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based mainly on the theories of deceit, breach of express and implied warranties, and NEGLIGENCE. Cases filed during the second wave of tobacco litigation (1983–1992) were based on the legal theories of failure to warn and strict liability. Neither of the first two waves of litigation proved to be successful for the plaintiffs. The third wave of tobacco litigation began in the early 1990s and consisted of CLASS ACTION suits brought by those injured by tobacco products, and medical cost reimbursement suits brought by states and insurance companies. The first wave of litigation was characterized by the tobacco industry’s adamant claims that smoking and chewing tobacco products were not harmful to consumers. Plaintiffs during that time did not have the extensive medical studies demonstrating serious health consequences that National Clean Air Debate O n April 5, 1994, the Occupational Safety and Health Administration (OSHA) published proposed nationwide indoor air quality regulations that would prevent smoking in all indoor work- places, including office buildings, gov- ernment buildings, restaurants, stores, and bars, except in designated smoking areas with separate ventilation systems (59 Fed. Reg. 15,968–16,039). OSHA provided a public comment period followed by public hearings, which were extended a number of times, and finally closed the hearings in January 1996. OSHA also sought post-hearing com- ments, but by the end of 1997 the administration had not announced when, or whether, it would issue its final rules addressing this controversial topic. The dispute over the OSHA regulations frames the larger debate between advocates and opponents of smoking regulations. Proponents of the indoor air quality regulations argue that if people are freely allowed to smoke in the work- place, they contaminate the air that nonsmokers breathe, subjec ting every- onearoundthemtoseverehealth consequences. Propone nts cite decades of scientific and medical studies that demonstrate the health effects of envi- ronmental tobacco smoke (ETS). They refer to studies that sho w that ETS causes lung cancer and heart disease in adults and various respiratory disorders in children. Various government agencies sup- port OSHA’s proposed regulations. The U.S. surgeon general has pub lished numerous reports warning of the dan- gers of ETS. The Labor Department reported to OSHA that 83 percent of all worker health complaints related to indoor air quality are link ed t o ETS. Since 1992, the U.S. Environmental Protection Agency has classified ETS as a kno wn Group A human carcinogen. Various other medical and research organizations support the proposed regulationsaswell.TheNationalAcad- emy of Sciences has warned of the dangers of ETS. A 1995 study published in the Journal of the American Medical Association found that nicotine levels in the air at work sites with no restrictions on smoking were triple the amount considered hazardous by U.S. regulatory standards. Proponents of the regulations are concerned for the health of the non- smokers, but they also cite many eco- nomic reasons for instituting the indoor air quality regulations nationwide. For example, employers must pay more for health insurance for their employees when their employees smoke or are exposed to ETS. Employers also suffer productivity losses when their employees are sick or disabled due to smoking- related illnesses. Smoking also causes premature deaths in employees, which results in a productivity loss to the employer. When smoking is allowed in the workplace, there is more trash, such as cigarette butts, to clean up. Propo- nents of the smoking regulations also argue that computer equipment, carpets, furniture, and other furnishings need more maintenance and must be replaced more frequently when smoking is per- mitted in the workplace. Finally, employ- ers who are forced to choose between the rights of smoking workers and the rights of nonsmoking workers fear that they will be liable for nonsmoker injuries. For example, under the Americans with Disabilities Act, 104 Stat. 327, if ETS prevents a worker from being able to perform her job, the employer may be responsible for allowing the ETS in the workplace. Oppon ents of the indoor air quality regul ations include restaurant, bar, and hotel owners, trade associations, ciga- rette manufacturers, smokers, and those who seek to protect individual freedom s from gove rnment regulation. Activist organizations that promote smokers’ rights in clude the National Smokers Alliance, the United Smok ers Associa- tion, and the American Puffer Alliance . These groups point out that their numbers are large; in fact, there are approximately 52 million Americans who do not support the crusade to stop smoking. Further, many of these groups stand for principles of tolerance, fair- ness, and inclusion and seek to promote accommodation of the wishes of smo- kers as well as nonsmokers. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 TOBACCO are available today to support their claims. Thus, plaintiffs had a difficult time establishing the essential element of PROXIMATE CAUSE (causal connection to the injury) in their tort cases. By the time of the second wave of tobacco litigation, the connection between smoking and illness had been firmly established, but the tobacco industry was still able to argue with great success that smokers assumed the risks of smoking by freely deciding to smoke. The FCLAA’s requirement that a warning label be placed on all cigarette packaging and advertising supported the tobacco companies’ defenses of contributory negligence and assumption of the risk. During the first two waves of litigation, the tobacco companies were also successful in using their size and financial strength to make litigation as difficult as possible for the Opponents of the regulations argue that exposure to ETS really is not as dangerous to nonsmokers as many antismoker groups contend. In fact, the opponents have scientific research to support their theories. In addition, they attack contrary studies as being statisti- cally flawed and claim that any conclu- sions showing an association between ETS and disease are really due to confounding variables in the studies. Other opponents, particularly restaurant, bar, and hotel owners, reject the pro- posed workplace smoking ban as overly restrictive and likely to lead to a serious financial loss to business owners. Some opponents of the regulations focus on the fact that their freedom to smoke is a liberty interest and a privacy right that is being impinged. A large opponent of the proposed indoor air quality regulations is the Center for Indoor Air Research (CIAR), a nonprofit, independent research orga- nization founded in 1988 by three large tobacco companies. CIAR has been instrumental in providing research results to refute those that suggest that ETS is harmful. A 1992 study conducted by CIAR concluded that moderate amounts of smoking indoors will not interfere with acceptable air quality. CIAR also conducted a study to deter- mine the quantities of ETS that people are actually exposed to in the workplace. Finding that most people are exposed to very little ETS on the job, CIAR con- cluded that the federal government does not need to regulate smoking in the workplace. Another CIAR study that examined workplace smoking policies, ventilation, and indoor air quality con- cluded that the role ETS plays in contributing to poor indoor air quality is very minor, if it plays any role at all. The findings from this study show that OSHA’s proposal to require separate ventilation systems for smoking areas is unnecessarily restrictive. Another CIAR study concerning indoor air quality, published in 1992, and criticized by a congressional subcommittee in 1994 as being flawed due to falsified or fabricated data, concluded that the levels of ETS in “light smoking” rooms were very similar to the levels of ETS in “nonsmoking” rooms within hundreds of different office buildings. In addition to quoting studies con- ducted by CIAR and other tobacco- industry-funded organizations, opponents of the OSHA regulations cite to studies that were not funded by the tobacco industry and thus do not convey the appearance of bias. For example, a 1995 study by the Congressional Research Service (CRS), the research arm of the Library of Congress, found no statisti- cally significant correlation between ETS and lung cancer. Restaurant and bar owners nation- wide fear that the regulations will cause a decline in their business and result in serious financial consequences for them. In fact, these groups can already demon- strate the validity of their fears: studies of restaurants in cities and states that already have smoking bans have shown that these businesses have suffered an average decline of 24 percent in sales. Others argue that banning smoking in the workplace is an infringement of personal rights. Specifically, they argue that workplace smoking bans violate the right to privacy and liberty interests protected by the Constitution. Opponents of the proposed nationwide ban can cite to judicial decisions that hold that federal regulations imposed on smoking employ- ees must have a rational basis related to on-the-job performance. (In Grusendorf v. Oklahoma City, 816 F.2d 539 [10th Cir. 1987], a one-year smoking ban for firefighter trainees was upheld.) Other courts have held that employers cannot prohibit all smoking on their property if a ban violates a collective bargaining agree- ment (Johns-Manville Sales Corp. v. Inter- national Ass’n of Machinists, 621 F.2d 756 [5th Cir. 1980]). In addition, several states have enacted “smokers’ rights laws” that stop employers from regulating off-duty smoking habits of employees and from discriminating against employees or job applicants based on their smoking habits outside the workplace. Opponents of OSHA’ s proposed indoor air quality regulations argue that employers likewise have no right to impinge upon their employees’ freedom to smoke while at work. Smokers also argue that their deci- sion to smoke and the risks involved are no different from other personal lifestyle choices. If smoking is banned in the workplace, then there is no limit as to what other risky, but legal, behaviors may be banned in the workplace. For example, employers could prohibit the consumption of fatty foods. The crux of the issue, argue opponents, is that smoking is a legal activity and smokers should be left alone in deciding which risks they want to take in their lives. CROSS REFERENCES Air Pollution; Employment Law; Environ- mental Law; Privacy; Tobacco. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOBACCO 49 Cipollone v. Liggett Group, Inc. C B ipollone v. Liggett Group, Inc., 693 F. Supp. 208 (D.N.J. 1988), aff’dinpart,rev’dinpart,893 F.2d 541 (3d Cir. [N.J.] 1990), cert. granted, 499 U.S. 935, 111 S. Ct. 1386, 113 L. Ed. 2d 443 (1991), aff ’dinpart, rev’dinpart,505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992), was the first case in which a former smoker re covered monetary damages aga inst the U.S. tobacco industry. It is also considered a landmark tobacco case because of the legal precedent it established. Rose Cipollone smoked cigarettes manufac- tured by defendant Lorillard for 40 years. She started smoking at an e arly age because she thought it was the cool and grown-up thing to do and soon found that she could not stop the habit. Cipollone develope d lung cancer, requiring the removal of her right lung. She died before her case went to trial, but her husband pursued her claims on her behalf. Cipollone brought 14 claims against Liggett Group, Inc., Philip Morris, Inc., and Lorillard, including strict l iability, negligence, breach of warranty, intentional tort, and conspiracy. The intentional tort claims includ ed the al legation that the tobacco companies had fraudulently misrepre- sented that smoking was safe through their advertising and conspired to keep the public from learning about the scientific evidence that clearly demonstrated the health hazards of smoking. The tobacco companies argued that Rose Cipollone knowingly chose to smoke and therefore accepted all of the dangers and health conse- quences associated with it. On the other hand, the tobacco companies vehemently maintained that there is no medical or scientific basis to show that smoking is linked to cancer or other diseases. The Cipollone case lasted ten years and included the filing of 1 00 motions, four interlocutory appeals, four months o f trial, an appeal from the jury verdict, two petitions of certiorari to the U.S. Supreme Court, and argument and then reargument before the Court. Although the jury in the first trial awarded the plaintiff $400,000 in damages, the verdict was ultimately ove rturned on appeal due to technical mistakes, and a retria l was ordere d. By that time, the three legal firms representing the plaintiff had spent colle ctively more than $6.2 million on the case an d could not afford to contin ue. In contrast, the defendants spent $40 million and never had to pay one cent to t he Cipollones. This case made history at the pretri al stage because the court ordered the tobacco industry to release thousands of pages of confidential internal documents that the plaintiff needed to prove that the tobacco industry conspired to prevent the public from being informed of the health hazards of smoking (649 F. Supp. 664). The court also held that, because of the enormous public interest in these doc uments, they could be released to third parties and used in other related cases (113 F.R.D. 86 [D.N.J. 1986]; 822 F.2d 335 [3d Cir. 1987], cert. denied, 479 U.S. 1043, 107 S. Ct. 907, 93 L. Ed. 2d 857 [1987]). However, the defendants were still abl e to protect the most damaging documents by asserting the attorney-client privilege and the work product doctrine (140 F.R.D. 684). Without those damaging documents, the jury rejected the plaintiff’s theories of conspiracy or misrepresentation, but did find in her favor on the claim of breach of the express warranty that cigarettes were safe. Cipollone is also the definitive case regarding the preemption of state tort claims by the Federal Cigarette Labeling and Advertising Act (FCLAA) (79 Stat. 282). The Supreme Court held that the FCLAA preempts state law damage claims that are based on a cigarette manufacturer’sfailureto warn of the health risks of smoking and its neutralization of the federally mandated warnings through advertising techniques, to the extent that those claims rely on omissions or inclusions in the manufacturer’s advertisements or promotions (505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 [1992]). However, the Supreme Court also held that the FCLAA does not preemp t claims that are based on strict liability, negli gent design, express war- ranty, intentional fraud and misrepresentation, or conspiracy. FURTHER READINGS Bajalia, Mark. 1993. “The Supreme Court Renders Its Decision: Federal Preemption, the Cigarette Act and Cipollone.” National Trial Lawyer 5 (May). Fenswick, C.F. 1993. “Supreme Court Takes Middle Ground in Cigarette Litigation.” Tulane Law Review 67 (February). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50 TOBACCO plaintiffs. The tobacco industry filed and argued every conceivable motion, took countless depositions, and sent out exte nsive interrogato- ries. As a result, it was extremely burdensome and expensive for plaintiffs and their attorneys to pursue their cases. The claims in the third wave were based on proven medical theories. First, plaintiffs could demonstrate that tobacco companies knew that nicotine is pharmacologically active and highly addictive but hid that knowledge and, in fact, denied it under oath. Second, plaintiffs could show that tobacco companies manipulated nicotine levels in their products in an attempt to foster addiction in their consumers. Com- mon legal theories used in the third wave of litigation included fraud, intentional and negli- gent misrepresentation, emotional distress, vio- lation of CONSUMER PROTECTION statutes, breach of express and implied warranties, strict liabil- ity, conspiracy, antitrust, negligent performance of a voluntary undertaking, UNJUST ENRICHMENT or INDEMNITY, civil claims under the Federal Racketeer Influenced and Corrupt Organiza- tions (RICO) Act (18 U.S.C.A. §§ 1961 et seq. [1970]), and various criminal theories. The use of class actions proved unsuccessful, as state and federal courts concluded that each smoker’s case was factually unique. For exam- ple, the Florida Supreme Court overturned a class action lawsuit decision that awarded the plaintiffs $145 billion dollars in PUNITIVE DAMAGES .InEngle v. Liggett Group, 945 So. 2d 1246 [2006], the class consisted of Florida citizens and residents, and their survivors, who had suffered, presently suffer, or have died from diseases and other medical conditions caused by their addiction to cigarettes. The Florida Court of Appeals and the Florida Supreme Court concluded that the class should not have been certified because the individual health com- plaints of each PLAINTIFF were unique. Therefore, no single person could fairly represent an “average member” of the group. Damages could not be determined on a class-wide basis because the issue of damages required individualized proof for each plaintiff. Individual smokers were free to pursue their claims but some observers expressed skepticism that many would do so. Their skepticism seemed to be merited, as the hundreds of thousands of potential plaintiffs had been reduced to 8,000 cases filed by January 2009. The first case that went to trial in February 2009 resulted in a jury awarding the plaintiff $8 million dollars in damages. A wave of state reimbursement suits began in 1994, when the state of Mississippi filed an unprecedented lawsuit on behalf of the state’s taxpayers against the tobacco industry to recoup the state’s share of MEDICAID costs incurred as a result of tobacco-related illnesses (Moore v. American Tobacco, No. 94-1429 [Miss. Chan. Ct. 1994]). The state of Mississippi proceeded on legal theories of unjust enrichment and restitu- tion, based on the fact that the state’s taxpayers had been directly injured by the actions of the tobacco industry because they were forced to pay Medicaid costs associated with tobacco- related illnesses. In 1994 the state of Minnesota filed a medical cost reimbursement suit, with the insurance company Blue Cross-Blue Shield of Minnesota as co-plaintiff. When West Virginia filed its medical reimbursement lawsuit, it named as defendants not only tobacco compa- nies, but also the Kimberly-Clarke Corporation, developer of the tobacco reconstitution process that enables tobacco companies to manipulate nicotine levels. In 1995 the state of Florida filed a lawsuit against the tobacco industry under Florida’s Medicaid Third-Party Liability Act, effectively preventing tobacco industry defen- dants from prevailing under defenses of ASSUMP- TION OF RISK and contributory negligence. Texas filed suit, in 1996, and brought claims based in part on the RICO Act and on theories of mail and wire fraud, antitrust violations, and public nuisance. The state of Washington additionally sued the law firm s that had represented the tobacco companies for many years, arguing that they unlawfully helped their clients keep certain documents confidential. Eventually the tobacco companies were forced to seek a national settlement of all state tobacco claims. In 1996 the Brooke Group and Liggett Group, two of the largest U.S. tobacco companies, settled with the states of We st Virginia, Florida, Mississippi, Massachusetts, and Louisiana. This settlement was noteworthy because it represented the end of the tobacco industry’s unified effort to avoid paying out monetary damages. After this settlement the major tobacco companies began intensive negotiations with all 50 state attorneys general. By 1998 the states of Florida, Minnesota, Mississippi, and Texas had negotiated individual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOBACCO 51 settlements worth billions of dollars to each state. The remaining 46 states continued to negotiate with the tobacco companies and, in November 1998, a deal was reached. The key elements of the settlement included the pay- ment to the states of $206 billion over a 25-year period, funding to support research on pro- grams to reduce youth smoking, limitations on advertising and sporting event sponsorship, and a ban on cartoon characters in advertising and “branded” merchandise (e.g., T-shirts). In addition, the companies agreed to disband the TOBACCO INSTITUTE, the Council for Tobacco Research, and the Council for Indoor Air Research. While supposedly neutral, these groups disseminated false information about the safety of tobacco products and lobbied against increased tobacco regulation. The com- panies also agreed to establish a website that would contain all documents produced in state and other smoking and health-related lawsuits. The federal government has pursued a similar course against the tobacc o industry, seeking billions of dollars in damages. The government filed suit, in 1998, asserting that smoking causes cancer and other serious ill- nesses. These illnesses cost the federal govern- ment $25 billion annually in health care claims. It sought to recover more than four decades’ worth of expenses, plus damages. In 2006, a federal district court found that the tobacco companies had violated the RICO act by lying about the health risks of smoking. A lengthy appeal process ensued, with the Court of Appeals for the D.C. Circuit upholding the lower court decision in May 2009. (United States v. Philip Morris Inc., 566 F.3d 1095 [C.A. D.C.2009]). However, the tobacco companies stated that they planned to seek review by the Supreme Court. Despite the national settlement with the states, the tobacco companies continue to defend themselves in lawsuits waged by indivi- duals claiming health problems caused by either smoking or breathing secondhand smoke. In order to obtain the maximum benefit, plaintiffs’ attorneys organize and work together. Plaintiffs also have access to new evidence obtained from internal tobacc o company documents and former tobacco industry researchers to signifi- cantly bolster their cases . For example, the Minnesota Court of Appeals decided in State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676 (Minn. App.2000), that tobacc o company documents could be released to the pu blic. During the initial Minnesota tobacco trial, the judge ordered the companies to release many internal documents. Since the parties settled before a verdict was reached, the tobacco companies sought to prevent public access to the documents given to the plaintiffs. The appeals court ruled that the trial court had properly examined the issues and that the documents could be released to the pu blic. The appeals court also pointed out that many of the documents had already been disseminated publicly. The ruling cleared the way for a massive release of internal documents and indices that would aid other plaintiffs in their pending lawsuits against tobacco companies. FURTHER READINGS Brandt, Allen. 2009. The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product That Defined America. New York: Basic Books. Derthick, Martha. 2004. Up in Smoke: From Legislation to Litigation In Tobacco Politics. 2nd. Ed. Washington, D.C.: CQ Press. Kessler, David. 2002. A Question of Intent: A Great American Battle with a Deadly Industry. New York: Public Affairs. Kluger, Richard. 1996. Ashes to Ashes: America’s Hundred- Year Cigarette War. New York: Knopf. CROSS REFERENCE Tort Law. TOBACCO INSTITUTE The Tobacco Institute (TI) was a public relations and LOBBYING organization that repre- sented the interests of the twelve companies that funded it. Over time the TI came to be perceived as a controversial organization. While the TI maintained that its mission was to increase awareness of the historic role of tobacco and its place in the national economy and to foster understanding of tobacco-related issues, tobacco industry critics charged it with using sophisticated propaganda techniques and high-powered lobbying to manipulate public opinion and public policy. The Tobacco Institute was founded in 1958 by the major U.S. tobacco manufacturers and has an estimated annual budget of more than $20 millio n. It was headquartered in Washing- ton, D.C., and had a staff of 50. The institute’s publications included two ANNUAL REPORTS, Tax Burden on Tobacco and Tobacco Industry Profile. It also published historic, economic, and topical material. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 TOBACCO INSTITUTE The TI was established in response to a growing public health movement in the 1950s against smoking. From its inception, the insti- tute stressed the contribution of tobacco to the U.S. economy and the preservation of tobacco farms. It also stressed the inconclusiveness and inconsistency of antismoking findings and supported the rights of individual smokers to smoke in public places. The TI publicized the research findings of the Council for Tobacco Research, an organization funded by the tobacco companies, which disputed critics’ claims that tobacco has harmful effects and addictive properties. Historically, the TI fought efforts to raise the federal cigarette tax and to label tobacco products as being hazardous to health. For decades TI lobbying efforts in Washing- ton, D.C., proved effective. Aside from inform- ing legislators about tobacco-related issues, the TI made significant political contributions through its POLITICAL ACTION COMMITTEE.In December 1997, it sponsored an all-expense- paid trip to Arizona for members of Congress and their staffs to discuss the proposed $368 billion national tobacco settlement that would compensate states that were suing the tobacco industry for smoking-related HEALTH CARE costs and fund antismoking program s. As part of the November 1998 settlement between the tobacco companies and 46 states, the former agreed to disband the institut e. On January 29, 1999, the Tobacco Institute ceased operations. FURTHER READINGS Glantz, Stanton A., and Edith D. Balbach. 2000. The Tobacco War: Inside the California Battles. Berkeley: Univ. of California Press. Kessler, David. 2002. A Question of Intent: A Great American Battle with a Deadly Industry. New York: PublicAffairs. Kluger, Richard. 1999. Ashes to Ashes: America’s Hundred- Year War, the Public Health, and the Unabashed Triumph of Philip Morris. New York: Random House. Tobacco Institute Website. Available online at http://www. tobaccoinstitute.com (accessed August 27, 2009). CROSS REFERENCES Addict; Surgeon General; Tobacco. v TODD, THOMAS Thomas Todd served as an associate justice of the U.S. Supreme Court from 1807 to 1826. Trained as a land surveyor and as a lawyer, Todd’s handful of opinions on the Court mostly concerned land claims. Todd was born in King and Queen County, Virginia, on January 23, 1765, the youngest of five children. As a teenager, he served briefly in the Revolutionary War before attending Liberty Hall, now called Washington and Lee Univer- sity. Todd studied surveying before moving to Kentucky (which was then part of Virginia) in 1784, after his first cousin, Harry Innes, was appointed to the Kentucky district of the Virginia Supreme Court. Todd was admitted to the Kentucky bar in 1788, but he gained positions of influence by becoming a recorder. Todd married Elizabeth Harris in 1788 and they were the parents of five children. A year after his wife’s death in 1801, Todd married Lucy Payne Washington, the youngest sister of Dolley Madison, a union that resulted in another three children. Todd was the clerk for the ten conventions called between 1784 and 1792 to arrange Kentucky’s separation from Virginia. He served as clerk to the federal district court in Kentucky ▼▼ ▼▼ Thomas Todd 1765–1826 17501750 18001800 18251825 18501850 17751775 ❖ 1765 Born, King and Queen County, Va. 1775–83 American Revolution ◆ 1788 Admitted to Ky. bar 1789–92 Served as clerk to federal district court in Ky. 1792–1799 Served as clerk of the Ky. Court of Appeals 1801–07 Held judgeship on the Ky. Court of Appeals ◆ 1806 Became chief justice of the court 1812–14 War of 1812 1807–26 Served as associate justice of the U.S. Supreme Court ◆ 1812 Wrote opinion in McKim v. Voorhies, which held that a state court could not enjoin the judgment of a federal circuit court ❖ 1826 Died, Frankfort, Ky. ◆ 1783 Graduated from Liberty Hall (now Washington and Lee University) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TODD, THOMAS 53 (1789–1792), clerk of the Kentucky House of Representatives (1792), and clerk of the Kentucky Court of Appeals (1792–1799). When the Kentucky Supreme Court was created in 1799, Todd was named as its first chief clerk. Two years later, he was named as a judge on that court. Todd proved adept at resolving the land disputes created by the complicated law that Kentucky had inherited from Virginia. In 1806 he was named chief judge of the Kentucky Supreme Court but served only briefly in that position. In 1807 the U.S. Supreme Court was expanded to seven members. The western states (i.e., Kentucky, Tennessee, and Ohio) urged President THOMAS JEFFERSON to nominate Todd to the new seat, as the new justice would be responsible for presiding as a judge in the newly established Seventh Circuit. Jefferson agreed and nominated Todd in early 1807. Todd took his seat in 1808. During his time on the Court, Todd served under Chief Justice JOHN MARSHALL. Although they had different political beliefs, Todd adopted Marshall’s views on constitutional construction. Todd’s knowledge of land laws made him a valuable member of the Court, even though he wrote very few opinions. His absence from the Court for six terms because of illness, family matters, and the difficulty of traveling to Washington also diminished his effectiveness. Todd died on February 7, 1826, in Frankfort, Kentucky. FURTHER READINGS Cushman, Clare, ed. 1995. The Supreme Court Justices: Illustrated Biographies 1789–1995. Washington, D.C.: Congressional Quarterly. Lewis, Thomas T., and Richard L. Wilson, eds. 2001. Encyclopedia of the U.S. Supreme Court. Pasadena, Calif.: Salem Press. TOKYO TRIAL After WORLD WAR II, 11 of the Allied Powers (Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, the Soviet Union, the United Kingdom, and the United States) prosecuted 28 of Japan’s top military, political, and diplomatic leaders for an assortment of WAR CRIMES committed in South- east Asia between 1928 and 1945. Known as the Tokyo trial for the city in which it took place, this legal proceeding stands along side the NUREMBERG TRIALS for its contribution to INTERNA- TIONAL LAW and the RULES OF WAR. U.S. involvement in WORLD WAR II formally began on December 8, 1941, when the United States declared war on Japan and formally ended on September 2, 1945, when the Japanese surrendered in Tokyo Bay aboa rd the USS Missouri. For more than a decade before the war, the Japanese military had been expanding its foothold on the Asiatic mainland. During the war itself, Japan invaded or attacked Burma, China, Indochina, the Philippines, Malaysia, Manchuria, Wake Island, Hong Kong, Singa- pore, and the Aleutians, committing an array of atrocities. The Tokyo trial was the Allies’ effort to hold Japan responsible for its crimes during this period of military aggression. The International Military Tribunal for the Far East (IMT) was established on January 19, 1946, by order of General Douglas MacArthu r, the supreme commander of Allied Forces in the South Pacific. MacArthur appointed 11 judge s to preside, one from each of the Allied countries participating in the proceeding. All decisions made by the IMT were by majority vote, with MacArthur retaining plenary power over appeals. Because the vanquished governmen t of Japan consented to the jurisdiction of the IMT, the tribunal avoided some of the murkier legal issues that confronted the judges at Nuremberg who faced repeated challenges to their authority under INTERNATIONAL LAW. Thomas Todd. ETCHING BY ALBERT ROSENTHAL. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 TOKYO TRIAL Each of the participating Allied Powers was represented by a chief PROSECUTOR and a support staff comprised of assistant prosecutors, inves- tigators, and miscellaneous other personnel. The defendants were represented by more than 100 attorneys, three-fo urths Japanese and one- fourth American, plus a support staff of their own. The prosecution began opening state- ments on May 3, 1946, and took 192 days to present its case. The defense opened its case on January 27, 1947, and finished its presentation 225 days later. The IMT delivered its judgment over a period of four days, concluding the trial on November 12, 1948. During 818 public sessions held by the IMT, 230 translators were employed; 419 witnesses gave testimony; 4,336 exhibits were introduced; and more than 53,000 pages of transcript were printed. Although the IMT heard evidence regarding 55 counts of WAR CRIMES, most of the transgres- sions fell into one of three categories: crimes against peace, crimes against humanity, and conventional war crimes. Crimes against peace included the planning, initiating, and waging of “aggressive war, ” which was broadly defined as any hostile military act that violated the territorial boundaries or political independence of a sovereign nation. Crimes against humanity included the MURDER, persecution, and enslave- ment of civilian populations. Conventional war crimes included violations of the international rules and customs of warfare that have been recognized by civilized societies and govern hostilities between combatants, the behavior of occupying powers, and the treatment of prison- ers of war (POWs). The prosecution offered compelling evi- dence that the defendants had violated more than 100 international treaties and committed countless war crimes over the previous 20 years. In particular, the evidence showed that when Japan invaded Nanking, China, in 1937, at least 20,000 women were raped by Japanese soldiers, and at least 100,000 civilians were slaughtered. Thousands of Chinese civilians were captured during the massacre and deported to Japanese labor camps where they were forced to work at gunpoint. Other evidence revealed that the Japanese army had brutally marched 50,000 U.S. POWs across the Bataan Peninsula in 1942, in what became known as the Bataan Death March. Many of these prisoners were underfed, dehydrated, and malnourished, and some were tortured, shot, and buried alive. Additionally, prosecution witnesses gave testimony that U.S., Soviet, Filipino, and Chinese POWs had been used as subjects in barbaric scientific experiments performed in throughout the war Japanese concentration camps. The IMT spent six months reaching judg- ment and drafting its 1,781-page opinion. Nine judges were persuaded by the prosecution’s evidence, and two were not. The judges from France and India wrote separate dissenting opinions. Twenty-five defendants were found guilty of committing war crimes; seven of them were sentenced to death by hanging, 16 to life imprisonment, one to a term of 20 years, and one to a term of seven years. Two defendants died before the proceedings ended, and one was declared incompetent to stand trial by reason of insanity. The highest ranking official prosecuted by the Allies was Hideki Tojo, the prime minister of Japan during the attack on Pearl Harbor in Hawaii in 1941. He was found guilty of waging aggressive war and sentenced to death. Tojo’s predecessor, Kuki Hirota, was prime minister during Japan’s invasion of China in 1937. He was convicted of crimes against humanity and sentenced to death for negligently failing to stop the massacre at Nanking after learning about the terror and carnage in its early stages. HIROHITO, the Japanese emperor during World War II, was spared prosecution as a condition of Japan’s surrender in 1945. Hideki Tojo—the highest ranking official prosecuted by the Allies during the International Military Tribunal for the Far East (aka the Tokyo Trial)—stands in the witness box (far right). AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION TOKYO TRIAL 55 An additional 5,700 Japanese nationals were charged with Class B and C crimes. Most of these crimes related to prisoner abuse during the Japanese occupation of Korea and China. A total of 1,018 of these nationals were acquitted, and 279 were either no t brought to trial or not sentenced. Of the others, 984 were sentenced to death; 475 rece ived life sentences; and 2,944 were given limited prison sentences. Both the Soviet Union and Chinese Com- munist forces also held trials for Japanese war criminals. The Soviets held the Khabarovsk War Crime Trials, which accused members of a Japanese army unit with perpetrating biological and chemical warfare. Twelve members of this unit received prison sentences. FURTHER READINGS Christenson, Ron. 1991. Political Trials in History: From Antiquity to the Present. New Brunswick, N.J.: Transac- tion Press. Landas, Marc. 2004. The Fallen: A True Story of American POWs and Japanese Wartime Atrocities. Hoboken, N.J.: Wiley. Liddell Hart, Basil Henry. 1970. History of the Second World War. New York: Putnam. Maga, Tim. 2001. Judgment at Tokyo: The Japanese War Crimes Trials. Lexington, Ky.: Univ. Press of Kentucky. Minear, Richard H. 2001. Victors’ Justice: The Tokyo War Crimes Trial. Ann Arbor: Center for Japanese Studies, Univ. of Michigan. Pritchard, R. John. 1995. “The International Military Tribunal for the Far East and Its Contemporary Resonances.” Military Law Review 149. CROSS REFERENCE War. TOLL A sum of money paid for the right to use a road, highway, or bridge. To postpone or suspend. For example, to toll a STATUTE OF LIMITATIONS means to postpone the running of the time period it specifies. TONKIN GULF RESOLUTION In August 1964 Congress passed the Tonkin Gulf Resolution (78 Stat. 384), approving and support- ing President Lyndon B. Johnson’s determination to repel any armed attack against U.S. forces in Southeast Asia. Johnson subsequently relied on the measure as his chief authorization for the escalation of the VIETNAM WAR. The resolution was prompted by Johnson’s report to Congress that the North Vietnamese had fired upon two U.S. destroyers in interna- tional waters in the Gulf of Tonkin, off the coast of North Vietnam. Johnson requested that Congress grant him wide PRESIDENTIAL POWERS to respond to the attacks of the North Vietnamese. Both houses of Congress voted overwhelmingly in favor of the resolution; only two senator s opposed it and no representatives. The resolution gave the president power to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” According to the resolution, its purpose was to promote interna- tional peace and security and support the defense of U.S. naval vesse ls lawfully present in international waters from deliberate and repeated attacks by naval units of the commu- nist regime in Vietnam. It was later revealed that the federal government had drafted the Tonkin Gulf Resolution fully six months before the attacks on the U.S. vessels occurred. It was also revealed that the United States provoked the attack by assisting the South Vietnamese in mounting clandestine military attacks against the North Vietnamese. Although the two U.S. vessels attacked were actually on intelligence-gathering missions, the North Vietnamese could not distinguish them from the South Vietnamese raiding ships. Johnson had also exaggerated the gravity of the attack itself, which did not harm either of the ships. Although no formal declaration of war was ever issued for the VIETNAM WAR, the JUSTICE DEPARTMENT and the STATE DEPARTMENT relied on the Tonkin Gulf Resolution as the functional equivalent. Thus, Johnson was able to send U.S. troops to Vietna m without an official war declaration. In early 1965, the Viet Cong raided a U.S. air base in South Vietnam, killing seven Americans. In response to that action, and in accordance with the Tonkin Gulf Resolution, Johnson began a large-scale escalation of U.S. involvement in the Vietnam War. The number of U.S. soldiers in South Vietnam grew from 25,000 in early 1965 to 184,000 by the end of that year. The escalation continued, and by 1968 543,000 U.S. soldiers were in South Vietnam. Although the war initially had widespread support, by 1968 growing numbers of Amer- icans had begun to question Johnson’s decisions to escalate U.S. involvement and to activity protest against it. For a number of reasons, the public felt the president had deceived them. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 56 TOLL In the 1964 presidential elections, Johnson had campaigned on a promise to keep U.S. troops out of the fighting in Vietnam. In addition, the public learned through the release of the Pentagon Papers that the Tonkin Gulf incident was actually instigated by the United States and was not as damaging as the government had suggested. Some CONSTITUTIONAL LAW authorities argued that it was irrelevant whether Cong ress was deceived by the executive in pas sing the Tonkin Gulf Resolution because the resolution provided that Congress could repeal it at any time. In addition, the sch olars argued that Congress had the power to stop appropriating money to support the war effort. In January 1971, Congress repealed the Tonkin Gulf Resolution. President RICHARD M. NIXON continued the war effort, however, by relying on the commander in chief provisions of the U.S. Constitution. Congress continued to appropriate money to support the war effort, which lasted until 1975. FURTHER READINGS Moise, Edwin E. 1996. Tonkin Gulf and the Escalation of the Vietnam War. Chapel Hill: Univ. of North Carolina Press. Nelson, Michael, ed. 2008. The Evolving Presidency: Landmark Documents, 1787–2008. 3d ed. Washington, D.C.: CQ Press. Siff, Ezra Y. 1999. Why the Senate Slept: The Gulf of Tonkin Resolution and the Beginning of America’s Vietnam War. Westport, Conn.: Praeger. CROSS REFERENCES New York Times Co. v. United States; Vietnam War; War; War Powers Resolution. TONTINE An organization of individuals who enter into an agreement to pool sums of money or something of value other than money, permitting the last survivor of the group to take everything. The holders of tontine life insurance con- tracts enter into an agreement to pay premiums for a certain amount of time before they gain the right to acquire dividends. In the event that a policyholder dies during the tontine policy, his or her beneficiary will be entitled to benefits, but no dividends. The earnings that ordinarily would be used to pay dividends are accumulated during the tontine period and subsequently given only to policyholders who are still alive at the end of the term. This type of policy is known as a dividend-deferred policy. A number of states proscribe such policies. TORRENS TITLE SYSTEM The Torrens title system is a system for recording land titles under which a court may direct the issuance of a certificate of title upon application by the landowner. The Torrens title system is a method of registering titles to REAL ESTATE. Real estate that is recorded using this method is also called registered property or Torrens property. The system is used in the British Commonwealth countries, including Canada, and in Europe but has not been widely adopted in the United States. The first U.S. Torrens system was enacted by Illinois in 1897. The system is named after Sir Robert R. Torrens, who introdu ced it in South Australia in 1858 and later lobbied for its adoption in other parts of the country. He wrote several books on the subject, arguing that his system simplified the transfer of real property and eliminated the need for repeated examinations of land titles. Under the traditional system of transferring, or conveying, land, the history of the property in question must be examined to ensure that the seller can convey good title to the purchaser. When property is sold, a deed is filed and recorded with the county land office. The deed contains the names of the seller and the buyer; the ownership relationship of the sellers and buyers, if more than one seller or one buyer is involved (for example, joint tenants or tenants in common); and the legal des cription of the property being transferred. This information is abstracted from each deed and recorded in a document called an ABSTRACT OF TITLE.An attorney or a real estate title examiner inspects each entry to determine that good title has been passed with each transaction. If any problems exist with the title, they must be remedied before the purchaser may obtain good title. A Torrens system does away with this process. A court or bureau of registration operates the system, with an examiner of titles and a registrar as the key officers. The owner of a piece of land files a petition with the registrar to have the land registered. The examiner of titles reviews the LEGAL HISTORY of the land to determine if good title exists. If good title does GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TORRENS TITLE SYSTEM 57 . under INTERNATIONAL LAW. Thomas Todd. ETCHING BY ALBERT ROSENTHAL. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 TOKYO TRIAL Each of the participating. their lives. CROSS REFERENCES Air Pollution; Employment Law; Environ- mental Law; Privacy; Tobacco. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TOBACCO 49 Cipollone v. Liggett Group, Inc. C B ipollone. Cipollone.” National Trial Lawyer 5 (May). Fenswick, C.F. 1993. “Supreme Court Takes Middle Ground in Cigarette Litigation.” Tulane Law Review 67 (February). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50

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