appro- priate action. The supervising judge to whom a present- ment is submitted may, on his or her own motion or at the request of the commonwealth, direct that the presentment be kept secret until the DEFENDANT is in custody or has been released pending trial. In directing that the presentment be kept secret, the supervising judge will enter an order requiring that the presentment be sealed and that no person may disclose a return of the presentment except when necessary for issuance and execution of process. PRESENTS The present instrument. The phrase these pre- sents is used in any legal document to designate the instrument in which the phrase itself occurs. PRESIDENT OF THE UNITED STATES The head of the executive branch, one of the three branches of the federal government. The U.S. Constitution sets relatively strict requirements about who may serve as president and for how long. Under Article II, only a natural-born citizen of the United States is eligible to serve as president; a person born outside the United States, even if he later becomes a citizen, may not serve. In addition, a person must be at least 35 years old to become president and must have resided in the United States for at least 14 years. Under the TWENTY- SECOND AMENDMENT, which was added to the Constitution in 1951, no person may serve as president for more than two four-year terms. The amendment further provides that a person who succeeds to the office for more than two years of an unexpired term (for instance, because a sitting president dies or resigns) may serve for only one additional four-year term. Article II also sets limits on the president’s authority. The article provides that the president is the commander in chief of the ARMED SERVICES. As commander in chief, the president has the power to preserve the peace by governing a captured territory until Congress establishes civil authority over it; the president also may declare MARTIAL LAW, which provides for the imposition of military authority over civilians in the event of an invasion, insurrection, disaster, or similar occurrence. In addition, the president can end a war through a treaty or a presidential proclama- tion. The power to declare war, however, is vested exclusively in Congress and not the president. In a situation of an undeclared war, under the War Powers Resolution of 1973 (50 U.S.C.A. §§ 1541 et seq.) the president must consult with Congress before introducing armed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRESIDENT OF THE UNITED STATES 77 . BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PREMARITAL AGREEMENT 73 states have adopted the Uniform Premarital AgreementAct (UPAA),aset oflawsonpremarital agreements. DISTRICT OF COLUMBIA A sample motion for preliminary injunction. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, . legal profession finds its basis in the formation and operation of government institu- tions, and courses in political science and history GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRELAW EDUCATION