Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P44 potx

It is a criminal offense to induce someone to commit perjury. In a majority of states, the offense is defined by statute. Under federal CRIMINAL LAW (18 U.S.C.A. § 1622), five elements must be proved to convict a person of subornation of perjury. It first must be shown that the defendant made an agreement with a person to testify falsely. There must be proof that perjury has in fact been committed and that the statements of the perjurer were material. The prosecutor must also provide evidence that the perjurer made such statements willfully with knowledge of their falsity. Finally, there must be proof that the procurer had knowledge that the perjurer’s statements were false. When there is a criminal conspiracy to suborn perjury, the conspirators may be prosecuted whether or not perjury has been committed. It is also quite common to join both subornation of perjury and OBSTRUCTION OF JUSTICE counts in a single indictment when they arise from the same activity. The Federal Sentencing Guidelines recog- nize two types of circumstances that enhance the criminal sentence for subornation of perjury. An offense causing or threatening to cause physical injury to a person, or property damage, in order to suborn perjury is one circumstance. The other is when subornation of perjury resulted in substantial interference with the administration of justice, which includes a premature or improper termination of a felony investigation, an indictment, a verdict, or any judicial determination based on perjury, false testimony, or other false evidence, or the unnecessary expenditure of substantial govern- ment or court resources. Under 18 U.S.C.A. § 1622, a person convicted of subornation of perjury may be fined $2,000 and sentenced to up to five years in prison. SUBPOENA [Latin, Under penalty.] A formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimon y. A court, GRAND JURY, legislative body, or ADMINISTRATIVE AGENCY uses a subpoena to compel an individual to appear before it at a specified time to give testimony. An individual who receives a subpoena but fails to appear may be charged with CONTEMPT of court and subjected to civil or criminal penalties. In addition, a person who has been served with a subpoena and has failed to appear may be A sample subordination agreement. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. SUBORDINATION AGREEMENT (FULL) FOR VALUABLE CONSIDERATION, receipt of which is acknowledged, ______________________________________________ (Creditor), the beneficiary of a security interest granted by ________________________________________________________________ (Debtor), dated ______________________________________(month & day),____________________ (year) hereby agrees to fully subordinate to__________________________________________ (Senior Creditor) the creditor's security interest against the debtor in the following amount: ________________________________________________ ($_______________). Signed this _______ day of ___________________________ (month), _________ (year). Creditor: _______________________________________________ Agreed to: ______________________________________________ Debtor: ________________________________________________ Subordination Agreement GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 418 SUBPOENA Subpoena in a Criminal Case UNITED STATES DISTRICT COURT United States of America v. _________________________________________________ Defendant SUBPOENA TO TESTIFY AT A HEARING OR TRIAL IN A CRIMINAL CASE for the TO: YOU ARE COMMANDED to appear in the United States district court at the time, date, and place shown below to testify in this criminal case. When you arrive, you must remain at the court until the judge or a court officer allows you to leave. Place of Appearance: Courtroom No: Date and Time: You must also bring with you the following documents, electronically stored information, or objects (blank if not applicable): Case No: Date: ____________________ CLERK OF COURT ____________________________________________ _ Signature of Clerk or Deputy Clerk AO 89 (Rev. 01/09) Subpoena to Testify at a Hearing or Trial in a Criminal Case The name, address, e-mail, and telephone number of the attorney representing (name of party) __________________________________ ____________________________________ , who requests this subpoena, are: _ [continued] A sample subpoena. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBPOENA 419 A sample subpoena (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Subpoena in a Criminal Case Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day’s attendance, and the mileage allowed by law, in the amount of $ __________________________________________. My fees are $ ________________________ for travel and $ _____________________ for services, for a total of $ __________________. I declare under penalty of perjury that this information is true. Date: ______________________________ _____________________________________________________________ Server’s signature _____________________________________________________________ Printed name and title _____________________________________________________________ Server’s address Additional information regarding attempted service, etc: AO 89 (Rev. 01/09) Subpoena to Testify at a Hearing or Trial in a Criminal Case (Page 2) 0.00 PROOF OF SERVICE Case No. This subpoena for (name of individual and title, if any) ________________________________________________________________ was received by me on (date) __________________________. ٗ I personally served the subpoena on the individual at (place) ________________________________________________________ _____________________________________________ on (date) __________________________; or ٗ I left the subpoena at the individual’s residence or usual place of abode with (name) ______________________________________ ______________________, a person of suitable age and discretion who resides there, on (date) __________________________, and mailed a copy to the individual’s last known address; or ٗ I served the subpoena on (name of individual) _______________________________________, who is designated by law to accept service of process on behalf of (name of organization) ____________________________________________________________ on (date) __________________________; or ٗ I returned the subpoena unexecuted because _________________________________________________________________; or ٗ Other (specify): GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 420 SUBPOENA brought to the proceedings by a law enforce- ment officer who serves a second subpoena, called an instanter. A subpoena must be served on the individ- ual ordered to appear. In some states a law enforcement officer or process server must personally serve it, whereas other states allow service by mail or with a telephone call. It is most often used to compel witnesses to appear at a civil or criminal trial. A trial attorney may receive an assurance from a person who says that she will appear in court on a certa in day to testify, but if a subpoena is not issued and served on the witness, she is not legally required to appear. It is up to the attorneys in a case to request subpoenas, which are routinely issued by the trial court administrator’s office. The subpoena must give the name of the legal proceedings, the name of the person who is being ordered to appear, and the time and place of the court hearing. Legislative investigating committees also issue subpoenas to compel recalcitrant witnesses to appear. Congressional investigations of political scandal, such as the WATERGATE scandals of the Nixon administration, the IRAN-CONTRA scandal of the Reagan administration, and the WHITEWATER scandal of the Clinton administra- tion, rely on subpoenas to obtain testimony. A subpoena that commands a person to bring certain evidence, usually documents or papers, is called a SUBPOENA DUCES TECUM, from the Latin “under penalty to bring wit h you.” This type of subpoena is often used in a civil lawsuit where one party resists giving the other party documents through the discovery process. If a court is convinced that the document request is legitimate, it will order the produc- tion of documents using a subpoena duces tecum. A party may resist a subpoena duces tecum by refusing to comply and requesting a court hearing. One of the most famous refusals of a subpoena was RICHARD M. NIXON’s reluctance to turn over the tape recordings of his White House office conversations to the Watergate special prosecutor. Nixon fought the subpoena all the way to the Supreme Court in UNITED STATES V . NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). The Court upheld the subpoena, leading Nixon to resign his office a short time later. SUBPOENA DUCES TECUM [Latin, Under penalty to bring with you.] The judicial process used to command the production before a court of papers, documents, or other tangible items of evidence. A subpoena duces tecum is used to compel the prod uction of docu ments that might be admissible before the court. It cannot be used to require oral testimony and ordinarily cannot be used to compel a witness to reiterate, paraphrase, or affirm the truth of the documents produced. Although frequently employed to obtain discovery during litigation, a subpoena duces tecum may not be used for a “fishing expedi- tion” to enable a party to gain access to massive amounts of documents as a means of gathering evidence. The subpoena should be sufficiently definite so that a respondent can identify the documents sought without a protracted or extensive search. Moreover, a person ordinarily is required to produce only documents in her possession or under her control and supervi- sion. A subpoena duces tecum may be used to compel the production of the papers and books of a business, however. A subpoena duces tecum is not limited to parties to a lawsuit but may also be used for others who have relevant documents. In the absence of a valid excuse, an individual served with a subpoena duces tecum must produce the items sought, although a subordinate may comply instead. A subpoena duces tecum may be challenged by a motion to quash, modify, or vacate the subpoena or by a motion for a protective order. The subpoena might not be permitted if alternative metho ds for obtaining the information sought are available. Determin- ing whether a subpoena duces tecum should be enforced is a discretionary matter within the judgment of the court. SUBROGATION The substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he or she who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or SECURITIES. There are two types of subrogation: legal and conventional. Legal subrogation arises by operation of law, whereas conventional subro- gation is a result of a contract. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBROGATION 421 The purpose of subrogation is to compel the ultimate payment of a debt by the party who, in EQUITY and good conscience, should pay it. This subrogation is an equitab le device used to avoid injustice. Legal subrogation takes place as a matter of equity, with or without an agreement. The right of legal subrogation can be either modified or extinguished through a contractual agreement. It cannot be used to displ ace a contract agreed upon by the parties. Conventional subrogation arises when one individual satisfies the debt of another as a result of a contractual agreement that provides that any claims or liens that exist as security for the debt be kept alive for the benefit of the party who pays the debt. It is necessary that the agreement be supported by consideration; however, it does not have to be in writing and can be either express or implied. The facts of each case determine the issue of whether or not subrogation is applicable. In general, the remedy is broad enough to include every instance in which one party, who is not a mere volunteer, pays a debt for which a second party is primarily liable and which, in equity and good conscience, should have been dis- charged by the second party. Subrogation is a highly favored remedy that the courts are inclined to extend and apply liberally. The ordinary equity maxims are applicable to subrogation, which is not permitted when there is an adequate legal remedy. The plaintiff must come into court with clean hands, and the person who seeks equity must do equity. The remedy is not available when there are equal or superior equities in other individuals who are in opposition to the party seeking subrogation. The remedy is denied when the person seeking subrogation has interfered with the rights of others, committed FRAUD, or been negligent. The right to subrogation accrues upon payment of the debt. The subrogee is generally entitled to all the creditor’s rights, privileges, priorities, remedies, and judgments and is subject only to whatever limitations and conditions were binding on the creditor. He does not, however, have any more extensive rights than the creditor. SUBSCRIBE To write underneath; to put a signature at the end of a printed or written instrument. A subscribing witness is an individual who either sees the execution of a writing or hears its acknowledgment and signs his or her name as a witness upon the request of the executor of the agreement. In relation to the law of corporations, a subscriber is one who has made an agreement to take a portion of the original issue of corporate stock. SUBSCRIPTION The act of writing one’s name under a written instrument; the affixing of one’ s signature to any document, whether for the purpose of authenti- cating or attesting it, of adopting its terms as one’s own expressions, or of binding oneself by an engagement which it contains. A written contract by which one engages to take and pay for capital stock of a corpor ation, or to contribute a sum of money for a designated purpose, either gratu- itously, as in the case of subscribing to a charity, or in consideration of an equivalent to be rendered, as a subscription to a periodical, a forthcoming book, a series of entertainments, or the like. Subscriptions, such as those made to charities, are also known as “pledges” and can be either oral or written. Formation of Subscriptions A subscription contract does not have to be in a particular form, or even in writing, provided the promisor clearly i ndicates an intention to have such an agreement or contract. Where a state law mandates a writing, the subscriber’s name c an be signed to the contract by the individual who solicits the contribution for the organization, if that person is authorized to do so by the subscriber. The offered subscription must be accepted if it is to legally bind the subscriber. It is essential that acceptance occur within a reasonable time, because, as an offer, the subscription can be revoked any time prior to its acceptance. In situations where the terms of a subscrip- tion are vague or ambiguous, the court will interpret its meaning. Factors for evaluation include the subject matter of the agreement, the inducement that influenced the subscription, the circumstances under which it was made, and its language. Any conditions required by a subscription contract must be satisfied before the contract will be enforced. When the subscriber’s liability has become fixed, ba sed upon a fulfillment of all conditions, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 422 SUBSCRIBE he or she must pay the subscription according to its terms. In cases where the promise is to pay as the work progresses, the work need not be completed before payment is due. Cancellation of Subscriptions The discovery of any false representations made intentionally for the purpose of deceiving an individual making a charitable subscription justifies the cancellation of the subscription. The FRAUD must bear a relation to the subject matter of the contract. If, for example, an individual is told that the subscription will go to finance the development of a recreation center for a student group when, in fact, it will be used to fund an arsenal for a group of political extremists, that individual is entitled to cancel the subscription. Enforceability of Subscriptions State law determines the enforceability of oral and written subscriptions. Courts have regarded subscriptions that are not supported by some consideration as mere offers that become legally binding when accepted or when the recipient of the promise has acted in reliance on the offers. The promise that forms the subscription need not be to pay money but might be for the performance of other acts, such as to convey land or provide labor for construction. Courts, as a matter of policy, uphold subscriptions if any consideration can be found. In a situation where the recipient of the subscription has begun work or incurred liability in reliance upon it, such action constitutes a consideration. A benefit to the subscriber, although it is enjoyed by her in common with others or with the general public, is also deemed sufficient consideration for the promise. In the event that an enterprise is abandoned prior to the time that its purpose, which was the basis of the subscription, is accomplished, the courts will not ordinarily enforce the subscrip- tion against the subscriber. There is an implied condition at law that an enterprise cannot be abandoned but must be in existence when payment is demanded. In order to relieve the subscriber from his duties, however, it is essential that there be a complete abandonment or frustration of the project. In cases where the project is partially completed, a cessation of work due to the shorta ge of funds precipitated by the failure of pledgors to pay the full amount of their pledges is not a complete abandonment relieving the subscriber from liability. This is also true when a project is temporarily suspended because of financial difficulties or because the purpose of the subscription is substantially accomplished, but the enterprise is subsequently stopped. A subscription is a type of contract, and, therefore, the remedies for its breach are the same as those for breach of contract and include damages and SPECIFIC PERFORMANCE. A subscrip- tion is invalid if its purpose is the accomplish- ment of ends that are contrar y to PUBLIC POLICY. SUBSIDIARY Auxiliary; aiding or supporting in an inferior capacity or position. In the law of corporations, a corporation or company owned by another corporation that controls at least a majority of the shares. A subsidiary corporation or company is one in which another, generally larger, corporation, known as the “parent corporation,” owns all or at least a majority of the shares. As the owner of the subsidiary, the parent corporation may control the activities of the subsidiary. This arrangement differs from a merger, in which a corporation purchases another company and dissolves the purchased company’s organiza- tional structure and identity. Subsidiaries can be formed in different ways and for various reasons. A corporation can form a subsidiary either by purchasing a controlling interest in an existing company or by creating the company itself. When a corporation acquires an existing company, forming a subsidiary can be prefera ble to a merger because the parent corporation can acquire a controlling interest with a smaller investment than a merger would require. In addition, the approval of the stockholders of the acquired firm is not required, as it would be in the case of a merger. When a company is purchased, the parent corporation may determine that the acquired company’s name recognition in the market merits making it a subsidiary rather than merging it with the parent. A subsidiary may also produce goods or services that are completely different from those produced by the parent corporation. In that case, it would not make sense to merge the operations. Corporations that operate in more than one country often find it useful or necessary to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBSIDIARY 423 create subsidiaries. For example, a mu ltinational corporation may create a subsidiary in a country to obtain favorable tax treatment, or a country may require multinational corporations to establish local subsidiaries in order to do business there. Corporations also creat e subsidiaries for the specific purpose of limiting their liability in connection with a risky new business. The parent and subsid iary remain separate legal entities, and the obligations of one are separate from those of the other. Nevertheless, if a subsidiary becomes financially insecure, the parent corporation is often sued by creditors. In some instances, courts will hold the parent corporation liable, but generally the separation of corporate identities immunizes the parent corporation from financial responsibility for the subsidiary’s liabilities. One disadvantage of the parent-subsidiary relationship is the possibility of multiple taxa- tion. Another is the duty of the parent corporation to promote the subsidiary’s corpo- rate interests, to act in its best interest, and to maintain a separate corporate identity. If the parent fails to meet these requirements, the courts will perceive the subsidiary as merely a business conduit for the parent, and the two corporations will be viewed as one entity for liability purposes. Generally speaking, the law will not impose liability on officers, directors, and shareholders for the wrongful acts of a corporation. Thus, plaintiffs who successfully impose liability on corporations for monopolistic trade practices or UNFAIR COMPETITION may not recover money damages from, or otherwise hold responsible, the officers, directors, and shareholders of the corporation. Only the corporate assets may be pursued to satisfy a judgment. There are two circumstances in which a court may “pierce the corporate veil” and hold the officers, directors, and shareholders person- ally liable for the wrongdoing of a corporation: (1) where the corporation is formed to perpe- trate a FRAUD; (2) where the parent corporat ion totally dominates the subsidiary, so that the subsidiary is a mere “instrumentality” of the parent, which usually means that the subsidiary has been set up to be run as a shell by an officer or director involved in the wrongdoing. A claim for veil piercing is usually invoked when the shell entity is insolvent and the PLAINTIFF wishes to reach the personal assets of the corporation’s stockholders. However, stockholders who are not involved in the improper transaction or wrongdoing are not liable even when the corporate veil is pierced. CROSS REFERENCES Mergers and Acquisitions; Parent Company. SUBSTANCE Essence; the material or necessary component of something. A matter of substance, as distinguished from a matter of form, with respect to pleadings, affidavits, indictments, and other legal instru- ments, entails the essential sufficiency, validity, or merits of the instrument, as opposed to its method or style. The American legal system distinguishes SUBSTANTIVE LAW, which concerns parties’ rights and duties and tends to be “outcome determinative,” from PROCEDURAL LAW , which concerns the rules by which a matter is handled in a legal forum. In so-called diversity jurisdiction cases (those litigated in federal court due to varying state citizenship of the parties), for example, a federal court will tend to apply federal procedural law but state substantive statutory law. See, e.g., Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525 (1958). SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION The Substance Abuse and Mental Health Services Administration (SAMHSA), an operat- ing division of the HEALTH AND HUMAN SERVICES DEPARTMENT (HHS), was established in 1992 by the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act (Pub. L. No. 102-321). SAMHSA provides national leader- ship in the prevention and treatment of addictive and mental disorders, through pro- grams and services for individuals who suffer from these disorders. SAMSHA works in partnership with states, communities, and private organizations in order to provide treatment and rehabilitative services to affected persons. In fiscal year 2009, the agency’s budget was over $3 billion. SAMSHA employs about 550 staff members and its headquarters are in Rockville, Maryland. Within SAMHSA are several major centers designated to carry out its purposes. The Center GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 424 SUBSTANCE for Substance Abuse Prevention (CSAP) devel- ops and implements federal policy for the prevention of alcohol and drug abuse and analyzes the effect of other federal, state, and local programs also designed to prevent such abuse. CSAP administers and operates gra nt programs for the prevention of alcohol and drug abuse among specific populations, such as high- risk youth and women with dependent children, and in particular settings, including schools and the workplace. CSAP also supports training for health professionals working in alcohol and drug abuse education and prevention. In addition, CSAP seeks to build resiliency and facilitate recovery. CSAP provides leader- ship for the development of policies, programs and services to prevent the onset of illegal drug, underage alcohol, and tobacco use. CSAP disseminates substance abuse prevention prac- tices and works with states, communities, and other organizations to apply prevention knowl- edge effectively. An integrated systems approach is used to coordinate these activities and collaborate with other federal, state, public, and private organizations. The Center for Substance Abuse Treatment (CSAT) provides national leadership in devel- oping and administering programs focusing on the treatment of substance abuse. CSAT works with states, local communities, and healthcare providers by providing financial assistance to improve and expand programs for treating substance abuse. CSAT, also focuses on specific populations by administering and evaluating grant programs such as the Comprehensive Residential Drug Prevention and Treatment Program, which treats women who abuse substances, and their children, and helps to train healthcare providers working in substance abuse prevention. The Center for Mental Health Services (CMHS) promotes, on the federal level, the prevention and treatment of mental disorders, by identifying national mental health goals and developing strategies to meet them. CM HS works to improve the quality of programs that serve both the individuals suffering from these disorders and their families. Like other compo- nent centers carrying out the goals of SAMHSA, CMHS administers grants and programs that help states and local governments provide mental healthcare and services. CMHS also works with the alcohol, drug abuse, and mental health institutes of the National Institutes of Health, the principal biomedical research agency of the federal government, in research- ing the effective delivery of mental health services. The Office of Applied Studies (OAS) collects, analyzes, and disseminates national data on behavioral health practices and issues. OAS is responsible for the annual National Survey on Drug Use and Health, the Drug Abuse Warning Network, and the Drug and Alcohol Services Information System, among other studies. The Office of Management, Planning, and Communications (OMPC) is responsible for the financial and administrative management of SAMHSA components, including their person- nel management and computer support func- tions. OMPC also monitors and analyzes pending legislation affecting SAMHSA compo- nents and acts as a liaison between SAMHSA and congressional committees. In addition, OMPC oversees the public affairs activities of SAMHSA, including public relations and inter- action with the media to facilitate coverage of SAMHSA programs and objectives. Finally, OMPC collects and compi les alcohol and drug abuse prevention and treatment literature and supports the CSAP National Clearinghouse for Alcohol and Drug Information. The clearing- house then disseminates its materials to state and local governments, healthcare and drug treatment programs, healthcare professionals, and the general public. FURTHER READINGS Erickson, Patricia, ed. 1997. Harm Reduction: A New Direction for Drug Policies and Programs. Toronto: Toronto Univ. Press. Gray, James P. 2001. Why Our Drug Laws Have Failed and What We Can Do about It: A Judicial Indictment of the War on Drugs. Philadelphia: Temple Univ. Press. Substance Abuse and Mental Health Services Administra- tion. Available online at www.samhsa.gov (accessed July 31, 2009). CROSS REFERENCES Addict; Drugs and Narcotics. SUBSTANTIAL Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBSTANTIAL 425 The right to FREEDOM OF SPEECH, for example, is a substantial right. SUBSTANTIATE To establish the existence or truth of a particular fact through the use of competent evidence; to verify. For example, an EYEWITNESS might be called by a party to a lawsuit to substantiate that party’s testimony. SUBSTANTIVE DUE PROCESS The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. In general, substantive due process prohibits the government from infringing on fundamen- tal co nstitutional liberties. By contrast, proce- dural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the govern- ment from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard. The Due Process Clause provides that no person shall be “deprived of life, liberty, or property without due process of law.” When courts face questions concerning procedural due process, the controlling word in this clause is process. Courts must determine how much process is due in a particular hearing to satisf y the fairness requirements of the Constitution. When courts face questions concerning sub- stantive due process, the controlling issue is liberty. Courts must determine the nature and the scope of the liberty protected by the Constitution before affording litigants a partic- ular freedom. Historical Development The concept of DUE PROCESS has its roots in early ENGLISH LAW. In 1215, MAGNA CARTA provided that no freeman should be imprisoned, disseised, outlawed, exiled, or destroyed, unless by the “law of the land.” As early as 1354, the words “due process of law” were used to explain the protections set forth in Magna Carta. By the end of the 14th century, “law of the land” and “due process of law” were considered virtually synonymous in England. According to the 17th-century English jurist SIR EDWARD COKE, “due process of law” and “ law of the land” possessed both substantive and procedural qualities. Substantively, Coke believed that the liberty to pursue a livelihood, the right to purchase goods, and the right to be free from anti-competitive practices were all protected by the “law of the land” and “due process of law.” Procedurally, Coke associated these terms with INDICTMENT by GRAND JURY and trial by PETIT JURY. When the Founding Fathers drafted the FIFTH AMENDMENT, it was unclear whether the Due Process Clause possessed any substantive qualities. Some prominent Americans, includ- ing ALEXANDER HAMILTON, understood the Due Process Clause to provide only procedural safeguards. Several states, however, followed the English practice of equating due process with the substantive protect ions offered by statutes and the COMMON LAW. This divergent understanding of due process continues today. During the first 60 years after the RATIFICATION of the Constitu tion, the Due Process Clause was confined to a procedural meaning. Over the next 140 years, however, DUE PROCESS OF LAW took on a pervasive substantive meaning. The year 1856 marked the introduction of substantive due process in U.S. JURISPRUDENCE.In that year, the U.S. Supreme Court faced a constitutional challenge to the MISSOURI COMPRO- MISE OF 1820, a federal law that abolished SLAVERY in the territories. Under Missouri law, slaves who entered a free territory remained free for the rest of their lives. When a slave named Dred Scott returned to Missouri after visiting the free territory in what is now Minnesota, he sued for emancipation. Denying his claim, in DRED SCOTT V . SANDFORD, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), the Supreme Court ruled that the Due Process Clause protected the liberty of certain persons to own African American slaves. Because the Missouri Compromise deprived slave owners of this liberty in the territories, the Supreme Court declared it invalid. After Dred Scott the doctrine of substantive due process lay dormant for nearly half a century. In LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Supreme Court reinvigorated the doctrine by invalidating a state law that regulated the number of hours employees could work each week in the baking industry. Maximum hour laws, the Court ruled, interfere with the liberty of contract guaranteed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 426 SUBSTANTIATE by the Due Process Clause. The Court said that the liberty of contract allows individuals to determine the terms and conditions of their employment, including the number of hours they work during a given period. Over the next 32 years, the Supreme Court relied on Lochner in striking down several laws that interfered with the liberty of contract. Most of these laws were enacted pursuant to the inherent POLICE POWERS of state and federal governments. Police powers give lawmakers the authority to regulate health, safety, and welfare. For example, in Adkins v. Children’s Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), the Supreme Court invalidated a MINI- MUM WAGE law that had been enacted by the federal government pursuant to its police powers. Minimum wage laws, the Court said, violate the liberty of contract guaranteed to workers by the Due Process Clause. By 1936 the doctrine of substantive due process had grown increasingly unpopular. The Court had invoked the doctrine to strike down a series of federal laws enacted as part of President FRANKLIN D. ROOSEVELT’s NEW DEAL,an economic stimulus program aimed at amelio- rating the worst conditions of the Great Depression. On February 5, 1937, Roosevelt announced his court-packing plan, a proposal designed to enlarge the Supreme Court by enough justices to give the EXECUTIVE BRANCH control over the federal judiciary. One month later, the Supreme Court released its decision in WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937). In West Coast Hotel, the Supreme Court upheld a Washington State minimum wage law over due process objections. Although the Court did not completely abandon the doctrine of substantive due process, it circumscribed its application. Because liberty of contract is not specifically mentioned in any provision of the federal Constitution, the Court said, this liberty must yield to competing government interests that are pursued through reasonable means. West Coast Hotel precipitated the onset of modern substantive due process analysis. Modern Analysis Since 1937 the Court has employed a two- tiered analysis of substantive due process claims. Under the first tier, legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law will be overturned only if it serves no rational government purpose. Under the second tier, legislation concerning fundamental liberties is subject to heightened judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant govern- ment purpose. The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the BILL OF RIGHTS. Through a process known as “selective incor- poration,” the Supreme Court has interpreted the Due Process Clause of the FOURTEENTH AMENDMENT to bar states from denying their residents the most important freedo ms guaran- teed in the first ten amendments to the federal Constitution. Only the SECOND AMENDMENT right to bear arms, the THIRD AMENDMENT right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have “selectively incorporated” the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. The second category of fundamental liber- ties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a demo- cratic society. These unenumerated l iberties are derived from Supreme Court precedents, com- mon law, moral philosophy, and deeply rooted traditions of U.S. LEGAL HISTORY. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from ARBITRARY impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination. These interests often are grouped to form a general right to privacy, which was first recognized in GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where the Supreme Court struck down GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBSTANTIVE DUE PROCESS 427 . subro- gation is a result of a contract. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBROGATION 421 The purpose of subrogation is to compel the ultimate payment of a debt by the party who,. _________________________________________________________________; or ٗ Other (specify): GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 420 SUBPOENA brought to the proceedings by a law enforce- ment officer who serves a second subpoena, called. subpoena. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBPOENA 4 19 A sample subpoena (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Subpoena