Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P40 docx

WHEREBY By or through which; by the help of which; in accordance with which. For example, in the promissory note clause “whereby he promised and agreed for value received to pay,” the term whereby is equivalent to the phrase and by it. WHEREFORE For which reason. The term wherefore is frequently used in an averment (a positive statement of fact set out in the pleadings that must be filed with a court by the parties to a legal action)—for examp le, “wherefore the defendant says that such con- tract was and is void. ” WHIG PARTY Whig Party was a name applied to political parties in England, Scotland, and America. Whig is a short form of the word whiggamore,a Scottish word once used to describe people from western Scotland who opposed King Charles I of England in 1648. In the late 1600s, Scottish and English opponents of the growing power of royalty were called Whigs. The Whigs maintained a strong position in English politics until the 1850s, when the Whig progressives adopted the term Liberal. In the American colonies, the Whigs were those people who resented British control, favored independence from Britain, and supported the Revolutionary War. The term was first used in the colonies around 1768. The term Whig fell into disuse after the colonies won their independence. However, political opponents of Democratic President ANDREW JACKSON revived the term in the 1830s. After Jackson soundly defeate d a field of challengers representing an array of political parties in 1832, many of these challengers began coordinating their efforts under the Whig Party name. The Whig Party included former National Republicans, conservative factions of the DEMOCRATIC-REPUBLICAN PARTY, and some former members of the An ti-Masonic Party. By 1834 the Whigs were promoting their party as an alternative to the policies of “King Andrew” Jackson, whose administration they compared to the unpopular reigns of English Kings James II (1633–1701) and George III (1760–1820). Often united by little more than their distaste for Jackson’s administration and their desire to oust the DEMOCRATIC PARTY from the White House, the Whigs struggled to define their platform. Whigs generally criticized the growth of executive power, a development they associated with Jackson’s use of civil-service patronage, also known as the “spoils system,” by which government officials were replaced solely on partisan grounds instead of merit. Many Whigs who came from an evangelical Protestant background encouraged a variety of moral reforms, condemning Jackson’s some - times brutal and ARBITRARY treatment of Native American Tribes and militant quest for territo- rial expansion. The Whig Party nominated four unsuccess- ful candidates for president in the election of 1836, WILLIAM HENRY HARRISON from Ohio, DANIEL WEBSTER from Massachusetts, Hugh Lawson White from Tennessee, and Willie Person Mangum from North Carolina. Democrat MARTIN VAN BUREN won the election with 58 percent of the vote, while Harrison received 25 percent, White received 8.9 percent, Webster 4.7 percent, and Mangum 3.7 percent. The Whigs simplified and consolidated their ticket in 1840, again offering Harrison for president and JOHN TYLER for vice president. The Whigs triumphed, but Harrison died after one month in office, and Vice President Tyler, who had once been a Jacksonian Demo- crat, acceded to the presidency. Tyler embit- tered the Whigs by vetoing congressional bills that sought to restore the BANK OF THE UNITED STATES , abolished by Jackson, and by opposing their plan to redistribute the pro- ceeds from the sale of public lands. Most of Tyler’s cabinet immediately resigned in protest, and his membership in the party was withdrawn. In 1844 the Whig Party nominated HENRY CLAY from Kentucky for president. In the ensuing campaign Clay refused to take a definite stand on the Texas annexation issue. This choice provoked northern abolitionists, who opposed the admission of Texas to the Union as a slave state, to support the little-known Liberty Party candidates, James Gillespie and Thomas Morris. The Whig split ensured victory for the Democratic candidate, JAMES K. POLK. Once the Mexican War (1846–1848) had been declared, controversy over allowing or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 378 WHEREBY forbidding slavery in the territories acquired during the war further splintered the party. Antislavery Whigs from Massachusetts, known as Conscience Whigs, opposed the so-called Cotton Whigs in the pro-slavery southern states. Despite the division, the Whig Party, w ith the popular general ZACHARY TAYLOR as its candidate, was successful in the presidential election of 1848. The divi sions resurfaced, however, when Taylor declared his opposition to Clay ’s proposal to end the deadlock over the admission of California to statehood. Before the stalemate could be resolved, Taylor died. His successor, MILLARD FILLMORE, helped push Clay’s compromise through Congress in 1850. The COMPROMISE OF 1850 (a series of laws passed by Congress to settle the issues arising from the deepening section conflict over slavery) only served to intensify the divisions within the party. Southerners and conservative northerners who supported the compro mise refused to cooperate with the northerners who opposed it. Consequently, the election of 1852 resulted in the overwhelming defeat of the Whig candidate, General Winfield Scott. Many sup- porters of the compromise subsequently be gan leaving the party. Southern Whig support for the KANSAS- NEBRASKA ACT of 1854 (a law that created the territories of Kansas and Nebraska and gave both territories the power to resolve the issue of slavery for themselves) convinced most north- ern Whigs to abandon the party, and by the end of that year the party had essentially disbanded. Many voters who abandoned the Whig Party initially joined the so-called KNOW-NOTHING PARTY . Most northern Whigs, however, eventu- ally joined the newly formed REPUBLICAN PARTY. In the South, most of the Whigs w ere soon absorbed by the Democratic Party. In 1856, a small Whig convention backed Millard Fill- more, the unsuccessful Know-Nothing candi- date for the presidency. FURTHER READINGS The Great Fraud upon the Public Credulity in the Organiza- tion of the Republican Party upon the Ruins of the Whig Party. 2006. Ann Arbor, MI: Scholarly Publishing Office, Univ. of Michigan Library. Holt, Michael F. 1999. The Rise and Fall of the American Whig Party. New York: Oxford Univ. Press. Howe, Daniel Walker. 1984. The Political Culture of the American Whigs. Chicago: Univ. of Chicago Press. WHISKEY REBELLION In 1794 thousands of farmers in western Pennsylvania took up arms in opposition to the enforcement of a federal law calling for the imposition of an excise tax on distilled spirits. Known as the “Whiskey Rebellion,” this insurrection represented the largest organized resistance against federal authority between the American Revolution and the CIVIL WAR. A number of the whiskey reb els were prose- cuted for TREASON in what were the first such legal proceedings in the United States. Congress established the excise tax in 1791 to help reduce the $54 million national debt. The tax was loathed across the country. For a small group of farmers west of the Allegheny Mountains, the federal excise tax was singularly detestable. Bartering was the chief means of exchange in this frontier economy, and distilled spirits were the most commonly traded com- modity. Cash was a disfavored currency in The Whig Party nominated General Zachary Taylor and Millard Fillmore as candidates for president and vice president in the 1848 election. LITHOGRAPH WITH WATERCOLOR BY NATHANIEL CURRIER. LIBRARY OF CONGRESS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION WHISKEY REBELLION 379 western Pennsylvania during the late eighteenth century, but whiskey, especially Monongahela Rye, was as valuable as gold. Whiskey was considered an all-purpose liquor, with locals using it for cooking and medicine, and drinking it at social occasions, among other uses. By modern standards the excise tax of 1791 does not seem oppressive. Distillers were taxed based on the size of their stills. Stills with the capacity to annually produce at least 400 gallons of whiskey were taxed between 7 and 18 cents per gallon, depending on the proof of the liquor. Distillers who made stronger whiskey paid a higher tax. Smaller stills were taxed at a rate of 10 cents for every month a still was in operation, or 7 cents for every gallon produced, whichever was lower. Based on these rates, the average distiller was required to pay only a few dollars in liquor tax each year. But even an annual tax of $5 would have consumed a large percentage of the disposable income earned by farmers in the barter-based economy of western Pennsylvania. The rebellion began in Pittsburgh during October of 1791 when a group of disguised farmers snatched a federal tax collector from his bed, and marched him five miles to a blacksmith shop where they stripped him of his clothes, and burned him with a poker. Over the next three years dozens of tax collectors were beaten, shot at, tarred and feathered, and otherwise terrorized, intimidated, and humili- ated. The home and plantation of John Neville, the chief tax collector for southwestern Penn- sylvania, were burned to the ground. By 1794 the excise tax lay largely uncollected in western Pennsylvania. The national debt was rising, and respect for federal authority was waning. Rebel forces had swelled to 5,000 . In October President GEORGE WASHINGTON dis- patched 15,000 troops to quell the resistance. Led by ALEXANDER HAMILTON, Washington’s SECRETARY OF STATE, the federal troops met little opposition. Within a month, most of the rebels had dispersed, disavowed their cause, or left the state. Keeping a few soldiers in western Pennsylvania to maintain order, the federal army departed for Philadelphia, having arres ted more than 150 people suspected of criminal activity. In May of 1795 the Circuit Court for the Federal District of Pennsylvania indicted 35 defendants for an assortment of crimes associ- ated with the Whiskey Rebellion. One of the defendants died before trial began, one defen- dant was released because of mistaken identity, and nine others were charged with minor federal offenses. Twenty-four rebels were charged with serious federal offenses, including high treason . Two men, JOHN MITCHELL and Philip Vigol, were found guilty of treason, and sentenced to hang. Seventeen defendants were convicted of lesser crimes, and sentenced to prison terms of various lengths. Upon learning that none of the convicted rebels were princi- pally responsible for instigating the armed resistance, Washington pardo ned each of them. By extinguishing the Whiskey Rebellion, the U.S. government withstood a formidable chal- lenge to its sovereignty. Preceded by SHAYS’S REBELLION in 1786, and followed by FRIES’S A government inspector is tarred and feathered during the Whiskey Rebellion, which took place in western Pennsylvania in 1794. BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 380 WHISKEY REBELLION REBELLION in 1799, the Whi skey Rebellion is distinguished by its size. While all three rebellions were motivated by their opposition to burdensome taxes, neither Daniel Shays nor John Fries ever gathered more than a few hundred supporters at any one time. On at least one occasion, as many as 15,000 men and women marched on Pittsburgh in armed opposition to the federal excise tax on whiskey. The Whiskey Rebellion also occupies a distinguished place in American JURISPRUDENCE. Serving as the backdrop to the first treason trials in the United States, the Whiskey Rebellion helped delineate the parameters of this consti- tutional crime. Article III, Section 3 of the U.S. Constitution defines treason as “levying War” against the United States. During the trials of the two men convicted of treason, Circuit Court Judge WILLIAM PATERSON instructed the jury that “levying war” includes armed opposition to the enforcement of a federal law. This interpretation of the Treason Clause was later applied during the trial of John Fries, and remains valid in the early twenty-first century. FURTHER READINGS Baldwin, Leland. 1939. Whiskey Rebels: The Story of a Frontier Uprising. Pittsburgh: Univ. of Pittsburgh Press Frear, Ned. 1999. The Whiskey Rebellion. Bedford, PA: Frear Publications. Hogeland, William. 2006. The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America’s Newfound Sovereignty. New York: Scribner’s. WHISTLEBLOWING The disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing. Since the 1960s, the public value of whistleblowing has been increasingly recognized. For example, federal and state statutes and regulations have been enacted to protect whistleblowers from various forms of retaliation. Even without a statute, numerous decisions encourage and protect whistleblowing on grounds of PUBLIC POLICY. In addition, the federal False Claims Act (31 U.S.C.A. § 3729) will reward a whistleblower who brings a lawsuit against a company that makes a false claim or commits FRAUD against the government. Persons who act as whistleblowers are often the subject of retaliation by their emplo yers. Typically, the employer will discharge the whistleblower, who is of ten an at-will employee. An at-will employee is a person without a specific term of employment. The employee may quit at any time, and the employer has the right to fire the employee without having to cite a reason. However, courts and legislatures have created exceptions for whistleblowers who are at-will employees. Whistleblowing statutes protect from dis- charge or DISCRIMINATION an employee who has initiated an investigation of an employer’s activities or who has otherwise cooperated with a regulatory agency in carrying out an inquiry or the enforcement of regulations. Federal whistle- blower legislation includes a statute protecting all government employees, 5 U.S.C.A. §§ 2302 (b)(8), 2302(b)(9). In the federal CIVIL SERVICE, the government is prohibited from taking , or threatening to take, any personnel action against an employee because the employee disclosed information that he or she reasonably believed showed a violation of law, gross mismanage- ment, gross waste of funds, abuse of authority, or a substantial and specific danger to public safety or health. In order to prevail on a claim, a federal employee must show that a protected disclosure was made, that the accused official knew of the disclosure, that retaliation resulted, and that there was a genuine connection between the retaliation and the employee’s action. Many states have enacted whistleblower statutes, but these statutes vary widely in coverage. Some statutes apply only to public employees, some apply to both public and private employees, and others apply to public employees and employees of public contractors. FBI agent Coleen Rowley blew the whistle on the agency, accusing bureau headquarters of mishandling an investigation of Zacarias Moussaoui, a man believed to have conspired with hijackers in the September 11, 2001, terrorist attacks. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION WHISTLEBLOWING 381 Some statutes cover a broad array of circumstances, such as those that apply to federal employees and prohibit employers from dismissing workers in reprisal for disclosing information about, or seeking a remedy for, a violation of law, gross mismanagement, gross waste of funds, abuse of authority, or a specific danger to public safety and health. Other statutes are narrow in scope, such as one that limits the prote ction of public and private employees to retaliation for reporting possible violations of local, state, or federal environmen- tal statutes. A whistleblower statute may also limit protection to discussions of agency opera- tions with member s of the legislature or to disclosure of information to legislative commit- tees or courts. In whistleblower cases, states follow their general rules for determining whether a public policy CAUSE OF ACTION exists in favor of the employee. Therefore, in states in which WRONG- FUL DISCHARGE actions must have a statutory (legal) basis, the case will be dismi ssed if the employer did not violate a statutorily enacted public policy. In many cases, the courts have refused to recognize a whistleblower’s claim because no clearly mandated statutory policy has been identified. In addition, employees who blow the whistle on matters that affect only private interests (e.g., complaints about internal corporate policies) will generally be unsuccess- ful in maintaining a cause of action for discharge in violation of public policy. Under the federal False Claims Act, any person with knowledge of false claims or fraud against the government may bring a lawsuit in his own name and in the name of the United States. As long as the information is not publicly disclosed, and the government has not already sued the DEFENDANT for the fraud, the whistle- blower, who is called a “relator ” in this action, may bring a False Claims Act case. The relator files the case in federal court under seal (i.e., in secret) and gives a copy to the government. The government then has 60 days to review the case and decide whether it has merit. If the government decides to join the case, the case is unsealed, a copy is served on the defendant, and the government and the relator work together in the case as co-plaintiffs. If the government declines to join the suit, the relator may proceed alone. In a successful False Claims Act case, the relator will receive at least 15 percent, but not more than 25 percent, of the proce eds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prose- cution of the action. In the early 1990s, commentators were claiming that men were more likely than women to blow the whistle on improper conduct. Some analysts suggested the reason for this perception was that men seem to seek financial gain for whistleblowing. During the early 2000s, however, a number of women became involved in high-profile acts of whistleblowing—for reasons other than fame and fortune. In 2001 Sherron Watkins, a vice president at Enron Corporation, informed the company’s board that Enron’s accou nting practices were improper. Enron later suffered a major collapse—largely as a result of its accoun ting practices—that led to the company’s BANKRUPTCY and to the INDICTMENT of the company’s auditor and chief financial officer. The following year, Cynthia Cooper, an auditor with WorldCom, told the company’s board that WorldCom had covered up major losses of $3.8 billion through false bookkeeping. Like Enron, the accounting failures led to WorldCom’s bankruptcy. During the same year, Coleen Rowley, an FBI staff attorney for more than 20 years, sent a letter to FBI director Robert Mueller, indicating that the FBI’s national headquarters had mishandled an investigation of Zacarias Moussaoui, who was later believed to be a co-consp irator in the SEPTEMBER 11, 2001, TERRORIST ATTACKS. Rowley later spoke before the intelligence committees of the HOUSE OF REPRESENTATIVES and the SENATE about her accusations. Time magazine dubbed 2002 the “Year of the Whistleblower,” and named Watkins, Cooper, and Rowley as its “Persons of the Year.” Their stories fueled the observation that women are more likely to become whistle- blowers not for the potential for fame and financial gain, but out of a sense of duty. Although Watkins, Cooper, and Rowley were each subjected to harsh treatment by their respective employers following their disclosures, they became national celebrities by “speaking up when no one else would.” In response to the Enron and WorldCom scandals, Congress enacted the SARBANES-OXLEY ACT OF 2002. The legislation focused on GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 382 WHISTLEBLOWING improving corporate governance and accounting independence for publicly traded companies. However, the act also increased whistleblower protection in three areas. Publicly held compa- nies are now required to have established procedures for receiving reports of anonymous whistleblowers. Once a report is received, the company and anyone it employs or contracts with may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee.” Finally, the act made it a criminal offense to retaliate against a whistleblower. In a significant w histleblower decision , the U.S. SUPREME COURT held in 2006 that the FIRST AMENDMENT provides no protection for public employees from employer discipline when they speak out in the course of their official duties. The ruling in Garcetti v. Ceballos , 547 U.S. 410,126 S.Ct. 1951, 164 L. Ed. 2d 689 (2006) stated that restricting employee free speech rights reflected the “exercise of employer control over what the employer itself has commissioned or created.” The Court believed that employers had a strong interest in control- ling the speech of employees, for “official communications have official consequences.” To rule otherwise would draw state and federal courts into the oversight of intern al government speech controversies between supervisors and employees. This “displacement of managerial discretion by judicial supervision” was not supported by prior cases. However, the Court made clear that public employees co uld be protected by the First Amendment if they communicated their concerns in a public forum, such as in a letter to the editor of a newspaper. In addition, employers could not seek to restrict employees’ rights by crafting broad job descriptions that would cover a broad range of professional duties. Critics contended that this decision was the greatest setback to whistleblowing in a generation. Government employees would be more reluctant to bring problems to the attention of their superiors. Some members of Congress also objected to the decision and introduced the Whistleblower Protection Act of 2007 to overturn the ruling. The Bush Administration opposed the legislation, which passed the House of Representatives. The act died in the Senate b ut was reintro- duced in 2009. FURTHER READINGS Cooper, Cynthia. 2009 Extraordinary Circumstances: The Journey of a Corporate Whistleblower. New York: Wiley. Johnson, Roberta Ann. 2004. The Struggle against Corrup- tion: A Comparative Study. New York: Palgrave Macmillan. West, Robin. 2009. Advising the Qui Tam Whistleblower: From Identifying a Case to Filing under the False Claims Act. 2d ed. Chicago: American Bar Association. CROSS REFERENCES Employment at Will; Employment Law. v WHITE, BYRON RAYMOND Byron Raymond Whit e sat on the U.S. Supreme Court as an associate justice from 1962 to 1993. White had an eclectic career: He was a college and professional football star during the 1930s and 1940s and an assistant attorney general under ROBERT F. KENNEDY from 1960 until 1962, the year his friend President JOHN F. KENNEDY appointed him to the Supreme Court. As a justice, White charted a pragmatic and low-key course on the bench: He enunciated no single judicial philosophy, although judicial restraint sometimes appeared as a feature of his reason- ing. For part of his career he was seen as a moderate. Toward the end, however, he voted conservatively on social issues such as ABORTION, AFFIRMATIVE ACTION, and GAY AND LESBIAN RIGHTS. Born on June 8, 1917, in Fort Collins, Colorado, White was the son of working class parents. Neither of White’s parents had gradu- ated from high school, but they stressed education. White won a scholars hip that the University of Colorado awarded to the valedic- torian of every high school class in the state. A junior Phi Beta Kappa, he graduated from the University of Colorado in 1938 at the top of his class and won a Rhodes scholarship to Oxford University in England. He was also elected student body president and the most popular man on campus, and was the only candidate for the highest honor at graduation, “cane-bearer.” But he was better known as an athlete. In 1937 he became the premier running back in college football. So accomplished was “Whizzer” White on the gridiron that when he threatened not to play in the Cotton Bowl—because it would interfere with his studying—the state’s governor intervened in order to convinc e him to play. He graduated in 1938 as class valedictorian. THE COURT IS MOST VULNERABLE AND COMES NEAREST TO ILLEGITIMACY WHEN IT DEALS WITH JUDGE -MADE CONSTITUTIONAL LAW HAVING LITTLE OR NO COGNIZABLE ROOTS IN THE LANGUAGE OR DESIGN OF THE CONSTITUTION. —BYRON R. WHITE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITE, BYRON RAYMOND 383 White’s journey to the bench was not direct. In 1939, he accepted a Rhodes Scholarship to study at Oxford University in England, where he became a lifelong friend of John F. Kennedy. He subsequently played in the National Football League and led the league in rushing while also studying law at Yale University, where he graduated with high honors in 1946. During WORLD WAR II White joined the U.S. Navy and served in the Pacific. After the war, he clerked for Chief Justice FRED M. VINSON from 1946 to 1947. For the next 13 years, White practiced law in Denver, Colorado. His organizational support for the presidential candidacy of John F. Kennedy led to his being appointed second in charge of the JUSTICE DEPARTMENT in 1960. After two years of selec ting judges and helping steer the department’s support of the CIVIL RIGHTS MOVEMENT , White was nominated to the Supreme Court to fill the vacancy created by the resignation of Justice CHARLES WHITTAKER. White’s tenure on the Court was marked by judicial pragmatism and unpredictability. Defy- ing expectations that he would be a centrist, White swayed between liberal and conservative positions. He consistently supported the consti- tutionality of CIVIL RIGHTS reforms during the mid-1960s in cases dealing with VOTING RIGHTS. Thirty years later, he continued to take a firm stance on the issue of SCHOOL DESEGREGATION:in 1992 he wrote the majority opinion in U.S. v. Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992), which ordered Mississippi to take additional steps to desegregate its state colleges. White’s tendency to vote conservatively also became apparent early in his tenure on the Court. In 1966, he dissented from the Court’s decision in MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), which established the so-called Miranda Rule requir- ing police officers to read arrested persons their constitutional rights. Believing that it would only weaken the ability of the police to do their job, White called the decision “a deliberate calculus to prevent interrogations, to reduce the incidence of co nfessions and pleas of guilty and to increase the number of trials.” This conservatism was grounded in prag- matism. In 1972, White was one of two justices Byron Raymond White 1917–2002 ❖ 1917 Born, Fort Collins, Colo. 1914–18 World War I 1939–45 World War II ▼▼ ▼▼ 1950 1925 1975 2000 1950–53 Korean War 1961–73 Vietnam War ◆ ❖ ◆ ◆ ◆ ◆ ◆ 1938 Graduated as class valedictorian from University of Colorado 1946–47 Clerked for Chief Justice Vinson 1960 Appointed deputy U.S. attorney general 1966 Dissented in Miranda v. Arizona 1972 Dissented in Roe v. Wade 1962–93 Served as associate justice of the U.S. Supreme Court 2002 Died, Denver, Colo. 1992 Wrote majority opinion in U.S. v. Fordice 1986 Wrote majority opinion in Bowers v. Hardwick ◆ ◆ ◆ 2002 1,000 people attended funeral at St. John's Cathedral 1990 University of Colorado established Byron White Center for the Study of Constitutional Law 1994 Byron White U.S. Courthouse dedicated in Denver Byron R. White. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 384 WHITE, BYRON RAYMOND dissenting from the majority decision that established a woman’s right to abortion ( ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). His four-page DISSENT avoided the moral issues involved and attacked the majority’s reading of the Constitution: they had exceeded the Court’s power. He could find no constitutional basis for “valu[ing] the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.” Similarly, his 1986 majority opinion in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) dispassionately held that a Georgia statute criminalizing sodomy—oral and anal sex—did not violate the constitutional rights of homosexuals. He simply found no “fundamental right to engage in homosexual sodomy” and refused to find a new right in the constitution’s DUE PROCESS CLAUSE. Doing so, he wrote, would make the Court vulne rable to criticisms of judicial activism. White strongly supported Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with Justice William J. Brennan in 1973’s FRONTIERO V. RICHARDSON that laws discriminating on the basis of sex should be subject to STRICT SCRUTINY. However, only four justices signed on to Brennan’s opinion in Frontiero; in later cases gender DISCRIMINATION cases would be subjected to intermediate scrutiny. In the 1980s and 1990s, White’s liberal tendencies were all but exhauste d. He frequently sided with the conservative voting bloc on the Court. In case after case, he joined the conservative majority in opposing abortion rights, curtailing affirmative action programs, restricting federal civil rights laws, and allowing the use of illegally-acquired police evidence in court. As was his wont, he uniquely refused to read his opinions from the bench and, instead, merely indicated whether the Court upheld or reversed the decisions of lower courts. After retiring from the Supreme Court in 1993, White continued working in the legal arena. He occasionally served as an appellate court judge and he was chairman of the Commission on Structural Alternatives for the Federal Court of Appeals from 1997 to 1999. White died on April 15, 2002, in Denver, Colorado, at the age of 84. FURTHER READINGS Hutchinson, Dennis J. 1998. The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. New York: Free Press. Various law review special editions, including: Harvard Law Review 116 (Nov. 2002); Stanford Law Review 55 (Oct. 2002); University of Colorado Law Review 74 (Fall 2003); and Yale Law Journal 112 (March 2003). WHITE-COLLAR CRIME Financial, economic, or corporate crime, usually involving fraud and theft, that is often carried out by sophisticated means. The result is usually economic loss for businesses, investors, and those affected by the actions of the perpetrator. White-collar crime is a broad term that encompasses many types of nonviolent criminal offenses involving FRAUD and illegal financial transactions. White-collar crimes include bank fraud, BRIBERY, BLACKMAIL, COUNTERFEITING, em- bezzlement, FORGERY, INSIDER TRADING, MONEY LAUNDERING , TAX EVASION, and antitrust viola- tions. Though white-collar crime is a major problem, it is difficult to document the extent of these crimes because the Federal Bureau of Investigation’s (FBI) crime statistics collect information on only three categories: fraud, counterfeiting and forgery, and embezzlement. All other white-collar crimes are listed in an “other” category. Sociologist Edwin H. Sutherland coined the term in a speech to the American Sociological Association in 1939 and published the book White-Collar Crime ten years later. Sutherland argued that there were significant differences between crimes such as ROBBERY, BURGLARY, and MURDER, which he classed as “blue-collar crim e,” and white-collar crime. Perpetrators of blue- collar crimes were typically street criminals. Their crimes had no link to their occupations, and they were typically poor. In contrast, individuals of higher economic and social status committed white-collar crimes, and their crimes were linked to their so cially respected professions. In addition, Sutherland noted that very few white-collar criminals occupied prison cells. Sutherland argued that white-collar crim- inals inflicted more harm on U.S. society than burglars and robbers, however, the justice system treated white-collar offenders with more lenience and with less consistency than street criminals. White-collar fraud did not begin in the late twentieth century. Embezzlers, counterfeiters, stock swindlers, and con men have practiced GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITE-COLLAR CRIME 385 their crimes for hundreds of years. Political corruption thrived during the nineteenth cen- tury and, for example, tarnished the adminis- tration of President ULYSSES S. GRANT. The TEAPOT DOME SCANDAL of the mid-1920s did the same for President Warren G. Harding’s administration. Overall, however, there was a lack of interest in the United States in punishing fraudulent business behavior. The STOCK MARKET cras h of 1929 and the subsequent Great Depression of the 1930s began to change public and political attitudes toward white-collar crime. These types of activities also began to draw more attention, thanks in part to advances in the modern media. The 1930s saw the enactment of federal laws that regulated the banking and SECURITIES industries. The SECURITIES AND EXCHANGE COMMIS- SION was established in 1934 to protect investors from illegal stock manipulation, insider trading, and other white-collar offenses perpetrated by stockbrokers. Though the SEC has not always succeeded in policing these white-collar crimes, numerous brokers and dealmakers have been prosecuted over the years. Numerous regulations covering other areas of business have been enacted by the federal and state governments. With more laws on the books violations have led to more prosecutions. The hallmark of many white-collar crimes, however, is sophistication. Perpetrators have specialized knowledge that allows them to commit complex transactions that are often difficult to identify. Law enforcement authori- ties rarely catch white-collar criminals at the very onset of their activities. The collapse of a business institution may reveal signs of financial irregularities that took place over many years. In addition, the use of computers and electronic financial transactions has complicated the detection and prosecution of white-collar crimes. Though law enforcement may be able to reconstruct electronic records and chains of events, the process is laborious and costly. ORGANIZED CRIME has also added white-collar offenses to its repertoire of illegal activities. The federal government passed the Racketeer Influenced and Corrupt Organization (RICO) Act (18 U.S.C.A. § 1961 et seq.), in 1970 to address these types of crimes. RICO is specifi- cally designed to punish criminal activity by business enterprises controlled by organized crime. RACKETEERING includes a number of discrete criminal offenses, including gambling, ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. White-Collar Crime Arrests, 1990 to 2006 0 50 100 150 200 250 50.4 182.7 7.7 1990 71.3 233.2 9.1 1994 70.7 220.3 10.6 1998 71.8 195.9 11.8 2002 86.1 12.6 200.0 2004 62.1 170.2 13.1 2006 Year Arrests (in thousands) SOURCE: National White Collar Crime Center, White Collar Crime Statistics, June 2008. Forgery/Counterfeiting Fraud Embezzlement GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 386 WHITE-COLLAR CRIME bribery, EXTORTION, BANKRUPTCY fraud, MAIL FRAUD , securities fraud, PROSTITUTION , narcotics trafficking, loan sharking, and murder. The punishment for violating RICO’s criminal provisions is extremely harsh. If convicted, a DEFENDANT is fined and sentenced to not more than 20 years in prison for each RICO violation. Moreover, the defendant must forfeit any interest, claim against, or property or contrac- tual right over the criminal enterprise, as well as any property that constitutes the racketeering activity or was derived from the racketeering activity. Finally, RICO contains civil provisions that allow a party injured by a RICO de fendant to recover damages from the defendant in civil court. During the late 1990s, a numb er of corporations manipulated financial information and made improper financial transactions. Accounting firms helped conceal the illegal nature of these actions, which undermined investor confidence in the stock market and corporate governance in general. The corporate scandals that emerged in 2001 involved Enron, WorldCom, and the accounting firm of Arthur Andersen, and were of national importance. Corporate officers were convicted of fraud and given prison terms, whereas Congress responded to these elaborate white-collar crimes by enact- ing the Public Company Accounting Reform and Investor Protection Act, also known as the Sarbanes-Oxley Act (Pub.L . 107-204, 116 Stat. 745, [2002]) The act increased penalties for the white-collar crimes of mail fraud and wire fraud from a maxi mum of five years to 20 years in prison. It also directed the United State s Sentencing Commission to review and amend its sentencing guidelines regarding white-collar crimes. In addition, the law makes it a crime for corporate officers to falsify financial reports. A conviction could result in a $5 million fine and 10 years in prison. Most importantly, the act created a new crime of securities fraud. A person convicted of this white-collar crime could be sentenced to 25 years in prison. In 2006 the SEC began investigating the backdating of stock options by corporate officers. Most stock options are granted “at-the-money,” meaning that the exercise price of the option equals the market price of the underlying stock on the date of the grant. The term “backdating” refers to a number of ways options are granted in which the reported grant date is different from the date on which the option is actually awarded. This produces an option that is already “in-the-money” at the time of the grant. Backdating includes the falsification of a document to take advantage of a lower stock price and allowing executives to select a grant date during a specified period. In all cases, backdating is employed to maximize the profit for the recipient of the options. The 2007 prosecution and conviction of a Silicon Valley executive for backdating options was the first of its kind, but other executives entered into plea bargains. In 2009 Wall Street investment firm owner and former NASDAQ chairman Bernard Mad- off pleaded guilty to defrauding clients of $65 billion in the largest PONZI SCHEME in U.S. history. Congress conducted hearings into the scheme and heard testimony from a financial analyst who had tried for years to get the SEC to investigate Madoff’s practices. Concerns that CORPORATE FRAUD contributed to the financial collapse of U.S. banks in 2008 have led to calls for corporate reforms from Congress and the Obama administration. FURTHER READINGS Friedrichs, David O. 2004. Trusted Criminals: White Collar Crime in Contemporary Society. 2d ed. Belmont, Calif.: Thomson/Wadsworth. Podgor, Ellen, and Jerold H. Israel. 2009. White Collar Crime in a Nutshell. 4th ed. St. Paul, Minn.: West. Shover, Neal, and Hochstetler. 2005 Choosing White-Collar Crime. New York: Cambridge Univ. Press. Simpson, Sally S. 2002. Corporate Crime, Law, and Social Control. New York: Cambridge Univ. Press. CROSS REFERENCES Corporate Fraud; Corporations; Embezzle ment; Money Laundering; Tax Evasion. v WHITE, EDWARD DOUGLASS In his three decades as a lawmaker and justice, Edward Douglass White left a powerful and sometimes controversial mark on American law. White’s career spanned from the end of the nineteenth century to the early years of the twentieth. From 1891 to 1894, he served as a U.S. Senator from his home state of Louisiana, distinguishing himself by almost single-minded devotion to the state’s farming interests. His appointment to the U.S. Supreme Court came in 1894, but White delayed joining the Court until finishing political battles in the Senate. In 1910 he became the first associate justice to be made chief justice, a position he held until his GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITE, EDWARD DOUGLASS 387 . WITH JUDGE -MADE CONSTITUTIONAL LAW HAVING LITTLE OR NO COGNIZABLE ROOTS IN THE LANGUAGE OR DESIGN OF THE CONSTITUTION. —BYRON R. WHITE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WHITE, BYRON. University of Colorado established Byron White Center for the Study of Constitutional Law 1994 Byron White U.S. Courthouse dedicated in Denver Byron R. White. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN. and WorldCom scandals, Congress enacted the SARBANES-OXLEY ACT OF 2002. The legislation focused on GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 382 WHISTLEBLOWING improving corporate governance