Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P37 doc

husband’s exclusive privilege to obtain sexual services from his wife. The basis of recovery is the public policy in favor of preserving marriage and the family. ALIENATION OF AFFECTION is another seldom-prosecuted action. In this type of action, a husband must prove that another man won his wife away from him, thereby depriving him of love, comfort, and companionship. Because of the theories that gave rise to such causes of action, very few jurisdictions recognize lawsuits based on HEART BALM ACTS. Yet, even today, TORT LAW retains some special rules for husbands and wives when an outsider causes injury to the marital or family relationship. Consortium is the marital relationship between two people that encompasses their mutual right to support, cooperation, and companionship. An action for loss of consortium is based on the inconvenience of having a debilitated spouse. Husbands and wives have won suits for damages for injuries to their spouse precipitated by such things as MEDICAL MALPRACTICE, autom o- bile accidents, FALSE IMPRISONMENT, and WRONGFUL DEATH . Under common law, a husband was held responsible for any crimes committed by his wife against a third party. Although a wife had responsibility for crimes she committed, there was a legal presumption that her husband compelled her to perform any act she under- took when he was present. Today, husbands and wives are equally liable for their own criminal actions. Privileged Communication The law of evidence includes a privilege extended to a married couple so that neither a husband nor a wife can be compelled to testify against a spouse. This rule was designed to protect intrafamily relations and privacy. In addition, it was meant to promote communication between husbands and wives by making revelations between them strictly confidential. In 1980 the U.S. Supreme Court, in Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186, held that husbands and wives were permitted to testify against one another volun- tarily in a federal criminal prosecution. Many states now allow a spouse to testify against a husband or wife, but with the caveat that the testimony is subject to the accused spouse’s consent. Other states view the spouse of an accused person as an ordinary witness who can be forced to testify against the accused person. Domestic Abuse It was once presumed that a husband should have the right to exert physical control over his wife, if only to protect himself from liability for his wife’s actions. Therefore, common law permitted a husband to discipline his wife physically. Interspousal tort immunity made it impossible for a wife to succeed in an action against her husband. It was rare for a w ife to accuse her husband of a crime, and a wife was forbidden to testify against her husband. In the early twenty-first century, a wife is almost always permitted to testify against a husband who has been accused of causing intentional injury to her or their child. With interspousal tort immunity all but abrogated in most jurisdictions, husbands and wives can now recover in suits against one another under the theories of FRAUDULENT MISREPRESENTATION , BATTERY, intentional infliction of emotional distress, and NEGLIGENCE. The common law right of a husband to discipline his wife, combined with interspousal tort immunity, prevented incidents of domestic abuse from becoming public. In addition, victims of domestic abuse often did not reveal the extent of their injuries for fear of reprisals. Little legal relief was ava ilable, as courts were hesitant to interfere in the marital relationship. With the ABROGATION of interspousal tort immunity, the U.S. public has become aware of domestic abuse as a nationwide issue. In some cases, victims of domestic abuse who have i njured or killed their spouse as a means of SELF-DEFENSE against violence an d abuse have been acquitted o f criminal charges. The battered-spous e syndrome is a defense these men and women have asserted. The syndrome is a subcategory of post-traumatic stress disorder. Experts seek to explain why some spouses remain in abusive relationships and others finally use violence to break o ut of such relationships. Because battere d women are typically economically dependent on their husband, they hesitate to seek help until the violence escalates to the point where they believe the only way to free themselves is to kill their abuser. In 2009 the Supreme Court affirmed the application of the 1996 Lautenberg Amendment GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 348 HUSBAND AND WIFE to the GUN CONTROL Act of 1968 (which prohibits gun ownership by anyone convicted of a MISDEMEANOR crime of DOMESTIC VIOLENCE,18U. S.C. 922(g)(9)), to cover anyone convicted of any violent misdemeanor committed against a family member or domestic partner. United States v. Hayes No. 07-608, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). DEFENDANT Haye s had argued that the amendment only applied to convictions under specific laws proscribing domestic violence, not general laws proscribing violence that just happened to be committed against family members. Also in 2009, the White House announced the appointment of a White House Advisor on Violence Against Women, Lynn Rosenthal, a former executive director of the New Mexico Coalition Against Domestic Violence. Same-Sex Marriage In the 1980s and early 1990s, lawsuits were initiated to expand the traditional husband- and-wife relationship, and the rights and privileges that relationship conveys, to partners of the same sex. In a landmark case, Baehr v. Lewin, 74 Haw. 645, 852 P.2d 44 (1993), the Hawaii Supreme Court, although rejecting the idea that the Hawaii Constitution gives same- sex couples a FUNDAMENTAL RIGHT to marriage, held that Hawaii’s marriage statute (Haw. Rev. Stat. § 572-1) discriminates on the basis of sex by barring people of the same sex from marrying. As a result, such statutes are subject to STRICT SCRUTINY . However, in 1998 Hawaiian voters overwhelmingly approved a CONSTITUTIONAL AMENDMENT that, while not banning same-sex marriage, gave the legis lature the power to restrict marriages to opposite-sex couples. In 1996, la rgely in response to Baehr, Congress passed the Defense of Marriage Act (110 Stat. § 2419), which defines marriage as “a legal union between one man and one woman as husband and wife.” The term spouse is defined as a “person of the opposite sex who is a husband or a wife.” In effect, the Defense of Marriage Act states that the federal government does not acknowledge same-sex marriages. In 2001, however, Vermont became the first state to enac t a law recognizing “civil unions” between same-sex couples (23 V.S.A. § 1201 et seq. [2000]). The 2000 law came in response to a 1999 Vermont Supreme Court ruling (Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 [1999]), which found that the benefits and protections guaranteed by the Vermont Constitution for opposite-sex couples extend to same-sex cou- ples. Benefits and protections include access to a spouse’s medical, life, and disability insurance; hospital visitation, and other medical decision- making privileges; spousal support; and the ability to inherit property from a deceased spouse without a will. In October 2008 the Supreme Court of Connecticut ruled that denying same-sex cou- ples the same rights, responsibilities, and designation of being “married” violated the equal protection clause of the state’s constitu- tion. Kerrigan v. Commissioner of Public Health, SC 17716. Weeks later, in November 2008, the state began to issue marriage licenses to same-sex couples. Connecticut thus became the third state ever to issue marriage licenses to same-sex couples, following Massachusetts (2004) and California (2008). The California Supreme Court had ruled just five months earlier, in May 2008. In re Marriage Cases, No. S147999, 183 P.3d 384. However, subsequent to California’s court decision, California voters reversed the ruling through Proposition 8, a ballot initiative in the November 2008 elections that would amend California’s constitution. California’s reversal left only two states permit- ting same-sex marriages until the Iowa Supreme Court, on April 3, 2009, legalized gay marriages by also ruling that Iowa restrictions violated the state’s constitution. This ruling again brought the total to three states upholding such marriages. These three states were followed by Vermont, which also upholds same-sex marriages. FURTHER READINGS Chriss, Margaret J. 1993. “Troubling Degrees of Authority: The Continuing Pursuit of Unequal Marital Roles.” Law & Inequality Journal 12 (December). Hartog, Hendrik. 2000. Man and Wife in America: A History. Cambridge, Mass.: Harvard University Press. Keane, Thomas M. 1995. “Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of Same-Sex Marriages.” Stanford Law Review 47 (February). Krause, Harry D. and David D. Meyer. 2007. Family Law in a Nutshell. 5th ed. St. Paul, Minn.: West Group. Nickles, Don. 1996. “Defense of Marriage Act.” Congressio- nal Record 142. “Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees.” 2002. Loyola Law Journal 33. “Vermont Legislature Legalizes Same-Sex Marriage.” 2009. The Washington Post, April 7. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HUSBAND AND WIFE 349 Waggoner, Lawrence W. 1994. “Marital Property Rights in Transition.” Missouri Law Review 59 (winter). Wanamaker, Laura H. 1994. “Waite v. Waite: The Florida Supreme Court Abrogates the Doctrine of Interspousal Immunity.” Mercer Law Review 45 (winter). CROSS REFERENCES Cohabitation; Domestic Violence; Family Law; Gay and Lesbian Rights HYPOTHECATE To pledge property as security or collateral for a debt. Generally, there is no physical transfer of the pledged property to the lender, nor is the lender given title to the property, though he or she has the right to sell the pledged property in the case of default. HYPOTHESIS An assumption or theory. During a criminal trial, a hypothesis is a theory set forth by either the prosecution or the defense for the purpose of explaining the facts in evidence. It also serves to set up a ground for an inference of guilt or innocence, or a showing of the most probable motive for a criminal offense. HYPOTHETICAL QUESTION A mixture of assumed or established facts and circumstances, developed in the form of a coherent and specific situation, which is presented to an expert witness at a trial to elicit his or her opinion. When a hypothetical question is posed, it includes all the facts in evidence needed to form an opinion and, based on the assumption that the facts are true, the witness is asked whether he or she can arrive at an opinion, and if so, to state it. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 350 HYPOTHECATE IBID. An abbreviation of the Latin ibidem, meaning “in the same place; in the same book; on the same page.” ICC See INTERSTATE COMMERCE COMMISSION. IDEM Latin, “the same.” Typically abbreviated “id.,” it is used in lega l and scholarly bibliographic citations to indicate a previously cited reference. IDENTITY THEFT Identity theft is the assumption of a person’s identity in order, for instance, to obtain credit; to obtain credit cards from banks and retailers; to steal money from existing accounts; to rent apartments or storage units; to apply for loans; or to establish accounts using another’s name. An identity thief can steal thous ands of dollars in a victim’s name without the victim even knowing about it for months or years. Identity thieves are able to accomplish their crimes by doing things such as opening a new credit card account with a false address, or using the victim’s name, date of birth, and SOCIAL SECURITY number. When the thief uses the credit card and does not pay the resulting bills, the delinquent account is reported on the victim’s credit report. As increasing numbers of businesses and consumers rely on the INTERNET and other forms of electronic communication to conduct trans- actions, so too is illegal activity using the very same media on the rise. FRAUDULENT schemes conducted via the Internet are generally difficult to trace and to prosecute, and they cost individuals and businesses millions of dollars each year. The Internet has facilitated identify theft, but stolen wallets, mail, and physical documents account for a large percentage of stolen information. However, the use of “phishing” by online criminals has proved to be an effective way of stealing personal information. The criminal seeks credit card numbers, passwords, and other information by posing as a trusted entity, such as a financial institution, in e-mails and text messages sent to potential victims. The person is directed through a hyperlink to a Web site that appears to be authentic. If the person provides sensitive information through this Web site, the criminal can gain access to bank and credit accounts. In response, banks and credit card companies have provided more security to customers that try to ensure that the customer will not be tricked. Identify theft is also facilitated by the illegal acquisition of databases held by financial institutions, credit reporting services, and I 351 government units. By exploiting security breaches, computer hackers have been able to gain access to credit information, social security numbers, and other details that allow them to drain bank accounts and run up large credit card and phone bills. For example, more than 100 U.S. military officers were involved in a case of identity the ft. Defendants in the case illegally acquired the names and social security numbers of the military personnel from a web site, then used the Internet to apply for credit cards issued by a Delaware bank. In another case of identity theft and FRAUD,aDEFENDANT stole personal information from the web site of a federal agency, and then used the information to make applications for an online auto loan through a Florida bank. In 2006 the theft of a laptop computer from a Department of Veterans Affairs (VA) employee set off a national panic as 19 million veterans and current military personnel discovered that their birthdates and social security numbers were at peril. Fortunately, the laptop was recovered, and the FBI concluded that no data had been accessed. However, the VA paid millions for credit insurance to protect the credit of veterans. In October 1998 Congress passed the Iden- tity Theft and Assumption Deterrence Act of 1998 (Identity Theft Act) 18 U.S.C. § 1028 to address the problem of identity theft. Specifi- cally, the Act amended 18 U.S.C. § 1028 to make it a federal crime when anyone: knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable state or local law. Violations of the act are investigated by federal investigative agencies such as the U.S. SECRET SERVICE, the FBI, and the U.S. Postal Inspection Service and are prosecuted by the DEPARTMENT OF JUSTICE. The FEDERAL TRADE COMMISSION (FTC) is the federal clearinghouse for complaints by victims of identity theft. Although the FTC does not have the authority to bring criminal cases, it assists victims of identity theft by providing them with information to help them to resolve the financial and other problems that can result from identity theft. The FTC also may refer victim complaints to other appropriate govern- ment agencies and private organizations for further action. It has an identity theft section on its Web site: www.ftc.gov. In 2008, the FTC disclosed that 26 percent of complaints it received involved identity theft. Consumers can protect themselves from this type of crime by protecting information such as credit card and social security numbers and by shredding mailed offers to obtain credit. They also can check their credit reports for unknown accounts. In the event of identity theft, an alert can be placed on a CREDIT BUREAU that notifies consumers of potential fraudulent activity. Consumers who are victims can also write a statement that will appear on their credit reports explaining the criminal activ ity. Most banks and major credit card companies have fraud departments with staff who are trained to address these situations, but often the consumer feels that the onus is on him or her to prove lack of wrongdoing, and many victims report frustration at having their credit and lives destroyed by identity theft. A number of states have taken action to make identity theft a state crime. Consumers can also purchase insurance to protect them from financial respon sibility for identity theft, but most credit card companies do not charge customers for fraudulent charges. Identity Theft, by Type, in 2007 Percentage of victims Type of theft Credit card fraud Phone or utilities fraud Bank fraud Employment- related fraud Government documents or benefits fraud Loan fraud Other 23% 18% 13% 14% 11% 5% 25% SOURCE: Federal Trade Commission, Consumer Fraud and Identity Theft Complaint Data, January–December 2007, Februar y 13, 2008. The total number of identity theft victims was 258,427. Approximately 16% of victims reported experiencing more than one type of identity theft. 0 5 10 15 20 25 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 352 IDENTITY THEFT FURTHER READINGS Collins, Judith M. 2006 Investigating Identity Theft: A Guide for Businesses, Law Enforcement, and Victims. New York: Wiley. Cullen, Terri. 2007 The Wall Street Journal Complete Identity Theft Guidebook.New York: Three Rivers Press. Stickley, Jim. 2008The Truth about Identity Theft. Upper Saddle River, New Jersey: FT Press. I.E. An abbreviation for the Latin id est, “ that is to say, meaning.” ILLEGAL ALIENS AND IMMIGRATION See ALIENS. ILLEGITIMACY The condition before the law, or the social status, of a child whose parents were not married to each other at the time of his or her birth. The term nonmarital child is also used interchangeably with illegitimate child. English common law placed harsh penalties on an illegitimate child, denying the child inheritance and property rights. Modern law has given the nonmarital child more rights but still differentiates between the marital and nonmarital status. In addition, a rising level of out-of-wedlock births in the United States has drawn the attention of politicians and policy makers. Common Law and Illegitimacy A child was considered to be ille gitimate at common law if the parents were not married to each other at the time of the child’s birth even though the parents were marr ied later. There was a common-law presumption that a child born of a married woman was legitimate. This presumption was rebuttable, however, upon proof that her husband either was physically incapable of impregnating her or was absent at the time of conception. In addition, a child born of a MARRIAGE for which an annulment was granted was considered illegitimate, because an annulled marriage is void retroactively from its beginning. Furthermore, if a man married a second time while still legally married to his first wife, a child born of the bigamous marriage was illegitimate. At common law an illegitimate child was a fillius nullius (child of no one) and had no parental inheritance rights. This deprivation was based in part on societal and religious beliefs concerning the sanctity of the marital relation- ship, as well as the legal principles that property rights were determined by blood relationships. The legal rights and duties of a person born of married parents could be ascertained more accurately than those of a child with an unknown or disputed father. Public policy in favor of ma intaining solid family relationships contributed significantly to the preference for a legitimate child. Modern Law The harsher aspects of the common law dealing with an illegitimate child have been eliminated, primarily through the application of the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT to the U.S. Constitution. In Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 436 (1968), the Supreme Court ruled that a state statute (La. Civ. Code Ann. Art. 2315) that barred illegitimate children from recovering damages for the WRONGFUL DEATH of their mother, but allowed legitimate children to recover in similar circumstances, was invalid because it denied illegitimate children equal protection of the law. The Supreme Court also enhanced the right of an illegitimate child to inherit property. Whereas most states had given legitimate and illegitimate children the same right to inherit Births to Unmarried Women as Percentage of All Births, 1980 to 2006 5 10 15 20 25 30 35 40 45 50 Percent 38.5 33.2 32.2 28.0 22.0 18.4 0 SOURCE: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, National Vital Statistics Reports, vol. 57, no. 7, January 2009. 1980 1985 1990 1995 2000 2006 Year ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ILLEGITIMACY 353 property from the mother and her family, a number of states did not allow an illegitimate child to inherit property from the father in the absence of a specific provision in the father’s will. In Trimble v. Gordo n, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the Supreme Court ruled such provisions in an Illinois statute invalid. A majority of states now subscribe to the theory that a child born of any union that has the characteristics of a formal marriage rela- tionship is entitled to legitimate status. This theory includes children born of marriages that fail owing to legal technicalities as well as children of void or voidable marriages. Some states still recognize the validity of COMMON-LAW MARRIAGE, which takes place when a man and woman cohabit for an extensive period, and hold themselves out to the public as being hus band and wife even though they were never formally married. In such states children born of such arrangements are considered legitimate. Common-law marriages were a convenient mechanism in the nineteenth cen- tury for establishing property rights and legiti- mating children. Frontier society accepted the economic necessity for permitting such mar- riages because it was difficult for people on the frontier to obtain a formal marriage license; without common-law marriages, many children would have been declared illegitimate. Legal Presumption of Legitimacy The presumption of legitimacy is a strong legal presumption because public policy favors legiti- macy to preserve stable family groupings. This presumption can be rebutted only if it can be clearly establi shed that the child in question is illegitimate. A child born to a married couple is presumed to be their legitimate offspring in the absence of a clear demonstration that the husband could not possibly be the fath er. Legitimation is the process whereby the status of a child is changed from illegitimate to legitimate. Some statutes provide that a child becomes legitimated upon an open acknowl- edgment of paternity by the alleged father. In some states an oral admission is sufficient, but in other states a written statement is required. A majority of states prescribe that an acknowledg- ment must be coupled with an act in order for the child to be declared legitimate. An adequate act in some states is the marriage of the child’s natural parents. Once a child has been deter- mined to be legitimate, he or she is entitled to the same rights and protections as any individ- ual whose legitimacy has never been questioned. Paternity Actions A PATERNITY SUIT,orAFFILIATION PROCEEDING, may be brought against a father by an unmarried mother. This CIVIL ACTION is intended not to legitimate the child but to obtain support for the child and often to obtain the payment of bills incident to the pregnancy. Ordinarily, the mother starts the civil lawsuit, but some states allow public authorities to bring a paternity action for the mother if she refuses to do so. If the mother is on welfare, a paternity action is a vehicle for the local government agency to obtain financial assistance from the father. A paternity action must start within the time prescribed by the STATUTE OF LIMITATIONS,orthe mother’s right to establish the putative father’s paternity and corresponding support obligation will be lost. The evidence needed to establish paternity includes the testimony of the mother, blood and DNA tests, and in some states photographs from which to determine similar facial characteristics of the alleged father and the child. Legal Rights of Fathers Whether a father acknowledges paternity or is adjudged to be the father in a paternity action, he has more custody rights today than at common law. At common law fathers were assumed to have little concern for the well- being of their illegitim ate offspring. Historically, in most jurisdictions, if a child was illegitimate, the child could be adopted with only the consent of his or her natural mother. This assumption, as embodied in a New York statute (N.Y. Domestic Relations Law § 111), was challenged in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father had to be obtained before an adoption could be finalized. The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitution- al and a form of SEX DISCRIMINATION. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 354 ILLEGITIMACY Artificial Insemination Legitimacy issues have arisen when a child is conceived by ARTIFICIAL INSEMINATION. This process involves impregnating a woman, without sexual intercourse, with the semen of a donor who might be her husband or another party. Some states adhere to traditional views and consider any child conceived in this manner to be illegitimate, regardless of whether the husband gave his consent to the procedure. Other courts declare that a child is legitimate if the husband consented. A child is most likely considered illegitimate when the mother was unmarried and was artificially inseminated by an unknown donor, and remains unmarried. In most cases of artificial insemination, the father has donated semen anonymously, and his identity is not known. Current Trends The rate of illegitimate births in the United States has risen sharply since the early 1970s. In the 1940s fewer than five percent of the total births were out of wedlock. By the early 2000s, according to statistics compiled by the Center for Hea lth Statistics at the U.S. HEALTH AND HUMAN SERVICES DEPARTMENT , births to unmarried mothers accounted for nearly one-third of all U.S. births. FURTHER READINGS Roberts, Patricia G. 1998. “Adopted and Nonmarital Children—Exploring the 1990 Uniform Probate Code’s Intestacy and Class Gift Provisions.” Real Property, Probate and Trust Journal 32 (winter). Sigle-Rushton, Wendy, and Sara McLanahan. 2002. “The Living Arrangements of New Unmarried Mothers.” Demography (August). Available online at http://www .northwestern.edu/ipr/jcpr/workingpapers/wpfiles/ siglerushton_mclanahan.pdf; website home page: http:// www.northwestern.edu (accessed July 31, 2009). Terry-Humen, Elizabeth, Jennifer Manlove, and Kristen A. Moore. 2001. “Births outside of Marriage: Perceptions vs. Reality.” Child Trends Research Brief (April). Available online at http://www.childtrends.org/Files/ Child_Trends-2001_04_01_RB_BirthsMarriage.pdf; website home page: http://www.childtrends.org (accessed July 31, 2009). Robert L. Johnson’s Son? The Rights of Illegitimate Heirs R B obert L. Johnson is an important figure in blues music. Though he recorded only 29 songs before his death in 1938, at age 27, Johnson’ssongs, voice, and guitar playin g have influenced many great musicians, including Muddy Waters, Keith Richards, and Eri c Clapton. The Mississippi blues- man’s recordings became a comme rcial success in the late 1960s, and by 1990 his collected works were released on co mpact discs. Johnson married twice. Both wives died before he did and left no children. In 1974 Johnson’shalf- sister, Carrie Thompso n, sold the copyrights of his songs and photographs, ass erting that she was entitled to hi s estate. Upon he r death in 1983, her half-sister Annye Anderson inheri ted her purported rights to Johnson’swork. When Anderson finally probated Johnson’s estate in 1991, Claud L. Johnson filed a claim stating that he was the illegi timate son of Johnson and the sole heir of the bluesman. Claud Johnson produced a Mississippi birth certi ficate from 1931 that lists R. L. Johnson as his father. But for the U.S. Supreme Court’s ruling in Trimble v. Gordon, 430U.S.762,97S.Ct.1459,52 L. Ed. 2d 31 (1977), Claud Joh nson co uld not have made his cl aim. Until Tri mble Mississippi prohibited illegitimate children from inheriting from their father. Anderson argued that Claud Johnson’s claim should be dismissed bec ause he had waited too long to file i t. A county court agreed with Anderson, but the Miss issippi Supreme Court reversed the lower court’s decision, ruling that the intent of state law was to give the s ame rights to illegitimate as to legitimate children (In re Estate of Johnson, 1996 WL 138615 [Miss.]). The supreme court sent the case back to the co unty court, wh ich is to determine whether Claud Johnson is the son of Robert Johnson. If so, he is entitled to Robert Johnson’s estate. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ILLEGITIMACY 355 CROSS REFERENCES Child Custody; Child Support; DNA Evidence; Family Law; Parent and Child. ILLICIT Not permitted or allowed; prohibited; unlawful; as an illicit trade; illicit interco urse. ILLUSORY PROMISE A statement that appears to assure a perfo rmance and form a contrac t but, when scrutinized, leaves to the speaker the choice of performance or nonperformance, which means that the speaker does not legally bind himself or herself to act. When the provisions of the purported promise render the performance of the person who makes the promise optional or completely within his or her discretion, pleasure, and control, nothing absolute is promised; and the promise is said to be illusory. For example, a court decided that a promise contained in an agreement between a railroad and an iron producer whereby the railroad promised to purchase as much iron as its board of directors might order was illusory and did not form a contract. IMMATERIAL Not essential or necessary; not i mportant or pertinent; not decisive; of no substantial conse- quence; without weight; of no material significance. IMMEDIATE CAUSE The final act in a series of provocations leading to a particular result or event, directly producing such result without the interv ention of any further provocation. For example, if an individual who was driving while intoxicated crashed his or her car and was killed, the immediate cause of death was the crash. The PROXIMATE CAUSE, however, was the individual’s state of intoxication. IMMIGRATION The entrance into a country of foreigners for purposes of perman ent residence. The correlative term EMIGRATION denotes the act of such persons in leaving their former country. CROSS REFERENCE Aliens. IMMIGRATION AND NATURALIZATION See ALIENS. IMMINENT Impending; menacingly close at hand; threatening. Imminent peril, for example, is danger that is certain, imm ediate, and impending, such as the type an individual might be in as a result of a serious illness or accident. The chance of the individual dying would be highly probable in such situation, as opposed to remote or con- tingent. For a gift causa mortis (Latin for “in anticipation of death”) to be effective, the donor must be in imminent peril and must die as a result of it. IMMUNITY Exemption from performing duties that the law generally requires other citizens to perform, or from a penalty or burden that the law generally places upon other citizens. Sovereign Immunity SOVEREIGN IMMUNITY prevents a soverei gn state or person from being subjected to suit without its consent. The doctrine of sovereign immunity stands for the principle that a nation is immune from suit in the courts of another country. It was first recognized by U.S. courts in the case of The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 3 L. Ed. 287 (1812). At first, courts espoused a theory that provided absolute immunity from the jurisdiction of a U.S. court for any act by a foreign state. But beginning in the early 1900s, courts relied on the political branches of government to define the breadth and limits of sovereign immunity. In 1952 the U.S. STATE DEPARTMENT reacted to an increasing number of commercial transac- tions between the United States and foreign nations by recognizing foreign immunity only in noncommercial or public acts, and not in commercial or private acts. However, it was easily influenced by foreign diplomats who requested absolute sovereign immunity, and the application of sovereign immunity became inconsistent, uncertain, and often unfair. Complaints about inconsistencies led to the passage of the Foreign Sovereign Immunities Act of 1976 (28 U.S.C.A. §§ 1 note, 1330, 1332, 1391, 1441, 1602–1611). By that act, Congress GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 356 ILLICIT codified the theory of sovereign immunity, listing exceptions for certa in types of acts such as commercial acts, and granted the exclusive power to decide sovereign immunity issues to the courts, rather than to the State Department. Indian tribes have been granted sovereign immunity status by the United States, and therefore they generally cannot be sued without the consent of either Congress or the tribe. This immunity is justified by two consid erations: First, historically, with more limited resources and tax bases than other governments, Indian tribes generally are more vulnerable in lawsuits than are other governments. Second, granting sovereign nation status to tribes is in keeping with the federal policy of self-determination for Indians. Indian tribes are immune from suit whether they are acting in a governmental or a proprietary capacity, and immunity is not limited to acts conducted within a reser vation. However, individual members of a tribe do not receive immunity for their acts; only the tribe itself is immune as a sovereign nation. Governmental Tort Immunity Sovereign immunity may also apply to federal, state, and local governments within the United States, protecting these governments from being sued without their consent. The idea behind domestic sovereign immunity—also called gov- ernmental tort immunity—is to prevent money judgments against the government, as such judgments would have to be paid with taxpayers’ dollars. As an example, a private citizen who is injured by another private citizen who runs a red light generally may sue the other driver for NEGLIGENCE. But under a strict sovereign immunity doctrine, a private citizen who is injured by a city employee driving a city bus has no CAUSE OF ACTION against the city unless the city, by ordinance, specifically allows such a suit. Governmental tort immunity is codified at the federal level by the FEDERAL TORT CLAIMS ACT (28 U.S.C.A. § 1291 [1946]), and most states and local governments have similar statutes. Courts and legislatures in many states have greatly restricted, and in some cases have abolished, the doctrine of governmental tort immunity. Official Immunity The doctrine of sovereign immunity has its roots in the law of feudal England and is based on the tenet that the ruler can do no wrong. Public policy grounds for granting immunity from civil lawsuits to judges and officials in the Executive Branch of government survive even today. Sometimes known as official immunity, the doctrine was first supported by the U.S. Supreme Court in the 1871 case of Bradley v. Fisher, 80 U.S. 335, 20 L. Ed. 646. In Bradley, an attorney attempted to sue a judge because the judge had disbarred him. The Court held that the judge was absolutely immune from the civil suit because the suit had arisen from his judicial acts. The Court recognized the need to protect judicial independence and noted that malicious or imp roper actions by a judge could be remedied by impeachment rather than by litigation. Twenty-five years later, in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896), the Court expanded the doctrine to include officers of the federal Executive Branch. In Spalding, an attorney brought a defamation suit against the U.S. postmaster general, who had circulated a letter that criticized the attorney’s motives in representing local post- masters in a salary dispute. At that time, the postmaster general was a member of the president’s cabinet. The Court determined that the proper administration of public affairs by the Executive Branch would be seriously Air Force analyst A. Ernest Fitzgerald sued President Nixon for firing him after Fitzgerald disclosed to Congress huge cost overruns in the Defense Department. The Supreme Court held that the president is immune from civil lawsuits arising from official acts performed while in office. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION IMMUNITY 357 . vol. 57 , no. 7, January 2009. 1980 19 85 1990 19 95 2000 2006 Year ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN. BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 352 IDENTITY THEFT FURTHER READINGS Collins, Judith M inherit Births to Unmarried Women as Percentage of All Births, 1980 to 2006 5 10 15 20 25 30 35 40 45 50 Percent 38 .5 33.2 32.2 28.0 22.0 18.4 0 SOURCE: U.S. Department of Health and Human Services, Centers