by the National Conference of Commissioners on Uniform State Laws in 1968. By 1984 every state had adopted a version of the UCCJA. In 1980, Congress passed the Parental KIDNAPPING Prevention Act (28 U.S.C.A. § 1738A), which aids enforcement and promot es finality in child custody decisions by providing that valid custody decrees are entitled to full faith and credit enforcement in other states. The VIOLENCE AGAINST WOMEN ACT OF 1994 (Pub. L. No. 103-322 [codified in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 42 U.S.C.A.]) extends full faith and credit to the enforcement of protective orders, which previously were not enforced except in the state where they were rendered. This gave a new measure of protection to victims who moved to a different state after obtaining a protective order in one state. FURTHER READINGS Cooke, Edward F. 2002. A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield. Demelis, Linda M. 1994. “Interstate Child Custody and the Parental Kidnapping Prevention Act: The Continu- ing Search for a National Standard.” Hastings Law Journal 45. Hamilton, Heather. 1998. “The Defense of Marriage Act: A Critical Analysis of Its Constitutionality under the Full Faith and Credit Clause.” DePaul Law Review 47 (summer). Hasegawa, Kaleen S. 1999. “Re-Evaluating the Limits of the Full Faith and Credit Clause after Baker v. General Motors Corporation.” Univ. of Hawaii Law Review 21 (winter). Olson, Thomas A. 1995. “Rethinking Montana’s View of Interstate Custody Disputes.” Montana Lawyer 20. Shuki-Kunze, Jeennie R. 1998. “The ‘Defenseless’ Marriage Act: The Constitutionality of the Defense of Marriage Act as an Extension of Congressional Power under the Full Faith and Credit Clause.” Case Western Reserve Law Review 48 (winter). v FULLER, MELVILLE WESTON Melville Weston Fuller served as chief justice of the U.S. Supreme Court from 1888 to 1910. Fuller’s term as chief justice was marked by many decisions that protected big business from FEDERAL laws that sought to regulate interstate COMMERCE. In addition, the Fuller Court’s restrictive reading of the FOURTEENTH AMENDMENT led it to render the infamous SEPARATE BUT EQUAL racial segregation decision in PLESSY V. FERGUSON, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). Fuller was born February 11, 1833, in Augusta, Maine. He grew up in the household of his maternal grandfather, the chief justice of the Maine Supreme Judicial Court. Following his graduation from Bowdoin College in 1853, he apprenticed in his uncles’ law offices and briefly attended Harvard Law School. Even though he did not receive a law degree, he was the first chief justice of the U.S. Supreme Court to serve with significant academic legal preparation. Fuller moved to Chicago in 1856 and established a law practice. An active member of the DEMOCRATIC PARTY, he served in the Illinois CONSTITUTIONAL Convention of 1861 and for one term (1862–64) in the state house of representatives. He attended as a DELEGATE every national Demo cratic convention between 1864 and 1880. Fuller withdrew from day-to-day politics after he married Mary Ellen Coolbaugh, the daughter of a prominent Chicago banker, in 1866. His law practice thrived because of this family connection, and with his new wealth, he invested in real estate. Fuller specialized in APPELLATE practice, appearing before the U.S. Supreme Court many times. Fuller’s appointment to the Court in 1888 was driven by presidential politics and his long service to the Democratic Party. President Grover Cleveland, a Democrat who believed that it would be essential to win the state of Illinois as part of his re-election bid, nominated Fuller as chief justice to replace MORRISON R. WAITE, who had died in March 1888. Ful ler and Cleveland were friends and political colleagues. At the time, the press described Fuller as “the most obscure man ever appointed Chief Justice” (Baker 1991, 360). Others were more unkind, dubbing him “the fifth best lawyer from the City of Chicago” (review of The Chief Justiceship of MELVILLE W. FULLER 1996, 109). Fuller’s 22-year term as chief justice was distinguished by his skillful handli ng of often contentious Court conferences. Justice OLIVER WENDELL HOLMES , JR. thought highly of Fuller’s ability to maintain collegiality. At the end of his own legal career, Holmes ranked Fuller as the best chief justice under whom he had served. Fuller was an energetic JURIST who also served on the Permanent Court of ARBITRATION, at The Hague, Netherlands. That international organi- zation, comprising jurists from various coun- tries, ruled on world disputes. In 1899 Fuller arbitrated a boundary dispute between Vene- zuela and British Guyana. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 18 FULLER, MELVILLE WESTON The U.S. economy grew rapidly while Fuller served as chief justice. This expansion led to the concentration of economic power in certain industries by a small number of individuals and corporations. The federal government’s efforts to regulate interstate commerce and to curtail the power of monopolies and trusts met fierce opposition from both the affected businesses and those who believed in a restricted role for the national government. Opponents of national power argued for continued adherence to the doctrine of FEDERALISM. That doctrine has many facets, including a fundamental ASSUMP- TION that the national government must not intrude on the power of the states to manage their affairs. Fuller believed in federalism, and he dem- onstrated this belief in his votes with the conservative majority on the Court. Writing for the majority in United States v. E. C. Knight CO., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 (1895), Fuller took the teeth out of the SHERMAN ANTI -TRUST ACT of July 2, 1890, which had declared illegal “every contract, combination in the form of a trust, or CONSPIRACY in RESTRAINT OF TRADE and commerce among the several states” (26 Stat. 209, c. 647). finding in favor of the Sugar Trust, a corporation that controlled virtually all sugar refining, Fuller held that a monopoly of manufacturing was not a monop- oly of trade or commerce prohibited by the Sherman Act, as the manufacture of a product for sale is not commerce. It was up to each state, not the federal government, to protect its citizens from monopolistic business practices. The mere fact that goods were transported in interstate commerce was not sufficient to give Congress, under the COMMERCE CLAUSE, the authority to regulate business. The holding in Knight survived until the NEW DEAL era of the 1930s, when power shifted to the federal government. Fuller’s belief in a limited role for the federal government was also demonstrated in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 (1895). In Pollock, Fuller ruled invalid a federal law that imposed a two- percent tax on incomes of more than $4,000. Article I of the Constitution requires that “direct taxes shall be apportioned among the Melville W. Fuller. LIBRARY OF CONGRESS ▼▼ ▼▼ Melville Weston Fuller 1833–1910 18251825 18751875 19001900 19251925 18501850 ❖ 1833 Born, Augusta, Me. 1910 Died, Sorrento, Me. 1914–18 World War I ◆ 1856 Moved to Chicago and set up a law practice 1861–65 U.S. Civil War 1862–64 Served in the Illinois House of Representatives ❖ 1888–1910 Served as chief justice of the U.S. Supreme Court, appointed by President Cleveland ◆ ◆ ◆ 1895 Wrote majority opinions for United States v. E.C. Knight Co. and Pollock v. Farmers' Loan & Trust Co. 1899 Helped arbitrate the settlement of the boundary dispute between Venezuela and British Guiana 1896 Voted with the majority in Plessy v. Ferguson to uphold racial segregation in public transportation GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FULLER, MELVILLE WESTON 19 several states according to their respective numbers.” In a 5–4 vote, Fuller’s Court held that the new INCOME TAX was a DIRECT TAX insofar as it was based on incomes derived from land and, as such, it had to be apportioned among the states. As the law did not provide for APPORTIONMENT, it was unconstitutional. Decisions such as Knight and Pollock led critics to call Fuller and the conservative members of the Court the puppets of business interests and the protectors of wealth. In response to Pollock, the SIXTEENTH AMENDMENT was ratified by the states in 1913, authorizing the collection of a federal income tax. Fuller’s most dubious distinction is that he voted with the majority in Plessy to uphold racial segregation in public transportation. At issue in Plessy was an 1890 Louisian a law that required passenger trains that operated within the state to provide “separate but equal” accommodations for the “white and colored races.” By a 7–1 vote, with one judge abstaining, the Court rejected the idea that the Fourteenth Amendment, enacted after the Civil War to preserve the CIVIL RIGHTS of newly freed slaves, “could have been intended to abolish distinc- tions based upon COLOR, or to enforce social, as distinguished from political, equality, or a COMMINGLING of the two races upon terms unsatisfactory to either.” With its focus on a limited national government and support of legally enforced racial segregation, the 22-year period of the Fuller Court has, in the words of legal histori an Richard A. Epstein, “often been regarded as a black hole of American Const itutional law.” With the conservative political and legal renais- sance of the 1980s and 1990s, however, Fuller came back into favor, being regarded by some legal scholars as a jurist who was committed to economic development, market institutions, and limited government. Fuller died July 4, 1910, in Sorrento, Maine. FURTHER READINGS Baker, Liva. 1991. The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes. New York: HarperCollins. Ely, James W., Jr. 1995. The Chief Justiceship of Melville W. Fuller, 1888–1910. Columbia, SC: Univ. of South Carolina Press. Furer, Howard B., ed. 1986. The Fuller Court, 1888–1910. New York: Associated Faculty Press. FUND A comprehensive term for any money that is set aside for a particular purpose or that is accessible for the satisfaction of debts or claims. The term public funds is a colloquial label for the revenue of a government, state, or MUNICIPAL CORPORATION. FUNDAMENTAL LAW The constitution of a state or nation; the basic law and principles contained in federal and state constitutions that direct and regulate the manner in whi ch government is exercised. FUNDAMENTAL RIGHT A fundamental right is a core individual constitu- tional right that is given the highest degree of judicial deference. The Supreme Court has identified cert ain individual rights as fundamental CONSTITUTIONAL rights that must be protected from government restrictions. To accomplish this objective, the Court has established the STRICT SCRUTINY test, which is the most rigorous standard of JUDICIAL REVIEW . The Court will apply the scrutiny test only when a FUNDAMENTAL RIGHT or a SUSPECT CLASSIFICATION such as race is involved. The government must have a compelling interest to restrict a fundamental right. Even if the government has such an interest, it must show that the law or policy is the least restrictive means of achieving this goal. The fountainhead of fundamental rights is the Constitution’s BILL OF RIGHTS. The FIRST AMENDMENT identifies the right to FREEDOM OF SPEECH , the right to religious freedom, and the right to freedom of association as funda- mental rights. The SECOND AMENDMENT protects the right to keep and bear arms, which is viewed as a core right. The FIFTH AMENDMENT protects the right to DUE PROCESS OF LAW and the right against SELF-INCRIMINATION. Over time the Supreme Court has acknowledged other funda- mental rights that are not explicitly stated in the Constitution. These include the right to travel within the United States, the right to private property, the right to vote, the right to privacy, the right to procreation, and the right to marry. The recognition of certain fundamental rights applied only to actions taken by the FEDERAL government until the enactment of the FOUR- TEENTH AMENDMENT following the Civil War. This IF THE PROVISIONS OF THE CONSTITUTION CAN BE SET ASIDE BY AN ACT OF CONGRESS, WHERE IS THE COURSE OF USURPATION TO END ? —MELVILLE WESTON FULLER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 20 FUND amendment guaranteed individuals that state governments could not deny the m due process of law, EQUAL PROTECTION of law, or all recognized PRIVILEGES AND IMMUNITIES of law. The Supreme Court, concerned that the amendment gave too much power to the federal courts, refused to read these three clauses broadly until the late 1930s. The Court slowly began to apply fundamental rights from the Constitution to the states, selectively incorporating them into the Four- teenth Amendment’s due process clause. Fundamental rights that are not specifically stated in the Constitution have been based on due process clauses of the Fifth and Fourteenth Amendments. The doctrine of SUBSTANTIVE DUE PROCESS bars the government from infringing on fundamental constitutional right. Unlike proce- dural process, where the administration of the law is examined, substantive due process deals with liberties that are not expressly listed in the Bill of Rights but which are found to be essential concepts of freedom and equality. Using substantive due process, the Supreme Court has recognized the right to personal autonomy, bodily integrity, self-dignity, sexual identity, and SELF-DETERMINATION under the umbrella of an individual’s right to privacy. In the 1960s, the Court used the right to privacy in Griswold v. Connecticut (381 U.S., 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]) to strike down a law forbidding married adults from using BIRTH CONTROL . The right to privacy was extended in Eisenstadt v. Baird (405 U.S. 438, 92 S. Ct. 1029, 21 L. Ed. 2d 349 [1972]). The Court struck down a state law that prohibited unmarried persons from obtaining contraceptives. This decision paved the way fo r one of the most controversial decision in U.S. LEGAL HISTORY, which was based on substa ntive due process: Roe v. Wade (401 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). The Court ruled that the due process clause gave women the right to have an ABORTION during the first trimester of pregnancy without state INTERFERENCE. Critics of substantive due process point to the Roe decision as an example of the perils of using the doctrine. They contend that substan- tive due process gives judges the ability to inject their own values and prejudices into a contro- versial issue. Moreover, the use of this doctrine to identify fundamental rights discredits the judicial decision-making process and leads many to believe the decis ion was illegitimate. In addition, critics note that later generations of justices have overturned substantive due process rulings, concluding that the right identified, such as liberty of contract, is not fundamental. Despite these criticisms, the Court used substantive due process in 2003 to overturn a RULING on homosexuality. In Lawrence v. Texas (539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508), the Court overturned a state law that made SODOMY between homosexuals a crime. Justice ANTHONY KENNEDY, writing for the major- ity, invoked Roe and the birth control decisions, stating that these cases made clear that the due process clause “has a subst antive dimension of fundamental significance in defining the rights of the person.” As a general rule, the state should not attempt to “define the meaning of the relationship or to set its BOUNDARIES absent INJURY to a person or abuse of an INSTITUTION the law protects.” If homosexuals wish to express their sexuality in certain conduct the Constitu- tion allows them “the right to make the choice.” The Court’s decision to declare a due process right to consensual, intimate conduct again angered social conservatives, who claimed that the Court was applying its own pro-homosexual views rather than following the commands of the Constitution. The identification of fundamental right s is important. Once given this status and the strict scrutiny review standard that makes it difficult for the government to impose restrictions, the right becomes one more piece in the foundation of U.S. CONSTITUTIONAL LAW. FURTHER READINGS Flack, Horace Edgar. 2003. The Adoption of the Fourteenth Amendment. Birmingham, Ala.: Palladium Press. Langran, Robert. 2003. The Supreme Court: A Concise History. New York: Peter Lang. Tribe, Lawrence. 2008. The Invisible Constitution. New York: Oxford Univ. Press. CROSS REFERENCES Rational Basis Test; Strict Scrutiny; Suspect Classification. FUNGIBLE A description applied to items of which each unit is identical to every other unit, such as in the case of grain, oil, or flour. FUNGIBLE goods are those that can readily be estimated and replaced according to weight, measure, and amount. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FUNGIBLE 21 FURMAN V. GEORGIA In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the U.S. Supreme Court struck down three death sentences, finding that they constituted CRUEL AND UNUSUAL PUNISHMENT in violation of the Eighth and Fourteenth Amendments to the U.S . Constitu- tion. Hailed, at the time, as a victory for opponents of the death penalty, Furman actually helped states rewrite their death penalty laws to pass CONSTITUTIONAL muster. The path to Furman began in 1962 with ROBINSON V. CALIFORNIA, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758. In Robinson, the U.S. Supreme Court ruled that the Cruel and Unusual Punishments Clause could be applied to the states through the FOURTEENTH AMENDMENT. Opponents of the death penalty saw this RULING as an opportunity to litigate the constitutionality of state death penalty cases in FEDERAL court. Furman centered on the convictions and death sentences of three African American men: William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia for RAPE, and Elmer Branch was convicted in Texas for rape. The juries in each of the cases were not mandated by law to vote for the death penalty, nor were they given specific criteria to evaluate in making their penalty decisions. The U.S. Supreme Court issued a PER CURIAM opinion, on a 5–4 vote to reverse the death sentences. The Court typically issues its deci- sions with a majority opinion written and signed by one the justices. On rare occasions the Court will issue a per curiam decision, which takes the form of a BRIEF, unsigned opinion. A per curiam decision signifies that the Court was deeply divided over the reasons that went into its ultimate decision to either affirm or reverse the lower court. All nine justices wrote a separate opinion to articulate their reasoning. Although five justices voted to reverse the death sentences, their concurring opinions revealed that it was a shaky coalition. Justices WILLIAM O. DOUGLAS, William J. Brennan Jr., and THURGOOD MARSHALL doubted that any application of the death penalty could avoid being a cruel and unusual punishment. Justice Douglas concluded that the death penalty was disproportionately applied t o people who were poor and socially disadvantaged. This disproportion suggested that the EQUAL PROTECTION Clause of the Fourteenth Amendment must be applied to s trike down the death penalt y because any inequalit y of application was cruel and unusual punishment. Douglas’s opinion raised the possibil- ity that proportionate application would make CAPITAL PUNISHMENT constitutional. Justices Brennan and Marshall sta ked out an absolutist position, finding the death penalty per se cruel and unusual punishment, given the “evolving standards o f decency” they saw in contemporary U.S. society. This meant t hat no matter t he FACT SITUATION , no matter the proper application of due process and equal protection, capital punishment was inherently unconstitutional. The most influential opinion came from Justice POTTER STEWART: The penalty of death differs from all other forms of criminal punishment, not in degree Elmer Branch, one of the plaintiffs in Furman v. Georgia, holds out a newspaper to another death row inmate after the Supreme Court held that the death penalty constituted cruel and unusual punishment. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 22 FURMAN V. GEORGIA but IN KIND. It is unique in its rejection of rehabilitation of the CONVICT as a basic purpose of criminal justice. And it is unique, finally, in its ABSOLUTE renunciation of all that is embodied in our concept of humanity. Stewart held that because death was different from any other punishment, it had to be administered rationally and fairly. He rejected the absolutist position of Brennan and Marshall, yet still voted to reverse the penalties of Furman, Jackson, and Branch because he believed their death sentences were imposed capriciously. Stewart looked at the circumstances sur- rounding the imposition of the three death sentences. The juries in these cases had been given unbridled discretion to do what they wished in deciding whether to impose capital punishment. The result, in Stewart’s view, was that the death penalty was “wantonly and freakishly imposed.” These death sentences were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Justice BYRON R. WHITE took a slightly different tack, concluding that the infrequency of execution prevented the penalty from serving as an effective deterrent and from consisten tly meeting legitimate social needs for retribution. Chief Justice WARREN E. BURGER dissented, as did Justices HARRY A. BLACKMUN, Lewis F. Powell Jr., and WILLIAM H. REHNQUIST. The dissenters argued that the Court was straying into an area properly delegated to the judgment of state legislatures. The private opinions of justices about the morality of capital punishment, they opined, should not be presented as public policy in a court of law. The Furman decision stopped all executions then pending in the 39 states that authorized the death penalty. More than six hundred persons were awaiting execution at the time. Faced with a splintered Supreme Court decision, states had three options: develop mandatory death sen- tences for crimes that were carefully defined by STATUTE, develop jury guidelines to reduce juror discretion, or abolish capital punishment. The state of Georgia chose to develop guidelines for jurors. Once a person is convicted in a capital trial, the jury must determine, in the penalty phase, whether any unique aggravating and MITIGATING CIRCUMSTANCES should be con- sidered before the court decides whether to impose a death sentence. In 1976, the U.S. Supreme Court upheld these jury guidelines in GREGG V. GEORGIA, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859. With the Gregg decision, the four-year moratorium on the death penalty ended and, according to some, launched the modern era of capital punishment. FURTHER READINGS Baldus, David C., et al. 1998. “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia.” Cornell Law Review 83 (September). Banner, Stuart. 2003. The Death Penalty: An American History. Cambridge, MA: Harvard Univ. Press. Sarat, Austin. 1998. “Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics.” Law and Contemporary Problems 61 (au- tumn). Available online at http://www.law.duke.edu/ shell/cite.pl?61+Law+&+Contemp.+Probs.+5+(Au- tumn+1998); website home page: http://www.law.duke. edu (accessed July 25, 2009). CROSS REFERENCE Incorporat ion Doctrine. FUTURE ACQUIRED PROPERTY Property that is received or obtained by a borrower subsequent to the date that he or she executes a loan agreement which offers property currently owned as collateral. FUTURE ACQUIRED PROPERTY, which is also known as after-acquired property, encompasses both personal property and real property and provides additional COLLATERAL to ensure that a loan will be satisfied. There must, however, be a provision in the loan agreement between the borrower and the lender that gives the lender a right to the specific property of the borrower that he or she acquires subsequ ent to the execution of the agreement. SECURED TRANSACTIONS frequently involve the treatment of personal property as future acquired property. For example, a debtor who owns a retail store might accept a future acquired property provision in a security agreement with a creditor in order to obtain funds to buy addi- tional INVENTORY. The purchase of new inventory constitutes additional collateral that ensures the satisfaction of the loan. Language commonly used to phrase a future acquired property term in a contract is “any or all obligations covered by the security agreement are to be secured by all inventory now or HEREAFTER acquired by the debtor.” Mortgages, particularly those affecting com- mercial properties, involve the treatment of real GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FUTURE ACQUIRED PROPERTY 23 property as future acquired property. The mortgagee (who is the lender) will include in the mortgage an AFTER-ACQUIRED PROPERTY CLAUSE which provides that the mortgagee will have an equitable lien, which is a right to have property used to repay a debt, in all the real property that the mortgagor (who is the borrower) obtains after the mortgage is executed. For example, ABC Co. owns BLACKACRE and borrows funds from XYZ Bank. ABC executes a note and mortgage on Blackacre to XYZ, which XYZ records. The mortgage also contains an after- acquired property clause. When ABC subse- quently purchases WHITEACRE to serve as its warehouse, XYZ automatically obtains an equi- table lien in Whiteacre. Because a mortgage with an after-acquired property clause cannot be traced through an examination of the CHAIN OF TITLE of the after-acquired property, anyone who subsequently buys or has a lien against the mortgagor’s property has no notice of the equitable lien of the mortgagee. Such purchasers or lienors might, therefore, have greater rights to the property than the mortgagee if they took the property in GOOD FAITH and without notice. The mortgagee must take additional steps to protect the priority of his or her lien in future acquired property. It is a common practice for mortgage lenders to require that the mortgagor execute a recordable amendment to his or her mortgage describing in detail the future acquired property immediately after its acquisition. The treatment of future acquired property varies, however, from JURISDICTION to jurisdiction. FUTURE EARNINGS Earnings that, if it had not been for an injury, could have been made in the future, but which were lost as result of the injury. FUTURE INTEREST A claim on property, real or personal, that will begin at some point in the future. A future interest allows the grantor to retain the right to use that property until the specified transfer date. Future interest agreements are often used by donors for tax purposes. For example, a person may grant a future interest in his or her home to a charity, with the stipulation that he will retain use of the home for the remainder of his life, also called a “life estate”. Although the charity will not receive the property until the donor’s death, the donor can claim a tax deduction the same year the future interest is granted. Also called future estate. CROSS REFERENCES Bequest; Will. FUTURES Contracts that promise to purchase or sell standard commodities at a forthcoming date and at a fixed price. This type of contract is an extremely speculative transaction and ordinarily involves such standard goods as rice or soybeans. Profit and loss are based upon promises to deliver—as opposed to possession of—the actual commodities. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 24 FUTURE EARNINGS GAG ORDER A court order to gag or bind an unruly defendant or remove her or him from the courtroom in order to prevent further interruptions in a trial. In a trial with a great deal of notoriety, a court order directed to attorneys and witnesses not to discuss the case with the media— such order being felt necessary to assure the defendant of a fair trial. A court order, directed to the media, not to report certain aspects of a crime or criminal investigation prior to trial. Unruly defendants who disrupt trials are very rarely literally gagged in modern courts. However, the U.S. Supreme Court has upheld the constitutionality of the PRACTICE in cases where a DEFENDANT is particularly disruptive. In Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), the Court affirmed that gagging or binding the defendant, or removing him or her from the courtroom, does not violate the Confrontation Clause of the SIXTH AMENDMENT to the U.S. Constitution, which holds, “In all criminal prosecutions, the ACCUSED shall enjoy the right to be confronted with the witnesses against him.” According to ASSOCIATE JUSTICE Hugo L. Black, who wrote the Court’s opinion, [A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect INHERENT in the concept of courts and judicial proceedings. Of the three methods that the Court found available to a judge when faced with a disruptive defendant—gag and shackles, CITATION for CONTEMPT of court, and physical removal—the Court held that a gag and shackles should be considered the option of LAST RESORT. According to the Court, Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. One of the few modern instances of literal gagging occurred in the 1968 CHICAGO EIGHT trial (sometimes called the Chicago Seven trial because one defendant was removed). In that trial, FEDERAL judge Julius J. Hoffman ordered Black Panthers leader Bobby Seale bound and gagged after Seale and Hoffman engaged in vociferous argument during the trial. Seale still managed to disrupt the proceedings. He was then removed from the trial and tried separately. Courts may attempt to control prejudicial publicity by restricting the information that trial G 25 participants can give to the press both before and during a trial. This remains the type of GAG ORDER most frequently used by courts. Another type of g ag ORDER was for a while used by courts to restrict the press from reporting certain facts regarding a trial. This gag order became more common after the Supreme Court’s 1966 decision in Sheppard v. Maxwell, 384 U .S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, in which it reversed a c riminal CONVICTION on the grounds that PRETRIAL PUBLICIT Y had unfairly prejudiced the jury against the defen dant and denied him his Sixth Amendment right to a fair trial. However, in a 1976 decision, Neb raska P ress Ass’n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683, the Court held that pretrial gag o rders on the press are unconstitutional. It ruled that such orders represent an unconstitutional PRIOR RESTRAINT and violate the FIRST AMENDMENT, which guarantees the FREEDOM OF THE PRESS. FURTHER READINGS “Challenges to Gag Orders End in Mixed Results.” 2000. News Media & the Law 24 (spring). Minnefor, Eileen A. 1995. “Looking for Fair Trials in the Information Age: The Need for More Stringent Gag Orders against Trial Participants.” Univ. of San Francisco Law Review 30 (fall). Weiss, Eric A., and Debra L. Slifkin. 1999. “Enforceability of Rule 26(c) Confidentiality Rrders and Agreements.” Federation of Insurance & Corporate Counsel Quarterly 49 (winter). CROSS REFERENCE Sheppard, Samuel H. GAG RULE A rule, regulation, or law that prohibits debate or discussion of a particular issue. Between 1836 and 1844, the U.S. House of Representatives adopted a series of resolutions and rules that banned petitions calling for the ABOLITION of SLAVERY. Known as gag rules, these measures effectively tabled antislavery petitions without submitting them to usual House proce- dures. Public outcry over the gag rules ultimately aided the antislavery cause, and the fierce House debate concerning their future anticipated later conflicts over slavery. The submission of petitions to Congress has been a feature of the U.S. political system ever since its inception. The FIRST AMENDMENT to the U.S. Constit ution guarantees “the right of the people to petition the Government for a REDRESS of grievances.” First used in England, petitions have been considered an important means for the people to communicate grie- vances to their representatives or other public officials. When the first GAG RULE was instituted in 1836, House protocol required that the first thirty days of each session of Congress be devoted to the reading of petitions from constituents. After those 30 days, petitions were read in the House every other Monday. Each petition was read aloud, printed, and assigned to an appropriate committee, which could choose to address or ignore it. This traditional procedure had been interrupted in 1835, when the House began to receive a large number of petitions advocating the abolition of slavery. Many of the petitions were organized by the American Anti-Slavery Society, which had formed in 1833. Southern representatives, many of whom were slave owners and entertained no thoughts of abolishing slavery, were outraged by the antislavery petitions. In December 1835, south- erners, uniting with northern Democrats, won a vote to table a petition that called for the abolition of slavery in the DISTRICT OF COLUMBIA. Breaking established precedent, the pro-slavery faction also won a vote to deny the petition its usual discussion, printing, and referral to committee. This procedure for the “gagging” of aboli- tion petitions was made into a formal resolution by the House on May 26, 1836: “All petitions, memorials, resolutions, propositions, or papers, relating in any way, or to any extent whatsoever, to the subject of slavery or the abolition of slavery, shall, without being either printed or referred, be laid on the table and no further action whatever shall be had thereon.” The resolution incited strong opposition from many northerners, who perceived it as a violation of their time-honored CIVIL RIGHTS. JOHN QUINCY ADAMS , a former president and now a represen- tative from Massachusetts, emerged as the leader of an effort to revoke the new resolution. JOHN C. CALHOUN (D-S.C.), although a member of the Senate rather than the House, orchestrat- ed the battle to preserve it. The pro-slavery faction succeeded in renew- ing the gag resolution, which expired at the end of each session of Congress, in both sessions of the Twenty-fifth Congress (1837–39). On January 28, 1840, it succeeded again when it GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 26 GAG RULE won a vote to turn the resolution into House Rule 21 (in later ve rsions, Rules 23 and 25): No petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territory, or the slave trade between the States or TERRITORIES OF THE UNITED STATES,in which it now exists, shall be received by this House, or entertained in any way whatever. As a formal House rule rather than a resolution, the gag rule was now a permanent part of House procedure and did not have to be renewed by vote each session. This new gag rule provoked even stronger opposition. Whereas the previo us gag resolution tabled antislavery petitions after they were received, the new gag rule did not allow petitions to be received. It was also more extreme than the Senate’s approach, which was to receive such petitions but answer them in the negative. As a result of these changes, northerners who had previously supported the gag now joined Adams in opposing it. Several years later, on December 3, 1844, those opposed to the gag rule finally succeede d in rescinding it. The term gag rule has also been applied to presidential regulations banning ABORTION counseling by employees of family planning clinics that received a particular type of FEDERAL funding. FURTHER READINGS Holmes, Stephen. 1988. “Gag Rules, or the Politics of Omission.” In John Elster and Rune Slagstad, eds. Constitutionalism and Democracy. Cambridge: Cam- bridge Univ. Press Jenkins, Jeffrey A., and Charles Stewart III. 2003. “The Gag Rule, Congressional Politics, and the Growth of Anti- Slavery Popular Politics.” Available online at http://th. myweb.uga.edu/gagrule.pdf; website home page: http:// th.myweb.uga.edu (accessed September 3, 2009). Miller, William Lee. 1996. Arguing about Slavery: The Great Battle in the United States Congress. New York: Knopf. CROSS REFERENCE Congress of the United States. GAME Wild birds and beasts. The word includes all game birds and game animals. The state, in its sovereign power, owns game for the benefit of the general public. The only manner in which a private individual can acquire ownership in game is by possessing it lawfully such as by hunting and killing it under a license. Generally, every individual has the right to hunt and take game in any public place where his or her presence is lawful, so long as the person neither violates statutory regulations nor injures or infringes upon the rights of others. A hunter does not acquire an ABSOLUTE right to a wild animal by mere pursuit alone, and the individual forfeits any potential ownership by abandoning the chase prior to capture. The exclusive right to hunt or take game on privately owned property vests in the owner or his or her grantees. This PROPERTY RIGHT of the owner is limited by the right of the state to regulate and preserve the game for public use. A suit for trespass may be brought against one who interferes with another’s right to hunt. A statute that proscribes the hunting of game without a license, and that requires the p ayment of a fee for such license, constitutes a proper exerciseofthepolicepowerofthestate. Game laws govern the killing or taking of birds and beasts. Game wardens ordinarily can arrest violators, seize illegally taken game, bring actions for trespass, or INSTITUTE prosecutions for violations of the game laws. An Ohio hunter displays a trophy buck taken during deer hunting season. Game laws govern the killing or taking of birds and beasts. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GAME 27 . Fuller. LIBRARY OF CONGRESS ▼▼ ▼▼ Melville Weston Fuller 1833–1910 18 251 8 25 18 751 8 75 19001900 19 251 9 25 1 850 1 850 ❖ 1833 Born, Augusta, Me. 1910 Died, Sorrento, Me. 1914–18 World War I ◆ 1 856 Moved to Chicago. of the game laws. An Ohio hunter displays a trophy buck taken during deer hunting season. Game laws govern the killing or taking of birds and beasts. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, . punishment. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 22 FURMAN V. GEORGIA but IN KIND. It is unique in its rejection of rehabilitation of the CONVICT as a basic purpose of criminal justice.