but that the reduction in the number of industry members will enhance tacit coordination of behavior. Vertical Mergers Vertical mergers take two basic forms: forward integration, by which a firm buys a customer, and backward integra- tion, by which a firm acquires a supplier. Replacing market exchanges with internal transfers can offer at least two major benefits. First, the vertical merger internalizes all trans- actions between a manufacturer and its supplier or dealer, thus converting a potentially adver- sarial relationship into something more like a partnership. Second, internalization can give management more effective ways to monitor and improve performance. Vertical integration by merger does not reduce the total number of economic entities operating at one level of the market, but it might change patterns of industry behavior. Whether a forward or backward integration, the newly acquired firm may decide to deal only with the acquiring firm, thereby altering competition among the acquiring firm’s suppliers, customers, or competitors. Suppliers may lose a market for their goods; retail outlets may be deprived of supplies; or competitors may find that both supplies and outlets are blocked. These possibili- ties raise the concern that vertical integration will foreclose competitors by limiting their access to sources of supply or to customers. Vertical mergers also may be anticompetitive because their entrenched market power may impede new businesses from entering the market. Conglomerate Mergers Conglomerate t ransac- tions take many forms, ranging from short-term joint ventures to complete mergers. Whether a conglomerate merger is pure, geographical, or a product-line extension, it involves firms that operate in separate markets. Therefore, a con- glomerate transaction ordinarily has no direct effect on competition. There is no reduction or other change in the number of firms in either the acquiring or acquired firm’smarket. Conglomerate mergers can supply a market or “demand” for firms, thus giving entrepre- neurs liquidity at an open market price and with a key inducement to form new enterprises. The threat of takeover might force existing managers to increase efficiency in competitive markets. Conglomerate mergers also provide opportu- nities for firms to reduce capital costs and overhead and to achieve other efficiencies. Conglomerate mergers, however, may lessen future competition by eli minating the possibili- ty that the acquiring firm would have entered the acquired firm’s market independently. A conglomerate merger also may convert a large firm into a dominant one with a decisive competitive advantage, or otherwise make it difficult for other companies to enter the market. This type of merger also may reduce the number of smaller firms and may increase the merged firm’s political power, thereby impairing the social and political goals of retaining independent decision-making centers, guaranteeing small business opportunities, and preserving democratic processes. Federal Antitrust Regulation Since the late nineteenth century, the federal government has challenged business practices and mergers that create, or may create, a MONOPOLY in a particular market. Federal legisla- tion has varied in effectiveness in preventing anticompetitive mergers. Sherman A nti-Trust Act of 1890 The SHER- MAN ANTI -TRUST ACT (15 U.S.C.A. §§ 1 et seq.) was the first federal antitrust statute. Its applica- tion to mergers and acquisitions has varied, depending on its interpretation by the U.S. Supreme Court. In Northern Securities Co. v. United States, 193U.S.197,24S.Ct.436,48L. Ed. 679 (1904), the Court ruled that all mergers between directly competing firms constituted a combination in restraint of trade and that they therefore violated Section 1 of the Sherman Act. This decision hindered the creation of new monopolies through horizontal mergers. In Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911), however, the Court adopted a less stringent “rule of reason test” to evaluate mergers. This rule meant that the courts must examine whether the merger would yield monopoly control to the merged entity. In practice, this resulted in the approval of many mergers that approached, but did not achieve, monopoly power. Clayton Anti-Trust Act of 1914 Congress passed the CLAYTON ACT (15 U.S.C.A. §§ 12 et seq.) in response to the Standard Oil Co. of New Jersey decision, which it feared would undermine the Sherman Act’s ban against trade restraints and monopolization. Among GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 MERGERS AND ACQUISITIONS the provisions of the Clayton Act was Section 7, which barred anticompetitive stock acquisitions. The original Section 7 was a weak antimerg- er safeguard because it banned only purchases of stock. Businesses soon realized that they could evade this measure simply by buying the target firm’s assets. The U.S. Supreme Court, in Thatcher Manufacturing Co. v. Federal Trade Commission, 272 U.S. 554, 47 S. Ct. 175, 71 L. Ed. 405 (1926), further undermined Section 7 by allowing a firm to escape liability if it bought a controlling interest in a rival firm’s stock and used this control to transfer to itself the target’s assets before the government filed a complaint. Thus, a firm could circumvent Section 7 by quickly converting a stock acquisition into a purchase of assets. By the 1930s Section 7 was eviscerated. Between the passage of the Clayton Act in 1914 and 1950 only 15 mergers were overturned under the ANTITRUST LAWS, and ten of these dissolutions were based on the Sherman Act. In 1950 Congress responded to post–World War II concerns that a wave of corporate acquisitions was threatening to undermine U.S. society, by passing the Celler-Kefauver Antimerger Act, which amended Section 7 of the Clayton Act to close the assets loophole. Section 7 then prohibited a business from purchasing the stock or assets of another entity if “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” Congress intended the amended section to reach vertical and conglomerate mergers, as well as horizontal mergers. The U.S. Supreme Court, in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962), interpreted the amended law as a congressional attempt to retain local control over industry and to prote ct small business. The Court concluded that it must look at the merger’s actual and likely effect on competition. In general, howev- er, it relied almost entirely on market share and concentration figures in evaluating whether a merger was like ly to be anticompetitive. Never- theless, the general presumption was that mergers were suspect. In United States v. General Dynamics, 415 U.S. 486, 94 S. Ct. 1186, 39 L. Ed. 2d 530 (1974), the Court changed direction. It rejected any antitrust analysis that focused exclusively on market-share statistics, cautioning that although statistical data can be of great significance, they are “not conclusive indicators of anticompeti- tive effects.” A merger must be viewed in the context of its particular industry. Therefore, the Court held that “only a further examination of the particular market—its structure, history, and probable future—can provide the appro- priate setting for judging the probable anticom- petitive effect of the merger.” This totality-of- the-circumstances approach has remained the standard for conducting an antitrust analysis of a proposed merger. Federal Trade Commission Act of 1975 Sec- tion 5 of the FEDERAL TRADE COMMISSION Act (15 U.S.C.A. § 45), prohibits “unfair method[s] of competition” and gives the Federal Trade Commission (FTC) independent jurisdiction to enforce the antitrust laws. The law provides no criminal penalties, and it limits the FTC to issuing prospective decrees. The JUSTICE DEPART- MENT and the FTC share enforcement of the Clayton Act. Congress gave this authority to the FTC because it thought that an administrative body would be more responsive to congressio- nal goals than would the courts. Hart-Scott-Rodino Antitrust Improvements Act of 197 6 The Hart-Scott-Rodino Antitrust Improvements Act (HSR) (15 U.S.C.A. § 18a) established a mandatory premerger notification procedure for firms that are parties to certain mergers. The HSR process requires the merging parties to notify the FTC and the Department of Justice before completing certain transactions. In general, an HSR premerger filing is required when (a) one of the parties to the transaction has annual net sales (or revenues) or total assets exceeding $100 million and the other party has annual net sales (or revenues) or total assets exceeding $10 million; and (b) the acquisition price or value of the acquired assets or entity exceeds $15 million. Failure to comply with these requirements may result in the RESCISSION of completed transactions and may be punished by a civil penalty of up to $10,000 per day. HSR also established mandatory waiting periods during which the parties may not “close” the proposed transaction and begin joint operations. In transactions other than cash tender offers, the initial waiting period is 30 days after the merging parties have made the requisite premerger notification filings with the federal agencies. For cash tender offers, the waiting period is 15 days after the premerger filings. Before the initial waiting periods expire, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MERGERS AND ACQUISITIONS 49 the federal agency that is responsible for reviewing the transaction may request the parties to supply addi tional information relating to the proposed merger. These “second requests” often include extensive interrogatories (lists of questions to be answered) and broad demands for the production of documents. A request for further information may be made once, and the issuance of a second request extends the waiting period for ten days for cash tender offers and 20 days for all other transactions. These extensions of the waiting period do not begin until the merging parties are in “substantial compliance” with the government agency’s request for additional information. If the federal government decides not to challenge a merger before the HSR waiting period expires, a federal agency is highly unlikely to sue at a late date to dissolve the transaction under Section 7 of the Clayton Act. The federal government is not legally barred from bringing such a lawsuit, but the desire of the federal agencies to increase predictability for business planners has made the HSR process the critical period for federal review. However, the decision of a federal agency not to attack a merger during the HSR waiting period does not preclude a lawsuit by a state government or a private entity. To facilitate analysis by the state attorneys general, the National Association of Attorneys General (NAAG) has issued a Voluntary Pre- Merger Disclosure Compact under which the merging parties can submit copies of their federal HSR filings and the responses to second requests with NAAG for circulation among states that have adopted t he co mpact. Merger Guidelines In the vast majority of antitrust challenges to mergers and acquisitions, the matters have been resolved by consent order or decree. The Department of Justice and the FTC have sought to clarify they way they analyze mergers through merger guidelines issued May 5, 1992 (4 Trade Reg. Rep. [CCH] ¶ 13,104). These guidelines are not “law” but enforcement-policy statements. Nevertheless, the antitrust enforcement agencies will use them to analyze proposed transactions. The 1992 merger guidelines state that most horizontal mergers and acquisitions aid compe- tition and that they are beneficial to consumers. The intent of issuing the guidelines is to “avoid unnecessary interference with the larger universe of mergers that are either competitively beneficial or neutral.” The guidelines prescribe five questions for identifying hazards in proposed horizontal mergers: Does the merger cause a significant increase in concentration and produce a concen- trated market? Does the merger appear likely to cause adverse competitive effects? Would entry sufficient to frustrate anticompetitive conduct be timely and likely to occur? Will the merger generate efficiencies that the parties could not reasonably achieve through other means? Is either party likely to fail, and will its assets leave the market if the merger does not occur? The guidelines essentially ask which pro- ducts or firms are now available to buyers, and where could buyers turn for supplies if relative prices increased by five percent (the measure for assessing a merger-generated price increase). The guidelines redraw market boundaries to cover more products and a greater area, which tends to yield lower concentration increases than U.S. Supreme Court merger decisions of the 1960s. Mergers in the Telecommunications Industry Beginning in 1980, with President Ronald Reagan’s administration, the federal government has adjusted its policies to allow more horizontal mergers and acquisitions. The states have responded by invoking their antitrust laws to scrutinize these types of transactions. Neverthe- less, mergers a nd acquisitions have increased throughout the U.S. economy, and this has been especially true in the TELECOMMUNICATIONS industry. Beginning in the mid 1980s and extending to the mid 1990s, each of the three major television networks, ABC, CBS, and NBC, was purchased by another corporation. In 1985 Capital Cities purchased ABC for $3.5 billion. The same year, General Electric (G.E.) pur- chased RCA, and G.E. purchased NBC. Westinghouse purchased CBS in 1994 for $5.4 billion, and the Walt Disney Co. purchased Capital Cities/ABC for $19 billion in 1995. Other mergers also had a major impact on the industry. In 1989 Time, Inc. merged with Warner Corporation to form the largest media conglomerate in the world, and in 1993, Viacom, Inc. purchased Paramount Corpora- tion in an $8.2 billion deal. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50 MERGERS AND ACQUISITIONS These mergers were major news at the time, and they still have an impact on the industry. Congress deregulated much of the industry with the passage of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C.A.). It was the most significant legislative change in the industry since the passage of the Communica- tions Act of 1934, 48 Stat. 1064. The act called for more open competition among companies within the industry, designed for the purpose of improving services to consumers. The result of the legislation was a wide number of mergers among smaller and larger companies within the industry. Almost immediately after the passage of the Telecommunications Act, four of the seven Bell telephone regional holding companies announced proposed mergers. More mergers occurred among Bell companies and other local carriers. At least 13 significant mergers in the industry occurred in 1996 alone. Time Warner merged with Turner Broadcasting in 1996 in a $6.7 billion deal, creating the largest media corporation in the world. Worldcom, Inc. pur- chased MFS Communications for $12.4 billion to become the first local and long-distance tele- phone company since 1984. Westinghouse/CBS purchased Infinitty Broadcasting for $4.9 billion, allowing Westinghouse/CBS to become the dominant power in the radio market. These mergers continued throughout the 1990s and beyond. For instance, Time Warner merged with America Online, Inc. in 2000 in a $166 billion deal to form the largest conver- gence of INTERNET access and content in the world. Although some companies and consum- er groups complained that the formation of these conglomerate companies could stifle competition and control prices, these mergers have become commonplace. The Future of Mergers and Acquisitions Although a number of factors influence mergers and acquisitions, the market is the primary force that drives them. The late 1990s saw an unprecedented influx in mergers. In 1999 companies filed a record 4,700 Hart-Scott- Rodino filings, about three times the number received in 1995. The total dollar value of the mergers announced in 1998—$11 trillion—was ten times the amount since 1992. The rash of mergers in the telecommunications industry accounted for many of these mergers, but companies in other industries were involved as well. Another factor in the rise in merger s during the late 1990s was a booming economy, which grew at unprecedented levels. As the country faced recession in the following decade, many companies were forced to downsize, and the number of major mergers decreased according- ly. Improvements in the economy, as well as potential legislative changes, could very well spark another wave of mergers. FURTHER READINGS Bainbridge, Stephen M. 2008. Mergers and Acquisitions. Westbury, NY: Foundation. Ginsburg, Martin D. and Jack S. Levin. 1995. Mergers, Acquisitions and Leveraged Buyouts. Boston: Little, Brown. Marks, Mitchell Lee. 2002. Charging Back up the Hill: Workplace Recovery after Mergers, Acquisitions, and Downsizings. Indianapolis: Wiley. CROSS REFERENCES Antitrust Law; Bonds “Michael R. Milken: Genius, Villain, or Scapegoat?” (Sidebar); Golden Parachute; Junk Bond; Restraint of Trade; Scorched-Earth Plan; Unfair Competition. MERIT SYSTEM System used by federal and state governments for hiring and promoting governmental employees to civil service positions on the basis of competence. The merit system uses educational and occupational qualifications, testing, and job performance as criteria for selecting, hiring, and promoting civil servants. It began in the federal government circa 1883. The merit system was established to improve parts of the governmental work force previously staffed by the political patronage or spoils system, which allowed the political party in power the opportunity to reward party regulars with government positions. The merit system has been adopted by state and local governments as well. MERIT SYSTEMS PROTECTION BOARD The Merit Systems Protection Board (MSPB) ensures that federal civil servants are hired and retained based on merit. In overseeing the personnel practices of the federal government, the board conducts special studies of the merit systems; hears and decides charges of wrongdo- ing and employment appeals of adverse agency actions; and orders corrective disciplinary GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MERIT SYSTEMS PROTECTION BOARD 51 actions against an executive agency or employee when appropriate. The board’s independent special counsel investigates, among other things, prohibited personnel practices and allegations of activities proscribed by civil service laws, rules, and regulations, and prosecutes officials who violate civil service rules and regulations. The MSPB is a successor agency to the U.S. Civil Service Commission, which had been established by act of Congress on January 16, 1883. The duties and authority of the board are specified in 5 U.S.C.A. §§ 1201–1206 (1978). The board has responsibility for hearing and adjudicating appeals by federal employees of adverse personnel actions, such as removals, suspensions, and demotions. It also resolves cases involving re-employment rights, the denial of periodic step increases in pay, actions against ADMINISTRATIVE LAW judges, charges of merit-system violations, and prohibited person- nel practices, including charges in connection with WHISTLE-BLOWING (i.e., the reporting of illegal acts). When President BILL CLINTON reauthorized the MSPB and the Office of Special Counsel in 1994, he directed that federal employee whistle-blowers and other victims of prohibited personnel practices receive addition- al prote ctions. Clinton instructed the agencies to follow appropriate procedures to protect the constitutional rights of such federal employees. The board has the authority to enforce its decisions and to order corrective and disciplinary actions. An employee or applicant for employ- ment who is involved in an appealable action that also involves an allegation of discrimination may ask the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION to review a board decision. Final decisions and orders of the board are appealable to the U.S. Court of Appeals for the Federal Circuit. The board reviews regulations issued by the Office of Personnel Management (OPM) and has the authority to require agencies to cease compliance with any regulation that could constitute a prohibited personnel practice. It also conducts special studies on the civil service and other EXECUTIVE BRANCH merit systems and reports to the president and the Congress on whether the federal workforce is being ade- quately protected against political abuses and prohibited personnel practices. The Office of the Special Coun sel is responsible for investigating al legations and other information concerning prohibited personnel practices; prohibited political activi- ties by federal and certain state and local employees; ARBITRARY or capricious withholding of information in violation of the FREEDOM OF INFORMATION ACT (5 U.S.C.A. § 552 et seq.) (1986); prohibited discrimination when found by appropriate authority; and other activities that are prohibited by any civil service law, rule, or regulation. The special counsel initiates disciplinary and corrective actions before the board when warranted. The special counsel is also responsible for receiving and referring to the appropriate agency information that evidences a violation of any law, rule, or regulation; mismanagement; gross waste of funds; abuse of authority; or substantial and specific danger to public health or safety. Since the late 1990s the board has expanded the amount of information on its web site. Federal employees who wish to file an appeal may download forms and rules. In addition, the decisions of the board are now posted on its web site, www.mspb.gov. FURTHER READINGS Broida, Peter. 2001. Guide to Merit Systems Protection Board Law and Practice. New York: Dewey. U.S. Government Manual Website. Available online at http:// www.gpoaccess.gov/gmanual/index (accessed July 21, 2009). U.S. Merit Systems Protection Board Website. Available online at http://www.mspb.gov (accessed August 13, 2009). CROSS REFERENCES Administrative Agency; Administrative Law and Procedure; Bureaucracy; Merit System. MERITS The strict legal rights of the parties to a lawsuit. The word merits refers to the substance of a legal dispute and not the technicalities that can affect a lawsuit. A judgment on the merits is the final resolution of a particular dispute. MESNE Intermediate; intervening; the middle between two extremes, especially of rank or time. In feudal law, an intermediate lord; a lord who stood between a tenant and the chief lord; a lord who was also a tenant. CROSS REFERENCE Feudalism. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 MERITS METES AND BOUNDS The boundary lines of land, with their termi nal points and angles. A way of describing land by listing the compass directions and distances of the boundaries. It is often used in connection with the Government Survey System. MEXICO AND THE UNITED STATES Relations between the United States and Mexico are among the most important and complex that each nation maintains. They are shaped by a mixture of mutual interests, shared problems, and growing interdependence. The United States is particularly concerned with illegal immigration, narcotics trafficking, environmen- tal pollution, and economic stability. The scope of U.S Mexican relations goes far beyond diplomatic and official contacts, entailing extensive commercial, cultural, and educational ties. More than one million legal crossings are made from Mexico to the United States every day. Along the 2,000-mile shared border, state and local governments interact closely. The two countries seek to resolve many issues, ranging from combating narcotics traf- ficking to improving and protecting the shared environment. The U.S. government has long recognized that a stable and economically prosperous Mexico is fundamental to U.S. interests. Since 1981, the United States-Mexico Binational Com- mission, composed of numerous U.S. cabinet members and their Mexican counterparts, has met annually to discuss an array of topics, including trade and investment opportunities, financial cooperation, anti-narcotics cooperation, and migration. Mexico is a major trading partner with the United States. Mexican exports to the U.S. in 2008 totaled $216 billion, whereas Mexico imported $151 billion worth of American goods. In January 1994, Mexico joined CANADA AND THE UNITED STATES in the NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA), w hich phases out all tariffs among the nations over a 15-year period. U.S. labor unions and some businesses were concerned that the lower tariffs would induce more U.S. companies to relocate factories to Mexico because of lower labor costs there. The United States played a major role in stabilizing the Mexican economy in 1995. The Mexican government, unable to meet its foreign debt obligations, devalued its peso in December 1994. The resultin g financial crisis threatened the stability of other emerging-market econo- mies in Latin America. The United States led a group of international lenders that made more than $40 billion in international financial assis- tance available to Mexico, including $20 billion from the United States. Although Mexico suf- fered a severe recession in 1995, the Mexican government’s implementation of tough stabili- zation measures averted an even more serious collapse. The economy began to recover in 1996, and by 1997 Mexico was able to repay the United States the $12.5 billion in loans that it actually had used. One major concern of the United States has been illegal immigration from Mexico. The desire of Mexicans to leave their country is fueled by a large populati on (more than 111 million in 2009) and a shorta ge of well-paying jobs. The U.S. Border Patrol has grown in response to the large number of Mexicans crossing the border illegally. The number of Border Patrol agents more than doubled from 9,000 in 2001 to a projected 20,000 by September 2009. Parts of the 2,000-mile border have become militarized zones. Steel fences run through deserts and up over hillsides. Border Patrol agents use high-technology surveillance equipment to track the movement of illegal ALIENS. In some sectors, the NATIONAL GUARD and Army personnel assist the Border Patrol. In May 2009, the government announced that arrests of illegal aliens by the Border Patrol had declined by 27 percent, putting arrests at the lowest levels since the early 1970s. Concerns about the high level of illegal immigration led Cong ress to enact the Secure Fence Act of 2006 (Pub.L. 109-367), which authorized the construction of more than 700 miles of double-reinforced fence to be built along the border, from California to Texas in areas that have experienced illegal drug traffick- ing and illegal immigration. The law also authorized the installation of more lighting, vehicle barriers, and border checkpoints, along with the use of advanced equipment including sensors, cameras, satellites, and unmanned aerial vehicles. By January 2009, almost 600 miles of the barrier had been constructed. The Mexican government opposed the construction of the fence, arguing that the two countries should preserve open borders. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MEXICO AND THE UNITED STATES 53 The Mexican-U.S. border is also the leading entry point into the United States for illegal narcotics. It is estimated that drug traffickers smuggle about $10 billion worth of narcotics into the United States each year, making marijuana, heroin, cocaine, and methamphetamine some of Mexico’s most lucrative exports. U.S. and Mexi- can officials offer differing explanations for the trafficking. U.S. officials blame the alleged corruption of Mexican law enforcement officials for allowing large-scale traffickers to continue their operations. Mexican officials argue that the problem lies on the other side of the border, where the appetite of U.S. drug users drives the trafficking. By 2009 Mexican drug cartels wielded enormous power in many cities, including Tijuana and Juarez, which border San Diego, California, and El Paso, Texas, respectively. The Mexican government has proved largely ineffec- tive in suppressing these gangs, who have murdered thousands of people. In addition, the corruption of government officials has hurt relations between the countries. The U.S. govern- ment expressed alarm that cartel-associated violence had begun to spread to U.S. cities near the border. With some experts claiming that Mexico is responsible for 70 percent of the illegal drugs in the United States, the war on drugs remains a source of friction between the two countries. The United States has steadily restricted the Mexican drug trade through aggressive patrol of the borders and searches at border checkpoints. Nevertheless, NAFTA has increased legitimate border traffic, overwhelming U.S. customs officers at the checkpoints. It is estimated that officers can only search about seven percent of all vehicles crossing the border. The United States and Mexico have sought to resolve common environmental issues, particu- larly in border areas where rapid population growth, urbanization, and industrialization have caused serious problems. In 1992 the United States and Mexico developed the Integrated Border Environment Plan, under which the two countries have worked to construct wastewater- treatment plants; strengthen cooperative plan- ning and enforcement efforts; reduce pollution, develop planning, training, and education; and improve understanding of the border environment. The second phase of the 1992 border plan, called Border XXI, will promote environmental and sustainable development in the U.S Mexican border region through increased public partici- pation and improved coordination among local, state, and federal agencies to maximize coopera- tive and effective use of limited resources. In addition, the plan will encompass environmental health issues and natural-resource protection. As part of NAFTA’s environmental agree- ment, the United States, Mexico, and Canada have created a North American Commission on Environmental Cooperation. This commission is charged with strengthening environmental laws and addressing common environmental concerns. In 1993 the United States and Mexico established two institutions to address the envi- ronmental infrastructure needs of the border region. The Border Environmental Cooperation Commission (BECC) works with local commu- nities to develop plans for better meeting their need for environmental facilities, including wastewater-treatment plants, drinking-water systems, and solid-waste-disposal facilities. In addition, the two countries created the North American Development Bank to obtain private- sector capital to finance the construction of border environmental facilities certified by the BECC. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Estimated U.S. Population of Unauthorized Mexican Immigrants, 1990 to 2008 Population (in millions) Year SOURCE: U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000, January 2003, and Estimates: Januar y 2008, Februar y 2009. 0 1 2 3 4 5 6 7 1990 2.0 1996 2.7 2000 4.8 2008 7.0 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 MEXICO AND THE UNITED STATES The International Boundary Commission, which was established as a permanent, joint commission by treaty in 1889, is responsible for solving U.S Mexican water and boundary pro- blems. These issues include distribution between thetwocountries of thewatersof the Coloradoand Rio Grande Rivers, and joint operation of international dams on the Rio Grande to control floods, conserve water, and generate electricity. Since the early 1980s, the commission has focused on border sanitation problems and has studied groundwater resources along the boundary. When President GEORGE W. BUSH took office in 2001, he immediately entered into discussions with Mexican President Vicente Fox to improve relations. One of the items on his agenda was the creation of a guest-worker program, which would allow thousands of Mexican nationals to work in the United States as guests, mostly in agriculture. A number of groups opposed the proposal. A United States-Mexico Migration Panel, a bina- tional group consisting of 30 members from both nations, agreed that the two countries should collaborate to meet several objectives, including making visas more available to Mexican citizens, improving cooperation between Mexican and U.S. law enforcement to counter human smug- gling, and improving Mexico’seconomy.The negotiations were part of Fox’seffortstoward economic development and social reform. The SEPTEMBER 11TH ATTACKS of 2001 put a halt to these negotiations. The United States immediately shifted its atten tion to protecting its lands against terrorist attacks, including enhancing and improving border patrol. In 2002, Congress abolished the Immigration and Naturalization Service, creating from that agency the Bureau of Citizenship and Immigration Services and the Directorate of Border and Transportation Security. Both agencies are part of the DEPARTMENT OF HOMELAND SECURITY. Anti- immigration sentiments also derailed legislation that sought to resolve the problem. FURTHER READINGS Payan, Tony. 2006. The Three U.S Mexico Border Wars: Drugs, Immigration, and Homeland Security. Westport, Conn.: Praeger. Andreas, Peter. 2009. Border Games: Policing the U.S Mexico Divide. 2d ed. Cornell, New York: Cornell Univ. Press. CROSS REFERENCES Aliens; Drugs and Narcotics; Environmental Law; Water Rights. v MICHELMAN, KATE From 1985 to 2004, Kate Michelman served as the executive director of the National ABORTION and Reproductive Rights Action League (NARAL) and became one of the most influential feminists in the United States. As a vocal proponent of a woman’srighttochoose,Michel- man devoted much of her career to preventing the courts from overturning the Supreme Court’s decision in Roe v. Wade (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). She testified against the nominations of conservative Supreme Court justices CLARENCE THOMAS and SAMUEL ALITO. Michelman was born in 1942 and grew up in a Catholic family in New Jersey and Ohio. Even during her childhood and teenage years, she was an advocate; for instance, she fought to desegregate her school so that children of local Latino farm workers could integrate with other school children. She took an early interest in politics, listening to Senate hearings and other news on a shortwave radio. She married at the age of 20 and had three daughters relatively soon thereafter. She has Kate Michelman 1942– ▼▼ ▼▼ 1935 2000 1975 1950 ❖ ◆ ◆ 1966 Graduated from University of Michigan 1939–45 World War II 1973 Roe v. Wade decision legalized abortion in the United States 2003 Partial-Birth Abortion Ban Act enacted 1980–85 Served as executive director of Planned Parenthood of the Capitol Region in Harrisburg, Penn. 1985–2004 Served as executive director of the National Abortion and Reproductive Rights Action League (NARAL) ◆ 1991 Testified against Clarence Thomas’s Supreme Court nomination ◆ 1969 Learned of fourth pregnancy; petitioned for the right to have an abortion ◆ 1942 Born, New Jersey 2005 With Liberty and Justice for All published 1950–53 Korean War 1961–73 Vietnam War ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MICHELMAN, KATE 55 openly discussed the fact that as a practicing Catholic, s he did not use BIRTH CONTROL.As reported in the Washington Post, she wrote, “Like many other Catholic wives, I practiced the ‘natural’ means of contraception—the rhythm method—and believed the claim that breastfeed- ing prevented pregnancy. I exploded every myth.” Her life took a major change in direction in 1969 when her husband left her when her children were between the ages of three and five, and she was penniless with no career. Weeks after her husband left her, Michelman learned that she was pregnant again. She did not believe that she could support a fourth child while living on WELFARE, and abortion at that time was difficult to obtain. She petitioned for the right to have an abortion, but to do so, she had to appear before a panel of four male doctors and prove to them that she had a valid physical or psychological reason to terminate the pregnancy. More over, she had to find her estranged husband and obtain his signature before the doctors would agree to abort her pregnancy. The Court decided Roe about three years after Michelman’s abortion. In the years that followed her DIVORCE, Michelman made a life for herself. She earned an undergraduate degree from the University of Michigan and became a clinical assistant professor at Pennsylvania State University. At Penn State, where she worked from 1978 to 1980, she counseled troubled children. She also served as the executive director of the Adams County Early Childhood Services in Gettysburg, Pennsylvania, in 1978. In 1980, she t ook a job as t he e xecutive director of Planned Pare nthood of the Capitol Region in Harrisburg, Pennsylvania. She served in that capacity until 1985, when she was hired as president and executive director of NARAL. Michelman emerged as one of the most powerful advocates in Washington. She was named one of the “100 Most Powerful Elites” in the Nation’s Capitol Washingtonian, and she was named a fellow at the Institute of Politics at the JOHN F. KENNEDY School of Government at Harvard University. She planned to speak against the nomination of ROBERT BORK in 1987, but she and her organization decided that Bork’snomi- nation would fail even without their opposition. Four years later, Michelman challenged the Thomas nomination, challenging Thomas’s claim of being open-minded on the abortion issue. Michelman served at NARAL until 2004 and then began to work as a political consultant. One year after stepping down from the NARAL position, she also testified against SAMUEL ALITO’S nomination to the Court. In 2005, she wrote the book With Liberty and Justice for All: A Life Spent Protecting the Right to Choose, which describes her personal experiences of going through an abortion and chronicles her activi- ties as an advocate. Michelman is a frequent contributor to a number of publications, including The Nation and the Huffington Post. FURTHER READINGS Michelman, Kate. 2009. “A System from Hell.” The Nation, April 27. ———. 2005. With Liberty and Justice for All: A Life Spent Protecting the Right to Choose. New York: Hudson Street Press. Weeks, Linton. 2006. “Kate Michelman: The Public Face of a Woman’s Right to Privacy,” Washington Post, January 12. MICHIGAN V. TUCKER Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182, was a critical 1974 Supreme Court decision that limited the constitutional authority of the Miranda rights that the Court had developed in the landmark decision in MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In Michigan v. Tucker, the Court concluded that the Miranda rights were procedural safeguards and not rights protected by the Constitution. Kate Michelman AP IMAGES I DO NOT TELL MY STORY BECAUSE IT IS UNIQUE ;ISHARE IT BECAUSE IT IS SO COMMON .MILLIONS OF WOMEN IN VARYING CIRCUMSTANCES HAVE SUFFERED THE INDIGNITIES AND DANGERS OF PRE - R OE V.WADE ABORTIONS . —KATE MICHELMAN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 56 MICHIGAN V. TUCKER The FIFTH AMENDMENT to the Constitution contains the Self-Incrimination Clause, which guarantees a person the right to refuse to answer questions that might implicate the person in a crime. The Court in Miranda announced a set of warnings that law enforcement officers must give a suspect before an interrogation. These well-known warnings direct that a suspect be advised of the right to remain silent, be warned that any statement the suspect makes may be used as evidence against the person, be told of the right to have a lawyer present during interrogation, and if the suspect cannot afford an attorney, the right to have a lawyer appointed to represent the suspect. The Court believed that this set of warnings would create a uniform policy for all law enforcement officers to follow. The penalty for ignoring the Miranda warning was the exclusion at trial of any statements or confessions made by the defendant. In Michigan v. Tucker, the Court was con- fronted with a suspect in a brutal rape whose interrogation had occurred prior to the Court’s ruling in Miranda. Nevertheless, the police officers who interrogated Thomas W. Tucker advised him of his right to remain silent and his right to an attorney. They did not advise him, however, that he had a right to a free lawyer. Tucker waived his rights and proceeded to name a person who he claimed could provide an alibi. That person, however, provided incriminating evidence against Tucker. Tucker objected to the admission of his statements and sought the protection of the Miranda rights that the Court had announced after his arrest but prior to his trial. Tucker also asked that the alibi witness not be allowed to testify because Tucker had provided that information during his interrogation. The trial judge excluded all of Tucker’s statements but allowed the alibi witness to testify. A jury convicted Tucker, and his appeals were denied by the Michigan courts. He then filed a HABEAS CORPUS action in federal court, alleging that the admission of the alibi witness’s testimony was tainted by the failure of the police to give him his full Miranda rights. Both the federal district court and the court of appeals agreed with Tucker, reversing the conviction. The U.S. Supreme Court disagreed with the lower courts. Justice WILLIAM H. REHNQUIST,writing for the majority, articulated in general terms the difference between a Miranda violation and a constitutional violation of a defendant’sFifth Amendment right against self-incrimination. The Court found that there was a difference between incriminating statements that are actually “coerced” or “compelled” and those obtained merely in violation of the Miranda warning. The former are violations of the Fifth Amendment, whereas the latter are violations of a set of procedural safeguards. Violations of the proce- dural safeguards, by themselves, will not result in the suppression of the defendant’s statements. In this case Tucker’s statements had not been coerced; therefore, the testimony of the alibi witness was permissible. Rehnquist noted that Miranda: recognized that these procedural safeguards [the warnings] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected . The suggested safeguards were not intended to “create a constitutional straitjacket,” but rather to provide practical reinforcement for the right against compul- sory self-incrimination. This meant that the failure of police to provide a complete set of warnings, by itself, would not taint the interrogation and force the suppression of the statements. A court had to then look at the conduct of the police to determine if the suspect had been coerced into making incriminating statements.In this case Rehnquist found that Tucker’sinterrogationdid not bear “any resemblance to the historical practices at which the right against compulsory self-incrimination was aimed [H]is statements could h ardly be termed involuntary as that term has been defined in the decisions of this Court.” Rehnquist emphasized that the Court’s determi- nation that the case did no t i n volve co m pulsion sufficient to breach the right of self-incrimination did not mean that police could disregard the Miranda warning. The question was “how sweeping [were] the judicially imposed co n se- quences of this disregard.” Absent evidence that a defendant’s s tatement was coerced, the Court was not willing to exclude evidence because the police failed to follow the procedures set out in Miranda. The distinction in Tucker between what Rehnquist called “prophylactic rules” and consti- tutional rights reappeared in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984), and Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). In Quarles the Court recognized a “public safety” exception to the requirement that the Miranda warning be given, reasoning that “the need for answers to questions in a situation posing a threat to the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MICHIGAN V. TUCKER 57 . REFERENCE Feudalism. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 MERITS METES AND BOUNDS The boundary lines of land, with their termi nal points and angles. A way of describing land by listing. SO COMMON .MILLIONS OF WOMEN IN VARYING CIRCUMSTANCES HAVE SUFFERED THE INDIGNITIES AND DANGERS OF PRE - R OE V.WADE ABORTIONS . —KATE MICHELMAN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 56. of the barrier had been constructed. The Mexican government opposed the construction of the fence, arguing that the two countries should preserve open borders. GALE ENCYCLOPEDIA OF AMERICAN LAW,