Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P16 ppsx

L. Settlement Charges 700. Total Sales/Broker's Commission based on price $ @ % = Division of Commission (line 700) as follows: 701. $ to 702. $ to 703. Commission paid at Settlement 704. 800. Items Payable In Connection With Loan 801. Loan Origination Fee % 802. Loan Discount % 803. Appraisal Fee to 804. Credit Report to 805. Lender's Inspection Fee 806. Mortgage Insurance Application Fee to 807. Assumption Fee 808. 809. 810. 811. 900. Items Required By Lender To Be Paid In Advance 901. Interest from to @$ /day 902. Mortgage Insurance Premium for months to 903. Hazard Insurance Premium for years to 904. years to 905. 1000. Reserves Deposited With Lender 1001. Hazard insurance months@$ per month 1002. Mortgage insurance months@$ per month 1003. City property taxes months@$ per month 1004. County property taxes months@$ per month 1005. Annual asse ssments months@$ per month 1006. months@$ per month 1007. months@$ per month 1008. months@$ per month 1100. Title Charges 1101. Settlement or closing fee to 1102. Abstract or title search to 1103. Title examination to 1104. Title insurance binder to 1105. Document preparation to 1106. Notary fees to 1107. Attorney's fees to (includes above items numbers: ) 1108. Title insurance to (includes above items numbers: ) 1109. Lender's coverage $ 1110. Owner's coverage $ 1111. 1112. 1113. 1200. Government Recording and Transfer Charges 1201. Recording fees: Deed $ ; Mortgage $ ; Releases $ 1202. City/county tax/stamps: Deed $ ; Mortgage $ 1203. State tax/stamps: Deed $ ; Mortgage $ 1204. 1205. 1300. Additional Settlement Charges 1301. Survey to 1302. Pest ins pection to 1303. 1304. 1305. 1400. Total Settlement Charges (enter on lines 103, Section J and 502, Section K) Settlement Statement Previous editions are obsolete Paid From Borrowers Funds at Settlement Paid From Seller's Funds at Settlement form HUD-1 (3/86) ref Handbook 4305.2 A sample settlement statement (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 138 SETTLEMENT STATEMENT mobile home financing came under the regulation of RESPA. The expansion of RESPA brought complaints from the finance industry about the burden of excess regulation. Yet with the signing of the Housing and Community Development Act by the usually antiregulatory President GEORGE H. W. BUSH, Washington signaled its approval of the benefits for consumers in regulating costs in real estate transactions. SETTLOR One who establishes a trust—a right of property, real or personal—held and administered by a trustee—often chosen by the settlor—for the benefit of another. SEVEN BISHOPS’ TRIAL A turning point in the history of ENGLISH LAW, the Seven Bishops’ Trial, 12 Howell’s State Trials 183 (1688), involved issues of church and state, the authority of the monarchy, and the power of the judiciary. In 1688 King James II brought the proceeding against seven pro- minent bishops of the Church of England. For defying a controversial order of the king, the prelates were accused of seditious libel, a grave offense that constituted rebellion against the Crown. Their successful defense against the charge helped to encourage the opposition to the king that culminated six months later in the so-called Glorious Revolution of 1688. The king fled, and subsequently England had a new monarchy and a new BILL OF RIGHTS. The bishops’ challenge to authority and the subse- quent expression of popular political will were important precedents that helped to inspire later revolutionaries among the American colonists. The trial took place against a backdrop of anti-Catholicism. The English Parliament had restricted the rights of Catholics to hold public office and engage in other activities. James II was a devout Catholic, however, and believed that it was his duty to protect the rights of English Catholics. Accordingly, on April 4, 1687, he issued the First Declaration of Indul- gence, which suspended the restrictions and led directly to Catholics holding public offices. A year later, on April 27, 1688, James repeated his first order and went furt her: to better inform the citizenry, he commanded the Anglican clergy to read his Second Declaration of Indulgence in their churches. The king’s order was universally unpopular. Seven senior prelates took action. Led by William Sancroft, the archbishop of Canterbury, they sent the king a petition professing their loyalty to him but also indicating their refusal to read the declaration in church . The petition enraged James, especially since the ostensibly private statement was published throughout the king- dom. Viewing the bishops’ petition as an act of rebellion, he began the process of prosecuting them for seditious LIBEL. In such a case, the accused were required to post a payment called a recognizance or else await trial in prison. This the bishops refused to do, claiming that as members of the Hous e of Lords, they were exempt from paying recognizances. The bishops’ claim may have been a bit audacious in that the exemption probably did not extend to such serious offenses. In any event James promptly jailed the bishops in the Tower of London. At trial both sides argued over the issue of SEDITION. The Crown maintained that the bishops should have taken their grievances to the king’s courts or appealed to Parliament for action. Their failure to do so amounted to an attempt to incite popular hostility against the king. Lawyers for the bishops argued that they had simply exercised the same rights available to all English subjects. Anyone, they asserted, was free to petition the king when legal rights were A depiction of the June 1688 release of the Seven Bishops following their acquittal on charges of seditious libel against King James II, one of the first major decisions against an executive branch of government. BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SEVEN BISHOPS’ TRIAL 139 infringed. Four judges presided at the trial. In giving their opinion on the law to the jury, they divided equally over whether the bishops had committed seditious libel . Boldly, the jury ruled against the Crown. The acquittal of the bishops had immediate and lasting implications. The verdict of not guilty was received with great popular acclaim and contributed to exactly what the king had feared—rebellion. During James’s dispute with the bishops, his second wife had given birth to a son. Hitherto James’s heir apparent had been Mary, his Protestant daughter from his first marriage, who was married to William of Orange, the ruler of the Netherlands. Now the birth of a son aroused fear that James would be succeeded by a Catholic. Accordingly, a coali- tion of nobles, encouraged by the popular response to the bishops’ acquittal, invited the Protestant William of Orange and Mary to assume the throne. The so-called Glorious Revolution of 1688 saw King James II flee to France, while William and his wife Mary became king and queen. Their appointment by Parliament underscored that institution’s supremacy as the maker of law in England; in a short time, the nation had not only new sovereigns but also a new Bill of Rights. The significance of the Seven Bishops’ Trial reached beyond England. Historically, it marked one of the first major decisions against an EXECUTIVE BRANCH of government. A jury had nullified what it considered an unjust law. Thus, historians see the case as marking the emanci- pation of the judiciary from executive control. This lesson was not lost on the American colonists. They viewed the case as an exercise of popular political will against a tyrannical monarch; as such, it inspired early American republicans (and ultimately revolutionaries) who believed in the decentralization of power. SEVENTEENTH AMENDMENT The Seventeenth Amendment to the U.S. Cons- titution reads: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote. The electors in each State shall have the qualifica- tions requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representa- tion of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appoint- ments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so con- strued as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. The Seventeenth Amendment, which was rati- fied in 1913, provided for the direct election of U.S. senators by citizens. Until 1913 state legislatures had elected U.S. senators. Ratification of the amendment followed decades of insis- tence that the power to elect senators should be placed in the hands of ordinary voters. This successful struggle marked a major victory for progressivism—the early twentieth-century politi- cal movement dedicated to pushing government at all levels toward reform. In addition to serving the longer-range goals of the reformers, the campaign on behalf of the amendment sought to end delays and what was widely perceived as corruption in the election of senators by state legislatures. From 1787 until 1913, the U.S. Constitution specified that state legislatures would elect U.S. senators. Article 1, Section 3, reads: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. In giving the elective power to the states, the framers of the Constitution hoped to protect state independence. The framers were suspicious of majority rule and sought to restrain what they regarded as the potentially destructive forces of democracy. Thus, while providing for direct election to the House of Representatives, they countered this expression of the people’swillby allowing legislatures to select members of the Senate. At the Constitutional Convention, the proposal for state election of senators aroused no controversy. Only one proposal for senatorial election by popular vote was offered, and it was soundly defeated. The states were receptive and did not protest when the Constitution was sent to them for ratification. Nor, over the n ext decades, did the system incur more than occasional criticism. By the late nineteenth century, however, political opinion was changing in favor of a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 140 SEVENTEENTH AMENDMENT more fully participatory democracy. Starting in the 1880s, the concentration of elective power in the hands of state legislatures provoked criticism. The critics complained that the legislatures were dominated by party bosses who prevented citizen participation and thwarted popular political action. The critics also pointed to practical and ethical problems: lengthy deadlocks, which sometimes resulted when legislatures could not agree upon a candidate, and alleged BRIBERY. Progressivism, the reform movement that sought to address social inequities by broadening government power, helped to bring about this change in outlook. Under the pressure of the Progressive movement and the popular belief that citizens were capable of choosing their own senators, the states began to bend. By the turn of the century, several states were holding popular elections that served as advisories to the legis- latures in selecting senators. Over the next decade, increasing calls for change reached Congress, where the resistance to change was considerable. Federal lawmakers argued that direct election would strip states of their independence and sovereignty. The pres- sure continued to increase, however, until by 1910, 31 state legislatures had requested that Congress hold a constitutional convention to propose an amendment. The next year Con- gress buckled and passed the amendment; within two years, the amendment had been ratified by the states. It read , in relevant part: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. Only ten states opposed ratification. Ratification of the Seventeenth Amendment introduced significant changes to Congress. When states elected senators, they exercised the power of instruction—they could direct their senators to vote a certain way on important matters. The Seventeenth Amendment formally ended this power, for now senators were beholden to the voters. Historians and legal scholars continue to debate the other effects of the amendment. Some view it as a grave surrender of state sovereignty; others see it as a benign or even positive outgrowth of popular will. Direct election has seemingly contributed to the decline in the power of party bosses, but its impact upon the actual practice of Senate business has been negligible. FURTHER READINGS Bybee, Jay S. 1997. “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment.” Northwestern University Law Review 91 (winter). Kochan, Donald J. 2003. “State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional.” Albany Law Review 66 (summer). Rossum, Ralph A. 2001. Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, Md.: Lexington Books. Vile, John R. 2006. A Companion to the United States Constitution and Its Amendments. 4th ed. Westport, CT: Praeger Publishers. Zywicki, Todd J. 1997. “Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and its Implications for Current Reform Proposals.” Cleveland State Law Review 45 (spring): 165–234. Zywicki, Todd J. 1994. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amend- ment.” Oregon Law Review 73 (winter). CROSS REFERENCE Congress of the United States. SEVENTH AMENDMENT The Seventh Amendment to the U.S. Constitu- tion reads: In suits at COMMON LAW, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. The Seventh Amendment to the U.S. Con- stitution guarantees the right to a jury trial in most civil suits that are heard in federal court. However, before the Seventh Amendment right to a jury trial attaches, a lawsuit must satisfy four threshold requirements. First, it must assert a claim that would have triggered the right to a jury trial under the English common law of 1791, when the Seventh Amendment was ratified. If a lawsuit asserts a claim that is sufficiently analogous to an eighteenth-century English common law claim, a litigant may still invoke the Seventh Amendment right to a jury trial even though the claim was not expressly recognized in 1791 (Markman v. Westview Ins- truments, 517 U.S.370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 [1996] ). Claims brought under a federal statute that confer a right to trial by jury also implicate the Seventh Amendment ( Chauf- feurs, Teamsters and Helpers, Local No. 391 v. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEVENTH AMENDMENT 141 Terry, 494 U.S. 558, 110 S. Ct. 1339, 108 L. Ed. 2d 519 [1990]). Second, a lawsuit must be brought in federal court before a litigant may invoke the Seventh Amendment right to a jury trial. This right is one of the few libert ies enumerated in the BILL OF RIGHTS that has not been made applicable to the states through the doctrine of selective incorporation (Minn eapolis & St. Louis Railroad v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 [1916]). The Seventh Amendment does not apply in state court even when a litigant is enforcing a right created by federal law. However, most state constitutions similarly afford the right to trial by jury in civil cases. Third, a lawsuit must assert a claim for more than $20. Because nearly all lawsuits are filed to recover much larger sums, this provi- sion of the Seventh Amendment is virtually always met. Fourth, a lawsuit must assert a claim that is essentially legal in nature before the Seventh Amendmentapplies.Thereisnorighttoajury trial in civil actions involving claims that are essentially equitable in nature (Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 [1987]). Lawsuits that seek injunctions, SPECIFIC PERFORMANCE, and other types of non- monetary remedies are traditionally treated as equitable claims. Lawsuits that seek money damages, conversely, are traditionally treated as legal claims. However, these traditional categories of law and equity are not always neatly separated. If the monetary relief sought is only “incidental” to an equitable claim for an INJUNCTION, the right to a jury trial will be denied (Stewart v. KHD Deutz of America, 75 F.3d 1522 [11th Cir. 1996]). Even if a lawsuit is couched in terms of a legal claim for monetary relief, a court will deny a litigant’s request for a jury trial if an essentially equitable claim is being asserted. Lawsuits seeking restitution, though representing claims for monetary reimburse- ment, have been treated as equitable claims for the purposes of the Seventh Amendment (Provident Life and Accident Insurance v. Wil- liams, 858 F. Supp. 907 [W.D. Ark. 1994]). On the other hand, an employee’s action for back pay under Title VII of the CIVIL RIGHTS Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) represents a legal claim despite the fact that the statute characterizes the remedy as equitable (Local No. 391 v. Terry). When a lawsuit involves mixed questions of law and equity, litigants may present the legal questions to a jury under the Seventh Amend- ment, while leaving the equitable questions for judicial resolution (Snider v. Consolidation Coal Co., 973 F.2d 555 [7th Cir. 1992]). For example, an action to recover ATTORNEY’SFEESpursuant to a written agreement normally would be decided by a jury in accordance with the common law of contracts. However, in a subsequent proceeding to determine the amount of attorney’sfees owed, equitable principles of accounting would normally be applied by a judge alone (McGuire v. Russell Miller, Inc., 1F.3d1306[2nd Cir. 1993]). Any factual determinations made by the jury in the first proceeding would be binding on the judge during the second proceeding (Lebow v. American Trans Air, 86 F.3d 661 [7th Cir. 1996]). Some types of lawsuits present issues that are neither wholly legal nor entirely equitable. In many such cases, the Seventh Amendment offers no protection. For example, there is no right to trial by jury for lawsuits that involve issues of maritime law or admiralty rights (Parsons v. Bedford, 28 U.S. [3 Pet.] 433, 7 L. Ed. 732 [1830]). Nor is the Seventh Amendment implicated in proceedings that relate to the NATURALIZATION (Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101 [1913])or DEPORTATION (Gee Wah Lee v. United States, 25 F.2d 107 [5th Cir. 1928],of ALIENS. Litigants also have no Seventh Amendment right to trial by jury in lawsuits brought against the federal government (Lehman v. Nakshian, 453 U.S. 156, 101 S. Ct. 2698, 69 L. Ed. 2d 548 [1981]). The underlying rationale of the Seventh Amendment was to preserve the historic line separating the province of the jury from that of the judge in civil cases. Although the line separating questions of law from questions of fact is often blurred, the basic functions of judges and juries are clear. Judges are charged with the responsibility of resolving issues concerning the admissibility of evidence and instructing jurors regarding the pertinent laws governing the case. Judges are also permitted to comment on the evidence, highlight important issues, and otherwise express their opinions in OPEN COURT as long as each factual question is ultimately submitted to the jury. However, a judge may not interject her personal opinions or observations to such an extent that they impair GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 142 SEVENTH AMENDMENT a litigant’s right to a fair trial (Rivas v. Brattesani, 94 F.3d 802 [2nd Cir. 1996]). Juries perform three main functions. First, jurors are charged with the responsibility of listening to the evidence, ascertaining the rele- vant facts, and drawing reasonable inferences that are necessary to reach a verdict. Second, jurors are required to heed the instructions read by the court and apply the governing legal principles to the facts of the case. Third, jurors are obliged to determine the legal consequences of the litigants’ behavior through the process of group deliberation and then publicly announce their verdict. The Seventh Amendment expressly forbids federal judges to “re-examin[e]” any “fact tried by a jury” except as allowed by the common law. This provision has been interpreted to mean that no court, trial or APPELLATE, may overturn a jury verdict that is reasonably supported by the evidence (Taylor v. Curry, 17 F.3d 1434 [4th Cir. 1994]). A jury must be allowed to hear a lawsuit from start to finish unless it presents a legal claim that is completely lacking an evidentiary basis (Gregory v. Missouri Pacific Railroad, 32 F.3d 160 [5th Cir. 1994]). Together with the Due Process Clause of the FIFTH AMENDMENT, the Seventh Amendment guarantees civil litigants the right to an impartial jury (McCoy v. Goldston, 652 F.2d 654 [6th Cir. 1981]). A juror’simpartialitymaybecompro- mised by communications with sources outside the courtroom, such as friends, relatives, and members of the media. The presence of even one partial, biased, or prejudiced juror creates a presumption that the Seventh Amendment has been violated (Haley v. Blue Ridge Transfer Co., 802 F.2d 1532 [4th Cir. 1986]). A litigant seeking to overcome this presumption bears a heavy burden to establish the harmlessness of an unauthorized jury communication. In Haley, for example, the SUPREME COURT overturned a verdict against the DEFENDANT because jurors had communicated with an outside source who attempted to persuade them to side with the PLAINTIFF. Although every juror must be impartial, there is no Seventh Amendment right to a jury of 12 persons. In Colgrove v. Battin, 413 U.S. 149, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973), the U.S. Supreme Court ruled that the quality of the deliberation process is not impaired when the size of a jury is reduced from 12 to six members. The Court cited one study suggesting that smaller juries promote more robust delibera- tions. Regardless of a jury’s size, the Seventh Amendment requires unanimity among jurors who hear civil cases in federal court (Murray v. Laborers Union Local No. 324, 55 F.3d 1445 [9th Cir. 1995]). By contrast, the SIXTH AMENDMENT to the Constitution does not require juror una- nimity in criminal trials, except in death penalty cases. FURTHER READINGS Barron, Jerome, and Dienes, Thomas. 2006. First Amend- ment Law in a Nutshell. 6th ed. St. Paul, Minn.: Thomson West. Dwyer, William L. 2002. In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy. New York: Thomas Dunne Books. Kane, Mary Kay. 2003. Civil Procedure in a Nutshell. 5th ed. St. Paul, Minn.: Thomson/West. Oldham, James. 2006. Trial by Jury: The Seventh Amendment and Anglo-American Special Juries. New York: NYU Press. CROSS REFERENCE Incorporat ion Doctrine. SEVERABLE That which is capable of being separated from other things to which it is joined and maintaining nonetheless a complete and independent existen ce. The term severable is used to describe a contract that can be divided and apportioned into two or more parts that are not necessarily dependent upon each other. For example, a seller accepted a buyer’s order for sixty dozen hats and caps of different sizes and colors. He shipped all but five dozen to the buyer, who then refused to accept the order. The seller brought an action against the buyer for breach of contract. There was no evidence to show that the contract called for delivery of the whole order at on e time. The court held that the buyer could not escape liability because the seller had failed to ship five dozen hats and caps, since the order calling for hats and caps of different patterns, sizes, and colors constituted a “sever- able contract.” The term severable is also used in connec- tion with statutes. A severable statute is one that after an invalid portion of it has been stricken remains self-sustaining and capable of separate enforcement without regard to the stricken provisions. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEVERABLE 143 SEVERAL Separate; individual; independent. In this sense, the word several is distin- guished from joint. When applied to a number of persons, the expression severally liable usually implies that each person is liable alone. CROSS REFERENCE Joint and Several Liability. SEVERALTY OWNERSHIP Sole proprietorship of property; individual dominion. SEVERANCE The act of dividing, or the state of being divided. The term severance has unique meanings in different branches of the law. Courts use the term in both civil and criminal LITIGATION in two ways: first, when dividing a lawsuit into two or more parts, and second, when deciding to try multiple defendants’ cases separately. In addi- tion, severance also describes several actions relevant to property and EMPLOYMENT LAW. In civil suits, severance refers to the division of a trial into two or more parts. Plaintiffs in civil suits base their cases on a cause of action— facts that give the PLAINTIFF the right to sue. For reasons of judicial economy, the court may order the lawsuit divided into two or more independent causes of action. This type of severance occurs only when each distinct CAUSE OF ACTION could be tried as if it were the only claim in controversy. As a result of severance, the court renders a separate, final, and enforce- able judgment on each cause. A second type of severance occurs in cases involving multiple defendants. The court may sever one or more defendants from the trial and try their cases separately. Severance works somewhat differently in federal criminal trials. When these cases involve the INDICTMENT of more than one DEFENDANT, usually only one trial is held. This process is called JOINDER. Rule 8 of the Federal Rules of CRIMINAL PROCEDURE permits the joinder of the indictments of two or more defendants if they are alleged to have participated in the same act or trans action. For policy reasons, courts prefer using joinder to holding separate trials because it saves time and money. However, joinder can create potential prejudices against a defendant, resulting in greater likelihood of conviction, and thus a defense attorney will often ask the court to sever his client’s case. Less often, the prosecution requests severance because it believes joinder will prejudice its case. Severance results in a defendant being tried separately on one or all of the pending charges. Severance is not automatic. Federal Rule 14 allows judge s broad discretion in deciding whether to grant severance. To be successful, a defense motion for severance must show that concerns for the defendant’s right to a fair trial outweigh the goals of joinder. Concerns for judicial economy and efficiency make trial courts reluctant to grant severance, and rarely do appellate courts overturn a lower court decision to refuse severance. One of the most successful grounds for seeking severance arises when a defendant wishes not to testify on all counts in a trial but chooses to claim her FIFTH AMENDMENT privilege on one or more counts. In property and employment law, severance is used in several different contexts. First, it applies to JOINT TENANCY, a form of shared owner- ship of real property. Joint tenancy requires each tenant to share in the four unities of time, title, interest, and possession. When any of these unities no longer applies to any or all of the joint tenants, the joint tenancy is said to be severed, and the tenancy is terminated. Second, in regard to real property, severance is the cutting and removal of anything that is attached to the land, such as standing timber or crops. Third, sever- ance is used when the government exercises its power to take private property for public use through the right of EMINENT DOMAIN. If only part of the property is taken, and the value of the remaining property depreciates because of the government’s proposed use of the taken share, the owner is entitled to compensation called “severance damage.” Finally, severance may refer to “severance pay,” which is an amount of money paid to employees upon the termination of their employ- ment. Discharged employees often raise issues concerning severance pay. There may be disputes as to entitlement. The duty to pay severance pay may arise from a written employment contract, a COLLECTIVE BARGAINING AGREEMENT, an employee handbook, a personnel manual, a policy state- ment, a verbal promise, or a well-settled and well- known custom or practice. Normally severance pay involves a lump-sum payment based on years GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 144 SEVERAL of service and a unit of salary (e.g., two weeks pay for each year of service) payable at time of termination or over a period of time. Some plans award severance pay to any employee terminated for any reason. Other plans only apply to shutdowns for economic reasons. Some plans exclude employees terminated for JUST CAUSE or willful misconduct. Severance pay plans are enforceable as contracts. Courts are very liberal in finding adequate consideration, such that continued employment, without any further duties, will suffice for the enforcement of a severance pay agreement. It is generally held that, once earned, the right to severance pay is vested, cannot be retroactively reduced or modified, and survives the termination of the agreement. But employee actions, including employee misconduct, may disqualify them from severance pay. One major purpose of severance pay is to assist terminated employees in times of economic distress during the period of post-termination unemployment. Therefore, em ployers often have resisted paying severance pay where there has been a merger or buyout and the employees are rehired by the new employer-purchaser-successor and do not lose any income. FURTHER READING Hein, Kevin P. 1993. “Joinder and Severance.” American Criminal Law Review 30 (spring). SEX DISCRIMINATION Sex discrimination refers to discrimination on the basis of gender. Women have historically been subjected to legal DISCRIMINATION based on their gender. Some of this discrimination has been based on cultural stereotypes that cast women primarily in the roles of wives and mothers. In the patriarchal (male-dominated) U.S. society, women have been viewed as the so-called weaker sex, who needed protection from the rough world outside their homes. Such beliefs were used as justifications for preventing women from voting, holding public office, and working outside the home. In any culture that portrays wives as appendages of their husbands, women are often invisible to the law. The ability of women to use the law to fight sex discrimination in employment, education, domestic relations, and other spheres is a recent development. With the passage of Title VII of the CIVIL RIGHTS Act of 1964 (42 U.S.C.A. §§ 2000e et seq.), discrimination in employment based on sex became illegal. In the 1970s and 1980s, the U.S. SUPREME COURT began to wrestle with the implications of sex discrimination in many contexts, often with conflicting or ambig- uous results. Employers and social institutions have sought to justify discriminatory treatment for women on the basis of long-held traditions. In some cases, the Cour t has agreed, whereas in others, the justifications have been dismissed as cultural stereotypes that have no basis in fact. Historical Background To reshape gender roles, women have had to overcome centuries of tradition, much of which originated in medieval England. After the Norman Conquest in 1066, the legal status of a married woman was fixed by COMMON LAW. The identity of the wife was merged into that of the husband; he was a legal person but she was not. Upon marriage, he received all of her PERSONAL PROPERTY and managed all property that President Barack Obama's first bill in office was the Lilly Ledbetter Fair Pay Act of 2009, which seeks to ensure equal pay for equal work, regardless of gender. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SEX DISCRIMINATION 145 she owned. In return, the husband was obliged to support his wife and children. This legal definition of marriage persisted in the United States until the middle of the nineteenth century, when states enacted married women’s property acts. These acts conferred legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during marriage, thereby forcing his wife to rely on his bounty. The passage of the married women’sproperty acts resulted from the effortsoffeministreformers, including LUCY STONE, ELIZABETH CADY STANTON,and SUSAN B. ANTHONY. The feminist political movement began in the nineteenth century with the call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Senti- ments. This declaration, which was modeled on thelanguageandstructureofthe DECLARATION OF INDEPENDENCE ,wasaBILL OF RIGHTS for women, including the right to vote. Ston e, Stanton, and Anthony were persistent critics of male refusal to grant women polit ical and social equality. Not until the NINETEENTH AMENDMENT to the U.S. Constitution was r atified in 1920, however, did women h ave voting rights in the United States. The U.S. Supreme Court confronted the issue of sex discrimination in Bradwell v. Illinois, 83 U.S. 130, 21 L. Ed. 442 (1872). MYRA BRADWELL sought to practice law in Illinois, but the Illinois Supreme Court refused to admit her to the bar because she was a woman. Bradwell appealed to the U.S. Supreme Court, arguing that the refusal to grant her a license violated the PRIVILEGES AND IMMUNITIES clause of the FOUR- TEENTH AMENDMENT .Byan8–1 vote, the Court rejected Bradwell’s argument. Though the majority opinion was on the argument that the privileges and immunities clause applied only to matters involving U.S. citizenship and not state citizenship, a concurring opinion written by Justice JOSEPH P. BRADLEY and signed by two other justices revealed the cultural stereotypes that lay behind the legal analysis. Observing that there is “a wide difference in the respective sphere and destinies of man and woman,” Bradley went on to write that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” For Bradley, the “paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” By the late nineteenth century, mass IMMI- GRATION from Europe to the industrialized cities of the United States had resulted in many immigrant women seeking work in factories. Though the Supreme Court was hostile to state laws that sought to regulate working conditions, the Court was more hospitable to laws aimed at protecting women in the workplace. The idea that women were the weaker sex and needed special treatment constituted discrimination based on sex, but the Court willingly embraced the concept. The landmark case in this regard was Muller v. Oregon , 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). The Court upheld an Oregon law that prohibited the employment of women for more than ten hours a day, in large part because of the brief submitted in support of the law by LOUIS D. BRANDEIS. The brief contained information about the possible injurious effects of long work hours on women’s health and morals, as well as on the hea lth and welfare of their childr en, including their unborn children. Brandeis emphasized the differences between women and men. The Court unanimously agreed, noting that “ woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence.” WORLD WAR II played a decisive role in changing the social status of women. Large numbers of women left the home and entered the industrial workplace when men joined the ARMED SERVICES. Many women performed jobs that were pre- viously thought to be beyond their physical and mental abilities. Though these women were unceremoniously fired after the war to free up jobs for returning servicemen, many traditional social assumptions about women had been shaken. By the 1970s, women had begun to compete with men for managerial and professional positions. Nevertheless, sex discrimination in employment and other areas of U.S. society remained. Congress, state legislatures, and the courts began to address the legality of this type of discrimination. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 146 SEX DISCRIMINATION Sex Discrimination Laws The first significant piece of federal legislation that dealt with sex discrimination was the Equal Pay Act (EPA) of 1963 (29 U.S.C.A. § 206 [d ]), which amende d the FAIR LABOR STANDARDS ACT of 1938 (29 U.S.C.A. §§ 201–219) by prohibiting discrimination in the form of different com- pensation for jobs requiring equal skill, effort, and responsibility. The inclusion of a prohibition against gender- based discrimination in Title VII of the Civil Rights Act of 1964 was a landmark achievement, though the provision was added by opponents of the comprehensive act in a last-minute attempt to prevent its passage. Title VII defines sex discrimination in employment as including failure or refusal to hire, discrimination in dis- charge, classification of employees or applicants so as to deprive individuals of employment oppor- tunities, discrimination in apprenticeship and on-the-job training programs, retaliation for opposition to an unlawful employment practice, and sexually stereotyped advertisements relating to employment (42 U.S.C.A. §§ 2000e-2[a] & [d], 2000e-3[a] & [b]). The Pregnancy Discrimination Act (PDA) of 1978 (42 U.S.C.A. § 2000e[k]) was the congressional response to the ruling of the Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), that an employer’s refusal to grant pregnancy disability benefits under an otherwise all-inclusive short-term disability insurance program did not violate Title VII. The PDA prohibits discrimination against employees on the basis of pregnancy and childbirth with respect to employment and benefits. In an interesting twist, men have found themselves the victims of sex discrimination when the issue of pregnancy and CHILD CARE arises. The case of Kevin Knussman provides a cautionary tale for men and women who are planning to become parents. Knussman, a 17-year veteran of the Maryland State Police, Sex Discrimination and Title VII: An Unusual Political Alliance T B he legislative battle to pass the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et s eq.) required the leadership of President LYNDON B. JOHNSON and the bipartisan support of legislators from outside the South. The original draft of title VII of the act, which prohibits employment discrimination, limited its scope to discrimination based on race, color, religion, and national origin. Sex was not included as a “protected class” because supporters of the bill feared such a provision might kill the act itself. In February 1964 Representative Howard W. Smith, a powerful Democrat from Virginia, offered an amendment to include sex as a protected class. Supporters of the bill were suspi cious of Smith's motives, as he had, for three decades, consistently opposed civil rights laws prohibiting racial discrimination. Many suspected that he was including sex discrimination i n title VII in an attempt to break the bipartisan consensus for the entire bill. Smith, however, claimed he had no ulterior motive. Since the 1940s he ha d formed a loose alliance wi th the N ational Woman's party (NWP), a feminist organization headed by Alice Paul. Since 1945 Smith had been a sponsor of the Equal Rights Amendment, which Paul had originally drafted in 1923. Smith said he had introduced the amendment to title VII at the request of Paul and the NWP. Sponsors of the bill urged that the amendment be defeated, but female representatives, such as Martha W. Griffiths of Michigan, led a bipartisan effort to adopt th e amendment. The amendment was passed by a vote of 164 to 133 , with most southern Democrats voting for it. The Senate then adopted the House language. If Smith and the other sou therners thought the amendment would scuttle the bill, they were mistaken. The law was enacted on July 2, 1964, with Smith and other southern Democrats voting against the entire bill. Nevertheless, Smith had proved an unlikely hero for women's rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX DISCRIMINATION 147 . Helpers, Local No. 391 v. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEVENTH AMENDMENT 141 Terry, 494 U.S. 558, 110 S. Ct. 13 39, 108 L. Ed. 2d 5 19 [ 199 0]). Second, a lawsuit must be brought. years GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 144 SEVERAL of service and a unit of salary (e.g., two weeks pay for each year of service) payable at time of termination or over a period of. PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 138 SETTLEMENT STATEMENT mobile home financing came under the regulation of RESPA. The expansion of RESPA