Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P50 ppsx

adopted in some form by many states and promulgated by the Commission on Uniform State Laws, also sets forth the following basic elements for the crime of perjury: (1) a false statement is made under oath or equivalent affirmation during a judicial proceeding; (2) the statement must be material or relevant to the proceeding; and (3) the witness must have the SPECIFIC INTENT to deceive. The punishment for perjury in most states, and under federal law, is the imposition of a fine, imprisonment, or both. Federal law also imposes sentencing enhancements when the court determines that a DEFENDANT has falsely testified on her own behalf and is convicted. Under the Federal Sentencing Guidelines, the court is required to automatically increase the defendant’s sentence. Two federal statutes govern the crime of perjury in federal proceedings. Title 18 U.S.C.A. § 1621 codifies the COMMON LAW of perjury and consists of the elements listed above. In 1970, the scope of section 1621 was expanded by the enactment of 18 U.S.C.A. § 1623. Section 1623 changes the definition of intent from willfully offering false testimony to merely having knowledge that the testimony is false. In addition, it adds to the definition of perjury to include the witness’s use of information, including any book, paper, document, record, recording, or other material she knows contains a false material declaration, and includes proceedings that are ancillary to any court, such as affidavits and depositions, and GRAND JURY proceedings. Section 1623 also contains a retraction defense. If, during the proceeding in which the false statement was made, the person admits to the falsity of the statement before it is evident that the falsity has been or will be exposed, and as long as the falsity does not affect the proceeding substantially, prosecution will be barred under section 1623. Commentators believe that the existence of these two federal statutes actually frustrates the goals of Congress to encourage truthful state- ments. The reasoning behind this concern is that when a retrac tion exists, prosecutors may charge a witness with perjury under section 1621 and when a retraction does not exist, the witness may be charged under section 1623. Two variations of perjury are SUBORNATION OF PERJURY and false swearing; in many states these two variations are separate offenses. Subornation of perjury is a crime in which the defendant does not actually testify falsely but instead induces, persuades, instigates, or in some way procures another witness to commit perjury. False swearing is a false statement made under oath but not made during an official proceeding. Some states have created a separate offense for false swear ing, while others have enacted perjury statutes to include this type of false statement. These crimes also may be punished by the imposition of a fine, imprison- ment, or both. The IMPEACHMENT of President BILL CLINTON in 1998 took place in part due to allegations of perjury against him. In particular, President Clinton was accused of committing perjury before a grand jury sitting in connection with an investigation being conducted by KENNETH STARR of the Office of INDEPENDENT COUNSEL. Clinton was likewise accused of perjury in connection with the Paula Jones case, in which Jones, a former Arkansas state employee, sued him for SEXUAL HARASSMENT. The Senate acquitted Clin- ton on the charge of perjury as a cause to remove him f rom office. However, the Arkansas federal district court judge in Arkansas ci ted Clinton for civil CONTEMPT and fined him $90,000 for not telling the truth in connection with the underlying sexual harassment suit filed by Paul Jones. On the day before leaving office in 2001, Clinton agreed to a five-year suspen- sion of his Arka nsas law license as part of a deal made with Starr’s successor, Robert Fisk. By agreeing to the suspension Clinton avoid ed prosecution of criminal charges for his perjury. FURTHER READINGS Aycock, George W., III. 1993. “Nothing But the Truth: A Solution to the Current Inadequacies of the Federal Perjury Statutes.” Valparaiso Law Review 28. Curriden, Mark. 1995. “The Lies Have It.” ABA Journal 81. Feinstein, Ami L. 1993. “United States v. Dunnigan and Sentence Enhancements for Perjury: Constitutional Perhaps, but Unnecessary in Fact.” American Criminal Law Review 31. Posner, Richard A. 2000. An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge, Mass.: Harvard University Press. v PERKINS, FRANCES At a time when few women achieved prominence in national politics, Frances Perkins distin- guished herself as a public official, a respec ted labor and industry expert, and an adviser to the president of the United States. When Perkins was GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 478 PERKINS, FRANCES named secretary of labor by President FRANKLIN D. ROOSEVELT in 1933, she became the first woman in U.S. history to hold a cabinet post. Perkins used her position to help launch the sweeping social and economic reforms of the NEW DEAL. Perkins was born April 10, 1880, in Boston, and raised in Worcester, Massachusetts. After graduating from Worcester Classical High School, Perkins attended Mount Holyoke Col- lege, where she studied physics and chemistry and was class president. As a senior at Mount Holyoke, Perkins was influenced by Jacob A. Riis’s 1890 book How the Other Half Lives and by a speech given by Florence Kelley, the general secretary of the National Consumers League. Perkins’s growing awarene ss of the plight of underprivileged U.S. citizens would lead to her life’s work as a labor activist. After graduating from Mount Holyoke in 1902, Perkins pursued further studies in economics and sociology at the University of Pennsylvania and Columbia University. She earned a master’s degree from Columbia in 1910. After graduate school, Perkins briefly taught biology and physics in a school in Lake Forest, Illinois. In her off-hours, she volunteered at Jane Addams’s Hull House, in nearby Chicago, and at other settlement houses. There, Perkins witnessed the poverty and wretched working conditions endured by thousands of U.S. citizens. Determined to help improve the plight of workers, she returned to New York City to work as a lobbyist with her mentor, Kelley, at the New York Consumers League. Perkins’s task was formidable. Throughout the early twentieth century, U.S. businesses were unregulated: workers in sweatshops worked long hours for low pay in unsafe working conditions. There were no BUILDING CODES to ensure the employees’ safety, no regular inspec- tions of equipment and machinery, and no limit to the number of hours employees could work. Children routinely were employed in factories, mills, and mines under the most miserable conditions. Some women worked 19 hours per day with their child ren by their side. An industrial tragedy heightened Perkins’s resolve to force changes in the workplace. On March 25, 1911, a fire broke out at the Triangle Shirtwaist Company, in New York City. Perkins happened to be in the neighborhood and watched as employees trapped on the top three floors of the burning ten-story building jumped from windows to their death. The door to the only stairway in the building had been locked by employers, to halt break-ins. One hundred Frances Perkins 1880–1965 ❖ 1880 Born, Boston, Mass. ◆ 1910 Earned M.A. from Columbia University ◆ 1890 How the Other Half Lives, by Jacob A. Riis, published ◆ 1902 Graduated from Mount Holyoke College ◆ 1918 Appointed to the New York State Industrial Commission 1914–18 World War I 1965 Died, New York City 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ▼▼ ▼▼ 19001900 18751875 19251925 19501950 19751975 ❖ ◆ 1911 Witnessed fire at Triangle Shirtwaist Company in New York 1933 First woman appointed to a cabinet position when FDR named her secretary of labor (served until 1945) ◆◆ 1935 Social Security Act passed into law ◆ 1946–52 Served on the U.S. Civil Service Commission 1938 Fair Labor Standards Act passed Frances Perkins. LIBRARY OF CONGRESS. WE ALL TAKE REFUGE IN THE OPTIMISM WHICH IS TYPICAL OF THIS GREAT CREATIVE NATION .EVERY SITUATION HAS FOUND US UNPREPARED . —FRANCES PERKINS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERKINS, FRANCES 479 workers perished inside the building, and 47 jumped or fell to their death. The owners of the company were later absolved of criminal negligence for the disaster and collected $64,925 in property damage insuran ce. In the fire’s aftermath, the New York State Factory Commission was created, with Perkins named as chief investigator. She also became a member of the Committee on Safety of the City of New York and lobbied hard for legislation to make the workplace safer. She toured the state with Alfred E. Smith and ROBERT F. WAGNER and documented the deplorable conditions faced by workers. An exhaustive investigation led to new laws to protect the labor force. A major success for Perkins was the passage of a bill by the New York Legislature to limit the workweek to 54 hours for women and children. The bill was vigorously opposed by the employers of the 400,000 female factory workers through- out the state. While LOBBYING for the bill, Perkins became acquainted with Roosevelt, who was a New York state senator. Although Roosevelt’s support of the 54-hour bill was lukewarm, Perkins developed a professional relationship with him that grew stronger as Roosevelt’s views on labor and government began to mirror her own. In 1913 Perkins married Paul Caldwell Wilson and rejected prevailing social conven- tion by retaining her maiden name for profes- sional purposes. In 1918 she was appointed to the New York State Industrial Commission. Perkins’s work with Roosevelt in New York led to a position in the federal government. When Roosevelt was elected president in 1932, he asked Perkins to become secretary of labor. Although she argued that a female trade unionist should be nominated for the post, she eventually accepted the position. Perkins became the only cabinet member to serve during all four of Roosevelt’s terms of office. When Roosevelt took office, the country was in the midst of the Great Depression. About a third of the nation’s workforce was unem- ployed. As labor secretary, Perkins helped shape the SOCIAL SECURITY ACT (42 U.S.C.A. § 301 et seq.), a key component of Roosevelt’s New Deal. Passed by the U.S. Congress in 1935, the act allowed qualified workers in commerce and industry to collect OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE benefits. The new program required employers and employees to make contributions to a federal PENSION fund for aged and DISABLED PERSONS. In this way, workers and their families were financially protected in the event of unemployment, old age, or the death of a wage earner. Although critics likened the plan to SOCIALISM, SOCIAL SECURITY became a successful federal entitlement program . Perkins also helped develop the FAIR LABOR STANDARDS ACT of 1938 (29 U.S.C.A. § 201 et seq.), which limited the number of hours employees could work for MINIMUM WAGE. The law also placed restrictions on child labor. It prohibited children under 16 years of age from working in most jobs, and made hazard- ous occupations unavailable to workers under 18 years of age. The Wage and Hour Division of the LABOR DEPARTMENT was also established by the act. After Roosevelt’s death in 1945, Perkins served briefly in the administration of President HARRY S. TRUMAN. She left Truman’s cabinet to serve on the U.S. Civil Service Commission from 1946 to 1952. Perkins then taught courses at Cornell University’s School of Industrial and Labor Relations. She died in New York City on May 14, 1965, at the age of 85. FURTHER READINGS Pasachoff, Naomi. 1999. Frances Perkins: Champion of the New Deal. New York: Oxford Univ. Press. Pirro, Jeanine Ferris. 1999. “Reforming the Urban Work- place: The Legacy of Frances Perkins.” Fordham Urban Law Journal 26 (May). Whitney, Sharon, and Tom Raynor. 1986. Women in Politics. New York: Franklin Watts. CROSS REFERENCES Child Labor Laws; Labor Law. PERMISSIVE COUNTERCLAIM A claim by a defendant opposing the claim of the plaintiff and seeking some relief from the plaintiff for the defendant. Once a plaintiff sues a defendant in a civil action, the defendant has the right to assert a legal claim of her own against the plaintiff. This is known as a counterclaim. A counterclaim makes assertions that the defendant could have made in a lawsuit if the plaintiff had not already begun an action. A counterclaim is distinct from a mere defense, which seeks only to defeat the plaintiff’s lawsuit, in that it seeks a form of relief. There are two types of counterclaims: compulsory counterclaims and permissive GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 480 PERMISSIVE COUNTERCLAIM counterclaims. Both are governed in federal court by rule 13 of the Federal Rules of CIVIL PROCEDURE . The rules in state courts are similar. The compulsory counterclaim arises from the same transaction or occurrence that forms the basis of the plaintiff’ssuit.Forexample,acar accident between two drivers leads to a personal injury lawsuit, but the defendant asserts in a compulsory counterclaim that the plaintiff actu- ally owes him damages for injuries. A compulsory counterclaim generally must be part of the initial answer to the plaintiff’s action and cannot be made later in the suit or in a separate lawsuit. By contrast, the permissive counterclaim arises from an event unrelated to the matter on which the plaintiff’s suit is based. For example, John Smith breaks his leg while visiting the home of Jane Doe. Smith sues Doe, alleging that she negligently left her child’s roller skate on her front porch. In a permissive counterclaim, Doe asserts that Smith owes her money. The court will rule separately on plaintiff Smith’s and defendant Doe’s respective claims; if both claims are permitted to proceed, Smith v. Doe will involve the two parties’ respective allega- tions of NEGLIGENCE and a bad debt. Counterclaims are usually valid only if it is possible to make the same claim by starting a lawsuit. Thus, in the example of Smith and Doe, Doe can only make her permissive counterclaim if the STATUTE OF LIMITATIONS on collection of the debt has not expired. Permissive counterclaims need not be made in the initial PLEADING; they can be made at a later time or even in another lawsuit. This flexibility may help the defendant’s legal strategy: She can wait and sue in a different court, in order to have another judge hear the case or to avoid arguing the merits of separate claims before the same jury. PERPETRATOR A term commonly used by law enforcement officers to designate a person who actually commits a crime. PERPETUATING TESTIMONY The procedure permitted by federal and state discovery rules for preserving the attestation of a witness that might otherwise be lost prior to the trial in which it is intended to be used. The usual method of perpetuating testi- mony is by taking a deposition. It is usually allowed when a witness is aged and infirm or is about to leave the state. PERPETUATION OF EVIDENCE The procedure employed to assure that proof will be available for possible use at a later trial. The police, for example, can deposit a murder weapon with the court, prior to the day set for trial of the accused, for purposes of perpetuation of evidence. PERPETUITIES See RULE AGAINST PERPETUITIES. PERQUISITES Fringe benefits or other incidental profits or benefits accompanying an office or position. The abbreviation perks is used in reference to extraordinary benefits afforded to business executives, such as country club memberships or the free use of AUTOMOBILES. Perquisites can be subject to taxation, depending on a host of factors. In 200 9 executive compensation continued to be a controversial subject as federal pay czar Kenneth Feinberg explored ways to rein in the extent of, and require the disclosure of, perquisites provided to executives of corpora- tions that received taxpayer assistance from the Troubled Asset Relief Program (TARP). FURTHER READING Internal Revenue Service. “Publication 15-B - Main Content.” Available online at http://www.irs.gov/publications/ p15b/ar02.html#en_US_publink1000101743 (accessed October 13, 2009). PERSON In general usage, a human being; by statute, however, the term can include firms, labor organizations, partnerships, associations, corpor a- tions, legal representatives, trustees, trustees in BANKRUPTCY, or receivers. A corporation is a “person” for purposes of the constitutional guarantees of EQUAL PROTEC- TION OF LAWS and DUE PROCESS OF LAW. Foreign governments otherwise eligible to sue in United States courts are “persons” entitled to institute a suit for TREBLE DAMAGES for alleged antitrust violations under the CLAYTON ACT (15 U.S.C.A. § 12 et seq.). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERSON 481 Illegitimate children are “persons” within the meaning of the Equal Protection Clause of the FOURTEENTH AMENDMENT to the U.S. Constitution. The phrase interested person refers to heirs, devisees, children, spouses, creditors, benefici- aries, and any others having a PROPERTY RIGHT in, or a claim against, a trust estate or the estate of a decedent, ward, or protected person. It also refers to personal representatives and to fiduciaries. PERSONAL ACTIONS Lawsuits initiated in order, among other things, to recover damages for some injury to a plaintiff’s personal right or property, for breach of contract, for money owed on a debt, or for the recovery of a specific item of PERSONAL PROPERTY. At COMMON LAW, personal actions comprised any of the three categories of FORMS OF ACTION,the other two being real actions and mixed actions. Personal actions generally involved suits arising out of torts or contract disputes (e.g., to collect debts or compel other owed payment). The right to bring personal actions was an innovation in a day when the only useful property was land. There were few consumer goods (“chattels”)and little money in ancient England. From the ACCESSION of the Norman kings in 1066, the royal right to supervise ownership and possession of land was seldom questioned. Only when the security of land ownership was seen to depend on the peace of individual persons were personal actions like debt, DETINUE,andTRESPASS permitted. FURTHER READING Committee on Continuing Legal Education of the Virginia Bar Foundation. 1988. Personal Actions Other Than for Bodily Harm. Foundation Press. PERSONAL INJURY Any violation of an individual’s right, other than his or her rights in property. The term personal injury is not confined to physical injuries, although NEGLIGENCE cases usually do involve bodily injuries. The term may also refer to the invasion of personal rights, including causing MENTAL AN- GUISH and FALSE IMPRISONMENT. CROSS REFERENCE Tort Law. PERSONAL JURISDICTION The power of a court to hear and determine a lawsuit involving a defendant by virtue of the defendant’s having some contact with the place where the court is located. Personal jurisdiction, also known as IN PERSONAM (against the person) jurisdiction, gives a court the authority to mak e decisions binding on the persons involved in a civil case. Eve ry state has personal jurisdiction over persons within its territory. Conversely, no state can exercise personal jurisdiction and authority over persons outside its territory unless the persons have manifested some contact with the state. The authority of the court to issue orders to persons present within the territory comes from the sovereign power of the government. The court’s authority allows it to reach all residents of a state, including those who are outside the state for a short period and out-of-state residents who enter the state even briefly. Deciding whether an individual is within the personal jurisdiction of a court is not difficult to determine. Difficulty arises when courts have to decide whether corporations are subject to personal jurisdiction. Corporations have a leg al existence and a legal identity but not a tangible existence. They are subject to lawsuits involvi ng tort and contract. As corporations became national economic entities, the courts of a state had difficulty finding personal jurisdiction if the corporation was not located within that state. Courts established that a corporation is always subject to the jurisdiction of the courts in the state where it was incorporated. States also require corporations to file written consents to personal jurisdiction before they can conduct business within the state. Other states require that either the corporation designate an agent to accept legal process (the legal documents initiating a lawsuit) in the state or that the state attorney general be authorized to accept process for all out-of-state corporations doing business within the state. In 1945 the U.S. SUPREME COURT modernized personal jurisdiction requirements when it announced the “minimum contacts” test in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95. The court held that courts could constitutionally exercise jurisdiction over a nonresident DEFENDANT if the defendant had sufficient contacts with the state such that forcing the person to litigate in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 482 PERSONAL ACTIONS that forum did not offend “traditional notions of fair play and substantial justice.” Because of the ease of modern communication and transportation, it is usually not unfair to require a party to defend itself in a state in which it conducts business activity. The threshold of minimum contacts varies. Where the action arises out of or is related to the defendant’s contacts with the state, the quantity of contacts necessary to establish personal jurisdiction may be truly minimal. In such cases, the nature and quality of the contact are the determining factors. In the case of a nonresident motorist who causes an injury in the forum state (the state of the court asserting jurisdiction), the interest of the state in provid- ing a forum for its residents and regulating its highways, coupled with the defendant’s having purposefully entered the state, permits the state to fairly assert personal jurisdiction. A corporation or individual not physically present in a state may invoke personal jurisdic- tion by making a single contact with the state by telephone, mail, or facsimile transmission. In Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 122 8, 2 L. Ed. 2d 1283 (1958), the court ruled that even a single transaction can trigger personal jurisdiction when the defendant purposely avails itself of the privilege of conducting activities with the forum state and invokes the benefits and protection of state law. States quickly took advantage of Interna- tional Shoe by enacting “long-arm statutes.” These statutes allow the state to reach out and obtain jurisd iction over anyone who is not present in the state but who transacts business within the state, commits a tort within the state, commits a tort outside the state that causes injury within the state, or owns, uses, or possesses real property within the state. Personal jurisdiction in the federal courts is governed by rule 4 of the Federal Rules of CIVIL PROCEDURE . Rule 4 directs each federal district court to follow the law on personal jurisdiction that is in force in the STATE COURTS where the federal court is located. Federal courts may use state long-arm statutes to reach defendants beyond the territory of their normal authority. With cases that can only be brought in federal court, such as lawsuits involving federal SECURI- TIES and antitrust laws, federal courts may exercise personal jurisdiction over a defendant no matter where the defendant is found. When a person chooses to challenge per- sonal jurisdiction, he or she must take care in appearing before the court in the forum state. If the defendant makes a general appearance, the court will take this to be an unqualified submission to the personal jurisdiction of the court. The defendant waives the right to raise any jurisdictional defects. To prevent this from happening, a defendant must request a special appearance before the court. A special appearance is made for the limited purpose of challenging the sufficiency of the SERVICE OF PROCESS or the personal jurisdiction of the court. If any other issues are raised, the proceeding becomes a general appearance. The court must then determine whether it has jurisdiction over the defendant. If the defendant is found to be within the personal jurisdiction of the court, the issue may be appealed. Some states permit an immediate appeal, whereas others make the defendant raise the issue after the case has been heard on its merits in the trial court. Courts and commentators have struggled with the issue of personal jurisd iction in cases involving the Internet. Web sites typically fall into one of three categories. First, some Web sites are clearly used for transacting busine ss over the Internet through repeated transmission of files of information and formation of contracts. The activitie s of these websites are sufficient to establish minimum contacts. Sec- ond, some Web sites are merely passive and used only fo r advertising purpose. The activities of these passive Web sites are not enough to establish minimum contacts. Third, interactive Web sites allow for the exchange of informa- tion. Whether the activities of an interactive website is sufficient to establi sh minimum contacts depends on the degree of interactivity. FURTHER READINGS Cebik, Sarah R. 1998. “‘A Riddle Wrapped in a Mystery Inside an Enigma’: General Personal Jurisdiction and Notions of Sovereignty.” Annual Survey of American Law 1998 (winter): 1–48. Nguyen, TiTi. 2004. “A Survey of Personal Jurisdiction Based on Internet Activity: A Return to Tradition.” Berkeley Technology Law Journal. 519–541. Redish, Martin H. 1998. “Of New Wine and Old Bottles: Personal Jurisdiction, the Internet, and the Nature of Constitutional Evolution.” Jurimetrics Journal of Law, Science and Technology 38 (summer): 575–610. CROSS REFERENCES Civil Procedure; Federal Courts. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERSONAL JURISDICTION 483 PERSONAL PROPERTY Everything that is the subject of ownership that does not come under the denomination of real property; any right or interest that an individual has in movable things. In general, the owner of personal property has the exclusive right to possess, enjoy, and dispose of a thing. This is especially true of corporeal personal property, which refers to physical items. Examples of corporeal personal property include real CHATTEL; choses in action; ice already formed, whether in the water or out; rent, once it is paid to the lessor; the proceeds of a REAL ESTATE sale; timber severed from the land; harvested crops; domestic animals; wild animals and fish that have been reduced to possession; removable fixtures; and supplies, equipment, furniture, and similar items. A second category of personal property includes incorporeal personal property, which includes something that has value but lacks a physical substance. Examples of incorporeal personal property include stocks, bonds, PATENTS, and copyrights. Possession Possession is a property interest under which an individual is able to exercise power over something to the exclusion of all others. It is a basic PROPERTY RIGHT that entitles the possessor to: (1) the right to continue peaceful possession against everyone except someone having a superior right; (2) the right to recover a chattel that has been wrongfully taken; and (3) the right to recover damages against wrongdoers. Possession requires a degree of actual control over the object, coupled with the in tent to possess and exclude others. The law recog- nizes two basic types of possession: actual and constructive. Actual possession exists when an individual knowingly has direct physical control over an object at a given time. For example, an individual wearing a particular piece of valuable jewelry has actual possession of it. Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person’s control. For example, when an individual possesses the key to a bank safe deposit box that contains a valuable piece of jewelry that she owns, then the individual is in constructive possession of the jewelry. Possession of Animals Animals FERAE NATURAE, or wild animals, are those that cannot be completely domesticated. A degree of force or skill is necessary to maintain control over them. Gaining possession is a means of obtaining title to, or ownership of, wild animals. An owner of land has the right to capture or kill a wild animal on her property and upon doing so, the animal is regarded as belonging to that individual because she owns the soil. The traditional legal principle has been that one who tames a wild animal is regarded as its owner provided it appears to exhibit animus revertendi, or the intent to return to the owner’s domicile. Conversely, when a captured wild animal escapes and returns to its natural habitat without any apparent intent to return to the captor’s domicile, the captor forfeits all personal property right and the anima l may be captured by anyone. Lost, Mislaid, and Abandoned Property Personal property is considered to be lost if the owner has involuntarily parted with it and is ignorant of its location. Mislaid property is that which an owner intentionally places somewhere with the idea that he will eventually be able to find it again but subsequently forgets where it has been placed. Abandoned property is that to which the owner has intentionally relinquished all rights. Lost or mislaid property continues to be owned by the person who lost or mislaid it. When one finds lost goods, the finder is entitled to possession against everyone with the excep- tion of the true owner. The finder of lost articles on land belonging to someone else is entitled to possession against everyone but the true owner, unless the finder is guilty of TRESPASS. The finder of misplaced goods has no right to their possession. The owner of the place where an article is mislaid has a right to the article against everyone but the true owner. Abandoned property can be possessed and owned by the first person who exercises dominion over it with intent to claim it as his or her own. In any event, between the finder of a lost, mislaid, or abandoned article and the owner of the place where it is found, the law applies to whatever rule will most likely result in the return of the article to its rightful owner. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 484 PERSONAL PROPERTY Ordinarily, when articles are found by an employee during and within the scope of his employment, they are awarded to the employer rather than to the employee-finder. Treasure trove is any gold or silver in coin, plate, or bullion hidden by an unknown owner in the earth or other priv ate place for an extended period. T he property is not consid- ered treasure trove unless the identity of the owner cannot be ascertained. Under early COMMON LAW,thefinderofatreasuretrove took title to it against everyone but the true owner. This doctrin e was altered in England by a statute granting title to the crown subject to the claims of the true owner. The U.S. law governing treasure trove has, for the most part, been merged into the l aw governing lost property. However, certain cases have held that the old treasure trove law has not been combined into the lost property statutes. In some instances, the early common law of England has been held to apply in the absence of a statute governing treasure trove. Regard- less of which principles are applied, in the absence of contrary statutory provision the title to treasure trove belongs to the finder against all others with the exception of the true owner. If there is a controversy as to ownership between the true owner and the state, the owner is entitled to treasure trove. Confusion and Accession Confusion and ACCESSION govern the acquisition of, or loss of title to, personal property by virtue of its being blended with, altered by, improved by, or comming led with the property of others. In confusion, the personal property of several different owners is commingled so that it cannot be separated and returned to its rightful owners, but the property retains its original characteristics. Any fungible (interchangeable) goods can be the subject of confusion. In accession, the personal property of on e owner is physically integrated with the property of another so that it becomes a constituent part of it, losing any separate identity. Accession can make the personal property of one owner become a substantially more valuable chattel as a result of the work of another person. This transformation occurs when the personal prop- erty becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture. Subject to the doctrine of accession, personal property can become real property through its transformation into a fixture. A fixture is a movable item that was originally personal pro- perty but has become attached to, and associated with, the land and is considered a part of the real property. Bailments A BAI LMENT is the rightful, temporary possession of goods by an individual other than the true owner. The individual who entrusts his prop- erty into the hands of another is called the BAILOR; the person who holds such property is the BAILEE. Ordinarily a bailment is effected for a designated purpose upon which the parties have agreed. The word bailment is derived from the French term bailler, “to deliver.” It is ordinarily regarded as a contractual relationship since the bailor and bailee—either expressly or implic- itly—bind themselves to act according to specific terms. The bailee receives only control or pos- session of the property, and the bailor retains the ownership interests therein. While a bailment exists, the bailee has an interest in the property that is superior to all others, including the bailor, unless she violates some term of the agreement. When the purpose for which the property has been delivered has been accomplished, the property is returned to the bailor or otherwise disposed of, according to his instructions. A bailment differs from a sale, which is an intentional transfer of ownership of personal property in exchange for something of value, because a bailment involves only a transfer of possession or custody not of ownership. For example, a bailment is created when a person leaves his or her car and car keys at a parking garage. The parking garage receives a fee to hold the car in its custody. Gifts A gift is a voluntary transfer of personalty from one individual to another without compensation or consideration, or the exchange of something of value. There are two main categories of gifts: INTER VIVOS gifts, a voluntary, unconditional transfer of property between two living persons without consideration; and CAUSA MORTIS,one that is made by a donor in anticipation of imminent death. The three requirements of a valid gift are delivery, donative intent, and acceptance. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERSONAL PROPERTY 485 Bona Fide Purchasers A basic common-law principle is that an individual cannot pass a better title than she has, and a buyer can acquire no better tit le than that of the seller. A thief does not have title in stolen goods, so a person who purchases from the thief does not acquire title. A bona fide purchaser is an individual who has bought property for value with no notice of any defects in the seller’s title. If a seller indicates to a buyer that she has ownership or the authority to sell a particular item, the seller is prevented (estopped) from denying such repre- sentations if the buyer resells the property to a bona fide purchaser for value without notice of the true owner’s rights. At common law, such an ESTOPPEL did not apply when an owner brought an item for services or repairs to a dealer in that type of goods and the dealer wrongfully sold the chattel. The bona fide purchaser, however, is now protected under such circumstances by the UNIFORM COMMERCIAL CODE (UCC). A buyer who induces a sale through fraudulent representations acquires a voidable title from the seller. A voidable title is one that may be vacated by the seller upon discovery of the buyer’s FRAUD, at his option. The seller has the authority to transfer a good title to a bona fide purchaser for value without notice of the outstanding equity. The voidable title rule is only applicable in situations where the own er is induced to part with title, not merely with possession, as a result of fraud or deception. FURTHER READINGS Burke, Barlow. 2003. Personal Property in a Nutshell. 3d ed. St. Paul, MN: West. Huss, Rebecca J. 2002. “Valuing Man’s and Woman’s Best Friend: The Moral and Legal Status of Companion Animals.” Marquette Law Review 86 (fall). Jordan, Robert L., William D. Warren, and Steven D. Walt. 2000. Secured Transactions in Personal Property. 5th ed. New York: Foundation Press. Miller, Kathleen. 1995. Fair Share Divorce for Women. Bellevue, WA: Miller Advisors. Picker, Randal C. 2009. Security Interests in Personal Property: Cases, Problems, and Materials. 4th ed. New York: Foundation Press. Sykas, Abigail J. 2001. “Waste Not, Want Not: Can the Public Policy Doctrine Prohibit the Destruction of Property by Testamentary Direction?” Vermont Law Review 25 (summer). CROSS REFERENCES Accession; Bailment; Chattel; Intellectual Property; Possession. PERSONAL REPRESENTATIVE A person who manages the financial affairs of another person who is unable to do so. A personal representative is one kind of fiduciary—an individual whom another has trusted to manage her property and money. When a person dies, a personal representative generally is required to settle the decedent’s financial affairs. In some instances, a living person may need a personal representative; for example, a minor might need a personal representative to make legal decisions for her. Personal representatives can be appointed by a court, nominated by will, or selected by the person involved. Their duties are performed under the supervision of probate courts, which are governed by state law. When someone dies leaving property, a personal representative is required to adminis- ter the decedent’s estate, which involves resolv- ing any debts and handling the distribution of property. The jurisdiction, powers, and func- tions connected with administerin g the dece- dent’s estate are usually entrusted to special tribunals, known as probate, surrogate, or orphans’ courts. These courts supervise the actions of the personal representative. The choice of a personal representative depends on whether the decedent left a will, the legal document instructing how his estate is to be divided. If the will names a personal representative, that person is called an executor (male or female) or executrix (female). The court will accept the representative unless he does not meet statutory qualifications. These qualifica- tions vary from state to state but largely concern such factors as age and CONFLICT OF INTEREST.If there is no legally valid will, the decedent is said to have died INTESTATE.Insuchcases,thecourt appoints a personal representative for the decedent’s estate. The court-appointed represen- tative is called an administrator (male or female) or administratrix (female). In special instances, courts appoint one of three types of administrators. They are appointed when (1) an executor cannot or will not serve (administrator cum testamento annexo); (2) a prior executor or administrator has not com- pleted the estate (administrator de bonis non); or (3) an interim administrator (special administra- tor), given restricted powers over the estate, is needed until a proper LEGAL REPRESENTATIVE can be found. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 486 PERSONAL REPRESENTATIVE Once approved by the court, personal representatives receive official sanction to fulfill their duties. Executors receive documents called letters testamentary—administrators re- ceive letters of administration—authorizing the representative to handle the legal affairs of a decedent. Throughout the process of administering an estate, all personal represen- tatives serve as OFFICERS OF THE COURT.They derive their authority from the court and thus serve at the court’s pleasure. Their authority can be revoked on various grounds, ranging from neglect to incompetence. Primarily, they mustactonbehalfofallpartiesandall interests in the estate. They o we the benefici- aries an absolute duty of loyalty, or FIDUCIARY duty, to administer the estate in their best interest. The personal representatives’ primary duties are to settle and distribute the estate. This complicated task may require the assistance of an attorney or a TRUST COMPANY, so-called coexecutors. The personal representative’s first task is to collect and preserve the assets of the estate. The personal representative also oversees the appraisal of the estate’s assets, where necessary. The personal representative must pay the estate’s creditors, as well as any ESTATE AND GIFT TAXES due under federal law. Finally, the representative sees to the distribution of the remaining estate among the decedent’s bene- ficiaries. If there are no beneficiaries, the state usually receives the property. The representative must act impartially, diligently, and fairly when re presenting anyone having an interest in the assets of the decedent. Subject to some exceptions, the representative may not disclose facts or knowledge about property that is in the representative’s posses- sion or the affairs of those being represented. Exceptions include cases involving consent of the principal, responses to legal process, and other cases where disclosure is required by law. FURTHER READINGS Graves, Herman S. 2000. “Estate Administrative Expenses and the Personal Representative.” Colorado Lawyer 29 (September). Hughes, Theodore E., and David Klein. 2007. The Executor’s Handbook: A Step-by-Step Guide to Settling an Estate for Executors, Administrators, and Beneficiaries. New York: Facts on File. Krier, Kenneth D. 1991. “The Attorney as Personal Represen- tative or Trustee.” Florida Bar Journal 65 (Janurary). Ross, Bruce S., and Henry T. Moore, Jr. 1986–1996. California Practice Guide: Probate. Encino, CA: The Rutter Group. CROSS REFERENCE Executors and Administrators; Probate. PERSONAL SERVICE The actual delivery of process to the individual to whom it is directed or to someone authorized to receive it on his or her behalf. SERVICE OF PROCESS is the delivery of legal notice to a party in a case. Any party who is being sued is entitled to advance notice of the suit. Notice consists of a copy of the complaint and a summons to appear in court. If a party does not receive notice of a lawsuit, the court will dismiss the case. Personal service of the complaint and summons is a form of actual notice. Actual notice occurs when the summons and com- plaint are delivered personally to the respon- dent. The two other basic forms of process service are SUBSTITUTED SERVICE and constructive service. Substituted service is personal delivery to the residence of the respondent or notice given to an agent of the respondent. Construc- tive service is notice delivere d through publica- tion in a newspaper. If a party cannot be reached in person, substituted service may be made by mailing the summons and complaint by certifie d or first- class mail. If a party cannot be found, notice may be served by publication in a newspaper. The U.S. SUPREME COURT has ruled that service of process should be reasonably calculated t o apprise interested parties of the pendency of the action and afford them an opportunity to be heard. The reasonableness of the notice must be considered in light of all the circumstances. For example, if a party receiving notice lives in an apartment building with many children living in the building, one notice left on the front door of the apartment might not be sufficient because it is possible that the children could take the papers (Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249 [ 1982]). PERSONALTY Goods; chat tels; articles; movable property, whether animate or inanimate. CROSS REFERENCE Personal Prop erty. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERSONALTY 487 . litigate in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 482 PERSONAL ACTIONS that forum did not offend “traditional notions of fair play and substantial justice.” Because of the ease of modern. as a public official, a respec ted labor and industry expert, and an adviser to the president of the United States. When Perkins was GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 478 PERKINS,. U.S.C.A. § 12 et seq.). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PERSON 481 Illegitimate children are “persons” within the meaning of the Equal Protection Clause of the FOURTEENTH AMENDMENT