Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P44 pps

California into the Union as a free state but gave the Utah and New Mexico territories the right to determine the slavery issue for themselves at the time of their admission to the Union. Most disturbing to Wilmot were the new powers given to the federal government to enforce the FUGITIVE SLAVE ACT (9 Stat. 462). Wilmot served as a Pennsylvania state judge from 1851 to 1861. In 1854 he, along with disaffected members of the Democratic and Whig parties, helped form the Republican Party. The Republican Party was antislavery and adopted the Wilmot Proviso language as part of its platform. Wilmot became a prominent member of the party and was elected to the U.S. Senate where he served the 1861–63 term. A strong defender of the Union, Wilmot supported President ABRAHAM LINCOLN in the early years of the U.S. CIVIL WAR. Lincoln appointed Wilmot a judge of the U.S. Court of Claims in 1863, a post he served until 1868. Wilmot died on March 16, 1868, in Towanda, Pennsylvania. FURTHER READINGS Going, Charles. 1924. David Wilmot, Free-Soiler: A Biogra- phy of the Great Advocate of the Wilmot Proviso. Reprint. Gloucester, Mass.: P. Smith, 1966. Henretta, James A., and David Brody. 2009. America: A Concise History. Boston, Mass.: Bed/St. Martin. CROSS REFERENCES Compromise of 1850; Republ ican Party; "Wilmot Proviso" (Appendix, Primary Document). WILMOT PROVISO The 1846 Wilmot Proviso was a bold attempt by opponents of slavery to prevent its introduction in the territories purchased from Mexico follow- ing the Mexican War. Named after its sponsor, Democratic representative DAVID WILMOT of Pennsylvania, the proviso never passed both houses of Congress, but it did ignite an intense national debate over s lavery tha t led to t he creat ion of the antislavery REPUBLICAN PARTY in 1854. The Mexican War of 1845–1846 was fueled, in part, by the desire of the United States to annex Texas. President JAMES POLK asked Con- gress in August 1846 for $2 million to help him negotiate peace and settle the boundary with Mexico. Polk sought the acquisition of Texas and other Mexican territories. Wilmot quickly offered his proposal, known as the Wilmot Proviso, which he attached to President Polk’s David Wilmot. GETTY IMAGES David Wilmot 1814–1868 ▼▼ ▼▼ 18001800 18751875 18501850 18251825 ❖ ◆ 1861–65 U.S. Civil War 1846–48 Mexican War 1814 Born, Bethany, Pa. 1834 Admitted to Pa. bar 1846 Wilmot Proviso failed to pass Congress 1845–51 Served in U.S. House 1868 Died, Towanda, Pa. ❖ ◆ ◆ ◆◆ 1850 Compromise of 1850 1854 Helped form the Republican party 1856 Republicans held their first presidential convention 1851–61 Served as Pa. state judge 1861–63 Served in U.S. Senate 1863–68 Served as judge on the U.S. Court of Claims GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 418 WILMOT PROVISO funding measure. The proviso would have prohibited slavery in the new territories ac- quired from Mexico, including California. The proviso injected the controversial slavery issue into the funding debate, but the House approved the bill and sent it to the Senate for action. The Senate, however, adjourned before discussing the issue. When the next Congress convened, a new appropriations bill for $3 million was presented, but the Wilmot Proviso was again attached to the measure. The House passed the bill and the Senate was forced to consider the proposal. Under the leadership of Senator JOHN C. CALHOUN of South Carolina and other proslavery sena- tors, the Senate refused to accept the Wilmot amendment, approving the funds for negotia- tions without the proviso. For several years, the Wilmot Proviso was offered as an amendment to many bills, but it was never approved by the Senate. However, the repeated introduction of the proviso kept the issue of slavery before the Congress and the nation. The COMPROMISE OF 1850, which admit- ted California as a free state but left the issue of slavery up to the citizens of New Mexico and Utah, created dissension within the Democratic and Whig parties. The strengthening of federal enforcement of the FUGITIVE SLAVE ACT (9 Stat. 462) angered many northerners and led to growing sectional conflict. The creation of the Republican Party in 1854 was based on an antislavery platform that endorsed the Wilmot Proviso. The prohibition of slavery in any new territories became a party tenet, with Wilmot himself emerging as Republican Party leader. The Wilmot Proviso, while unsuccessful as a congressional amend- ment, proved to be a battle cry for opponents of slavery. FURTHER READINGS Fehrenbacher, Don Edward. 1995. Sectional Crisis and Southern Constitutionalism. Baton Rouge: Louisiana State Univ. Press. Henretta, James A., and David Brody. 2009. America: A Concise History. Boston, Mass.: Bed/St. Martin. Morrison, Chaplain W. 1967. Democratic Politics and Sectionalism: The Wilmot Proviso Controversy. Chapel Hill: Univ. of North Carolina Press. Rayback, Joseph G. 1971. Free Soil: The Election of 1848. Lexington: Univ. Press of Kentucky. CROSS REFERENCES Compromise of 1850; “Wilmot Proviso” (Appendix, Primary Document). v WILSON, JAMES Lawyer, author, theorist, and justice, JAMES WILSON helped write the U.S. Constitution and served as one of the first justices of the U.S. Supreme Court. Wilson emigrated from Scotland in the mid 1760s, studied law, and quickly gained prominence and success in Philadelphia. As a Federalist, Wilson believed in strong central government. This theme pervaded the pamphlets he wrote in the 1770s and 1780s. These highly influential tracts won him a national reputation. In 1787, he was a leading participant at the Constitutional Convention where the U.S. Con- stitution was written. Wilson served on the Supreme Court from 1789 to 1798, but the latter years of his life ended in disgrace. Born on September 14, 1742, near St. Andrews, Scotland, Wilson came from a rural James Wilson 1742–1798 ▼▼ ▼▼ 18001800 17751775 17501750 ❖ ❖ ◆ ◆◆ ◆ ◆ ◆ ◆ 1798 Died, Edenton, N.C. 1796 Jailed for bad debts 1793 Wrote opinion in Chisholm v. Georgia, which upheld the right of citizens of one state to sue another state. 1789 Appointed associate justice of the U.S. Supreme Court; became the first law professor at University of Pa. ◆ 1785–87 Attended the Third Continental Congress 1782–83 Attended the Second Continental Congress 1787 Successfully argued for a federal government divided into three parts at the Constitutional Convention 1775–83 American Revolution 1774 Considerations on the Nature and Extent of the Legislative Authority of the British Parliament published 1775–76 Attended the First Continental Congress 1776 Signed the Declaration of Independence 1757–65 Studied at the Universities of St. Andrews, Glasgow, and Edinburgh 1765 Immigrated to the American colonies 1767 Admitted to Pa. bar 1742 Born, near St. Andrews, Scotland LAWS MAY BE UNJUST MAY BE DANGEROUS , MAY BE DESTRUCTIVE ; AND YET NOT BE UNCONSTITUTIONAL . —JAMES WILSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WILSON, JAMES 419 working class background. His quick intelli- gence took him far from his roots, however. He attended the University of St. Andrews from 1757 to 1759, the University of Glasgow from 1759 to 1763, and the University of Edinburgh from 1763 to 1765. At the age of 23, he set out to make his fortune by emigrating to the American colonies, where he promptly began studying law under one of America’s best lawyers, JOHN DICKINSON. Two years later, in 1767, he was admitted to the Pennsylvania bar. Over the next two decades, Wils on wrote political pamphlets that brought him national attention and launched his public career. In 1774 he argued that the American colonies should be free from the rule of British law- makers in his widely read Considerations on the Nature and Extent of the Legislative Authority of the British Parliament. His writing soon led to involvement in the planning for American independence. He represented Pennsylvania at the CONTINENTAL CONGRESS from 1775 to 1776, and 1782 to 1783, and signed the DECLARATION OF INDEPENDENCE in 1776. In 1779 Wilson accepted the role of Advocate General for France in America, a post he occupied until 1783. Wilson’s most important role came at the Constitutional Convention in 1787, where he argued on behalf of key features of the Constitu- tion such as the SEPARATION OF POWERS,which divided federal government into three parts, and the sovereignty of the people. A year later he helped persuade Pennsylvania to adopt the Constitution. In 1789 Presid ent GEORGE WASHINGTON con- sidered Wilson for the position of chief justice of the U.S. Supreme Court, a post Wilson desired but never attained. He became an associate justice, and, in the same year, was made the first law professor of the University of Pennsylvania. The few short opinions he wrote for the Court embodied his strong FEDERALISM. His most famous opinion was CHISHOLM V. GEORGIA, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), which upheld the right of citizens of one state to sue another state. Wilson’s most lasting impact likely resulted from his work on the Committee of Detail, which produced the first draft of the United States Constitu tion in 1787. He wanted senators and the president to be popularly elected. He also raised the Three-Fifths Compromise at the convention, which counted slaves as three-fifths of a person for representation in the House and ELECTORAL COLLEGE. Despite the accomplishments of his early life, Wilson remained a minor figure on the Court. As a result of bad investments he fell heavily into debt in the 1790s and was jailed twice before fleeing his creditors. He died on August 21, 1798, in Edenton, North Carolina. FURTHER READINGS Conrad, Stephen A. 1989. “James Wilson’s ‘Assimilation of the Common-Law Mind.’” Northwestern University Law Review 84 (fall). ———. 1984. “Polite Foundation: Citizenship and Com- mon Sense in James Wilson’s Republican Theory.” Supreme Court Review (annual). Delahanty, Mary T. 1969. The Integralist Philosophy of James Wilson. New York: Pageant Press. Hills, Roderick M., Jr. 1989. “The Reconciliation of Law and Liberty in James Wilson.” Harvard Journal of Law & Public Policy 12 (summer). Smith, Page. 1973. James Wilson, Founding Father, 1742– 1798. Westport, Conn.: Greenwood Press. Wilson, James. 2004. The Works of the Honourable James Wilson. Published under the direction of Bird Wilson. Union, N.J.: Lawbook Exchange. v WILSON, JAMES QUINN James Q. Wilson is a significant American thinker and writer whose views on CRIMINOLOGY, economics, politics, and culture have found both acceptance and criticism since the 1970s. Wilson is particularly known for advancing the “broken window” theory of crime deterrence. Wilson’s 1982 thesis was simple: If people see a James Wilson. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 420 WILSON, JAMES QUINN broken factory or office window that is left unrepaired, they will conclude that no one is looking after the property. Soon all the windows will be broken, signaling the breakdown of law and order in that neighborhood. Wilson’s theory held that neighborhoods could prevent the growth of crime if they quickly took steps such as replacing broken windows, removing graffiti, keeping streets and buildings in good repair, and making arrests for petty crimes and misdemeanors such as littering and evading fares for public transportation . Numerous U.S. cities embraced Wilson’s theory. The most notable response was that of New York City in the 1990s, when Mayor Rudolph Giuliani and Police Commissioner William Bratton used this approach to successfully reduce crime and improve the perception of New York City as a safe place to visit. James Quinn Wilson was born May 27, 1931, in Long Beach, California. Wilson did not plan on attending college until his high school English teacher told him that he could attend the University of Redlands on a scholarship. In 1952 Wilson graduated with a bachelor’sdegree in political science. Wilson enlisted in the navy during the KOREAN WAR and served three years. He then attended graduate school at the University of Chicago, where he received a Ph.D. in 1959. Wilson taught government at Harvard University from 1961 until 1987. He then taught management and PUBLIC POLICY at UCLA from 1985 to 1997. As of 2009 Wilson is the RONALD REAGAN Professor of Public Policy at Pepperdine University’s School of Public Policy. Wilson has served on a number of national commissions related to public policy. In 1966 he was chair of the White House Task Force on Crime. He also served as chair of the National Advisory Commission on Drug Abuse Preven- tion in 1972–1973 and was a member of the attorney general’s Task Force on Violent Crime in 1981. From 1985 to 1990 he was a member of the President’s Foreign Intelligence Advisory Board. Wilson served on the board of directors for the Police Foundation from 1971 to 1973. In addition to serving on the board of directors of a number of major U.S. corpora- tions, Wilson serves as chair of the council of academic advisors for the American Enterprise Institute. He was elected a member of the American Academy of Arts and Sciences and was made a fellow of the American Philosophi- cal Society. In 1990, Wilson received the JAMES MADISON Award for distinguished scholarship from the American Political Science Association (APSA). He served as president of the APSA from 1991 to 1992. Wilson has authored more than a dozen books dealing with the topics of crime, govern- ment, urban problems, and aspects of American culture. One of Wilson’s most seminal works was Thinking about Crime, published in 1975. In this book Wilson, a strong conservative, rejected the rehabilitation model of punishment that held that offenders are subject to rehabilitative efforts and that money spent on social programs helps reduce crime. Wilson wrote that offenders could not be helped by social program s because they have made a rational choice to commit crimes. Wilson argued in favor of the deterrence model that held that INCARCERATION and other government-imposed sanctions are the best methods of deterring would-be offenders. Wilson’s arguments in favor of the deter- rence model of crime and punishment gained James Quinn Wilson 1931– ▼▼ ▼▼ 1925 2000 1975 1950 ◆ ◆ ◆◆◆ ❖ 2001 September 11 terrorist attacks 2002 The Marriage Problem: How Our Culture Has Weakened Families published 1991–92 Served as president of American Political Science Association 1985–97 Taught management and public policy at UCLA 1975 Thinking about Crime published 1959 Earned Ph.D. from University of Chicago 1950–53 Korean War 1939–45 World War II 1931 Born, Long Beach, Calif. 1961–87 Taught government at Harvard University ◆ 1990 Received James Madison Award for distinguished scholarship, American Political Science Association ◆ 1961–73 Vietnam War 2006 American Government, 10th edition, published 2003 Awarded Presidential Medal of Freedom WITHOUT RELIGIOUS FREEDOM , MODERN GOVERNMENT IS IMPOSSIBLE . —JAMES Q. WILSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WILSON, JAMES QUINN 421 support throughout the 1980s and 1990s. During this period a number of states as well as the federal government replaced indeterminate sen- tencing policies that gave judges and PAROLE boards wide latitude to determine how long an offender should be incarcerated, with sentencing guidelines that mandated particular sentence lengths with little discretion left to the judges. These policy changes met with great favor from governmental officials and members of the public who advocated increased law and order. HUMAN RIGHTS advocates and others have criticized the results of the deterrence model as infringing on civil liberties. Some members of the judiciary have protested severe penalties for what they see as minor offenses. Nevertheless, Wilson has been steadfast in defending his theory. As crime rates fell in the 1990s, he argued that deterrence worked. In a 1998 U.S. News and World Report article Wilson stated, “Putting people in prison is the single most important thing we’ve done.” Wilson continued to stir controversy in 2002 with the publication of his book (one of 14), The Marriage Problem: How Our Culture Has Weakened Families, in which he argued that COHABITATION and DIVORCE have led to increases in school dropouts, teenage pregnancies, and criminal activity. According to Pepperdine University, Wilson’s textbook on American government, American Government: Institutions and Policies, co-written with John J. DiIulio Jr., is more widely used on university campuses than any other government textbook. The book’s tenth edition was published in 2006. FURTHER READINGS Kelling, George M., and Catherine L. Coles. 1998. Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities. New York: Touchstone Books. Wilson, James Q. 2002. The Marriage Problem: How Our Culture Has Weakened Families. New York: Harper- Collins. ———. 1997. Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? New York: BasicBooks. ———. 1995. On Character: Essays. Washington, D.C.: AEI Press. CROSS REFERENCES Crimes; Rehabilitat ion; Sentencing. v WILSON, THOMAS WOODROW Educator, political reformer, and the 28th presi- dent of the United States, Woodrow Wilson significantly affected domestic and international affairs during his two terms in office. Wilson made advances in education while he was the president of Princeton University in the early 1900s, before entering politics as the governor of New Jersey in 1910. He was elected president first in 1912 and again in 1916. He emerged from the tragedy of WORLD WAR I as an international leader who campaigned widely for the creation of the LEAGUE OF NATIONS—the post-war international organization that was the forerunner of the UNITED NATIONS. But political battles with a reluctant Congress ultimately dashed his hopes of U.S. participation in the League. Born on December 28, 1856, in Staunton, Virginia, Thomas Woodrow Wilson was the third of four children of devoutly religious parents, Janet Woodrow Wilson and Joseph Ruggles Wilson (a minister). The U.S. CIVIL WAR prevented him from beginning school until the age of nine, but the intellectual atmosphere fostered largely by his father helped him to excel. After graduation from Princeton University in 1879, he studied law at the University of Virginia and became a member of the bar in 1882. He established a law practice in Atlanta, Georgia, but later returned to Thomas Woodrow Wilson 1856–1924 ▼▼ ▼▼ 18501850 19251925 19001900 18751875 ❖ ◆ ❖ ◆ ◆ ◆ 1924 Died, Washington, D.C. 1919 Awarded Nobel Peace Prize; Volstead Act passed over Wilson's veto 1918 Signed Versailles peace treaty; lobbied for U.S. participation in League of Nations ◆ ◆ 1910 Elected governor of New Jersey 1902–10 Served as president of Princeton University 1913 Underwood Tariff Act passed; Federal Reserve Act passed 1913–21 Served as U.S. president 1915 Lusitania attacked and sunk 1917 U.S. entered World War I 1914–18 World War I 1885–92 Taught at Bryn Mawr College, Wesleyan University, and Princeton University 1879 Graduated from Princeton University 1861–65 U.S. Civil War 1856 Born, Staunton, Va. ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 422 WILSON, THOMAS WOODROW school to study political science at Johns Hopkins University, earning his doctorate in 1886. Professionally, Wilson worked in the area of education before entering politics. Between 1885 and 1892, he taught history and political economy first at Bryn Mawr College, then at Wesleyan University, and finally at Princeton. As president of Princeton from 1902 to 1910, he became known as an educational reformer. His improvements to teaching were welcomed until he set out on a bold plan to reform the social structure of the school by eliminating class distinctions, an effort that was severely criticized. Elected governor of New Jersey in 1910, Wilson pursued reform policies that won greater ap- proval: He improved worker’scompensationand the school system while also providing for better control of PUBLIC UTILITIES. In 1912 the strength of Wilson’s accom- plishments at Princeton and as governor helped to take him to the White House. Running as a Democrat, he also benefited from a rift in the REPUBLICAN PARTY that split votes between THEODORE ROOSEVELT and WILLIAM HOWARD TAFT. Wilson called his domestic program the New Freedom. It consisted of far-ranging economic and labor reforms. In a dramatic return to an old tradition, he addressed Congress personally, asking for passage of the legislation, and Congress largely complied. In 1913 the Underwood Tariff Act instituted the INCOME TAX but decreased the tariff on certain imports. The Federal Reserve Act of 1913 (38 Stat. 251), which reorganized the national banking system, is regarded as the most important banking reform in history. It gave the federal government control over the FEDERAL RESERVE BOARD while also providing agricultural credits to farmers. The extent of Wilson’s idealism can be seen in other significant reforms. In 1914 the FEDERAL TRADE COMMISSION was established to discourage business corruption, and the CLAYTON ANTITRUST ACT (15 U.S.C.A. § 12 et seq.) was passed in order to restrict businesses from monopoliz- ing—unfairly dominating—individual markets. Three constitutional amendments were ratified during the Wilson administration: the provision for the direct election of U.S. senators in 1913 ( SEVENTEENTH AMENDMENT); the PROHIBITION of the manufacture, sale, and transportation of liquor in 1917 ( EIGHTEENTH AMENDMENT); and the granting of the right to vote to women in 1920 ( NINETEENTH AMENDMENT). Wilson’s foreign-affairs policies encoun- tered serious difficulties. In Mexico, which was in the throes of upheaval, the arrest of U.S. military personnel precipitated a U.S. invasion. U.S. troops also retaliated when Mexican revolutionary Francisco “Pancho” Villa invaded New Mexico. Wilson ordered troops to pursue him into Mexico. Relations betw een the two nations remained tense throughout the Wilson administration. World War I and its aftermath tested Wilson. The United States was neutral at the onset of war in 1914. Despite the entreaties of allies, it did not enter the war until nearly two years after Germany had begun attacking ships with submarines. (Germany sank the English ship Lusitania on May 7, 1915, killing more than 100 U.S. passengers.) More German attacks on ships carrying U.S. passengers forced Wilson’s hand. In 1917 his war speech included the celebrated phrase, “the world must be made safe for democracy.” As the defeat of Germany became imminent in 1918, Wilson put forth his Fourteen Points, a post-war program that he hoped would establish a lasting peace. Besides economic, political, and geographic proposals, Wilson’s plan proposed the creation of an international peacekeeping body to be called the League of Nations. Traveling to Europe in 1918 for the signing of a peace treaty Woodrow Wilson. LIBRARY OF CONGRESS AMERICA WAS SET UP AND OPENED HER DOORS , IN ORDER THAT ALL MANKIND MIGHT COME AND FIND WHAT IT WAS TO RELEASE THEIR ENERGIES IN A WAY THAT WOULD BRING THEM COMFORT AND HAPPINESS AND PEACE OF MIND . —WOODROW WILSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WILSON, THOMAS WOODROW 423 at Versailles, France, Wilson was praised. This acclaim was not heard at home, where domestic criticism of his proposed League of Nations forced him to make concessions. He traveled widely across the nation campaigning on behalf of his plan. Ultimately, however, opposition in the U.S. Senate, based on the conviction that the United States should stay out of European affairs, scuttled plans for U.S. participation in the League. Wilson also suffered personally at this time. A stroke in 1919 rendered him an invalid for the rest of his life. History has sometimes judged Wilson to be too much of an idealist, particularly in foreign affairs. The disastrous Versailles Treaty, in particular, sowed the seeds of a second world war. Yet his leadership during the w ar was inspirational, and his plan for international participation after the war was largely achieved in later decades under the aegis of the United Nations. For these accomplishments, Wilson was awarded the 1919 Nobel Peace Prize. He died on February 3, 1924, in Washington, D.C. FURTHER READINGS Butler, Gregory S. 1997. “Visions of a Nation Transformed: Modernity and Ideology in Wilson’s Political Thought.” Journal of Church and State 39 (winter). Carroll, James Robert. 2001. The Real Woodrow Wilson: An Interview with Arthur S. Link, Editor of the Wilson Papers. Bennington, Vt.: Images from the Past. Clements, Kendrick A., and Eric A. Cheezum. 2003. Woodrow Wilson. Washington, D.C.: CQ Press. Macmillan, Margaret. 2002. Paris 1919: Six Months that Changed the World. New York: Random House. Stid, Daniel D. 1998. The President as Statesman: Woodrow Wilson and the Constitution. Lawrence: Univ. Press of Kansas. CROSS REFERENCES “Fourteen Points Speech” (Appendix, Primary Document); League of Nations; Treaty of Versailles. WIND UP The last phase in the dissolution of a partnership or corporation, in which accounts are settled and assets are liquidated so that they may be distributed and the business may be terminated. The dissolution of a corporation or a partnership culminates in the wind up of all legal and financial affairs of the business. State statutes govern the dissolution process for both types of business organizations, based on the need to insure that creditors, stockholders, and other interested parties receive a fair accounting of the liquidation and distribution of the business assets. When a corporation announces that it will dissolve and end its legal existence, it is only the beginning of the end. Dissolution marks the end of business as usual, but corporate existence continues for the limited purpose of paying, settling, and collecting debts. Once this is done, the corporation may wind up and distribute the remaining assets. A general partnership will dissolve when a change occurs in the relation of the partners caused by any partner ceasing to be associated in the carrying on of the business. In the absence of a contrary agreement by the partners, a dissolu- tion involves reducing the partnership assets to cash, paying creditors, and distributing to partners the value of their respective interests, as well as the performance of existing contracts. Once this phase is completed, the partnership may wind up by distributing assets. Once the wind up has occurred, the termination of the partnership is complete. A partnership contract that is silent as to the procedures for wind up and liquidation must defer to the provisions of the Uniform Partner- ship Act (UPA), which has been adopted by virtually all of the states. The same rules of winding up and liquidation apply to all partner- ships, regardless of their nature or business. Section 37 of the UPA provides that unless otherwise agreed, the partners who have not wrongfully dissolved the partnership or the legal Winding up a business involves selling off all of the business’s assets. Going out of business sales typically involve steep discounts to move merchandise quickly. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 424 WIND UP representative of the last surviving solvent partner have the right to wind up the partnership affairs, provided, however, that any partner, his legal representative, or his assignee may obtain, for good cause, winding up by a court. WINSHIP, IN RE In the case In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the U.S. Supreme Court ruled that the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT to the U.S. Constitution requires proof BEYOND A REASONABLE DOUBT before a juvenile may be adjudicated delinquent for an act that would constitute a crime were the child an adult. Winship expanded the constitutional protections afford ed by IN RE GAULT, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), in which the Supreme Court ruled that minors accused of delinquent acts must receive notice of any charges pending against them, and be given a reasonable opportunity to defend themselves during a fair hearing in which they enjoy the RIGHT TO COUNSEL, the right not to incriminate themselves, and the right to confront and cross- examine adverse witnesses. Twelve-year-old Samuel Winship was charged under the New York Family Court Act (NYFCA) with stealing $112 from a woman’s pocketbook, an act that would have constituted the crime of LARCENY if Winship had been an adult. At the conclusion of the proceedings against Winship, the family court judge made a finding of delinquency by a PREPONDERANCE OF THE EVIDENCE , the standard of proof set forth in section 744(b) of the NYFCA. The judge acknowledged on the record that the state had not proven its case beyond a reasonable doubt. As a conse- quence for his transgression, Winship was placed in a juvenile training facility for a minimum period of 18 months. Winship appealed the adjudication of delin- quency to the New York Supreme Court (an intermediate court of appeals in New York), where he challenged the constitutionality of the NYFCA. Winship claimed that he was denied due process because the NYFCA required the family court to apply a quantum of proof less stringent than beyond a reasonable doubt. After the court rejected this challenge, Winship appealed the case to the New York Court of Appeals (the highest court in the state of New York), which affirmed the decisions of both lower courts. In the Matter of Samuel W. v. Family Court, 24 N.Y.2d 196, 247 N.E.2d 253, 299 N.Y.S.2d 414 (1969). The court of appeals relied on the traditional distinction between juvenile and criminal pro- ceedings in explaining its decision to affirm the lower court. State intervention in delinquency matters is traditionally justified under the doct- rine of PARENS PATRIAE, a paternalistic theory of juvenile justice in which the government seeks to protect the welfare of minors by providing wayward youth with medical help, counseling, discipline, and other assistance deemed necessary by a court or by social services. In contrast to the remedial and rehabilitative nature of many juvenile dispositions, criminal sanctions are intended to serve four different purposes: punishment, retribution, deterrence, and confinement. While most criminal proceed- ings are open to the public, nearly all juvenile proceedings are conducted in private under strict orders of confidentiality. Because adult criminal defendants generally have more at stake than minors accused of delinquency, criminal proceedings involving adults are designed to be more adversarial in nature. Conversely, juvenile proceedings are administered with greater flexibility to meet the needs of each delinquent child. Based on these distinctions, the court of appeals concluded that the remedial goals of juvenile justice are better served when the guilt or innocence of a minor is determined by a preponderance of the evidence. Application of the reasonable doubt standard in delinquency proceedings, the court of appeals reasoned, would result in a greater number of acquittals. More troubled children would return home without aid from juvenile justice programs, the court surmised, and delinquency problems would exacerbate. In reversing the New York Court of Appeals, the U.S. Supreme Court emphasized two points. First, the Court underscored the importance of the reasonable doubt standard. Proof beyond a reasonable dou bt, the Court said, is a standard deeply rooted in the nation’s history, and forms an integral part of the fundamental freedoms protected by the Due Process Clause. The Court noted that since colonial times every person accused of wrong- doing in America has been entitled to a PRESUMPTION OF INNOCENCE until proven guilty beyond a reasonable doubt by the government. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WINSHIP, IN RE 425 Second, the Court indicated that this standard of proof is not necessarily limited to criminal cases, but may apply in other proceed- ings in which an accused faces a potential deprivation of life, liberty, or property. Winship faced confinement in a juvenile training facility for a period of up to six years because his detention order was subject to annual extension by the family court until his 18th birthday. Ordinarily, the Supreme Court obse rved, the law reserves such lengthy periods of confine- ment for adult felony offenders. But when juvenile defendants are exposed to adult-like penal sanctions, the Court held, they must be protected by the same procedural safeguards as adult criminal defendants, including the right to be presumed innocent until proven guilty beyond a reasonable doubt. Despite the sweeping language of IN RE WINSHIP and In re Gault, juveniles are not always afforded the same protections as adults under the Due Process Clause. For example, in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971), the Supreme Court ruled that there is no constitutional right to jury trial in juvenile proceedings. So long as the judge presiding over a juvenile matter is fair and impartial, the Supreme Court said, due process has been provided. FURTHER READINGS Imwinkelried, Edward J. 2002. “The Reach of Winship: Invalidating Evidentiary Admissibility Standards that Undermine the Prosecution’s Obligation to Prove the Defendant’s Guilt beyond a Reasonable Doubt.” UMKC Law Review 70 (summer). Paglia, Todd J. 1993. “Misuse of the General Verdict and the Demise of In re Winship.” New England Journal on Criminal & Civil Confinement 19 (summer). Rosenberg, Irene Merker. 1990. “Winship Redux: 1970 to 1990.” Texas Law Review 69 (November). “Winship on Rough Waters: The Erosion of the Reasonable Doubt Standard.” 1993. Harvard Law Review 106 (March). CROSS REFERENCES Due Process of Law; Juvenile Law; Preponderance of Evidence. WIRETAPPING A form of electronic eavesdropping accomplished by seizing or overhearing communications by means of a concealed recording or listening device connected to the transmission line. Wiretapping is a particular form of ELEC- TRONIC SURVEILLANCE that monitors telephonic and telegraphic communication. The introduc- tion of such surveillance raised fundamental issues concerning personal privacy. Since the late 1960s, law enforcement officials have been required to obtain a SEARCH WARRANT before placing a wiretap on a criminal suspect . Under the Federal Communications Act of 1934 (47 U.S.C.A. 151 et seq.), private citizens are prohibited from intercepting any communica- tion and divulging its contents. Police departments began tapping phone lines in the 1890s. The placing of a wiretap is relatively easy: A suspect’s telephone line is identified at the phone company’s switching station and a line, or “tap,” is run off the line to a listening device. The telephone conversations may also be recorded. The U.S. SUPREME COURT, in the 1928 case of Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, held that the tapping of a telephone line did not violate the Fourth Amendment’s prohibition against unlawful searches and seizures, so long as the police had not trespassed on the property of the person whose line was tapped. Justice LOUIS D. BRANDEIS argued in a dissenting opinion that the Court had employed an outdated mechanical and spatial approach to the FOURTH AMENDMENT and that it had failed to consider the interests in privacy that the amendment was designed to protect. For almost 40 years, the U.S. Supreme Court maintained that wiretapping was permis- sible in the absence of a TRESPASS. When police did trespass in federal investigations, the evi- dence was excluded in federal court. The Court reversed co urse in 1967, with its decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576. The Court abandoned the Olmstead approach of territorial trespass and adopted one based on the reasonable expecta- tion of privacy of the person who was the subject of the wiretapping. Where an individual has an expectation of privacy, the government is required to obtain a warrant for wiretapping. Congress responded by enacting provisions in the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.) that established procedures for wiretapping. All wiretaps were banned except those approved by a court. Wiretaps were legally permissible for a designated list of offenses, if a court approved. A wiretap may last a maximum of 30 days, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 426 WIRETAPPING notice must be provided to the subject of the search within 90 days of any application or a successful interception. In 1986 Congress ex- tended wiretapping protection to electronic mail in the Electronic Communications Privacy Act (ECPA), 8 U.S.C.A. § 2701 et seq. The law, also known as the Wiretap Act, makes it illegal to tap into private E-MAIL. With the emergence of the INTERNET in the 1990s as a popular communications vehicle, law enforcement agencies conclu ded that it was necessary to conduct surveillance of e-mail, chat rooms, and Web pages in order to monitor illegal activities, such as the distribution of CHILD PORNOGRAPHY and terrorist activities. In 2000, the FEDERAL BUREAU OF INVESTIGATION (FBI) launched an Internet diagnostic tool called “Carnivore.” Carnivore monitored e-mail writers online or recorded the contents of messages. It performed these tasks by capturing “packets” of informa- tion that may be lawfully intercepted. Civil liberties broups expressed alarm at the loss of privacy posed by such invasive technology. The FBI changed the name of the program to DCS1000 and abandoned it in 2001 in favor of commercial software. The FBI told Congress that it had used the program only 25 times between 1998 and 2000, and in 2005 it disclosed that it had only carried out 10 Internet wiretaps to that point. It justified the switch to an undisclosed commercial software program be- cause that would be less expensive and could better target individuals without affecting other e-mail users. Following the September 11, 2001, terrorist attacks, Congress broadened wiretapping rules for monitoring suspected terrorists and perpe- trators of computer FRAUD and abuse through the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). For example, the act expanded the use of traditional pen registers (a device to capture outgoing phone numbers from a specific line) and “trap and trace” devices (that capture the telephone numbers of incoming callers) to include both telephone and Internet commu- nications as long as they exclude message content. These devices can be used without having to show that the telephone being monitored was used in communications with someone involved in TERRORISM or intelligence activities that may violate criminal laws. In addition, the act broadened the provi- sions of the 1986 Wiretap Act that involve roving wiretaps . Roving wiretaps authorized law enforcement agents to monitor any telephone a suspect might use. Again, agents do not have to prove that the suspect is actually using the line. This means that if a suspect enters the private home of another person, the home- owner’s telephone line can be tapped. The act does allow persons to file civil lawsuits if the federal government discloses information gained through surveillance and wiretapping powers. In 2005 Attorney General ALBERTO GONZALES confirmed a newspaper story in the New York Times that the government had condu cted warrantless wiretaps of persons within the United States. This surveillance was in conjunc- tion with the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the Bush administration’s “war on terror.” The disclosure triggered civil lawsuits against the telecommunication companies that assisted the government in violation of federal laws regarding the collection of foreign intelligence. In 2007 Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to Authorized Intercepts of Communication in 2008 SOURCE: Administrative Office of the U.S. Courts, Wiretap Report, 2008. Racketeering 58 Larceny, theft, robbery 44 Bribery 3 Gambling 54 Homicide or assault 92 Other 47 Narcotics 1,593 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION WIRETAPPING 427 . list of offenses, if a court approved. A wiretap may last a maximum of 30 days, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 426 WIRETAPPING notice must be provided to the subject of the search. involves selling off all of the business’s assets. Going out of business sales typically involve steep discounts to move merchandise quickly. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 424. reasonable doubt by the government. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WINSHIP, IN RE 425 Second, the Court indicated that this standard of proof is not necessarily limited to criminal