Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P12 pps

SELF-DETERMINATION The political right of the majority to the exercise of power within the boundaries of a generally accepted political unit, area, or territory. Also the right of parties to a disagreement to set their own mutual course for resolution. The principle of self-determination is men- tioned in the UNITED NATIONS Charter and has often been stressed in resolutions passed by the UN General Assembly. The concept is most often used in connection with the right of colonies to independence. It does not relate to attempts at independence by groups, such as the French Canadians or the Nagas of India, who do not possess their own sovereign states. In mediation (a form of ALTERNATIVE DISPUTE RESOLUTION ,or“ADR”), one of the most fundamental principles is that of self-determi- nation. The parties are left to define their issues and reach their own agreement voluntarily and without UNDUE INFLUENCE. As such, a mediator must ensure that the parties each have the requisite capacity to participate in the proceedings. SELF-EXECUTING Anything (e.g., a document or legislation) that is effective immediately and without the need of intervening court action, ancillary legislation, or other type of implementing action. A constitutional provision is self-executing when it can be given effect without the aid of legislation, and there is nothing to indicate that legislation is intended to make it operative. For example, a constitutional provision that any municipality by vote of four-sevenths of its qualified electors may issue and sell revenue bonds in order to pay for the cost of purchasing a municipally owned public utility is self-executing and effective without a legislative enactment. Constitutional provisions are not self- executing if they merely set forth a line of policy or principles without supplying the Self-Defense or Unjustified Shooting? O B n December 22, 1984, at approximately 1:00 P.M., Troy Canty, Darryl Ca bey, James Ramseur, and Barry Allen boarded an express subway train in the Bronx borough of New York City. The young black men sat in the rear section of their car. A short time later, Bernhard Goetz boarded the same car and took a seat near the youths. Goetz, a white computer technician, had been mugged some two years earlier. Canty and Allen approached Goetz, and Canty said, “Give me five dollars.” Goetz responded by standing up and firing at the youths with a handgun. Goetz fired four shots before pausin g. He then walked up to Cabey and reportedly said, “You seem to be all right, here's another,” whereuponhefired his fifth and final bullet into Cabey's spinal cord. Goetz had shot two of the youths in the back. Ramseur and Cabey each had a screwdriver, which they said they used to break into coin boxes and video machin es. Goetz fled the scene and traveled north to New Hampshire. On December 31, 1984, he turned himself in to police in Concord, New Hampshire. Goetz was returned to New York where he was indicted on a charge of criminal possession of a weapon. The state fought for a second grand jury, and Goetz was eventually indicted a second time on charges of attempted murder, assault, criminal possession of a weapon, and reckless endanger- ment. At trial Goetz argued that he had acted in self- defense, and a jury convicted him only of il legal gun possession. Ultimately Goetz was sentenced to one year in jail and fined $5,000. Goetz’s shooting of Darryl Cabey left Cabey with brain damage and paralyzed from the chest down. Cabey sued Goetz, and in April 1996, a Bronx jury found Goetz liable for Cabey's injuries and awarded Cabey $43 million. FURTHER READINGS Fletcher, George P. 1988. A Crime of Self-Defense: Bernhard Goetz and the Law on Trial. New York: Free Press. Roehrenbeck, Carol A. 1989. People vs Goetz: The Summations and the Charges to the Jury. Buffalo, N.Y.: W.S. Hein. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 98 SELF-DETERMINATION means by which they are to be effectuated, or if the language of the constitution is directed to the legislature. As a result, a constitutional provision that the legislature shall direct by law the manner and court in which suits may be brought against the state is not self-executing. Just as with constitutional provisions, sta- tutes and court judgments can be self-executing. SELF-EXECUTING TREATY A compact between two nations that is effective immediately without the need for ancillary legislation. A treaty is ordinarily considered self- executing if it provides adequate rules by which given rights may be enjoyed or imposed duties may be enforced. Conversely it is generally not self-executing when it merely indicates princi- ples without provi ding rules giving them the force of law. SELF-HELP Redressing or preventing wrongs by one’s own action WITHOUT RECOURSE to legal proceedings. Self-help is a term in the law that describes corrective or preventive measures taken by a private citizen. Common examples of self-help include action taken by landlords against tenants, such as EVICTION and removal of property from the premises, and repossession of leased or mortgaged goods, such as auto- mobiles, watercraft, and expensive equipment. Persons may use self-help remedies only where they are permitted by law. State and local laws permit self-help in commercial trans actions, TORT and NUISANCE situations, and LANDLORD AND TENANT relationships. Self-help is permissible where it is allowed by law and can be accomplished without committing a BREACH OF THE PEACE. A breach of the peace refers to violence or threats of violence. For example, if a person buys a ship financed by a mortgage, the mortgage company may repossess the ship if the buyer fails to make the mortgage payments. If the buyer is present when the ship is being taken away, and the buyer objects to the repossession, the mortgage company breaches the peace if it can repossess the ship only through violence or the threat of violence. In such a case, the mortgage company would be forced to file suit in court to repossess the ship. Repossessors attempt to circumvent objections by distracting or deceiving the defaulting party during the repossession. A majority of states have banned self-help by landlords in the eviction of delinquent tenants. These legislatures have determined that the interests of the landlord in operating a profitable business must be balanced against a tenant’s need for shelter. In place of the self- help remedy, states have devised expedited judicial proceedings for eviction s. These pro- ceedings make it possible for a landlord to evict a tenant without unacceptable delays while giving the tenant an opportunity to present to a court arguments against eviction. In states that give landlords the right of self- help, landlords may evict a tenant on their own only if they can do so in a peaceful manner. The precise definition of peaceful varies from state to state. In some states, any entry by a landlord that does not involve violence or a breach of the peace is acceptable. In other states, any entry that is conducted without the tenant’s consent is illegal. In any case, if a landlord evicts a tenant through self-help, the eviction must be per- formed reasonably. For example, a landlord may not nail plywood across the entrance to a tenant’s second-story apartment while the tenant is inside, and then remove the steps leading up to the apartment. One landlord who performed such self-help faced criminal penalties after the trapped tenant and her two-year-old daughter needed the help of the local fire department to escape the apartment. A landlord who violates laws on self-help may face criminal charges and a civil suit for damages filed by the tenant. One new form of self-help that poses interesting problems is self-help by providers of computer software. Businesses in the United States that use computers have become depen- dent on computer software. Sometimes, when disputes have arisen between the buyer of software and the software provider, the software provider has disabled the buyer’ssoftwarefroma remote location. In one case, a software supplier called Logisticon entered into a contract with Revlon Group to provide it with computer software. After a dispute arose between the two parties, Logisticon accessed Revlon’s software system and disabled it, causing Revlon to suffer $20 million in product delivery delays. Revlon brought suit against Logisticon, alleging that Logisticon had violated the contract and that it GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SELF-HELP 99 had misappropriated Revlon’stradesecrets.The two parties settled the suit out of court, and the terms of the settlement remain undisclosed. Self-help measures are controversial because they amount to taking the law into one’s own hands. Opponents of self-help laws argue that they encourage unethical and sometimes illegal practices by creditors and that they diminish public respect for the law. Proponents counter that self-help, if performed peaceably, is a valuable feature of the justice system because it gives creditors an opportunity to alleviate losses and keeps small, simple disputes from glutting the court system. Self-help must be distinguished from vigi- lantism. Groups that impose extra-judicial punishment on individuals fo r supposed illegal acts do so in violation of criminal and CIVIL LAW. FURTHER READINGS Bell, Tom W. 2003. “Free Speech, Strict Scrutiny, and Self- Help: How Technology Upgrades Constitutional Juris- prudence.” Minnesota Law Review 87 (February). Fischer, Julee C. 2000. “Policing the Self-Help Legal Market: Consumer Protection or Protection of the Legal Cartel?” Indiana Law Review 34 (winter). Gerchick, Randy G. 1994. “No Easy Way Out: Making the Summary Eviction Process a Fairer and More Efficient Alternative to Landlord Self-Help.” UCLA Law Review 41 (February). Gitter, Henry. 1993. “Self-Help Remedies for Software Vendors.” Santa Clara Computer and High Technology Law Journal 9 (November). CROSS REFERENCE Secured Transactions. SELF-INCRIMINATION Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution. The right against self-incrimination, guar- anteed by the FIFTH AMENDMENT to the U.S. Constitution and many state constitutions, forbids the government from compelling any person to give testimonial evidence that would likely incriminate him during a subsequent criminal case. This right enables a DEFENDANT to refuse to testify at a criminal trial and “privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings” (Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 [1973]). Origins of the Privilege Against Self-Incrimination The origins of the PRIVILEGE AGAINST SELF- INCRIMINATION can be traced back to the struggle between church and state in late Medieval England. The Latin MAXIM Anemo tenetur seipsum prodere, (no one is bound to inform against himself), was invoked as a defense against a variety of oaths. The ex officio oath required witnesses and defendants to swear to truthfully answer inquisitorial questions on any subject matter. However, in 1637 the English political agitator John Lilburne refused to take the required legal oath or to answer questions before the STAR CHAMBER regarding his alleged importing and printing of heretical books. Lilburne’s refusal to answer questions before the Star Chamber later came to represent the idea that no one should be compelled to incriminate himself, a right that ordinary citizens began asserting at criminal trials with increasing frequency. By the end of the seventeenth century, the privilege against compelled testimony had become a COMMON LAW right, and a century later it was elevated to constitutional status by the Founding Fathers of the U.S. Constitution, who incorporated it into the BILL OF RIGHTS. The founders believed that coerced confessions not only violate the rights of the individual being interrogated but also render the confession untrustworthy. Once a confession has been coerced, it becomes difficult for a judge or jury to distinguish between those defendants who confess because they are guilty and those who confess because they are too weak to withstand the coercion. Basic Rule, Rationale, and Remedy The relevant language of the Fifth Amendment states: “nor shall any person be compelled in any criminal case to be a witness against himself.” The SUPREME COURT summed up the es- sence of the privilege against self-incrimination by saying that it “is the requirement that the state which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). Subject only to limited exceptions, an individual must explicitly invoke his Fifth Amendment right in order to receive its protections. Unless an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 100 SELF-INCRIMINATION individual invokes the Fifth Amendment upon questioning, he is deemed to have waived his right. Confessions, admissions, and other state- ments taken from a defendant in violation of this right are inadmissible against him dur ing a criminal prosecution. Convictions based on statements taken in violation of the right against self-incrimination are normally overturned on appeal, unless there is enough admissible evi- dence to support the verdict. Miranda and the Right to Remain Silent The right against self-incrimination is some- times referred to as the “right to remain silent.” The Self-Incrimination Clause afford s defen- dants the right not to answer particular questions during a criminal trial or to refuse to take the WITNESS STAND altogether. When the accused declines to testify during a criminal trial, the government may not comment to the jury about his or her silence. However, the prosecution may assert during CLOSING ARGU- MENT that its case is “unrefuted” or “uncontra- dicted” when the defendant refuses to testify (Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). However, before the jurors retire for deliberations, the court must instruct them that the defendant’s silence is not evidence of guilt and that no adverse inferences may be drawn from the failure to testify. In MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court exte nded the right to remain silent to pretrial CUSTODIAL INTERROGATIONS. The Court said that before a suspect is questioned, the police must apprise him of his right to remain silent and that if he gives up this right, any statements may be used against him in a subsequent criminal prosecution. Under Miranda, suspects also have a Fifth Amendment right to consult with an attorney before they submit to questioning. Miranda applies to any situation in which a person is both held in “custody” by the police, which means that he is not free to leave, and is being “interrogated,” which means he is being asked questions that are designed to elicit an incriminating response. A person need not be arrested or formally charged for Miranda to apply. In Miranda the Supreme Court examined a number of police manuals outlining a variety of psychological ploys and stratagems that they employed to overcome the resistance of defiant and stubborn defendants. Such interrogation practices, the Court said, hark back to the litany of coercive techniques used by the English government during the seventeenth century. Defendants may waive their Fifth Amend- ment right to remain silent. However, the government must demonstrate to the satisfaction of the court that any such waiver was freely and intelligently made. The Supreme Court ruled that a confession that was obtained after the suspect had been informed that his wife was about to be brought in for questioning was not the product of a free and rational choice (Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 [1961]). It also held that a statement was not freely and intelligently made when a defendant confessed after being given a drug that had the properties of a truth serum (Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 [1963]). In Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the Supreme Court held that a person who pleads guilty to a crime does not waive the self-incrimination privilege at sentencing. The Court acknowledged that it is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the PRIVILEGE AGAINST SELF -INCRIMINATION when questioned about the details. However, the Court found a significant difference between the waiver of the right against self-incrimination in a trial and in a sentencing hearing. The concerns, which justify the CROSS-EXAMINATION when the defendant testifies, are absent at a plea hearing. Treating a guilty plea as a waiver of the Self-Incrimination Clause would allow prosecutors to indict a person without specifying the quantity of drugs at issue, obtain a guilty plea, and then put the defendant on the witness stand to tell the court the quantity. Such a scenario would make the defendant “an instrument of his or her own condemnation.” This would undermine consti- tutional CRIMINAL PROCEDURE, turning an adver- sarial system into an inquisition. In Dickerson v. United States 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S. Supreme Court concluded that the Mi- randa decision was based on Fifth Amendment principles and therefore Miranda could not be overturned legislatively. Congressional anger at the Miranda decision had led to the passage in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SELF-INCRIMINATION 101 1968 of a law, 18 U.S.C.A. § 3501, which made it easier for the prosecution to introduce a defendant’s un-Mirandized statements at trial. However, the United States DEPARTMENT OF JUSTICE , under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitu- tional. The law lay dormant until the U.S. Court of Appeals for the Fourth Circuit ruled in 1999 that Congress had the constitutional authority to pass the law. Chief Justice WILLIAM REHNQUIST, a frequent critic of the Miranda decision, joined the majority in rejecting the Fourth Circuit’ decision. Although members of the Court might not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential place that Miranda has in U.S. law and society. He pointed out the importance that the judicial system places on STARE DECISIS, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision- making. A court should only OVERRULE its case precedents if there is, in Rehnquist’s words, “special justification.” The Court in Dickerson concluded there were no special justifications. The Court’s ruling in Dickerson generated a significant amount of interest in the legal community. Criminal defense attorneys and other Miranda supporters began citing Dick- erson for the proposition that the Miranda rule is not only alive and well, but has been elevated to the status of a “constitutional ” rule, and not just a “prophylactic” rule. If Miranda were a constitutional rule, then a violation of Miranda would be a co nstitutional violation giving rise to a possible SECTION 1983 action. It would also trigger the “fru its of the poisonous tree” doctrine and result in the suppression of any evidence obtained as a result of an un-Miran- dized confession. If Miranda were just a “prophylactic” rule, then a violation of Miranda would not necessarily render inadmissible any evidence obtained as a result of an un-Miran- dized confession, and might not even render the confession itself inadmissible, depending on the circumstances. The Court began to clarify this ambiguity in CHAVEZ V. MARTINEZ, 538 U.S. 760, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003). The case involved the question of whether police officers are required to read criminal suspects the Miranda warnings even if the suspects are never brought to trial. In 1997, Oliverio Martinez, a farm worker, was shot and injured by police officers during a struggle. A police sergeant, Ben Chavez, questioned Martinez for 45 minutes while the latter lay in a hospital bed. Chavez never read Martinez the Miranda warnings, and Martinez insisted that he did not want to answer the questions. Martinez filed a Section 1983 action to vindicate what he claimed was a violation of his constitutional right to be Mirandized before an interrogation commenced. The Supreme Court ruled that the police officer’s failure to read Martinez Miranda warn- ings did not violate Martinez’s constitutional rights and could not be used as a basis for recovery under 42 U.S.C.A. § 1983. In a badly splintered 5-4 decision, Justice CLARENCE THOMAS, writing for the Court, said that while the Miranda warnings offer protection against violations of constitutional rights, the failure to provide these warnings is not necessarily a constitutional violation by itself. In this case, Martinez was never required to be a witness against himself in a criminal trial. Instead, it was Martinez who was seeking to introduce the unMirandized interro- gation on his own behalf during a civil trial he had brought to vindicate an alleged civil rights violation. Thus, the Court concluded that the Self-Incrimination Clause was not directly impli- cated, and the fact that the officer had asked coercive questions did not violate Martinez’sFifth Amendment right against self-incrimination. A year later, the Court further undermined the claim that Dickerson had made Miranda an inviolable constitutional rule. In U.S. v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004), the Court reviewed a case involving a defendant charged with being a felon in possession of a weapon. During an interro- gation in which the defendant had not been Mirandized, the defendant told police where the weapon was located, but he did not expressly confess to the crime. The Court held that Miranda is just a “prophylactic“rule designed to enforce the protection of the Self-Incrimination Clause against coerced, involuntary statements. Since the defendant had voluntarily disclosed the location of the weapon and the prosecution was not seeking to admit into evidence a confession of any sort, the Court reasoned, no Fifth Amendment violation had occurred. Nor could the “fruit of the poisonous tree doctrine” be applied to exclude the introduction of the weapon at trial. The Self-Incrimination Clause only protects witnesses from testifying against themselves, the Court said, and the weapon was non-testimonial physical evidence. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 102 SELF-INCRIMINATION On the same day that Patane was decided, the Court handed down its opinion in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L. Ed.2d 643 (2004). The case involved the use of a police tactic where by the police would interro- gate a suspect in two phases. During the initial phase, the police would aggressively question the suspect without first reading the Miranda warnings. If the suspect confessed to a crime, the police would then take a break, leave the room, and come back a short time later to resume questioning. However, before the sec- ond phase of the interrogation started, the police would read the suspect the Miranda warnings. Because the suspect had already confessed during phase one, the police would persuade the suspect that there was no reason not to confess again. The prosecution would then seek to introduce the second, Mirandized confession, at trial. In the case at hand, the defendant had been charged with neglecting her own child, who had died under suspicious circumstances. The defendant was brought in for an initial phase of questioning by the police, and confessed to knowledge of a plan to conceal the circum- stances of her son’s death by burning down the familys mobile home. She also admitted that during the fire, she allowed an unrelated mentally retarded 18-year-old, who had been living with her family in the mobile home, to die in the fire. With confession in hand, the police left the interrogation room for approxi- mately 30 minutes, returned, and persuaded the defendant to sign a second confession retelling the same story, but only after the police first read her the Miranda warnings. In another badly splintered 5-4 decision, Justice DAVID SOUTER, writing for the Court, said the that facts of this case “by any objective measure reveal a police strategy adapted to undermine the Miranda warnings.” He declared that the police had created a situation for the defendant“in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Justice ANTHONY KENNEDY provided a fifth vote concurring with the judgment of the Court, but in a separate opinion, Kennedy articulated a test by which to determine the constitutionality of any two-step interrogation process, a test that no one else on the Court adopted. Exceptions and Limitations The right against self-incrimination is not absolute. A person may not refuse to file an income TAX RETURN on Fifth Amendment grounds or fail to report a hit-and-run accident. The government may compel defendants to pro- vide fingerprints, voice exemplars, and writing samples without violating the right against self- incrimination because such evidence is used for the purposes of identification and is not testimo- nial in nature (United States v. Flanagan, 34 F.3d 949 [10th Cir. 1994]). Despite the dubious grounds for the distinction between testimonial and non-testimonial evidence, courts have per- mitted the use of videotaped field sobriety tests over Fifth Amendment objections. Although the language of the Fifth Amend- ment suggests that the right against self- incrimination applies only during criminal cases, the Supreme Court has ruled that it may be asserted during civil, administrative, and legisla- tive proceedings as well. The right applies during nearly every phase of LEGAL PROCEEDINGS,including GRAND JURY hearings, preliminary investigations, pretrial motions, discovery, and the trials them- selves. However, the right may not be asserted after conviction when the verdict is final because the constitutional protection against DOUBLE JEOPARDY protects defendants from a second prosecution for the same offense. Nor may the privilege be asserted when an individual has been granted IMMUNITY from prosecution to testify about certain conduct that would otherwise be subject to criminal punishment. At the same time, the right against self- incrimination is also narrower than the Fifth Amendment suggests. The Fifth Amendment allows the government to force a person to be a witness against herself or himself when the subject matter of the testimony is not likely to incriminate the person at a future criminal proceeding. Testimony that would be relevant to a civil suit, for example, is not protected by the right against self-incrimination if it does not relate to something that is criminally inculpatory. By the same token, testimony that only subjects a witness to embarrassment, disgrace, or oppro- brium is not protected by the Fifth Amendment. Finally, the privilege against self-incrimina- tion is personal, applying only to natural persons and not usable by, or on behalf of, any organization. Thus, a corporation does not have the privilege against self-incrimination, although the privilege applies to the oral testimony of corporate officers called to testify in an official capacity (Doe v. United States, 487 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SELF-INCRIMINATION 103 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 [1988]). Likewise, a department of a federal, state, or municipal government has no privilege against self-incrimination. FURTHER READINGS Garcia, Alfredo. 2002. The Fifth Amendment: A Comprehen- sive Approach. Westport, Conn.: Greenwood. LaFave, Wayne R., Jerold Israel, and Nancy J. King. 2000. Criminal Procedure. St. Paul, Minn.: West Group. Levy, Leonard W. 1999. Origins of the Fifth Amendment: The Right Against Self-Incrimination. Chicago: Ivan R. Dee. O’Neill, Michael Edmund. 2002. “The Fifth Amendment in Congress: Revisiting the Privilege against Compelled Self-Incrimination. “Georgetown Law Journal 90 (August). Savage, David G. 2003. “Speaking Up about Silence: Supreme Court Takes Another Look at Miranda Warnings.” ABA Journal 89 (November). CROSS REFERENCES Criminal Law; Criminal Procedure; Exclusionary Rule; Fruit of the Poisonous Tree; Lineup. SENATE The Senate is the upper chamber, or smaller branch, of the U.S. Congress. The word also refers to the upper chamber of the legislature of most of the states. The U.S. Constitution reserves for the Senate special powers not available to the other branch of Congress, the HOUSE OF REPRESENTA- TIVES . These powers include the trial of all impeachments of federal officials; the RATIFICA- TION , by a two-thirds vote, of all treaties ob- tained by the president of the United States; and approval or rejection of all presidential appointments to the federal judiciary, ambassa- dorships, cabinet positions, and other signif i- cant EXECUTIVE BRANCH posts. The Senate, with terms of six years for its members—as opp osed to two years for mem- bers of the House of Representatives—and a tradition of unlimited debate, has long prided itself as being the more deliber ate of the two branches of Cong ress. Under its rules a senator may speak on an issue indefinitely, which is known as the FILIBUSTER. Sixty senators present and voting may pass a motion of cloture to stop debate. Members Under Article II, Section 3, of the U.S. Constitution, the Senate is made up of two members from each state, and each member has one vote. Unlike the House of Representatives, in which the entire chamber is up for election every two years, only one-third of the senators are up for reele ction every two years. The Constitution requires that a senator be at least 30 years of age and a U.S. citizen for a minimum of nine years. Senators must make their LEGAL RESIDENCE in the state that they represent. The Constitution originally provided for the election of senators by state legislatures. How- ever, the SEVENTEENTH AMENDMENT to the Consti- tution, adopted in 1913, mandates the election of senators by popular vote. The Sena te may punish members for disorderly behavior. With the concurrence of two-thirds of the senators, it can expel a member. When a vacancy occurs in the representa- tion of any state in the Senate, the governor of that state issues a writ of election to fill the vacancy. The state legislature, however, can empower the governor to make a temporary appointment until the people fill the vacancy through an election. The vice president of the United States is president of the Senate but has no vote unless the senators are equally divided on a question. His vote breaks the tie. Committees The Senate uses a committee system to eva- luate, draft, and amend legislation before it is submitted to the full chamber. Durin g the 104th Congress (1995–97), the Senate had 16 stand- ing, or permanent, committees: Agriculture, Nutrition, and Forestry; Appropriations; ARMED SERVICES ; Banking, Housing, and Urban Affairs; Budget; Commerce, Scienc e, and Transporta- tion; Energy and Natural Resources; Environ- ment and Public Works; Finance; Foreign Relations; Governmental Affairs; Judiciary; La- bor and Human Resources; Rules and Admin- istration; Small Business; and Veterans’ Affairs. The committees have an average of six to seven subcommittees. Senators typically belong to three committees and eight subcommittees. The Senate also has joint committees with the House, special committees, and investigative committees. Officers The vice president acts as the president of the Senate. In the vice president’s absence, that position is filled by the president pro tempore, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 104 SENATE who is usually the most senior senator of the majority party. The majority leader has signifi- cant powers in the appointment of majority senators to committees. Political parties also elect majority and minority leaders to lead their efforts in the Senate. They are assisted by an assistant floor leader (whip) and a party secretary. Other Senate officers include the secretary, who oversees Senate finances and official Senate pronouncements related to IMPEACHMENT pro- ceedings and treaty ratification, and the sergeant at arms, who serves as the law enforcement and protocol officer and organizes ceremonial functions. Control Throughout much of the twentieth century, the DEMOCRATIC PARTY held a majority of the seats on the Senate. Republicans held a majority between the 104th Congress in 1995 through the 109th Congress in 2006. Democrats regained a majority in 2006. As of 2009, Democrats held 57 seats on the Senate. FURTHER READINGS Bach, Stanley. 1996. “The Daily Order of Business.” In The Legislative Process on the Senate Floor: An Introduction. Report 91-520 RCO. Washington, D.C.: Congressional Research Service, Library of Congress. Congressional Research Service, Library of Congress. 2001. Treaties and Other International Agreements: The Role of A Day in the Life of the Senate A B s the bells ring in the halls of the Capitol and its office b uildings, the U.S. Senate starts the day's session. The presiding officer of the Senate, sometimes the vice president but usually the president pro tempore, accompanies the Senate chaplain to the rostrum to lead the chamber in an opening prayer. After short speeches by the majority and minority leaders, the Senate begins the “morning hour”—a session that generally lasts two hours. During this time senators introduce bills, resolu- tions, and committee reports and spea k b riefly on subjects of conc ern. Bills are referred to app rorpi- ate committees at this time. Following the morning ho ur, the Senate may take up executive or legislative business. If in executive session, the Senate considers treaties or nominations that the president ha s submitted for Senate approval. Before 1929 executive sessions were conducted behind closed doors. Since then, however, the public and the press have been allowed to observe these sessions. Most of the Senate's time, however, i s spent in legislative session. This time is used to debate and vote on bills. Bills with unanimous consent are enacted by a simple voice vote without debate, whereas more controversial bills may be debated at length and may undergo roll call votes. Some bills maynotcomeupforavoteatall. During debate of a bill, assistant floor leaders, or whips, from each party usually occupy the seats of the majority and minority leaders, located in the front row, center aisle, of the Senate chamber. They enforce established time limits, if any, for debate on specific bills. Frequently, only a few senators are on the Senate floor, while the majority are attending committee meetings or working i n their offices. From their offices, senators may apprise themselves of Senate procee dings either through “hot lines” to the Senate floor or live television covera ge on the Cable- Satellite Public Affairs Network (C-SPAN), which began broadca sting Senate sessions in 1986. A S enate legislative day may end in either ad- journment or recess. If the Senate adjourns, a legis- lative day is officially over. If it merely recesses, however, the legi slative day resumes on the follow- ing calendar day. In the case of a recess, the Senate may forego the rituals of the morning hour on the next calendar day. This is frequently done to save time during busy legislative sessions. Sometimes, when there is a filibuster or heavy legislative load, the Senate doe s not stop at the en d of the day but continues thro ugh the night. Durin g these night sessions, a lantern at the top of the Capitol dome remains lit. The public has access to Senate galleries at all times that the Senate is in session, day or night. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENATE 105 the United States Senate: A Study. Washington, D.C.: GPO. Hardeman, D. B. 1976. “Congress, United States.” In Dictionary of American History. Vol. 2. Edited by Louise B. Ketz. New York: Scribner. U.S. Senate Website. Available online at http://www.senate. gov/ (accessed June 3, 2009). Wirls, Daniel, and Stephen Wirls. 2003. The Invention of the United States Senate. Baltimore, MD: Johns Hopkins Univ. Press. CROSS REFERENCES Advice and Consent; Articles of Impeachment; Congress of the United States; Constitution of the United States. SENATE JUDICIARY COMMITTEE The U.S. Senate established the Committee on the Judiciary on December 10, 1816, as one of the original 11 standing committees. It is also one of the most powerful committees in Congress; among its wide range of jurisdictions is investiga- tion of federal judicial nominees and oversight of criminal justice, antitrust, and INTELLECTUAL PROPERTY legislation. Meeting each year since the Fourteenth Congress, the Judiciary Committee reviews a vast range of legal issues and advises the larger Senate on how to handle them. Just like any other congressional committee, it cannot pass laws or approve presidential nominees on its own, but its recommendations are highly regarded by the larger body. Historically, initial issues before the Senate Judiciary Committee centered largely on the widespread western expansion and growth of the nation, with corresponding concerns about the role of the federal judiciary and JUDICIAL ADMINISTRATION . Boundary disputes between states were another early concern. The issue of SLAVERY was perhaps the most controversial, however. The committee was partially responsi- ble for the enactment of the COMPROMISE OF 1850, which included the FUGITIVE SLAVE ACT. Also, after the U.S. CIVIL WAR, beginning in 1868, the committee shared jurisdiction to oversee federal RECONSTRUCTION. The authority to investigate nominees to the federal court system is the most powerful and controversial authority delegated to the com- mittee. Although the U.S. Constitution grants authority to the full SENATE to approve judges nominated by the president, the Senate has delegated much of this responsibility to the committee since 1868. When the president submits judicial nominations, the Senate im- mediately submits them to the committee for consideration. The committee votes whether to approve or disapprove a nomination of a judge, and it votes whether to submit the nomination to the full Senate for its consideration. Both votes require a majority of the members of the committee. If the Senate approves a judge, he or she receives lifetime tenure on the federal bench, barring IMPEACHMENT or retirement. The nomination process of federal judges traditionally has caused a significant amount of controversy regarding the criteria that are used by committee members in determining whether to approve or disapprove a judicial nominee. Some comment ators suggest that the nomina- tion process should only involve considerations of ethics and professional competence, while others argue that the real considerations among committee members relate to the ideologies and philosophies of the nominees. When President RONALD REAGAN nominated ROBERT BORK in 1987 to fill a vacancy on the U.S. SUPREME COURT, it was evident from the question- ing during the nomination hearing that the senators took numerous factors into account. Bork, who had been a judge on the U.S. Court of Appeals for the District of Columbia and known for his conservative views, was selected by the Republican president to replace Justice LEWIS POWELL , whose views were more moderate. Both the committee and the full Senate eventually turned down Bork’s nomination, based largely on ideology. Public-interest groups supporting or opposing Bork spent a reported $20 million in their attempts to influence the nomination. Similar questions of ideology and philosophy have been raised about the 1991 confirmation hearings for Justice CLARENCE THOMAS. Some members of the bar and some legal commentators have criticized the judicial selec- tion process. In The Supreme Court Phalanx, legal scholar RONALD DWORKIN wrote: “Since Judge Robert Bork was rejected by the Senate in 1987, several nominees have reduced the hearings to a pointless recital of an establi shed script. They declare their firm intention to decide cases ‘according to the rule of law’ and they promise to enforce the Constitution as it actually is rather than revise it to suit their own personal ‘bias.’” According to Dworkin, nomi- nees will not volunteer any controversial opinions out of concern that members of the Judiciary Committee will use these statements against them. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 106 SENATE JUDICIARY COMMITTEE The publicity surrounding the nomination process in the federal judiciary did not begin until the twentieth century. Historically, few nominees appeared before the committee. Several high-profile nominees, including LOUIS BRANDEIS , HUGO BLACK, and FELIX FRANKFURTER, offered statements for the committee to con- sider. It is now common for all nominees to make statements before the committee. With a high number of nominations to the federal judiciary, it is not uncommon for the committee to send nominations of judges in lower courts to subcommittees. This process continues to be lengthy. Other areas of jurisdiction of the committee include legislative oversight of APPORTIONMENT of representatives; BANKRUPTCY; MUTINY, ESPIONAGE, and COUNTERFEITING; civil liberties; constitutional amendments; government information; holi- days and celebrations; IMMIGRATION and NATURAL- IZATION ; interstate compacts; local courts in territories and possessions of the United States; national penitentiaries; PATENTS, copyrights, and TRADEMARKS; protection of trade and commerce against unlawful restraints and monopolie s; and state and territory boundary lines. After the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001 (See SEPTEMBER 11TH ATTACKS), the Judiciary Com- mittee held a number of hearings on the issues of TERRORISM and homeland defense. The com- mittee also has taken an active role in such social issues as CIVIL RIGHTS protection, law enforcement, and reform of the criminal justice system. Controversies in 2001 extended to the cabinet nominees, including the position of attorney general. When President GEORGE W. BUSH nomi- nated then-senator JOHN ASHCROFT (R-Mont.) for the position in 2001, Senator Patrick Leahy (D-Vt.) immediately indicated that he would oppose the confirmation. While Ashcroft was eventually confirmed, he also was required to appear before the committee numerous times throughout 2001 to report on issues involving the Attorney General’s Office and the JUSTICE DEPARTMENT . FURTHER READINGS Denning, Brannon P. 2002. “The Judicial Confirmation Process and the Blue Slip.” Judicature 85 (March-April). Dworkin, Ronald. 2008. The Supreme Court Phalanx. New York: New York Review Board. National Archives and Records Administration. “Records of the Committee on the Judiciary and Related Committees.” Available at http://www.archives.gov/ research/guide-fed-records/groups/046.html (accessed June 3, 2009). Nemacheck, Christine L. 2007. Strategic Selection: Presiden- tial Nomination of Supreme Court Justices from Herbert Hoover Through George W. Bush. Charlottesville: University of Virginia Press. Nourse, Victoria F, and Jane S. Schacter. 2002. “The Politics of Legislative Drafting: A Congressional Case Study.” New York University Law Review 77 (June). Ralph Nader Congress Project. 1975. The Judiciary Commit- tees: A Study of the House and Senate Judiciary Committees. New York: Grossman. CROSS REFERENCES Congress of the United States; Senate. SENECA FALLS CONVENTION The Seneca Falls Convention, which took place in Seneca Falls, New York, in July 1848, was the first national women’s rights convention and a pivotal event in the continuing story of U.S. and women’s rights. The idea for the conv ention occurred in London in 1840 when ELIZABETH CADY STANTON and Lucretia Mott, who were attending a meeting of the World Anti-Slavery Society, were denied the opportunity to speak from the floor or to be seated as delegates. Mott and Stanton left the hall where the meeting was taking place and began to discuss the fact that while they were trying to secure rights for enslaved African Americans, American women found themselves treated unequally in numer- ous ways. They concluded that what was needed was a national convention in which women could take steps to secure equal rights with men. Although they agreed that the need for such a convention was a pressing one, they were not to take action on their plan for several years. Both Stanton and Mott were progressive leaders who had been active in reform move- ments. Mott, a former teacher who had grown up in Boston, had become interested in women’s rights when she discovered that because she was female, she was earning a salary that was exactly half that of male teachers. In 1811 she married fellow teacher James Mott and moved to Phila- delphia. She became a member of the Society of Friends (also known as the Quakers) and began to travel the country speaking on the topic of religion and issues including tempe- rance, peace, and the ABOLITION of SLAVERY.In1833 Mott attended the founding meeting of the American Anti-Slavery Society. Shortly afterwards GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENECA FALLS CONVENTION 107 . contract and that it GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SELF-HELP 99 had misappropriated Revlon’stradesecrets.The two parties settled the suit out of court, and the terms of the settlement. anger at the Miranda decision had led to the passage in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SELF-INCRIMINATION 101 196 8 of a law, 18 U.S.C.A. § 3501, which made it easier for the prosecution. night. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENATE 105 the United States Senate: A Study. Washington, D.C.: GPO. Hardeman, D. B. 197 6. “Congress, United States.” In Dictionary of American