Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P17 pps

Procedure, which were adopted in 1938, elimi- nated the ultimate fact requirement and changed the philosophy behind the plaintiff’s complaint and the defendant’s answer. In place of ultimate facts, rule 8(a) provides that the complaint shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Likewise, the defendant “shall state in short and plain terms” the defenses to the plaintiff’s complaint. The rules do not require that only facts be alleged. Most states have adopted the federal rules in whole or in part, and the need to state ultimate facts in a pleading is no longer of great importance. ULTRA VIRES The term ultra vires, which is Latin for “beyond the powers,” is the doctrine in the law of corporations that holds that if a corporation enters into a contract that is beyond the scope of its corporate powers, the contract is illegal. The doctrine of ultra vires played an important role in the development of corporate powers. Though largely obsolete in modern private corporation law, the doctrine remains in full force for government entities. An ultra vires act is one beyond the purposes or powers of a corporation. The earliest legal view was that an ultra vires act was void. Under this approach a corporation was formed only for limited purposes and could do only what it was authorized to do in its corporate charter. For example, under traditional ultra vires doctrine, a corporation that had as its purpose the manufacturing of shoes could not, under its charter, manufacture motorcycles. This early view proved unworkable and unfair. It permitted a corporation to accept the benefits of a contract and then refuse to perform its obligations on the ground that the contract was ultra vires. The doctrine also impaired the security of title to property in fully executed transactions in which a corpora- tion participated. Therefore, the courts adopted the view that such acts were VOIDABLE rather than void and that the facts should dictate whether a corporate act should have effect. In the motorcycle example under modern corpo- rate la w, the purposes clause would either be so general as to allow the corporation to go into the motorcycle business, or the corporation would amend its purposes clause to reflect the new venture. Over time a body of principles developed that prevented the application of the ultra vires doctrine. These principles included the ability of shareholders to ratify an ultra vires transaction; the application of the doctrine of ESTOPPEL,which prevented the defense of ultra vires when the transaction was fully performed by one party; and the prohibition against asserting ultra vires when both parties had fully performed the contract. The law also held that if an agent of a corpora- tion committed a TORT within the scope of the agent’s employment, the corporation could not defend on the ground that the act was ultra vires. Despite these principles, the ultra vires doctrine was applied inconsistentlyanderratically. Accordingly, modern corporation law has sought to remove the possibility that ultra vires acts may occur. More important, multiple purposes clauses and general clauses that permit corporations to engage in any lawful business are included in the ARTICLES OF INCORPORATION. In addition, purposes clauses can be easily amended if the corporation seeks to do business in new areas. State laws in almost every jurisdiction have also sharply reduced the importance of the ultra vires doctrine. For example, section 3.04(a) of the Revised Model Business Corporation Act, drafted in 1984, states that “the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act.” There are three exceptions to this prohibition: It may be asserted by the corpora- tion or its shareholders against the present or former officers or directors of the corporation for exceedin g their authority, by the attorney general of the state in a proceeding to dissolve the corporation or to enjoin it from the transac- tion of unauthorized business, or by shareholders against the corporation to enjoin the commis- sion of an ultra vires act or the ultra vires transfer of real or PERSONAL PROPERTY. Government entities created by a state are public corporations governed by municipal charters and other statutorily imposed grants of power. These grants of authority are analo- gous to a private corporation’s articles of incorporation. Historically, the ultra vires concept has been used to construe the powers of a government entity narrowly. Failure to observe the statutory limits has been character- ized as ultra vires. In the case of a private business entity, the act of an employee who is not authorized to act on the entity’s behalf may, nevertheless, bind GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 148 ULTRA VIRES the entity contractually if such an employee would normally be expected to have that authority. With a government entity, however, to prevent a contract from being voided as ultra vires, it is normally necessary to prove that the employee actually had authority to act. Where a government emplo yee exceeds her authority, the government entity may seek to rescind the contract based on an ultra vires claim. FURTHER READINGS Greenfield, Kent. 2001. “Ultra Vires Lives? A Stakeholder Analysis of Corporate Illegality.” Virginia Law Review 87 (November). Mizushima, Tomonori. 2001. “The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct.” Denver Journal of International Law and Policy (summer-fall). Pepper, George Wharton. 1895. “The Unauthorized or Prohibited Exercise of Corporate Power.” Harvard Law Review 9 (November). Snodgrass, Frank R. 1995. Dealing with Governmental Entities. New York: Practising Law Institute. CROSS REFERENCES Estoppel; Scope of Employment. UMPIRE A person chosen to decide a question in a controversy that has been submitted to ARBITRA- TION but has not been resolved because the arbitrators cannot reach agreement, or one who has been chosen to be a permanent arbitrator for the duration of a collective bargaining agreement. Arbitration is the submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the decision. Arbitration is quicker, less expensive, and more informal than a court proceeding. Commercial arbitration and labor arbitration are commonplace in the United States. Persons who hear these types of dispute resolution cases are called arbitrat ors and umpires. Umpires are used either to break an impasse in arbitration or to serve as spe- cialized, long-term decision makers. An arbitra tor is a person selected by the parties to hear the dispute. An arbitrator must be mutually agreed upon by the parties and may be named, for example, in a labor-management COLLECTIVE BARGAINING agreement or may be chosen after the dispute has arisen. In labor arbitration a single arbitrator may hear a case, but frequently a three-member arbitration panel hears the dispute. The three members consist of an arbitrator selected by management, another chosen by labor, and a chairperson selected either by the parties or by the two arbitrators appointed by the parties. The arbitrators selected by the parties act like advocates, but the chair- person is expected to be neutral. If the three-person panel cannot agree on a d ecision, the arbitrators may name an umpire to decide the controversy. The umpire acts independently and is vested with the sole authority to decide the issues that have been presented. An umpire is also sometimes used in labor- management grievance proceedings. In this situ- ation a single, permanent umpire is appointed to resolve disputes for the term of the collective bargaining agr eement. The umpire becomes familiar with the economic, financial, and day- to-day working conditions of an industry and may rely on precedents developed by previous umpires. This form of umpire system began in the anthracite coal mining industry in the early 1900s and has been used in other industries, including clothing manufacturing and newspa- per printing. CROSS REFERENCES Alternative Dis pute Resolution; Grievance Procedure; Labor Law; Labor Union. UNAUTHORIZED PRACTICE Unauthorized practice refers to the performance of professional services, such as the rendering of medical treatment or legal assistance, by a person who is not licensed by the state to do so. The unauthorized practice of a profession is prohibited by state laws. Violators of these laws are generally subject to criminal sanctions, but what constitutes unauthorized practice is con- stantly changing and is the subject of dispute. For example, persons opposed to laws that ban the unauthorized PRACTICE OF LAW argue that the legal profession uses these statutes to maintain a monopoly over legal services, many of which can be performed by nonlawyers. The professions have sought the enactment of unauthorized practice statutes in part to protect the public from persons who are not trained to give professional assistance and who may give substandard treatment. The elements of a profession include a rigorous course of training, the certification of compe- tency by a professional society or state agency, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION UNAUTHORIZED PRACTICE 149 state licensure, and an obligation to follow a code of ethics. Based on these elements, the profes- sions and most state legislatures believe that the PUBLIC INTEREST is best served by restricting the performance of medical, legal, and other services to the members of their respective professions. The unauthorized practice of law has become a matter of public debate. Nonlawyers can read law s, interpret laws, draft documents, and proceed in legal matters on their own behalf, but in most states they cannot draft documents for others, give specific legal advice, or appear in court for another person. Nevertheless, most states allow nonlawyers to sell legal forms and general instructions and offer typing services for completing legal documents. Those critical of lawyers co ntend that nonlawyers should be permitted to draft simple legal documents because they can provide their services at a considerably lower price than an attorney. The existence of statutes prohibiting the unauthorized practice of law does not guarantee that those statutes will be enforced, an issue that is a concern to the legal profession. Enforcement is difficult both because proof of the unautho- rized practice of law is difficult to obtain and because many prosecutors place a low priority on pursuing these violations. This situation in law is distinct from, for example, the unautho- rized practice of medicine. Individuals that present themselves as licensed doctors , treating or diagnosing patients, are more likely to face prosecution in a criminal co urt. In 1998, Nolo Press, a Berkeley, California, publisher of popular legal self-help books, found itself the target of the Texas Unauthorized Practice of Law (UPL) committee. This commit- tee, a subcommittee of the Texas SUPREME COURT, claimed that Nolo’s products put individuals at risk because consumers saw Nolo as a legitimate and “official” legal resource. Nolo contended that it was in no way representing itself as a substitute for actual legal advice. The company’s goal was to provide legal information to con- sumers in plain English, thus allowing them to decide whether to seek further advice or handle their legal problems themselves. Nolo sued the UPL, claiming among other things, that the committee’s attempt to bar Nolo publications was in violation of the FIRST AMENDMENT.Nolo was joined in the suit by the Texas Library Association and the American Association of Law Librarians. Numerous organizations criti- cized the UPL committee’s action, including many Nolo customers. In June 1999, the Texas State Legislature passed HB 1507, which exempts self-help legal materials, such as Nolo’s, from UPL prosecution as long as the materials contain disclaimers that they do not constitute actual legal advice. (Nolo’s products had carried such disclaimers for many years.) The case against Nolo was officially dropped on September 21, 1999. A person who has been harmed by relying on the advice of someone not authorized to practice a profession may sue that person in a tort action for damages sust ained. FURTHER READINGS McCullough, Todd. 2003. Crossing the Line: What CPAs Need to Know about the Unauthorized Practice of Law. Dublin, Ohio: Catalyst by the Ohio Society of Certified Public Accountants. Munneke, Gary A. 2003. Law Practice Management in a Nutshell. West Group. CROSS REFERENCE License. UNCONSCIONABLE Unusually harsh and shocking to the conscience; describing something that is so grossly unfair that a court will proscribe it. When a court uses the word unconscionable to describe conduct, it means that the conduct does not conform to the dictates of conscience. In addition, when something is judged uncon- scionable, a court will refuse to allow the perpetrator of the c onduct to benefit. In contract law, an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power. No person who is mentally competent would enter into it, and no fair and honest person would accept it. Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace. Contractual provisions that indicate gross one-sidedness in favor of the seller include provisions that limit damages against the seller, limit the rights of the purchaser to seek relief against the seller in court, or disclaim a WARRANTY. State and federal CONSUMER PROTECTION and CON- SUMER CREDIT laws were enacted to prevent many GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 150 UNCONSCIONABLE of these unconscionable contract provisions from being included in sales contracts. Unconscionability is determined by exam- ining the circumstances of the parties when the contract was made; these circumstances include the bargaining power, age, and mental capacity of the parties. The doctrine is applied only where it would be an affront to the integrity of the judicial system to enforce such contracts. Unconscionable conduct is also found in acts of FRAUD and deceit, where the deliberate MISREPRESENTATION of fact deprives someone of a valuable possession. Whenever someone takes unconscionable advantage of another person, the action may be treated crimin ally as fraud or civilly as deceit. FURTHER READINGS Calamari John D. and Joseph M. Perillo. 2004. Contracts. 4th ed. St. Paul, Minn.: Thomson/West. Farnsworth, E. Allan. 2004. Contracts. 4th ed. New York: Aspen Publishers. CROSS REFERENCES Adhesion Contract; Consumer Protection; Contracts; Sales Law; Shock the Conscience Test. UNDERINCLUSIVENESS Underinclusiveness is a characteristic of a statute or administrative rule dealing with FIRST AMEND- MENT rights, EQUAL PROTECTION rights, and other fundamental liberty interests, whereby the statute prohibits some conduct but fails to prohibit other, similar conduct. An underinclusive law is not necessarily unconstitutional or invalid. The U.S. SUPREME COURT has recognized that all laws are under- inclusive and selective to some extent. If a law is substantially underinclusive, however, it may be unconstitutional. The case of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 [1993]) illustr- ates unconstitutional underinclusiveness. The Church of Lukumi Babalu Aye is a religious sect that practices Santeria, which involves the ritual killing of animals. Shortly after officials of the city of Hialeah, Florida, learned that the church had purchased property in that city, the city passed certain ordinances for the stated purpose of promoting public health and pre- venting cruelty to animals. Because the ordi- nances prohibited the ritual killing of animals, the church’s practice of animal sacrifice was made illegal. According to the Supreme Court, the ordinances infringed on the freedom of the church to practice its religion. Furthermore, the ordinances were so underinclusive in their attempt to promote public health and prevent animal cruelty that they violated the FIRST AMENDMENT to the U.S. Constitution. The ordi- nances failed to punish other, nonreligious conduct that endangered the city’s interest in animal WELFARE, such as fishing or hunting for sport. The ordinances also failed to cover other, nonreligious animal killing that threatened the city’s interest in public healt h. The ordi- nances did not, for example, prevent hunters from bringing animal carcasses to their homes. Ultimately, the Court concluded, the ordinances had “every appearance of a prohibition that society is prepared to impose upon Santeria worshippers but not upon itself.” If a law infringes on constitutionally pro- tected free speech, press, or associational rights, it may be unconstitutionally underinclusive if it is based on the content of the speech or somehow regulates ideas. In R.A.V. v. City of St. Paul (505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 [1992]), the Supreme Court struck down a hate speech ordinance that prohibited “the display of a symbol which one knows or has reason to know ‘arouses anger, alarm or resent- ment in others on the basis of race, color, creed, religion or gender.’” A youth in St. Paul, Min- nesota, had been prosecuted under the ordinance for burning a cross in the yard of an African American family. The Court held that the law was unconstitutionally underinclusive under the First Amen dment because it punished only certain speech addressing particular topics; the law addressed the content, rather than the manner, of the speech. A law is not necessarily invalid just because it is underinclusive. For example, a statute that prohibited the use of loudspeaker systems near a hospital might be underinclusive for failin g to prohibit shouting or the use of car horns in the same area. This type of underinclusiveness concerns only the manner of delivering speech, however, and is therefore more likely to pass constitutional scrutiny than a statute that pro- hibits speech on particular subjects. Underinclusivene ss also arises in the area of EQUAL PROTECTION. An underinclusive remedial GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION UNDERINCLUSIVENESS 151 measure may be attacked on constitutional grounds w hen such a measure is irrational or motivated by a discriminatory purpose. Thus, when a law does not include all citizens who are similarly situated with respect to a rule, and the government has a discriminatory purpose for excluding certain citizens, then the law may be unconstitutionally underinclusive on equal pro- tection grounds. FURTHER READINGS Amar, Vikram David. 2009. The First Amendment, Freedom of Speech: Its Constitutional History and the Contempo- rary Debate. Amherst, N.Y.: Prometheus Books. Smith, Bradley A., and Jason Robert Owen. 2007. “Boundary- based Restrictions in Boundless Broadcast Media Markets: McConnell v. FEC’s Underinclusive Over- breadth Analysis.” Stanford Law and Policy Review. 18. CROSS REFERENCES Discrimination; Hate Crime; Time, Place, and Manner Restrictions. UNDERSTANDING A general term referring to an agreement, either express or implied, written or oral. The nature ofan understanding can beunclear; in order to determine whether a particular understanding would constitute a legally bind- ing contract between the parties involved, the circumstances must be examined to discover whether a meeting of the minds and an intent to be bound occurred. CROSS REFERENCE Meeting of Minds. UNDERTAKING A written promise offered as security for the performance of a particular act required in a legal action. In a criminal case, an underta king of bail is security for the appearance of the DEFENDANT. In the event the defend ant fails to appear, the amount posted as bail is forfeited. An undertaking with adequate security is a bond. The term is used in a general sense to refer to any type of promise or stipulation. UNDERWRITE To insure; to sell an issue of stocks and bonds or to guarantee the purchase of unsold stocks and bonds after a public issue. The word underwrite has two meanings. To issue an insurance policy on the lif e of a person or on property of another is to underwrite that person or property; hence insurance companies are also referred to as underwriters. The other meaning refers to the issuing of stocks or bonds by a corporation or a govern- ment agency to raise capital. The underwriter is a company, often an investment bank, that agrees to sell the SECURITIES. Under its contract with the corporatio n, the underwriter agrees to pay for any unsold shares. An underwriter operates by purchasing all of the new issue of stocks or bonds from the corporation at one price and selling the issue in smaller lots to public investors at a price high enough to cover the expenses associated with the sale and to provide a profit. When making a PUBLIC OFFERING of securities, an underwriter is responsible for setting the offering price. It uses its knowledge of the STOCK MARKET and current interest rates and yields to determine the likely demand for the issue. Typically, an underwriter does not under- write and distribute a security issue alone but instead organizes a syndicate for the venture. Syndicates are often used when the amount of capital sought by a corporation is much larger than a single underwriter cares to risk. By dividing the underwriting of the securities issue, the risk is spread among the various members of the syndicate. The firm that originates the issue acts as manager of the synd icate. If an underwriter cannot organize a syndi- cate large enough to cover the entire issue, it usually will arrange with stock brokerage firms to purchase shares at a reduced price, called a concession. This price reduction provides the brokerage firms with a margin to cover expenses and a small profit upon resale. A corporation selects an underwriter either through private negotiation of a contract or through competitive bidding. In a bidding process, the corporation sets the terms of the issue and then invites potential underwriters to submit bids. The issue is then sold to the highest bidder. UNDUE INFLUENCE A judicially created defense to transactio ns that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 152 UNDERSTANDING Virtually any act of persuasion that over- comes the free will and judgment of another, including exhortations, importunings, insinua- tions, flattery, trickery, and deception, may amount to undue influence. Undue influence differs from duress, which consists of the intentional use of force, or threat of force, to coerce another into a grossly unf air transaction. Blackmail, EXTORTION, bad faith threats of criminal prosecution, and oppressive ABUSE OF PROCESS are classic examples of duress. Four elements must be shown to establish undue influence. First, it must be demonstrated that the victim was susceptible to overreaching. Such conditions as mental, psychological, or physical disability or dependency may be used to show susceptibility. Second, there must be an opportunity for exercising undue influence. Typically, this opportunity arises through a confidential relationship. Courts have found opportunity for undue influence in confidential relationships between HUSBAND AND WIFE, fiancé and fiancée, PARENT AND CHILD, trustee and beneficiary, administrator and legatee, GUARDIAN AND WARD , attorney and client, doctor and patient, and pastor and parishioner. Third, there must be evidence that the defendant was inclined to exercise undue influence over the victim. Defendants who aggressively initiate a transaction, insulate a relationship from outside supervision, or discourage a weaker party from seeking independent advice may be attempting to exercise undue influence. Fourth, the record must reveal an unnatural or suspicious transac- tion. Courts are wary, for example, of testators who make abrupt changes in their last will and testament after being diagnosed with a terminal illness or being declared incompetent, especially if the changes are made at the behest of a beneficiary who stands to benefit from the new or revised testamentary disposition. Nevertheless, courts will examine the facts closely before finding that a transaction has been tainted by undue influence. Mere suspi- cion, surmise, or conjecture of overreaching is insufficient. The law permits loved ones and confidants to advise and comfort those in need of their support without fear of litigation. Courts are also aware that the doctrine of undue influence can be used as a sword by the vindictive and avaricious who seek to invalidate a perfectly legal transaction for personal gain. When undue influence is found to have altered a transaction, however, courts will make every effort to return the parties to the same position they would have occupied had the overreach- ing not occurred. UNEMPLOYMENT COMPENSATION Insurance benefits paid by the state or federal government to individuals who are involuntarily out of work in order to provide them with necessities, such as food, clothing, and shelter. Unemployment compensation for U.S. workers was established by the federal SOCIAL SECURITY ACT OF 1935 (42 U.S.C.A. §§ 301 et seq.). Unemp loyment insurance provides work- ers who have lost their job through no fault of their own with monetary payments for a given period of time or until they find a new job. This compensation is designed to give an unemployed worker time to find a new job that is equivalent to the one lost, without major financial distress. Unemployment compensa- tion is also justified as a way to provide the U.S. economy with consumer spending during an economic downturn. The mass unemployment during the Great Depression of the 1930s led to the enactment of the federal unemployment compensation law. States had resisted establishing their own unemployment compensation plans because the first states to tax employers to fund such a plan would lose business and jobs to other states. Therefore, a federal program was needed. Much of the federal plan was implemented under the Federal Unemployment Tax Act of 1935 (26 U.S.C.A. §§ 3301 et seq.). In 1938, Congress enacted the Railroad Unemployment Insurance Act (42 U.S.C.A. §§ 351 et seq.), which provides unemployment compensation for railroad work- ers who lose their jobs. A combination of federal and state taxes is levied on employers to fund state-administered programs that meet minimum federal stan- dards. Federal funds are also used for adminis- trative costs and to set up employment offices that attempt to match workers with new jobs. Almost all U.S. wage earners are covered by unemployment compensation programs. In general, a tax on employers provides the funds to pay unemployment compensation. An employer who has more than a specified minimum number of employees is ordinarily required to file regular reports that disclose the number of employees and the amount of their GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION UNEMPLOYMENT COMPENSATION 153 wages, including tips. A standard or basic rate is charged against the employer based on the amount of wages paid. If the employer does not lay off employees, the employer will be entitled to a credit. An employer’s record is unaffected if an employee quits or is discharged for good cause. An employer of eight or more persons is permitted to subtract what it pays to the state unemployment compensation fund from its federal unemployment tax. Each state establishes which employers are obligated to pay state unemployment taxes. Ordinarily, a state will require payment of the tax from every individual, partnership, or corporation that pays wages to a specified minimum number of people. Certain types of employment are excluded from mandated coverage, including some agricultural labor, some charitable or nonprofit work, and some government work. Any individual who qualifies under the terms of the state unemployment compensation law is entitled to collect benefits. To be eligible, an individual must have worked for a certain minimum number of weeks and earned wages in at least the amount set by state la w. Certain states will pay reduced benefits where part-time work provides only a small amount of money. Individuals who are self-employed are not entitled to unemployment compensation. A state may not discriminate because of gender or religious beliefs in the awarding of unemployment compensation. In Wimberly v. Labor and Industrial Relations Commission, 479 U.S. 511, 107 S. Ct. 821, 93 L. Ed. 2d 909 (1987), the U.S. SUPREME COURT ruled that no person may be denied compensation solely on the basis of pregnancy or the termination of pregnancy. In Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190 (1987), the Court held that a state may not deny unemployment benefits to a worker who is discharged for refusing to work because of religious beliefs that he or she adopted after becoming employed. Unemployment compensation is paid for a certain number of weeks, with most states granting 26 weeks of benefits. However, during economic recessions the federal government has provided emergency assistance to allow states to extend the time during which individuals can receive benefits. The economic recession of 2008 and 2009 led Congress to extend unemployment benefits. The states are allowed to use money they have deposited in special accounts of the federal Unemployment Trust Fund. For a state to use this emergency benefit system, the unemployment rate usually must reach a designated percentage within the state or the country. An unemp loyed worker is not required to submit proof that he or she needs money or has no other means of support. Anyone who qualifies has a right to collect benefits, because payments are designed to replace part of the wages lost during temporary periods of unem- ployment. Severance pay does not necessarily preclude payment of benefits, but some state laws treat it as earnings for the amount of time such payments cover and do not allow payment of unemployment compensation until that time has expired. Accumulated vacation time, vaca- tion pay, or a leave of absence also postpo ne or prevent the payment of benefits. Ordinarily, state unemployment compensa- tion statutes provide benefits for those who are unemployed because of their employer’s inabil- ity to provide work for them. An employee who is discharged may receive benefits unless he or she was discharged for good cause. Good cause for discharge usually is related to recent ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Reasons for Unemployment, June 2009 a Numbers are in thousands a Numbers are not seasonally adjusted. SOURCE: U.S. Department of Labor, Bureau of Labor Statistics, Employment Situation. Not on temporary layoff Job leavers 778 Permanent job losers 6,294 On temporary layoff 1,503 Reentrants 3,697 Completed temporary jobs 1,397 New entrants 1,425 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 154 UNEMPLOYMENT COMPENSATION misconduct on the job. Misconduct in private life or during off-duty hours may constitute good cause for firing an employee if it affects the person’s work. Carelessness, disregard for the employer’s interest, intoxication, the use of illegal drugs, illegal work slowdowns, use of abusive language, absenteeism, and habitual lateness can be reasons for a discharge and denial of unemployment benefits. An employee who voluntarily leaves em- ployment ordinarily will not qualify for benefits. However, if the employee can show she was a victim of DISCRIMINATION or harassment, then benefits will likely be awarded. Another example is when an employee resigns and gives two weeks’ notice, and the employer angrily tells the person to leave immediately. If the employer does not pay the employee for the two-week notice period, the unemployment agency may treat the separation as a discharge and award benefits. A person who is denied benefits may appeal this determination, first to a state administrative office and then to a court of law. An unemployed worker is required to be available for work. This means that the person must actively seek a new job while collecting benefits. In cases where it appears that the person is not willing and able to work, he or she has no right to receive unemployment compen- sation. Workers who leave a job to find a better job or to attend school are not eligible for benefits. An individual who is too ill to work, who has no means of transportation, or who refuses to accept more than a small amount of work to avoid forfeiting retirement benefits is not regarded as being available for work. Employees who are on strike generally cannot collect unemployme nt compensation. However, individuals may qualify for other types of gov- ernment aid under such circumstances. An individual who is out of work is given no guarantee that he or she will find an attractive and convenient job. If jobs are available, even outside the person’s local area, he or she is required to find one. However, an individual is not disqualified from receiving unemployment compensation merely because he or she has recently moved, except in cases where no employment is available in the new locality. An unemployed worker cannot decline to accept a new job because he or she does not like the wages or hours. A person who refuses to accept a job is no longer entitled to receive unemployment compensation if the job is reasonable and suited to his or her skills. In 200 0 the U.S. DEPARTMENT OF LABOR issued rules that allowed states to provide unemploy- ment compensation benefits to parents after the birth or adoption of a child. An extension of the Family and Medical Leave Ac t of 1993, the new Birth and Adoption Unemployment Compen- sation (BAA-UC) was to be funded by individ- ual state unemployment compensation funds. No states enacted the required legislation, and the Bush administration appealed the rules in 2003. FURTHER READINGS Covington, Robert and Decker, Kurt. 2002. Employment Law in a Nutshell. 2d ed. Saint Paul, Minn.: West Group. 2002. Leslie, Douglas. 2008. Labor Law in a Nutshell. 5th ed. Saint Paul, Minn.: Thomson West. Walters, William. 2000. Unemployment and Government: Genealogies of the Social. New York; Cambridge Univ. Press. CROSS REFERENCES Employment Law; Insurance; Labor Law; New Deal; Old- Age, Survivors, and Disability Insurance; Worker s ’ Com- pensation. UNENUMERATED RIGHTS Unenumerated rights are rights that are not expressly mentioned in the written text of a Duration of Unemployment, June 2009 a Numbers are in thousands a Numbers are not seasonally adjusted. SOURCE: U.S. Department of Labor, Bureau of Labo r Statistics, Employment Situation. 27 weeks and over 4,218 Less than 5 weeks 3,899 15 to 26 weeks 3,329 5 to 14 weeks 3,648 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION UNENUMERATED RIGHTS 155 constitution but instead are inferred from the language, history, and structure of the constitu- tion, or cases interpreting it. Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. SUPREME COURT under the U.S. Constitution. In addition, STATE COURTS have recognized unenumerated rights emanating from the princ iples enunciated by their own state constitutions. No compreh en- sive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated. The NINTH AMENDMENT to the U.S. Constitu- tion states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” However, the ame ndment has never been interpreted by the Supreme Court as a source of rights. Instead, it has been viewed as a way to protect against the denial of funda- mental rights because they were not specifically mentioned in the Constitution. Nevertheless, a partial list of unenumerated rights might in clude those specifically recog- nized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an ABORTION, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In Washington v. Glucksb erg (117 S. Ct. 2258 [1997]), the Supreme Court ruled that there is no unenumerated constitutional right to die. However, in Troxel v. Glanville (530 U.S. 57 [2000]), the Court reaffirmed that there is an unenumerated right for parents to make deci- sions concerning the care, CUSTODY, and control of their children. Unenumerated rights commonly are de- rived through a reasoned elaboration of express constitutional provisions. The FIRST AMENDMENT, for example, guarantees FREEDOM OF SPEECH but says nothing about the nature of the speech protected. Through the process of interpreta- tion, the Supreme Court has held that the free speech clause protects both verbal and nonver- bal expression, as well as communicative con- duct. The right to engage in offensive symbolic expression, such as flag burning, forms an essential part of the freedoms contemplated by the First Amendment, freedoms that are integral to maintaining an open and democratic society (Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). Judicial protection of such unenumerated rights, the Court has reasoned, helps establish a penumbra or buffer that insulates expressly enumerated liberties from governmental encroachment. Courts are ordinarily reluctant to recognize new unenumerated rights. Most judges are sensitive to accusations of inventing new liber- ties out of whole cloth. Critics charge that judges who recognize new unenumerated rights are imposing their personal values on the law, rather than faithfully interpreting the text of the Constitution. The role of judges, these critics contend, is solely to apply the law, whereas only legislators are empowered to make new law through the exercise of value-laden judgments. The Supreme Court has attempted to deflect such criticism by relying on history as justifica- tion for its decisions recognizing certain une- numerated rights. For example, the Fifth and FOURTEENTH AMENDMENTS to the U.S. Constitu- tion prohibit the government from depriving any person of life, liberty, or property without “due process of law.” Yet the amendments do not define “due process,” nor do they address issues such as how much process is due during a given legal proceeding. Although the Supreme Court has interpreted this provision to require procedural fairness in civil and criminal liti- gation, each procedural right the Court has recognized is technically unenumerated because the DUE PROCESS CLAUSE offers no hints as to what legal procedures it contemplates. In criminal cases the Supreme Court has held that the due process clause guarantees every DEFENDANT the right to be presumed innocent by the trier of fact, either a judge or a jury, until proved guilty beyond a reasonable doubt by the government (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). In reaching this decision, the Supreme Court stated that the REASONABLE DOUBT and PRESUMPTION OF INNOCENCE standards have been associated with the concept of due process since early colonial times. By citing history and tradition as the basis for many of its controversial decisions, the Supreme Court provides an answer to its critics who claim that unenumerated rights have no basis other than personal predilections of the judges who recog- nize them. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 156 UNENUMERATED RIGHTS FURTHER READINGS Dworkin, Ronald M. 1992. “Unenumerated Rights: Whether and How Roe Should Be Overruled.” Univ. of Chicago Law Review 59 (winter). Helscher, David. 1994. “Griswold v. Connecticut and the Unenumerated Right of Privacy.” Northern Illinois Univ. Law Review 15 (fall). Prince, Charles O. 2005. Purpose of the Ninth Amendment to the Constitution of the United States: Protecting Une- numerated Rights. Lewiston, N.Y.: Edwin Mellen Press. CROSS REFERENCES Bill of Rights; Due Process of Law; Fourteenth Amendment; Judicial Review. UNETHICAL CONDUCT Behavior that falls below or violates the profe s- sional standards in a particular field. In law, this can include ATTORNEY MISCONDUCT or ethics viola- tions. The standards for conduct to be observed by attorneys can be found in the Code of Professional Responsibility; members of the judiciary adhere to those found in the Canons of Judicial Ethics. UNFAIR COMPETITION Any fraudulent, deceptive, or dishonest trade practice that is prohibited by statute, regulation, or the COMMON LAW. The law of unfair competition serves five purposes. First, the law seeks to protect the economic, intellectual, and creative investments made by businesses in distinguishing themselves and their products. Second, the law seeks to preserve the good will that businesses have established with consumers. Third, the law seeks to deter businesses from appropriating the good will of their competitors. Fourth, the law seeks to promote clarity and stability by encouraging consumers to rely on a merchant’s good will and reputation when evaluating the quality of rival products. Fifth, the law seeks to increase competition by providing businesses with incentives to offer better goods and services than others in the same field. Although the law of unfair competition helps protect consumers from injuries caused by deceptive trade practices, the remedies provided to redress such injuries are available only to business entities and proprietors. Con- sumers who are injured by deceptive trade practices must avail themselves of the remedies provided by state and federal CONSUMER PROTEC- TION laws. In general, businesses and proprietors injured by unfair competition have two reme- dies: injunctive relief (a court order restrainin g a competitor from engaging in a particular fraudulent or deceptive practice) and money damages (compensation for any losses suffered by an injured business). General Principles The freedom to pursue a livelihood, operate a business, and otherwise compete in the market- place is essential to any free enterprise system. Competition creates incentives for businesses to earn customer loyalty by offering quality goods at reasonable prices. At the same time, compe- tition can also inflict harm. The freedom to compete gives businesses the right to lure customers away from each other. When one business entices enough customers away from competitors, those rival businesses may be forced to shut down or move. The law of unfair competition will not penalize a business merely for being successful in the marketplace. Nor will the law impose liability simply because a business is aggressively marketing its product. The law assumes, how- ever, that for every dollar earned by one business, a dollar will be lost by a competitor. Accordingly, the law prohibits a business from unfairly profit- ing at a competitor’s expense. What constitutes unfair competition varies according to the CAUSE OF ACTION asserted in each case. These include actions for the infringement of PATENTS, TRADE- MARKS , and copyrights; actions for the wrongful appropriation of TRADE DRESS, trade names, trade secrets, and service marks; and actions for the publication of defamatory, false, and misleading representations. Interference with Business Relations No business can compete effectively without establishing good relationships with its emplo- yees and customers. In some instances parties execute a formal written contract to memorialize the terms of their relationship. In other instances business relations are based on an oral agree- ment. Most often, however, business relations are conducted informally with no contract or agreement at all. Grocery shoppers, for example, typically have no contractual relationship with the supermarkets they patronize. Business relations are often formalized by written contrac ts. Merchant and patron, em- ployer and employee, labor and management, wholesaler and retailer, and manufacturer and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION UNFAIR COMPETITION 157 . The elements of a profession include a rigorous course of training, the certification of compe- tency by a professional society or state agency, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION UNAUTHORIZED. specified minimum number of employees is ordinarily required to file regular reports that disclose the number of employees and the amount of their GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION UNEMPLOYMENT. OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION UNENUMERATED RIGHTS 155 constitution but instead are inferred from the language, history, and structure of