powers to deal with those it believes have misbehaved in the penny stock business. PENOLOGY A broad area of study withi n criminal law and sociology, comprising the science and philosophy of prison administration, prison reform, prisoners’ rights, deterrence of crime and recidivism, punish- ment by the state, and rehabilitation of offenders. Penology has existed throughout the ages of human civilization. For millennia, societies and governments have debated as to the most just, effective, and appropriate methods to prevent and respond to acts they have considered to be crimes. Throughout history, various methods of inflicting punishment have been employed or abolished, from public humiliation to fines to exile to execution. Policymakers, judges, ethicists, clergy, and political scientists continue to study and experi- ment with ways to treat crime and criminals (both adult and juvenile) and to reintegrate convicts into society following incarceration. Some continue to call for significant reforms, such as progressive alternatives to confinement. Advocates of these correctional reforms are known in the field as “reductionists.” Others, known within the field as “abolitionists,” argue that all imprisonment of human beings is wrong and that it should be outlawed. FURTHER READINGS Abbott, Jack Henry. 1981. In the Belly of the Beast. New York: Vintage. Blomberg, Thomas, and Karol Lucken. 2009. American Penology: A History of Control. New Brunswick, N.J.: Transaction Publishers. Conover, Ted. 2000. Newjack: Guarding Sing Sing. New York: Random House. PENSION A pension is a benefit, usually money, paid regularly to retired employees or thei r survivors by private businesses and federal, state, and local governments. Employers are not required to establish pension benefits but do so to attract qualified employees. The first pension plan in the United States was created by the American Express Company in 1875. A few LABOR UNIONS and state and local governments began to offer pension plans shortly thereafter, and by 1935, governments in half the states and many businesses were offering pension plans. In 1997, about half of all U.S. workers had pension plans. Employers establish pension plans by paying a certain amount of money into a pension fund. The money paid into this fund is not taxed to the employer, and it is not taxed to the employee until the employee retires and begins to collect pension benefits. The employer gives control of the pension fund to a trustee, who may invest the money in stocks and bonds and other financial endeavors to increase the fund. Some pension plans require the employee to make a small, periodic contribution to the fund. The amount of pension that a pensioner receives depends on the type of pension plan. Pension plans generally can be divided into two categories: defined benefit plans and defined contribution plans. A defined benefit plan provides a set amount of benefits to a pensioner. Under a defined contribution plan, the employer places a certain amount of money in the employee’s name into the pension fund and makes no promises concerning the level of pension benefits that the employee will receive upon retirement. Employers using defined con- tribution plans contribute an amount into the pension fund based on the employee’ssalary.As a result, higher-paid employees receive larger pensions than do lower-paid employees. The same is true for defined benefit plans: employers tend to offer larger pensions to higher-paid employees. The difference between the two types of plans is that in a defined contribution plan, the employee assumes the risk of investment failure because the funds are not in sured by the federal government. Under most defined benefit plans, the employer assumes the risk that pension funds will not be available. Employees assume little risk because most funds are insured by the federal government to a certain limit. The most important issue to pensioners is the potential loss of their pension benefits. This issue is of less concern when the government is the employer because governments have access to additional funds. Such is not the case with private businesses. Before the 1970s, employees did not always receive their promised pension benefits. An employee could lose his or her pension if the employer went out of business, and employers could fire long-time employees just before their pensions vested to avoid paying pensions. Citing the profound effect that pension GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 468 PENOLOGY plans have on interstate commerce and the economic security of the country, Congress enacted the EMPLOYEE RETIREMENT INCOME SECURITY ACT of 1974 (ERISA) (29 U.S.C.A. § 1001 et seq.) to regulate pension plans created by private businesses other than religious organizations. ERISA is a complex collection of federal statutes that take precedence over most state pension laws. The act encourages the creation of pension funds by making employer contribu- tions to pension funds tax free. ERISA also is designed to ensure that pension funds promised to an employee will be available. It establishes rules for the vesting of pensions based on the employee’s age and length of employment. Under the law, an employer using a pension plan that is not funded by the employees may choose one of several methods for vesting of pensions. An employer may allow all pension benefits to become nonforfeitable once the employee has completed five years of employ- ment. In the alternative, an employee may be guaranteed a percentage of pension funds according to length of service, with the percent- age increasing as the length of service increases. An employee with three years of service is guaranteed 20 percent of the derived benefit from the employer contributions to the pension plan. After four years the employee has a right to 40 percent of the benefits; after five years the percentage is 60; after six years the percentage is 80; and an employee who completes seven years of service becomes fully vested. An employee is always entitled to the amount of money she or he has contributed to a pension fund. Under ERISA, the fiduciaries who control the pension funds must meet certain reporting requirements. The act restricts the kinds of investments that trustees can make using pension funds. It mandates that employers make annual contributions to pension funds, and it devises formulas for setting minimum contribution levels. These formulas are created in actuarial tables based on such factors as the turnover of the participants in the plan, the life expectancy of the participants, the amount of money in pensions promised to employees, and the success of the pension fund’sinvestments.Theact authorizes criminal penalties for violators of pension laws and provides CIVIL LAW remedies to victims of pension misuse or abuse. An employer who is delinquent in making contributions to the pension fund may have to pay penalties. ERISA requires employers to report to pension holders significant facts regarding the pension fund, such as a summary describing in clear language how the plan works, what benefits it provides, and how such benefits can be received. The employer also must report annually to each employee the amount of benefits that have accrued and have vested, and the earliest date on which the employee’s pension will vest as of the date of the report. ERISA created the Pension Benefit Guaranty Corporation (PBGC) to ensure the payment of certain benefits of pension plans. PBGC is a government corporation within the U.S. DEPART- MENT OF LABOR , which is governed by the secretaries of labor, commerce, and treasury, and funded by premiums collected from pension plans. If an employer is unable to meet pension obligations, the PBGC may make the payments for the employer. PBGC covers only defined benefit pension plans, with the excep- tion of church-based pension plans. Religious organizations are excepted because courts and legislatures consider church-based pensions to be an ecclesiastical matter beyond the authority of the law. In 2006 Congress passed the Pension Protection Act of 2006 (Pub. L. No. 109-280, 120 Stat. 780), which requires companies that have underfunded pension plans to pay higher premiums to the PBGC. When a company terminates its pension plan, the act requires the company to provide extra funding to the company’s pension system. An employee cannot lose pension benefits by retiring early. Under defined benefit plans, the employee may begin to receive pension benefits upon reaching the normal retirement age of 65 years. If an employee retires before reaching 59.5 years of age and begins drawing from his pension, his pension payments are taxed at a 10 percent annual rate in addition to any regular income taxes. This excise tax is levied because pension funds are designed to promote security after retirement. The excise tax does not apply to a pension given to a surviving spouse when the employee dies before the pension is fully paid, even if the employee dies before reaching age 59.5. Employees who become disabled before age 59.5 do not have to pay the excise tax, nor do persons who specifically choose to receive the pension payments as an ANNUITY or periodically. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PENSION 469 In addition, the excise tax does not apply to pensions of employees over the age of 55 years who have separated from their employer, certain pensions paid for medical expenses, and pension payments made pursuant to certain divorce-related court orders. ERISA does not regulate pension plans with 25 or fewer participants or plans that are solely for business partners or a sole proprietor. Employees of businesses not covered by ERISA may look to state statutes governing pensions that contain regulations and requirements simi- lar to those in ERISA. Congress refined the tax consequences of pensions in January 1996. Under the Pension Source Act (Pub. L. No. 104-95, amending title 4 of U.S.C.A. § 114), a state that imposes income taxes may not tax pension benefits earned in the state if the pensioner is living in a state that does not impose personal INCOME TAX. Pensions are an attractive component of employee compensation packages. The mone y that the employer withholds du ring the working life of the employee is not taxed, and the money in a pension fund can be increased through investments. When the pensioned employee retires, she or he can ask for the entire pension in one lump sum or can take the pension as an annuity, which is a series of payments that lasts for a specified period of time. If the retiree lives long enough, she or he will receive more money than the employer originally withheld. If the pensioner dies before the pension is fully paid, her or his surviving spou se or another desig- nated survivor may receive the remainder of the pension. A retiree who has worked at several companies may receive several pensions. Individuals who are self-employed have their own pension options. A self-employed worker may establish a KEOGH PLAN, which is a type of retirement plan for self-employed workers that is comparable to a pension plan. Under a Keogh plan, the worker makes tax-free payments into a fund and receives larger pay- ments upon retirement. An INDIVIDUAL RETIREMENT ACCOUNT (IRA) is another way to provide for security in retire- ment. An IRA is a personal retirement account that workers may establish in addition to, or instead of, a pension. Employers may establish similar personal retirement accounts for their employees. These accounts are called 401K plans, after the section of the INTERNAL REVENUE CODE that authorizes them. Under a 401K plan, a worker deposits a portion of his or her gross earnings into the account to avoid income tax on that portion of the earnings. The earnings are subject to taxation when the retiring worker receives them. If the worker is in a lower tax bracket by retirement, he or she will end up paying less tax on the portion of the earnings in the IRA. Pension benefits are distinct from other retirement benefits such as SOCIAL SECURITY and medical assistance. A pension may reduce slightly the amount of Social Security benefits that a government employee receives. FURTHER READINGS Abramson, Stephen. 2003. Financial Professional’s Guide to Qualified Retirement Plans: Planning, Implementation, Operation, and Compliance. 2d ed. New York: Aspen. Driggers, Martin S., Jr. 1996. “Minister’s Pension Contract Is an ‘Ecclesiastical Matter’ Not Reviewable by the Court.” South Carolina Law Review 48 (autumn). Gregory, David. 1987. “The Scope of ERISA Preemption of State Law: A Study in Effective Federalism.” University of Pittsburgh Law Review 48 (winter). Lantry, Terry L. 1996. “Retirees’ Pensions Insulated from State Income Tax.” Taxation for Lawyers 25 (November- December). Lewis, Barbara, and Dan Otto. 2002. “Sunset Cruise: Take Advantage of New Laws to Make Your Pensions More Valuable.” Los Angeles Daily Journal (January 15). Peterson, Pete. 1996. Will America Grow Up before It Grows Old? How the Coming Social Security Crisis Threatens You, Your Family, and Your Country. New York: David McKay. Snyder, Michael B. 1999. Qualified Plan Investments: Fiduciary Responsibilities and Strategies. St. Paul, Minn.: West Group. CROSS REFERENCES Bankruptcy; Employee Retirement Income Security Act; Security. PENT ROAD A street that is closed at its terminal points. The term pent, which means penned or confined, is used to distinguish this type of road from an open highway that leads to other thoroughfares. Pent roads are frequently adjacent to the lands of persons who are constructing connecting arteries across their own property to secure needed outlets. PENTAGON PAPERS See NEW YORK TIMES CO. V. UNITED STATES. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 470 PENT ROAD PENUMBRA The rights guaranteed by implication in a constitution or the implied powers of a rule. The original meaning of penumbra was created and introduced by astronomer Johannes Kepler in 1604 to describe the shadows that occur during eclipses. In legal terms, penumbra is most often used as a metaphor describing a doctrine that refers to implied powers of the federal government. The doctrine is best known from the Supreme Court decision of Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where Justice WILLIAM O. DOUGLAS used it to describe the concept of an individual’s constitutional right of privacy. The history of the legal use of the penumbra metaphor can be traced to a federal decision written by Justice STEPHEN J. FIELD in the 1871 decision of Montgomery v. Bevans, 17 F. Cas. 628 (9th C.C.D. Cal.). (At the time, Field was performing circuit duty while a member of the Supreme Court.) Since the Montgomery deci- sion, the penumbra metaphor has not been used often. In fact, more than half of its original uses can be attributed to just four judges: OLIVER WENDELL HOLMES , JR., Learned Hand, BENJAMIN N. CARDOZO, and William O. Douglas. Nevertheless, because of the term’s use in Griswold and other cases, the term appeared in more than 1,000 cases between 2000 and 2009. In an 1873 article on the theory of torts, Justice Holmes used the term penumbra to describe the “gray area where logic and principle falter.” In later decisions, Justice Holmes devel- oped the penumbra doctrine as representing the “outer bounds of authority emanating from a law.” Justice Holmes usually used the word in an attempt to describe the need to draw arbitrary lines when forming legislation. For instance, in the decision of Danforth v. Groton Water Co., Holmes referred to constitutional rules as lacking mathematical exactness, stating that they, “[l]ike those of the COMMON LAW, end in a penumbra where the Legislature has a certain freedom in fixing the line, as has been recognized with regard to the police power” (178 Mass. 472, 476– 77, 59 N.E. 1033, 1034 [1901]). Judge Hand expanded the meaning of the word in opinions written betw een 1915 and 1950 by using it to indicate the vague borders of The concept of penumbra involves trying to divine the spirit of the law from its letter. In 1965, Estelle Griswold (left) of Planned Parenthood and Mrs. Ernest Jahncke of the Parenthood League react to the Supreme Court’s use of this method to interpret a Connecticut statute forbidding the distribution of contraceptives to married couples as a violation of their privacy rights. BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PENUMBRA 471 words or concepts. He used it to emphasize the difficulty in defining and interpreting statutes, contracts, TRADEMARKS, or ideas. Justice Cardozo’s use of the penumbra metaphor in opinions written between 1934 and 1941 was similar to Holmes’s application, but Justice Douglas took a different approach. Rather than using it to highlight the difficulty of drawing lines or determining the meaning of words or concepts, he used the term when he wanted to refer to a peripheral area or an indistinct boundary of something specific. Douglas’s most famous use of penumbra is in the Griswold decision. In the Griswold case, appellants Estelle Griswold, executive director of the Planned Parenthood League of Connecti- cut, and Dr. C. Lee Buxton, a medical professor at Yale Medical School and director of the league’s office in New Haven, were convicted for prescribing contraceptive devices and giving contraceptive advice to married persons in violation of a Connecticut statute. They chal- lenged the constitutionality of the statute, which made it unlawful to use any drug or medicinal article for the purpose of preventing concep- tion, on behalf of the married persons with whom they had a professional relationship. The Supreme Court held that the statute was unconstitutional because it was a violation of a person’s right to privacy. In his opinion, Douglas stated that the specific guarantees of the BILL OF RIGHTS have penumbras “formed by emanations from those guarantees that help give them life and substance,” and that the right to privacy exists within this area. Since Griswold, the penumbra doctrine has primarily been used to represent implied powers that emanate from a specific rule, thus extending the meaning of the rule into its periphery or penumbra. In a DISSENT in Lawrence v. Texas,539 U.S. 558, 123 S. Ct. 2472, 156 L.Ed.2d 508 (2003), Justice ANTONIN SCALIA revisited the notion of the penumbra doctrine, arguing that these rights do not include a general right to privacy. FURTHER READINGS Greely, Henry T. 1989. “A Footnote to ‘Penumbra’ in Griswold v. Connecticut.” Constitutional Commentary 6. Helscher, David. 1994. “Griswold v. Connecticut and the Unenumerated Right of Privacy.” Northern Illinois University Law Review 15. Henly, Burr. 1987. “‘Penumbra’: The Roots of a Legal Metaphor.” Hastings Constitutional Law Quarterly 15. McLaughlin, Gerald. 1999. “Creating a Clear and Unequiv- ocal Standard for Letter of Credit Notices: The Penumbra of the UCP.” Journal of Banking and Finance Law and Practice 10 (September): 263–64. Worsham, Julia B.L. 1999. “Privacy Outside of the Penumbra: A Discussion of Hawaii’s Right to Privacy.” The University of Hawaii Law Review 21 (summer): 273–315. CROSS REFERENCE Judicial Review; Jurisprudence; Substantive Due Process. PEONAGE A condition of illegal enforced servitude by which a person is denied his or her liberty and compelled to labor in payment of some debt or obligation. The mere voluntary performance of labor in payment of a debt is not peonage, because at any time the debtor can refuse to perform further, and no law compels his performance or continu- ance of the service (Clyatt v. U.S., 197 U.S. 207, 25 S. Ct. 429, 49 L. Ed. 726 [1905]; U.S. v. Reynolds, 235 U.S. 133, 35 S. Ct. 86, 59 L. Ed. 162 [1914]). CROSS REFERENCE Involuntary Servitude. PEOPLE The aggregate of the individuals who comprise a state or a nation. In a more restricted sense, as generally used in CONSTITUTIONAL LAW, the entire body of those citizens of a state or a nation who are invested with political power for political purposes (the qualified voters). PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS People for the Ethical Treatment of Animals (PETA) is an international nonprofit organiza- tion that supports ANIMAL RIGHTS and has spawned a tremendous amount of conflict and contro- versy from its inception. The organization, which has been headquartered in Norfolk, Virginia, since 1996, was founded in 1980 by Ingrid Newkirk, who had worked at an animal shelter and then as a deputy sheriff in Montgomery County, Maryland, where she focused on animal-cruelty cases. She was also chief of Animal Disease Control for the Public Health Commission of the District of Columbia. Ingrid Newkirk became increasingly horri- fied at the inhumane treatment of animals that she encountered in her work, particularly in so-called factory farms, which confine hundreds GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 472 PEONAGE to thousands of animals (usually chickens, pigs, turkeys, or cows) in on e facility, and in research laboratories. Whereas other organizations are dedicated to seeing that animals are treated humanely, none is as radical in both outlook and strategies as People for the Ethical Treat- ment of Animals (PETA), the organization Newkirk founded. Newkirk has been quoted as saying, “When it comes to feelings like hunger, pain, and thirst, a rat is a pig is a dog is a boy.” The organization’s philosophy is un- compromising: “animals are not ours to eat, wear, experiment on, or use for entertainment.” The organization’s goals to inform and educate the public and policy-makers about animal abuse and to stop such abuse where ver possible are carried out in a number of ways. PETA is a grassroots organization run by hundreds of volunteers under the leadership of Newkirk, Dan Matthews, and Bruce Friedrich. The vegan philosophy prohibits eating, wearing, or using any kind of animal products, including milk, eggs, honey, and wool or leather products. PETA has been called “the most successful radical organization in America.” With more than 2 million members and supporters in the United States and around the world, the organization has an annual budget of approxi- mately $30 million, almost all of which is raised by small contributions from individuals. In addition to familiar protest tactics such as letter-writing campaigns and corporate boy- cotts, the organization makes prolific use of multiple Web sites that proselytize against numerous activities, including the fur trade (furismurder.com), fishing (fish inghurts.com), zoos (wildlifepimps.com), tobacco companies that continue to do animal testing (smokinga- nimals.com), and fast food restaurants. PETA has been particularly successful in appealing to youth between the ages of 13 and 24 who are interested in the humane treatment of animals as well as vegetarianism and veganism. The organization’s youth-oriented Web site peta2. com advertises PETA as the “largest and boldest animal rights organization in the world.” PETA supporters have staged hundreds of flamboyant activities in the United States and Europe in which they have sprayed red paint on fur coats while the coats were being worn, tossed containers of currency covered with fake blood on audiences at the International Fur Fair, dropped a dead raccoon on the plate of a Vogue magazine editor as she dined at a fashionable New York restaurant, sat naked in cages and crawled along streets wearing leg-hold traps on their feet. In November 2002, PETA activists disrupted aVictoria’s Secret lingerie show that was being watched on network television by 11 million viewers. Despite extremely high security, several women managed to leap onto the stage in front of Brazilian supermodel Gisele Bundchen with signs that read “Gisele: Fur Scum.” Bundchen had been featured in a series of ads promoting a line of Blackglama brand mink furs. Although the PETA supporters were quickly arrested and jailed, the subsequent news stories and video clips of the incident were played throughout the world, eclipsing coverage of the show and gaining maximum publicity for PETA. Like its other strategies, PETA advertising campaigns are designed to create maximum interest by both attracting and repelling political and public attention. Some PETA ad campaigns featuring nude female celebrities under the slogan “I’d rather go naked than wear fur” have drawn the ire of both conservative and feminist groups. When PETA ran a series of ads lampooning the dairy industry’s “Got Milk?” campaign with a “Got Beer?” ad that ran in numerous college newspapers, the organization was attacked by MOTHERS AGAINST DRUNK DRIVING (MADD) for making light of alcohol abuse by college students. In February 2003 PETA launched what many considered its most inflammatory cam- paign to date, a traveling exhibit called “Holo- caust on Your Plate,” which compared human abuse and mistreatment of animals to the torture, cruelty, and death inflicted by the Nazis on concentration camp victims. In the exhibit, concentration camp victims in wooden bunks were compared to caged chickens, and piles of those murdered were shown next to piles of pig carcasses. Captions alleged that “like the Jews murdered in concentration camps, animals are terrorized when they are housed in huge filthy warehouses and rounded up for shipment to slaughter. The leather sofa and handbag are the moral equivalent of lampshades made from the skins of people killed in the death camps.” Numerous writers and organizations, includ- ing the Anti-Defamation League(ADL), de- nounced the PETA exhibit. Abraham Foxman, chairman of the ADL remarked: “The effort by PETA to compare the deliberate systematic GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS 473 MURDER of millions of Jews to the issue of animal rights is abhorrent.” The creator of the exhibit, Matt Prescott, is Jewish and lost relatives in the Holocaust. He defended the exhibit, stating “The very same mindset that made the Holocaust possible—that we can do anything we want to those we decide are ‘different or inferior’—is what allows us to commit atrocities against animals every single day. The fact is, all animals feel pain, fear and loneliness. We’re asking people to recognize that what Jews and others went through in the Holocaust is what animals go through every day in factory farms.” Despite the extreme criticism that emerged in response to the exhibit, the organization suc- ceeded once again in making the news. Other organizations have sought IRS revoca- tion o f PETA’s nonexempt status, citing the violence of the rhetoric used by PETA leaders and activists and its support of the Animal Liberation Front, which has been labeled a “domestic terrorist” group and openly claims to use damage and destruction of property to save animals. Even the organization’scritics,however, agree that PETA has been instrumental in a number of victories ranging from closing laboratories where animals were mistreated to getting some cosmetic corporations to stop animal testing and persuading car manufacturers not to use animals as auto crash test subjects. PETA also successfully applied pressure to various fast food corporations such as Burger King, McDonalds, and Wendy’s to add vegetar- ian options to their menus an d t o institute regulations for better treatment of poultry and livestock by their producers. PETA efforts have also halted the sale of many exotic animals at Petco, a chain of retail pet supply stores, and persuaded fashion icon Ralph Lauren to discon- tinue the use of fur in his clothing lines. Despite these successes, there conti nues to be campaigning against PETA by groups such as the Center for Consumer Freedom (CCF). The CCF mission is to promote personal responsi- bility and protect consumer choices. It is a non- profit organization supported by companies and individuals. Companies that have made finan- cial contributions to CCF include Coca-Cola, Wendy’s, Tyson Foods, and Pilgrim’s Pride. In July 2007, PETA held a protest outside the offices of the National Football League (NFL) in response to accusations that Michael Vick, a quarterback for the Atlanta Falcons, was leading a dog fighting operation out of his rural Virginia home. PETA members carried signs reading “Sack Vick,” along with photos of injured dogs referred to as “dog fighting victims.” PETA not only sought to have Vick fired from the NFL, it also urged Nike to suspend its endorsement contract with Vick. PETA organized a national “day of action” in connection with the contro- versy, on which it planned to protest all Nike- town stores in the United States. PETA cancelled the event, however, after Nike announced its decision to suspend Vick’s contract without pay. In the ensuing months, Vick and three others were charged with competitive dog fighting, procuring and training pit bulls for fighting, and conducting the enterprise across state lines— crimes for which he was convicted and sentenced to 23 months in federal prison. In 2008 a controversy arose within the PETA organization, relating to the group’s announcement of a $1 million prize for the creation of a metho d to produce “commercially viable quantities of in vitro meat at competitive prices by 2012.” PETA thus supports research of ways to produce meat in a laboratory, without the killing of any animals. This was reported to have caused a “near civil war” within the organization, given that many of its members oppose eating meat altogether, even if no animals are killed in its creation. PETA made the news again in 2009, when the Nationa l Broadcasting Company (NBC) banned its Superbowl ad from airing. NBC made the decision to ban the ad, which was intended to promote vegetarianism, due to its explicit sexual content. FURTHER READINGS Guillermo, Kathy Snow. 1993. Monkey Business: The Disturbing Case That Launched the Animal Rights Movement. Washington, D.C.: National Press Books. Newkirk, Ingrid. 2009. The PETA Practical Guide to Animal Rights: Simple Acts of Kindness to Help Animals in Trouble. New York: St. Martin’s Griffin. People for the Ethical Treatment of Animals. Available online at www.peta.org (accessed May 27, 2009). Specter, Michael. 2003. “The Extremist: The Woman behind the Most Successful Radical Group in America.” New Yorker (April 14). CROSS REFERENCE Animal Rights. PER [Latin, By, through, or by me ans of.] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 474 PER PER CAPITA [Latin, By the heads or polls.] A term used in the DESCENT AND DISTRIBUTION of the estate of one who dies without a will. It means to share and share alike according to the number of individuals. In a per capita distr ibution, an equal share of an estate is given to each heir, all of whom stand in equal degree of relationship from a decedent. For example, a woman died intestate, that is, without a will. Her husband and three children predeceased her, and her only living heirs are her ten grandchildren. These grand- children will take per capita. In other words, each grandchild will receive one-tenth of the estate. Per capita differs from per stirpes, where persons do not inherit in their individual capacity but take as part of a group represented by a deceased ancestor closer in line to the decedent. PER CURIAM [Latin, By the court.] A phrase used to distin- guish an opinion of the whole court from an opinion written by any one judge. Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement of the disposition of a case by the court that is unaccompanied by a written opinion. PER QUOD [Latin, Whereby. ] With respect to a complaint in a civil action, a phrase that prefaces the recital of the consequences of certain acts as a ground of special harm to the plaintiff. At COMMON LAW, this term acquired two meanings in the law of DEFAMATION: with respect to slander, it signified that proof of special damages was required; in regard to LIBEL,it meant that proof of extrinsic circumstances was required. Words that are actionable per quod do not furnish a basis for a law suit upon their face but are on ly litigable because of extrinsic facts showing the circumstances under which they were uttered or the damages ensuing to the defamed party therefrom. CROSS REFERENCES Extrinsic Evidence; Libel and Slander. PER SE [Latin, of, in, by itself.] Simply as such; in its own nature without reference to its relation. In the law of DEFAMATION, slander per se refers to certain language that is actionable as slander in and of itself without proof of SPECIAL DAMAGES , such as the situation in which a person is falsely accused of having committed a crime. Defamation per se is in contradistinction to defamation PER QUOD, which requires proof of special damages. Five categories of statements are DEFAMATORY PER SE : those imputing the commission of a criminal offense; those imputing infection with a communicable disease; those imputing an inability to perform or want of integrity in the discharge of duties of office or employment; those that prejudic e a party or impute lack of ability in the party’s trade, profession, or business; and those imputing ADULTERY or fornication. CROSS REFERENCE Libel and Slander. PER STIRPES [Latin, By roots or stocks; by representation.] A term used to denote a method used in dividing the estate of a person. A person who takes per stirpes, sometimes called by right of representation, does not inherit in an individual capacity but as a member of a group. In a per stirpes distribution, a group represents a deceased ancestor. The group takes the proportional share to which the deceased ancestor would have been entitled if still living. For example, a man died intestate; his wife predeceased him. He had four children, three of whom are still living at the time of his death. The deceased child had three children, all still living. These three grandchildren will share equally in one-fourth of their grandfa ther’s estate, the share the deceased parent would have taken if still alive. The three living children will also each receive one-fourth of the estate. Per stirpes differs from per capita, in which an equal share is given to each of a number of persons who all stand in equal degree of relationship to the deceased. CROSS REFERENCE Descent and Distribution. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PER STIRPES 475 PERCENTAGE LEASE A rental agreement, usually with respect to a retail business property, whereby a portion of the gross sales or net sales of the tenant is used to determine the rent. There is generally a provisi on in a percent- age lease that calls for a minimum or base rental. It protects the lessor in the event of poor sales. PEREMPTORY CHALLENGE The right to challenge a jur or without assigning, or being required to assign, a reason for the challenge. During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. A party may challenge an unlimited number of prospective jurors for cause. Parties also may exercise a limited number of peremptory challenges. These chal- lenges permit a party to remove a prospective juror without giving a reason for the removal. Peremptory challenges provide a more impartial and better qualified jury. Peremptory challenges allow an attorney to reject a potential juror for real or imagined partiality that would be difficult to demonstrate under the challenge for cause category. These challenges have become more difficult to exercise because the U.S. SUPREME COURT has forbidden peremptory strikes based on race or gende r. Parties do not have a federal constitutional right to exercise peremptory challenges. Pe- remptory challenges are granted by statute or by CASE LAW. The number of challenges is usually determined by statute, but some jurisdictions allow the trial court to grant additional peremp- tory challenges. In federal court each side is entitled to three peremptory challenges. If more than two parties are involved in the proceeding, the court may either grant additional challenges or restrict the parties to the minimum number of challenges. Peremptory challenges came under legal attack in the 1980s. Critics claimed that white prosecutors used their peremptory challenges to remove African Americans from the jury when the criminal DEFENDANT was also African Ameri- can because the prosecutors thought that the potential jurors would be sympathetic to a member of their own race. This constituted racial DISCRIMINATION and a violation of the Fourteenth Amendment’s EQUAL PROTECTION Clause. The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race. Under the Batson test, a defendant may object to a prosecutor’s peremptory challenge. The PROSECUTOR then must “come forward with a neutral explanation for challenging black jurors.” If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror. The court extended this holding in criminal proceedings in two later cases. In Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the court broadened the Batson rule by stating that a defendant need not be of the same race as the excluded juror in order to successfully challenge the juror’s exclusion. In Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), the court held that the defense’s exercise of peremptory challenges to strike African American jurors on the basis of their race was equally forbidden. Previously, the court had ruled in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that in civil trials a private party could not exclude prospec- tive jurors on account of their race by using peremptory challenges. This series of decisions makes any racial exclusion in jury selection constitutionally suspect. The constitutional protection under Batson extends to all race- based challenges as well as to challenges based on nationality and ethnicity. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Per Stirpes vs. Per Capita SOURCE: Professor Don R. Castleman, “Intestate Succession—Lineal Descendents,” class notes for Decedents Estates and Trusts course, Wake Forest University School of Law. • Per Capita, D gets 1/6th; F gets 1/6; G gets 1/6th • Per Stirpes, D gets 1/6th; F gets 1/3; G gets 1/9th X (A) (B) (C) DE F GH I GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 476 PERCENTAGE LEASE The Supreme Court has also forbidden peremptory challenges based on gender. In J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the court ruled that striking jurors on the basis of gender serves to perpetuate stereotypes that are prejudicial and based on historical discrimination. No overriding STATE INTEREST justified peremptory challenges on the basis of gender. Permitting gender-based strikes could have undermined the Batson holding, because gende r might be used as an excuse for racial discrimination . Lower federal courts have split on whether Batson applies to challenges based on religion. The majority ban challenges based on member- ship alone, but these courts allow challenges based on activities or articulated beliefs. Argu- ments that Batson applies to other attributes, such as age, sexual orientation, or political affiliation, have largely failed. In an extension of Batson, the Supreme Court of Connecticut ruled that the Equal Protection Clause barred the prosecutor from striking prospective jurors based on their religious affiliation. The court, in State v. Hodge, 726 A.2d 531 (Conn. 1999), distinguished religious beliefs and religious affiliations. It held that litigants could strike prospective jurors whose religious beliefs would prevent them from performing their duties as jurors. FURTHER READINGS Beck, Cobrun R. 1998. “The Current State of the Peremptory Challenge.” William and Mary Law Review 39 (February). Fahey, William F. 1996. “Peremptory Challenges.” Federal Lawyer 43 (October). Hoffman, Morris B. 1997. “Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective.” University of Chicago Law Review 64 (summer). LaFave, Wayne R., Jerold H. Israel, Nancy J. King, and Orin S. Kerr. 2007. Criminal Procedure 3d Ed. St. Paul, MN: Thomson/West. Schwartz, Edward P., and Warren F. Schwartz. 1996. “The Challenge of Peremptory Challenges.” Journal of Law, Economics & Organization 12 (October). CROSS REFERENCES Case Law; Criminal Procedure; Federal Courts; Jurisdiction; Jury; Trial. PEREMPTORY RULING An immediate and absolute decision by the court on some point of law that is rendered without consideration of alternatives. PERFECT Complete; finished; executed; enforceable; without defect; merchantable; marketable. To perfect a title is to record or register it in the proper place so that one’s ownersh ip will be established against all others. PERFORMANCE The fulfillment or accomplishment of a promise, contract, or other obligation according to its terms. Part performance entails the completion or discharge of at least some portion of what either party to a contract has agreed to do, and thus that party’s release from past or future liability under the terms agreed, as to the amount performed. With respect to the sale of goods, the payment—or receipt and acceptance of goods—makes an oral sales contract, otherwise unenforceable because of the STATUTE OF FRAUDS, enforceable in regard to goods for which payment has been made and accepted or which have been received and accepted. SPECIFIC PERFORMANCE is an equitable doctrine whereby a court compels a party to execute the agreement according to its terms where mone- tary damages would be inadequate compensa- tion for the breach of an agreement, as in the case of a sale of land. In disputes over contracts for the sale of goods, a court orders specific performance only where the goods are unique or in other proper circumstances. FURTHER READING Skrocki, Anthony M., and Claude D. Rohwer. 2006. Contracts in a Nutshell. 6th ed. St. Paul, Minn.: West. PERIL The designated contingency, risk, or hazard against which an insured seeks to protect himself or herself when purchasing a policy of insurance. Among the various types of perils for which insurance coverage is available are fire, theft, illness, and death. PERJURY Perjury is a crime that occurs when an individual willfully makes a false statement during a judicial proceeding, after he or she has taken an oath to speak the truth. The common-law crime of perjury is now governed by both state and federal laws. In addition, the MODEL PENAL CODE, which has been GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERJURY 477 . common -law crime of perjury is now governed by both state and federal laws. In addition, the MODEL PENAL CODE, which has been GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERJURY 477 . through, or by me ans of. ] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 474 PER PER CAPITA [Latin, By the heads or polls.] A term used in the DESCENT AND DISTRIBUTION of the estate of one who dies. Foxman, chairman of the ADL remarked: “The effort by PETA to compare the deliberate systematic GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS 473 MURDER of millions