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TM

Law Dictionary

by Susan Ellis Wild, Legal Editor

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TM

Law Dictionary
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TM

Law Dictionary

by Susan Ellis Wild, Legal Editor

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Webster’s New World® Law Dictionary

Copyright © 2006 by Wiley, Hoboken, NJ
Published by Wiley, Hoboken, NJ
Published simultaneously in Canada
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form
or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as
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ISBN-13 978-0-7645-4210-7
ISBN-10 0-7645-4210-9
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10 9 8 7 6 5 4 3 2 1
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Dedication

To my mother, an original Webster, who gave me my love of words.

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About the Author

Susan Ellis Wild has been a practicing lawyer since 1982, and currently is a fulltime
litigator in Allentown, Pennsylvania. She is President of the 600+ member Bar
Association of Lehigh County, Pennsylvania. Susan has litigated more than 100 cases
and frequently writes and speaks to audiences about law-related topics. She has been
appointed by courts on numerous occasions to act as an independent arbitrator/media-
tor of cases. Susan is admitted to the Bars of Pennsylvania, the District of Columbia,
and Maryland, and has appeared in courts in a number of other states.
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Table of Contents
Part I: Dictionary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part II: Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

Foreign Words and Phrases . . . . . . . . . . . . . . . . . . . . . . . . . 291

The Constitution of the United States . . . . . . . . . . . . . . . . . 303

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Part I
DICTIONARY
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A
the combined value of all bequests and
devises, and/or the debts owed by a tes-
tator, exceed the assets in the testator’s
estate. 4 n. The rebate or reduction of
taxes already assessed and/or paid.
abatement n. 1 The act of abating.
2 The process of, or the state of, being
abated. 3 The amount abated.
abatement clause n. A contractual
provision releasing the tenant of a lease
from the obligation to pay rent when an
act of God prevents the occupancy of the
AAA abbr. See American Arbitration premises.
Association.
abator n. A person who diminishes or
AALS abbr. See Association of eliminates a nuisance.
American Law Schools.
ABC test n. A rule of law that allows
ABA abbr. See American Bar employers not to provide unemployment
Association. compensation to independent contrac-
tors. The test for whether an individual
abandon v. 1 To intentionally give up is an independent contractor as opposed
for all time an assertion or a claim of an to an employee is threefold: 1) does the
interest in property or in a right or priv- individual work independently of the
ilege. 2 To repudiate, withdraw from, employer’s control (A = alone); 2) does
or otherwise disassociate oneself from a the individual maintain his own place of
duty or responsibility. 3 To intention- business (B = business); and 3) does the
ally fail to complete. individual practice or work at an estab-
lished trade, and exercise control over
abandoned property See property. his own schedule and method of opera-
abandonee n. A person or party to tion (C = control)? The name derives
whom property or a right has been aban- from the letters normally used to desig-
doned or relinquished. nate the three parts of the test. See
contractor.
abandonment n. 1 The act of aban-
doning property or a right with no intent abdication n. The act of a person or
of reclaiming it or of later giving it away branch of government renouncing or
or selling it. See also forfeiture, relin- abandoning an office, trust, sovereignty,
quishment, renunciation, surrender, privileges, or duties to which he or she
and waiver. 2 The act of abandoning a is entitled, holds, or possesses by law.
person with the intent of terminating the abduct v. 1 To carry or lead a person
duties or him or her. For example, the away from where he wants to be or
intentional failure by a parent to com- wants to go by use of force, threats, or
municate with or to provide financial or deception. 2 To restrain or conceal a
other support to his children. See also person in order to prevent his escape or
desertion. rescue. See also kidnapping.
abate 1 v. To end, eliminate, do away abet v. To actively, knowingly, and/or
with, or make null and void. 2 v. To intentionally aid, encourage, incite,
diminish, decrease, or lessen in degree instigate, or otherwise support the com-
or amount. 3 n. The reduction of a mission of an act.
bequest or devise made in a will because
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abeyance 4

abeyance n. 1 An indefinite or tempo- abortion n. 1 The premature termina-

rary state of inactivity or suspension. tion of a pregnancy. 2 The intentional
2 An incomplete or undetermined state and artificial termination of a pregnancy
of existence. 3 The status of real prop- that destroys an embryo or fetus. 3 The
erty or of a position or title when its spontaneous expulsion of an embryo or
ownership or occupancy is not vested in fetus before it is capable of living outside
any existing person or party. the womb.
abide v. 1 To await. 2 To accept or above adv. 1 Previously in the same
submit to. 3 To tolerate or withstand. chapter, document, or text. For example,
4 To adhere, execute, obey, perform, or a reference to a court case cited earlier
otherwise act in conformity with. 5 To in the same document. 2 Having the
dwell, remain, reside, or stay. power to review the decisions regarding
questions of fact and/or law made in a
abiding adj. Certain; indestructible; court. For example, appellate courts,
permanent; steadfast; unaltering; unfal- such as the United States Supreme
tering; unshakeable. Court, are above, or can review, the deci-
sions made by one or more trial courts.
ab initio adv. Latin. From the first act.
See jurisdiction, question of fact, and
From the beginning; back to one’s cre-
question of law.
ation or inception.
abridge v. 1 To diminish, lessen, or
abnormally dangerous activity n. An
restrict a legal right. 2 To condense or
undertaking so dangerous that, even if
shorten the whole of something, such as
precautions and reasonable care are
a book, and not merely a portion of it.
used, it cannot be safely performed and
anyone who engages in it is strictly abrogate v. 1 To annul, cancel,
liable for any resulting injuries and dam- destroy, overturn, repeal, revoke, set
age, especially if 1) there is a risk of aside, supercede, or otherwise do away
serious harm to people or property, with or put an end to. 2 To abolish a
2) the activity cannot be performed in custom or law by some authoritative,
some other way that avoids those risks, formal, legislative, or other legally effec-
and 3) the undertaking does not nor- tive method.
mally occur at the location where it is to
take place. See also liability. abscond v. 1 To secretly or suddenly
leave a place or to go into hiding, espe-
abode 1 n. A dwelling, home, or other cially to avoid arrest, prosecution, the
fixed place where a person resides. service of a summons or other legal
2 v. Past tense and past participle of process, or an action by a creditor. 2 To
abide. leave a location, often in a hurry, with
money or property of another.
abolish v. To abrogate, annul, cancel,
eliminate, put an end to, recall, repeal, absent without leave n. The act of
or revoke, especially things of a seem- being away from one’s military duties or
ingly permanent nature, such as cus- post without permission but with no
toms, institutions, and usages. intent of deserting. Abbreviated as
AWOL. See also desertion.
abolition n. 1 The act of abolishing.
2 The legal abolition and prohibition of absentee n. A person who is not where
slavery. 3 The abolition of slavery in he or she would normally be found, such
the United States by the Thirteenth as a place of residence or work.
Amendment to the United States
Constitution.
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5 abstention

absentee landlord n. A landlord who state court’s decision involving

resides so far from the leased real those regulations and proceedings
property that his is not, or is not when they involve a substantial or
expected to be, readily available to per- sensitive area of state concern.
sonally address any problems concern- Burford v. Sun Oil Co. (1943).
ing the property. Colorado River abstention. A federal
court’s act of declining to exercise
absentee voting See voting. its jurisdiction when there is under-
absentia See in absentia. way a state court proceeding involv-
ing the same parties and questions.
absolute n. 1 Without any conditions, Colorado River Water Conservation
encumbrance, qualification, or restric- Dist. v. United States (1976).
tion. See also discretion, divorce, Pullman abstention. A federal court’s
immunity, privilege, and fee. 2 Not decision to await the interpretation
liable or subject to revisions; conclusive. of a state law by that state’s court
3 Free from any restraint or restriction before deciding a federal constitu-
in the exercise of government power. tional question that is dependant
upon how that law is interpreted.
absolute law See natural law. Railroad Commission of Texas v.
Pullman Co. (1941).
absolute liability See strict liability.
Rooker–Feldman abstention. A fed-
absolve v. 1 To forgive misconduct. eral court’s declining to consider
2 To free from guilt or suspicion; for the argument that a state court
example, when evidence proves that a judge violates a party’s federal
suspect is innocent of a crime. 3 To rights for the reason that the proper
free from the penalties imposed as a venue to challenge that judge is
that state’s court system. Rooker v.
result of misconduct. 4 To free from a Fidelity Trust Co. (1923) and District
debt, duty, obligation, or responsibility. of Columbia Court of Appeals v.
Feldman (1983).
abstention n. 1 The act of voluntarily
refraining from taking some action, Thibodaux abstention. A federal
such as casting a vote or participating court’s act of declining to exercise
in a decision or deliberation. 2 A fed- its jurisdiction to allow a state court
eral court’s act of declining to exercise to decide difficult issues if impor-
its jurisdiction while awaiting or defer- tance in order to avoid unnecessary
ring to a decision by a state court. In friction between federal and state
doing so, the federal court retains juris- authorities. Louisiana Power & Light
Co. v. City of Thibodaux (1959).
diction of the legal issues at hand and
may decide those issues if the plaintiff Younger abstention. 1 A federal
is not satisfied with the state court’s court’s decision to halt or interfere
decision. See also comity and relin- with a state court’s criminal pro-
quishment. Several rationales for a fed- ceeding unless the prosecution has
eral court’s abstention are named for been brought in bad faith or harass-
the United States Supreme Court deci- ment. 2 A federal court’s decision
sion in which the rationale was first to halt or interfere with a state
applied. These include: court proceeding on the grounds
Burford abstention. The refusal of a that the arguments of the party
federal court to consider a challenge seeking the federal courts involve-
to a state’s administrative regula- ment can be raised and fairly deter-
tions and proceedings or to review a
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abstract 6

mined in the state court. Younger v. e.g., nurse-patient; 2 v. to use an object

Harris (1971). in an illegal or unreasonable manner.
3 n. The mental or physical mistreat-
abstract n. A concise summary of a ment of a person, frequently resulting in
text. See also abstract of judgment, serious emotional, mental, physical,
abstract of record, and abstract of title. and/or sexual injury.
abstract of judgment n. A copy or child abuse. 1 The intentional or
summary of a court’s judgment. When it neglectful abuse, which includes
is filed with the appropriate authorities, sexual mistreatment, inflicted on a
a lien is created on the judgment child. 2 A parent or caregiver’s
debtor’s nonexempt property in favor of intentional or neglectful act or fail-
the judgment creditor. ure to act that results in a child’s
abuse, exploitation, or death. 3
abstract of record n. A summary of An act or failure to act that results
the record of a case advising an appel- in a possibility of immediate and
late court of the underlying facts, all the serious harm to a child. See also
battered person syndrome and
steps taken to-date in the case, the deci- child neglect.
sion of the trial court, and the legal
issues to be decided. elder abuse. The abuse of an elderly
person by his or her child or care-
abstract of title n. A short history or giver, that may include battery, ver-
summary of the ownership of a parcel of bal abuse, isolation, and the denial
land. The abstract includes a list of all or deprivation of food.
conveyances, transfers, and other evi-
dence of title; all grants, conveyances, sexual abuse. 1 An illegal sexual
act. 2 Unlawful sexual activity or
wills, records, and judicial proceedings contact with a person without her
that may affect title; and a list of encum- consent. The activity or contact is
brances and liens of record on the land, usually imposed by the use of force
along with a statement whether the or threats of violence. The applica-
encumbrances and liens still exist. A tion of the term varies, but it is usu-
company whose business is to obtain ally applied to activities or contact
such information from public records that do not amount to rape, but
usually does such an abstract for the sometimes the term includes rape.
mortgagee or buyer of real property in Also called carnal abuse and sex
connection with a proposed sale of land. abuse.
See also chain of title. spousal abuse. The abuse inflicted on
abstraction n. 1 The act of separat- a person by his or her spouse. See
ing, taking away, or withdrawing. 2 also battered person syndrome and
The act of taking with the intent to cruelty.
injure or defraud. 3 The unauthorized abuse excuse n. A courtroom tactic
taking of financial statements or funds whereby a criminal defendant claims
with the intent of misappropriating that mental or physical abuse either
them. explains the defendant’s conduct, espe-
abuse 1 v. To mistreat or neglect a cially in cases involving violence against
person, particularly as to one for whom the alleged abuser, or makes the defen-
the actor has special responsibility by dant incapable of telling right from
virtue of a relationship, e.g., spouse, wrong. The phrase is almost exclusively
child, elderly parent, or one for whom used as a term of derision by those
the actor has undertaken a duty of care, unsympathetic to such claims.
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7 accession

abuse of discretion n. A trial court or vesting, of a legal duty, interest, or right

administrative agency’s ruling on a mat- that was to arise or vest in the future.
ter within its discretion that, in light of See also acceleration clause. 2 The
the relevant facts and law, is arbitrary, hastening of a real property owner’s
capricious, unconscionable, unfair, enjoyment, or the vesting, of his remain-
unreasonable, or illegal. An appellate der interest in an estate because of the
court will not reverse a ruling that was failure or premature termination of a
within the discretion of the trial court or preceding estate.
administrative agency merely because
the appellate court would have reached acceleration clause n. A provision in
a different decision. Instead, the trial a contract or in a testamentary or other
court or administrative agency’s deci- legal document that, upon the occur-
sion must be wholly inconsistent with rence of specific events, a party’s future
the facts and the law and with any rea- interest in certain property will prema-
sonable deductions that can be made turely vest. For example, in many loan
therefrom. or mortgage agreements, provision is
made that if some specified event
abuse of process n. The tort of begin- occurs, such as the debtor’s failure to
ning or otherwise using the judicial civil pay an installment, the creditor may
or criminal process for an improper pur- declare the entire outstanding balance
pose. There may be a legitimate basis to be immediately due.
for instituting or using the judicial
process, but the actual intent behind the acceptance 1 n. The act of voluntarily
action is improper. See also malicious agreeing, expressly or by implication, to
prosecution. the terms of an offer, thereby creating a
contract. However, if the act modifies or
abut v. To adjoin; to border on; to adds to the terms of the offer, it is not an
cease at the point of contact; to connect acceptance, but a counteroffer. See also
or join at a border; to share a common offer. 2 v. To accept delivery of prop-
border with. erty or to otherwise agree, expressly or
by implication, to become its owner,
abuttal n. The border of a parcel of either in exchange for the performance
land in relation to adjoining lands. of a contractual obligation or the com-
academic freedom n. 1 The right of a pletion of an inter vivos gift. See also
teacher or student, especially at the col- contract and gift. 3 n. The receipt of a
lege or university level, to discuss or check or other negotiable instrument by
investigate any issue, or to express opin- a bank or another drawee.
ions, on any topic without interference access n. The ability, opportunity, per-
or fear of penalty or other reprisal from mission, or right to approach, communi-
either the school or the government. 2 cate, enter, pass to and from, or view
A school’s freedom to control its own without interference or obstruction. See
policies without government interfer- also easement and visitation rights.
ence, penalty, or reprisal. The extent to
which academic freedom exists depends accession n. 1 The act of acceding or
on many facts, including whether the agreeing, especially when it involves the
school is a private or public institution yielding of part or all of one’s own posi-
and whether it is a primary or secondary tion. 2 The act of acceding to, or com-
school or a college or university. ing into possession of, an office, right, or
title. 3 In international law, the formal
acceleration n. 1 The shortening of assent by one county to a treaty between
the time, or the immediate creation or
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accessory 8

other countries. By doing so, the country when the crime is committed. Such
becomes a party to the treaty. 4 The a person, known as an aider and
acquisition of title to personal property abettor, is normally considered as
by applying labor that converts it into an culpable as the person who actually
entirely different thing (such as turning commits the crime and is normally
treated by the law as an accom-
leather into shoes) or incorporates it plice. See also aid and abet.
into other property. 5 An artificial or
natural addition or improvement to accident n. 1 An unintended, unfore-
property. 6 A real property owner’s seen, and undesirable event, especially
right to all that the property produces one that causes harm, injury, damage, or
and to all that is artificially or naturally loss. 2 An unintended and unexpected
added to it, such as land reclaimed by event, especially one that is undesirable
the use of dams or the construction of or harmful, that does not occur in the
buildings and other improvements. See usual course of events under the cir-
also annexation. cumstances in which it occurred, or that
would not be reasonably anticipated. 3
accessory n. 1 Additional; aiding the In equity, an unexpected and injurious
principal design; contributory; second- event not caused by misconduct, mistake,
ary; subordinate; supplemental. 2 One or negligence. 4 In many automobile
who aids or contributes to the commis- insurance policies, any unintentional
sion or concealment of a crime or assists event including those caused by miscon-
others in avoiding apprehension for the duct, mistake, or negligence.
crime but not present when the crime
was committed. Mere silence or unavoidable accident. An accident
approval of the crime is insufficient to that is not caused by the negligence
make one an accessory; the person must or other fault of anyone involved.
take steps to facilitate the commission
or concealment of the crime or the accidental death n. Death resulting
avoidance of the criminal’s capture. from an accident from an unusual event
See also misprision of felony, accom- that was unanticipated by everyone
plice, aid and abet, conspiracy, and involved. A death may be considered
principal. “accidental” even if it was intentional or
expected. For example, an insurance
accessory after the fact. One who was policy may provide that its accidental
not at the scene of a crime but death benefit will be paid if the insured
knowingly assists, comforts, or is murdered (although generally not if
receives a person known to have the beneficiary committed the murder).
committed a crime or to be sought
for the commission or attempted accidental death and dismemberment
commission of a crime, in an insurance n. Insurance that pays the
attempt to hinder or prevent the insured or his beneficiaries specified
felon’s arrest or punishment. Such a amounts, in addition to or in substitu-
person is normally regarded as less
culpable than the criminal and is tion for compensation for injuries suf-
subject to prosecution for obstruc- fered by the injured, for the loss of
tion of justice. specific body parts, body functions, or
death resulting from an accident.
accessory before the fact. One who
assists, commands, counsels, accidental death benefit n. A pay-
encourages, or procures another to ment, in addition to the compensation
commit a crime, but is not present received by the beneficiaries of an
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9 account

accident insurance or life insurance pol- accomplice n. One who knowingly,

icy, to be made paid if the insured suffers voluntarily, or intentionally, and with
an accidental death. See also double common intent and criminal purpose
indemnity. shared with the principal offender, solic-
its or encourages another to commit a
accident insurance See insurance crime or assists or attempts to assist in
(casualty insurance). its planning and execution. Normally,
accommodated party See accommo- one’s mere presence while knowing the
dation party. crime is about to be committed, without
any contribution to the commission of
accommodating party See accommo- the crime, does not make a person an
dation party. accomplice. However, in some situa-
tions, knowledge combined with the fail-
accommodation n. 1 Something done, ure to make an attempt to prevent the
such as providing a loan or signing an crime will make one an accomplice. An
accommodation paper as a surety for accomplice is normally regarded as just
another, that is done as a favor without as culpable as the person who actually
any direct or indirect benefit, compensa- commits the crime. See also accessory,
tion, or consideration. 2 The act of aid and abet, and conspiracy.
making a change or provision for some-
one or something. accord n. 1 An agreement to satisfy a
claim by some form of discharging the
accommodation maker See accom- obligation other than what the obligee
modation party. is, or considers himself, entitled to. See
also accord and satisfaction. 2 In
accommodation paper n. A negotiable legal citation, the identification of one
instrument that one co-signs as a surety case that clearly supports the proposi-
as an accommodation to another party, tion for which another case is being
who remains primarily liable without quoted.
receiving any benefit, compensation, or
consideration. See also accommodation accord and satisfaction n. An accord
party. that has been satisfied by the completion
of the agreed upon payment or perform-
accommodation party n. A person ance. The satisfaction (that is, comple-
who, without any direct or indirect ben- tion) of the accord extinguishes the
efit, compensation, or consideration, co- original obligation that the obligee was,
signs a negotiable instrument as a favor or considered himself, entitled to. Once
to the person who owes the money and, satisfied, the subject of the accord can
thus, becomes liable on it to all parties never be raised in any future legal action.
except the accommodated party who, by See also novation and settlement.
implication, agrees to pay the instru-
ment and to indemnify the accommoda- account n. 1 A detailed record of a
tion party for any losses incurred in financial transaction, indicating the deb-
paying it. This is frequently done when its and credits between the parties to a
the creditworthiness of the accommo- contract or a fiduciary relationship. 2
dated party does not satisfy the person The debt remaining to be paid, or the
taking the negotiable instrument or credit to be refunded, as indicated in
extending the credit. Also called, in the such a record. 3 A detailed record of
case of a promissory note, an accommo- the financial transactions, business
dation maker.
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accountant-client privilege 10

dealings, and other relations for which services performed, property sold, money
records must be kept. 4 In the loaned, or for damage for the incomplete
Uniform Commercial Code, a right to performance of minor contracts. See also
payment for goods whose sale or lease, account. 4 A legal action to complete
or for services whose performance, are or settle all of a partnership’s affairs.
not evidenced by a negotiable instru- Usually done in connection with the dis-
ment or chattel paper. 5 A business solution of the partnership or with alle-
relationship involving the management gations of a partner’s misconduct. See
of money or the availability and use of also winding up.
credit. 6 In the common law, a legal
action to require a person to account for accounting for profits See accounting.
money or property. See also accounting. accounting method n. The accepted
7 A statement by which someone method by which a person or business
explains, or attempts to explain, an consistently determines his income and
event. 8 In business, a particular expenses and allocates them to an
client or customer. See also joint accounting period in order to determine
account. his taxable income. See accrual
accountant-client privilege See priv- method, cash method, and contract.
ilege. accounting period n. The regular
account creditor n. One to whom the span of time used for accounting pur-
balance of an account is owed. See also poses. For example, the period used by a
account debtor. taxpayer to calculate her income and to
determine her tax liability.
account debtor n. 1 One who owes
the balance of an account. 2 In the accretion n. 1 In property law, the
Uniform Commercial Code, one who gradual increase in land through natural
owes an obligation on an account, chat- processes; for example, the creation of
tel paper, or intangible property. See land caused by the deposit of sediment
also debtor and account creditor. on a shoreline of a river or ocean. The
new land becomes the property of the
account payable n. The balance owed owner of the property to which it is
to a creditor as indicated by an account. attached. See also alluvion, reliction,
See also account receivable. and avulsion. 2 In succession law, the
increase in an heir or legatee’s interest
account receivable n. The balance in property when a co-heir or co-legatee
owed by a debtor as indicated by an dies before the property vests, rejects
account. See also account payable. his inheritance or legacy, fails to comply
with a condition to be met before vest-
accounting n. 1 The act or a system of
ing, or otherwise becomes incapable of
establishing how the assets of a busi-
taking the property.
ness, estate, trust, or other similar
entity were managed and disposed of. accrual method n. An accounting
2 In equity, a legal action to require one, method that records income and
usually a fiduciary or a constructive expenses when they are earned or
trustee, to account for and pay over funds incurred rather than when they are
held by them but owed to another. received or paid. See also cash method
See also account. 3 In equity, a legal and completed contract method.
action for the recovery of funds owed for
04_542109 [Link] 3/28/06 12:16 PM Page 11

11 action

accrue v. 1 To come into existence or acquaintance rape See rape.

mature as an enforceable claim or right.
For example, a cause of action may be acquiescence n. Tacit or passive con-
sued upon once it is an enforceable duct that implies agreement or consent.
claim. Likewise, the interest on a sum For example, if one makes a statement
owed accrues on the date the interest and another is silent when an objection
becomes due. 2 To accumulate. should be forthcoming, the second per-
son’s acquiescence to the statement
accumulated depreciation n. The may be inferred.
total depreciation currently recorded
against either a single or all productive acquit v. 1 In criminal law, to clear a
assets. person, to release or set him free, or to
discharge him from an accusation of
accusation n. 1 A formal charge of committing a criminal offense after a
criminal wrongdoing against a person or judicial finding that he is not guilty of
corporation. See also indictment, infor- the crime or after the court or prosecu-
mation and presentment. 2 An infor- tion determines that the case should not
mal charge that one has committed an continue after the criminal trial has
illegal, immoral, or otherwise wrongful started. See also autrefois acquit and
act. double jeopardy. 2 In contract law, to
pay or discharge a debt, duty, or a claim.
accusatorial system See adversary
system. acquittal n. 1 In criminal law, the
legal finding, by judge or jury, that an
accuse v. 1 To make an accusation accused person is not guilty of the crime
against. 2 To prosecute. 3 To for- he is charged with. Once the acquittal is
mally institute a legal action against a reached, the defendant may not be pros-
person or corporation wherein they are ecuted again for the same criminal act
charged with committing a crime. 4 To or transaction. 2 In contract law, the
judicially or publicly charge one with a release or discharge from a debt or other
criminal offense. contractual obligation.
accused n. 1 A person who is blamed act 1 n. A statute. 2 n. Something
for a wrongdoing. 2 A person who has done or performed. 3 v. The process of
been arrested or formally charged by an doing or performing. See also actus
indictment, information, or presentment reus, overt act and omission.
with a crime.
action n. 1 Any behavior, conduct, or
acknowledgment n. 1 The recognition series of acts by a person. 2 A civil or
of a fact or the existence of an obligation criminal judicial proceeding intended
and the acceptance of the accompanying to resolve a legal dispute, claim, or
legal responsibility. For example, a puta- accusation.
tive father may acknowledge a child as
his during a paternity proceeding. 2 civil action. An action brought to
One’s formal declaration in the presence enforce, protect, or redress a civil
of a notary public or other authorized or private right or to compel a civil
individual that she has signed a deed or remedy; any action brought other
other document and that the signature is than a criminal action.
authentic. class action. 1 An action brought
by a person or a group of people as
ACLU abbr. See American Civil representatives of a larger group
Liberties Union.
04_542109 [Link] 3/28/06 12:16 PM Page 12

action in personam 12

who have a common legal claim but of contribution or indemnity, should

are so numerous that it is impracti- the defendant be found liable to the
cable for all of them to participate plaintiff.
or be joined as individual parties in
the case. 2 An action brought action in personam See in per-
against a large group of people who sonam.
have a common legal defense to a
claim that they are all potentially action in rem See in rem.
liable for but are so numerous that
it is impracticable for all of them to action quasi in rem See action.
participate or be joined as individ-
ual parties in the case. actionable n. Wrongful conduct that
provide grounds for a lawsuit or other
criminal action. An action initiated legal proceeding.
by the government to punish a per-
son or entity for a crime. actionable per quod n. Actions that
require the allegation and proof of addi-
damage action. An action seeking an
award of money from the defendant tional facts. For example, in libel or
for a wrong committed upon the slander, the statement in question may
plaintiff. not appear defamatory on its face (such
as “Mr. Smith is a member of a particu-
derivative action. 1 An action lar club”), so the plaintiff has to prove
brought on behalf of a corporation additional facts to establish its defama-
by a shareholder when that corpora- tory nature (“Every member of that club
tion is entitled to bring an action is a sex offender”). In such actions, the
and, deliberatively or otherwise,
fails to do so. 2 An action that is plaintiff has to prove that he suffered
based upon the injury suffered by damages in order to have a cause of
someone other than the plaintiff. action.
For example, a husband may sue for
loss of consortium or services if the actionable per se n. Actions that do
defendant injured his wife. not require the allegation or proof of
additional facts to constitute a cause of
in personam action. See in per- action nor any allegation or proof that
sonam. damages were suffered. An example, in
in rem action. See in rem. libel or slander, is a statement that obvi-
ously damages a person’s reputation
quasi in rem action. An action (such as “Mr. Smith is a sex offender”)
against an out-of-state defendant that does not require any reference to
over whom the state lacks in per- circumstances or facts to understand its
sonam jurisdiction that is com- defamatory meaning. In such actions,
menced by the attachment, the plaintiff does not have to prove that
garnishment, or other seizure of he suffered any damages in order to
property owned by the defendant
that is located within the state and have a cause of action.
that is unrelated to the plaintiff’s act of Congress n. A statute formally
claim.
enacted by Congress in accordance with
third-party action. An action initiated the powers granted to it by the United
by a defendant in a civil case States Constitution.
against a person or entity who is
act of God n. An overwhelming natu-
not a party to the proceeding that is
ral event, often unpredictable or difficult
against the defendant and against
to anticipate, that is uncontrolled and
whom the defendant claims a right
04_542109 [Link] 3/28/06 12:16 PM Page 13

13 ad hominem

uninfluenced by the power of man and The term may also refer to the increase
that could not be prevented or avoided itself, the procedure by which it is done,
by foresight or prudence. and the court’s power to issue the order.
actual adj. Real or existing in fact as adduce v. To compile or offer, gener-
opposed to being assumed or deemed to ally in the context of introducing evi-
have happened or exist. See also appar- dence at trial.
ent and constructive.
ADEA abbr. See Age Discrimination
actual authority See authority. in Employment Act.
actual cash value n. A fair or reason- ademption n. The reduction, extinc-
able price that can be obtained for an tion, or withdrawal of a devise or legacy
item or property in the ordinary course by some act of the testator, before his or
of business, not under duress or exi- her death, that clearly indicates an
gency. Synonymous with fair market intent to diminish or revoke it. See also
value. ademption by extinction, ademption
by satisfaction, abatement, advance-
actuary n. One who computes insur- ment, and lapse.
ance and property costs, such as the
cost of insurance premiums and risks. ademption by extinction n. An
ademption of some specific or unique
actus reus n. The voluntary and property that occurs when the property
wrongful act or omission that consti- is destroyed, given away, or sold or does
tutes the physical components of a not otherwise exist at the time of the
crime. Because a person cannot be pun- testator’s death.
ished for bad thoughts alone, there can
be no criminal liability without actus ademption by satisfaction n. An
reus. ademption that occurs when the testa-
tor, while alive, gives the property that
ADA abbr. See Americans with is the subject of a devise or legacy to the
Disabilities Act. intended beneficiary in lieu of the testa-
ad damnum n. Latin. To the damage. mentary gift.
The amount of money sought as dam- adequate remedy at law n. A legal
ages by the plaintiff in a civil action. remedy, usually an award of money, that
ad damnum clause n. A statement in provides sufficient compensation to the
the complaint in a civil action that spec- plaintiff, thereby making equitable
ifies the amount of money sought by the relief, such as specific performance,
plaintiff. See also complaint and prayer. unavailable.

addendum n. An addition to a docu- ad hoc adj. Latin. For this; for a par-
ment. ticular purpose. For example, ad hoc
committees are often created to accom-
additur n. Latin. It is added to. A trial plish a particular purpose.
court’s order to increase the damages
awarded by a jury. It is done to prevent ad hominem adj. Latin. To the person.
the plaintiff from appealing on the Appealing to personal prejudices
grounds that inadequate damages were instead of reason; attacking one’s char-
awarded, but the court cannot issue the acter rather than his arguments.
order without the defendant’s consent.
04_542109 [Link] 3/28/06 12:16 PM Page 14

adjoining 14

adjoining adj. Abutting; bordering ad litem adj. Latin. For the suit. For
upon; sharing a common boundary; touch- the purposes of, or pending, the particu-
ing. See also contiguous and adjacent. lar lawsuit. See also administrator ad
litem and guardian ad litem.
adjourn v. To briefly delay, suspend, or
postpone a court proceeding. See also administration n. 1 A court’s manage-
continuance. ment and distribution of property during
a judicial proceeding. 2 The manage-
adjournment sine die See sine die. ment and settlement of the estate of an
intestate or of a testator who has no
adjacent adj. Laying near or close by,
executor by a person appointed by the
but not necessarily connected. See also
court.
adjoining.
administrative agency n. A govern-
adjudge v. To render a judicial deci-
mental regulatory body that controls
sion or judgment concerning a disputed
and supervises a particular activity or
subject that is before the court. For
area of public interest and administers
example, a court may adjudge that a
and enforces a particular body of law
defendant is obligated to pay the dam-
related to that activity or interest.
ages sought by the plaintiff.
administrative law n. 1 The law cov-
adjudication n. The process of hear-
ering the organization, duties, and oper-
ing and resolving a dispute before a
ation of an administrative agency. 2
court or administrative agency. It
The law created by an administrative
implies a final judgment based on the
agency consisting of rules, regulations,
evidence presented, as opposed to a pro-
orders, opinions, or reports containing
ceeding where the merits of the case
findings of fact and administrative hear-
were not considered by the court or
ing decisions.
administrative agency. See also default
judgment. administrative law judge n. An offi-
cial of an administrative agency who
adjure v. 1 To earnestly and solemnly
presides at an administrative hearing
bind, charge, or command. Frequently,
and has the power to administer oaths,
persons who are adjured are placed
issue subpoenas, and rule on the admis-
under oath or a threat of penalty. For
sibility of evidence as well as hear, con-
example, juries are adjured to consider
sider, and weigh testimony and other
only the evidence presented at trial as
evidence and make or recommend fac-
they attempt to reach a verdict in an
tual or legal decisions.
action. 2 To earnestly and solemnly
entreat or request. Administrative Procedure Act n. A
federal statute governing the rule-mak-
adjusted basis n. The value of a tax-
ing and administrative proceedings of
payer’s original investment in property,
federal administrative agencies by pro-
adjusted by the value of subsequent cap-
viding guidelines for rule-making and
ital improvements and depreciation
adjudicative hearings, judicial review,
deductions. See also basis.
and public access. Most states have sim-
adjusted gross income n. A taxpayer’s ilar statutes governing their state
gross income minus the deductions, usu- administrative agencies. Abbreviated
ally business deductions, they are APA.
allowed under the tax code. See income.
04_542109 [Link] 3/28/06 12:16 PM Page 15

15 adoption

administrator n. A person appointed gation in a complaint, counterclaim, or

by the court to manage a part or all of request for admissions. 3 The accept-
the assets and liabilities of an intestate ance by a judge of evidence for consid-
or of a testator who has no executor. In eration by himself or the jury when
many states, the person can be a man or determining the merits of the action. 4
a woman, but in the others, the term The granting or obtaining of a license
refers to a male, while a female who is from a state or an established licensing
appointed to perform these duties is authority, such as a state bar associa-
called an administratrix. See also tion, or permission from a court, to prac-
administrator ad litem and ancillary tice law in that state or before that
administrator. court. See also admission pro hoc vice.
administrator ad litem n. A person admission pro hoc vice n. The grant-
appointed by the court to represent the ing of special permission to an out-of-
interests of an estate in an action. Such state attorney, or an attorney not
an appointment is usually made because admitted to practice in any state or
the estate has no administrator or before any court, to practice law as
because the current administrator has counsel for a party in a particular law-
interests in the action that conflict with suit.
those of the estate.
admonition n. A judge’s advice, cau-
administratrix See administrator. tionary statement, direction, reprimand,
or warning to a jury, lawyer, party, spec-
admiralty and maritime n. All things tator, or witness regarding any matter
related to events occurring at sea and on that arises during a judicial proceeding.
inland waters.
adoption n. 1 In family law, the legal
admiralty courts n. Federal courts process that establishes a parent/child
exercising jurisdiction over admiralty relationship between individuals who
and maritime matters. However, in some are not related by blood. Once the adop-
matters, the Congress has granted con- tion is completed, the adoptive child
current jurisdiction to the state courts. becomes entitled to all the privileges
admissible evidence n. Evidence per- belonging to a natural child of the adop-
mitted by the law to be considered by a tive parents, and the adoptive parents
judge or jury in deciding the merits of an acquire all the legal rights, duties, and
action. Only admissible evidence may be obligations of the child’s natural par-
considered, but the judge has the discre- ents. Furthermore, all legal rights,
tion to exclude admissible evidence from duties, and obligations between the
his or the jury’s consideration. For child and his or her natural parents
example, cumulative evidence, or evi- (except, in some states, the obligation to
dence whose probative value is out- pay delinquent child support payments)
weighed by the risk of confusing the terminates upon the completion of the
issues to be decided, may be excluded. adoption. 2 In contract law, the
acceptance by a person or entity of the
admission n. 1 Any act, assertion, or rights and responsibilities made for
statement made by a party to an action their benefit under a contract to which
that is offered as evidence against that she is not a party. 3 To accept legal
party by the opponent. 2 A defendant’s responsibility for the act of another. See
failure to deny, or his voluntary also ratify.
acknowledgment of the truth, of an alle-
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adoptive 16

adoptive adj. 1 Related by virtue of an court’s decision and the decision’s incor-
adoption. For example, an adult who poration in a bound volume of law reports.
adopts a child is that child’s adoptive See also reports and slip opinion.
parent. (Although the adult is referred
to as the adoptive parent, the minor is advancement n. An irrevocable gift to
known as the adopted child.) 2 an heir during an intestate’s life, given
Pertaining to an adoption of any kind. with the intention that it shall diminish
For example, by adoptive works or con- or extinguish the heir’s share of the
duct, one may accept legal responsibility intestate’s estate under the laws of
for the act of another. intestate succession. See also satisfac-
tion, ademption, and lapse.
ADR abbr. See alternative dispute
resolution. adventure n. Any commercial or
financial venture involving speculation
adult n. A person who has attained or risk. See also joint venture.
the age of majority. See age.
adversary n. An opponent, especially
ad testificandum adv. Latin. For testi- an opposing attorney or party in an
fying. See subpoena (subpoena ad testifi- action.
candum). See also habeas corpus.
adversary procedure See adversary
adultery n. The voluntary sexual inter- system.
course by a married person with some-
one other than his or her spouse. The adversary proceeding n. 1 A judicial
consent of both parties and penetration hearing or other proceeding involving a
are required for adultery to exist. Under real dispute between opposing parties.
the common law, only a married woman See also controversy and ex parte. 2
could commit adultery, but most states A proceeding before the Bankruptcy
now apply the term to married men as Court to settle disputes regarding the
well. Also, in the states where adultery distribution of the assets of a bankrupt.
is still a crime, most statutes now pro- adversary system n. A method of
vide that the unmarried sexual partner of adjudication in which active and unhin-
a married person can also be charged dered parties, usually through their
with the offense. See also criminal con- lawyers, contest with each other and
versation, fornication, and rape. present support in favor of their respec-
ad valorem tax See tax. tive positions, usually through the
examination and cross-examination of
advance n. Monies paid before any witnesses and the presentation of other
consideration is received in exchange. evidence, to a neutral and independent
decision-maker. In criminal cases, this
advance directive n. A durable power is often called the accusatorial system.
of attorney that becomes effective if and
when one becomes incompetent, and adverse possession n. A method of
that directs the limit to what medical acquiring title to real estate by actually,
procedures should be employed to pro- continuously, and openly occupying the
long one’s life. property for an uninterrupted amount of
time to the exclusion of all others and in
advance sheets n. A paperback or defiance of the real owner’s rights. The
looseleaf booklet or pamphlet contain- required period of occupancy, as well as
ing recent decisions issued by a (usually other possible conditions, are set by
appellate) court. Advance sheets are pub- statute.
lished between the announcement of the
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17 affirmative action

adverse witness See hostile witness. by the declarant before a notary public
or another officer authorized to adminis-
advice and consent n. Phrase found ter oaths. See also affirmation.
in Article II, Section 2, Clause 2 of the
United States Constitution describing affidavit of service n. An affidavit
the Senate’s role in confirming presiden- that certifies the service of a notice,
tial appointments and ratifying treaties. process, summons, or writ by stating
The “consent” takes the form of a vote. the time and manner in which the docu-
Rarely does a president formally seek ment was served.
the Senate’s advice (it has happened only
twice; the last time was in 1848), but affiliate n. A corporation that is
senators often advise the president infor- related to another corporation by one
mally as to which potential nominees owning shares of the other, by common
and treaty provisions are acceptable. ownership, or by other means of control.
See also company (parent) and sub-
advisory jury n. Used in cases where sidiary.
there is no jury trial as a matter of right
but the judge desires the non-binding affinity n. 1 A close agreement. 2
input of a jury. Rarely used. The attraction between people. 3 Any
relationship created by marriage. See
advisory opinion n. A nonbinding also consanguinity. 4 A term used to
opinion by a court, judge, or law officer describe the relationship that one has to
on the interpretation or constitutionality the adopted or blood (and usually close)
of the law, a proposed statute, or a hypo- relatives of their spouse. For example,
thetical legal question submitted to it by affinity exists between a woman and her
a legislative or executive body or an husband’s brother.
interested party. The United States
Constitution prohibits federal courts affirm v. 1 To confirm, ratify, or other-
from issuing advisory opinions. wise approve a lower court’s decision on
appeal. 2 To solemnly declare that
advisory verdict n. A decision, usually certain statements are true or that one
non-binding, of an advisory jury. will testify truthfully. 3 To make a
solemn promise. See also oath.
advocacy n. Active support for a legal
cause by argument and persuasion. affirmation n. 1 The act of affirming
the truth of one’s statement. It serves
advocate 1 n. One who actively the same purpose as an oath and is usu-
assists, defends, pleads, prosecutes, ally done when the declarant objects to
speaks, writes, or otherwise supports making an oath on religious or ethical
the cause of another. 2 n. A lawyer. ground. 2 A voluntary and written ex
3 v. To speak, write, or otherwise sup- parte statement of facts. It is sometimes
port a cause by argument. required that the document be signed
aff’d abbr. Affirmed. and the truth of its content be affirmed
by the declarant in the presence of a
aff’g abbr. Affirming. notary public or another officer author-
ized to administer oaths. See also oath,
affiant n. One who makes and sub- affirm, and affidavit.
scribes to an affidavit.
affirmative action n. Any acts by a
affidavit n. A voluntary and written ex private or public entity to eliminate dis-
parte statement of facts signed and the crimination, to correct or remedy the
truth of its content affirmed or sworn to effects of past discrimination, or to pre-
04_542109 [Link] 3/28/06 12:16 PM Page 18

affirmative defense 18

vent future discrimination. Such dis- the property. Title automatically vests in
crimination is usually based on the race, the buyer upon the completion of events
sex, national origin, or disability of the that would otherwise give complete title
person being discriminated against. See to the seller.
also reverse discrimination.
after-born child See child.
affirmative defense See defense.
after-born heir See heir.
affirmative easement See easement.
A.G. abbr. See Attorney General.
affirmative relief See relief.
against the (manifest) (weight of the)
affix v. To permanently add to, attach, evidence n. An evidentiary standard
or fasten on. allowing a trial judge to set aside a
jury’s judgment or verdict and order a
affray n. The voluntary and consen- new trial when it clearly appears to the
sual fighting between two or more indi- judge that the jury’s decision is unsup-
viduals in a public place to the terror of ported by the credible evidence pre-
onlookers or the disturbance of the sented at trial; is based upon false
peace. There is no affray when a person evidence or some improper motive, bias,
is unlawfully attacked and resorts to or feelings; or would result in a miscar-
self-defense instead of fleeing. See also riage of justice. However, this does not
assembly. permit a judge to substitute the jury’s
decision with his own merely because he
a fortiori v. Latin. By the stronger (rea-
disagrees with the decision.
son). To draw an inference that when
one proposition is true, then a second age n. A period of time, especially one
proposition must also be true, especially marking the time of existence or the
if the second is included in the first. For duration of life.
example, if a 19 year old is legally an
adult, then a 20 year old is, too. age of capacity. The age, usually
determined by statute, at which a
aforethought adj. Considered in person becomes legally capable of
advance; deliberate; premeditated. See becoming a party to a contract, exe-
also malice aforethought. cuting a testamentary document
(such as a trust or will), initiate a
after-acquired property n. 1 In com- lawsuit without a guardian, and so
mercial law, property acquired by a on. See capacity.
debtor after the execution of a security age of consent. 1 The age, usually
agreement wherein property acquired by determined by statute, below which
the debtor before the execution of the a person may not marry without
agreement has been pledged as collat- parental consent. See also consent.
eral for a loan. 2 In bankruptcy law, 2 The age, usually determined by
property acquired by a bankrupt after a statute, below which a person is
petition for bankruptcy is filed. legally incapable of consenting to
sexual intercourse. See consent
after-acquired title n. The title and rape.
acquired by a buyer, who previously pur-
chased property while unaware that the age of majority. The age, usually deter-
mined by statute, at which a person
seller did not have complete title to it, attains full civil, legal, and political
after the seller, unbeknownst to the rights. See also age of consent.
buyer, later acquires complete title to
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19 agreement

age of reason. 1 The age, usually aggravated adj. In criminal and tort
determined by statute, below which a law, a crime or tort becoming worse or
child cannot be legally capable of more serious due to certain circum-
committing a crime. 2 The age, stances (determined by a statute for
usually determined by statute or case aggravated crimes and usually by
law, below which a child cannot be
legally capable of committing a tort. statute and case law for aggravated
torts) that occur or are present during
legal age. The age, usually deter- the commission of the crime or tort,
mined by statute, at which a person such as the possession of a deadly
becomes legally capable to exercise weapon, the youthfulness or pregnancy
a specific right or privilege or to of the victim, or the reckless disregard
assume a specific responsibility. For for the other people’s safety. The perpe-
example, in many states, a person trator of an aggravated crime is usually
may legally drive an automobile subject to more severe penalties than
once she is 16 years of age, but has for unaggravated forms of offense. The
to wait until she is 21 to legally perpetrator of an aggravated tort is sub-
drink alcohol. ject to punitive damages. See also miti-
gating circumstance and simple.
age discrimination n. The denial of
privilege or other unfair treatment based aggravating circumstances n.
on the age of the person who is discrim- Circumstances, facts, or situations that
inated against. increase the culpability, liability, or the
measure of damages or punishment for
Age Discrimination in Employment a crime or a tort.
Act n. Federal statute that protects
most employees between 40 and 70 aggregate 1 n. The sum, total, or
years of age from age discrimination in whole of all the parts. 2 v. To collect
the workforce. Other federal and local or combine.
laws provide other protections against
age discrimination in such areas as aggregation doctrine n. The rule that
housing. Abbreviated ADEA. prevents a party from combining the
amounts in controversy in all of their
agency n. 1 A fiduciary relationship in claims in order to exceed the jurisdic-
which a person or entity act, by mutual tional amount requirement in a federal
consent, for the benefit of another and diversity of citizenship case. See also
bind the other party by words or deeds. amount in controversy and jurisdic-
See agent, authority, fiduciary and tion (jurisdictional amount).
principal. 2 A governmental body
with the legal authority to administer aggrieved adj. To be adversely
and implement specific legislation. affected, or to perceive oneself as being
so, by an act or situation or by a court’s
agency couple with an interest n. A decision.
relationship between principal and agent
in which the agent is given an interest in agreement n. 1 A mutual understand-
the subject matter of the agency. ing between two or more legally compe-
tent individuals or entities about their
agent n. One who by mutual consent is rights and duties regarding their past or
authorized to act for another. See future performances and consideration.
agency, authority, and principal. While an agreement usually leads to a
04_542109 [Link] 3/28/06 12:16 PM Page 20

aid and abet 20

contract, it could also be an executed agreements are not enforceable

sale, a gift or other transfer of property, unless each party makes a full dis-
or a promise without a legal obligation. closure to the other of their assets
2 The understanding between two or and has consulted with their own
more legally competent individuals or attorneys. Even then, most such
agreements are not enforceable
entities about the rights and duties unless made by spouses who are in
regarding their past or future perform- the midst of a separation or divorce.
ances and consideration as manifested by
their language (oral or written) or by prenuptial agreement. An agreement
implication from other circumstances between spouses made before their
such as the usage of trade and the course marriage to determine the right to
of performance. See also contract. support and each other’s property in
case of death or divorce. Generally,
agreement to agree. A mutual under- such agreements are enforceable,
standing between two or more especially if both parties make a full
legally competent individuals or disclosure of individual assets and
entities that they will later enter have consulted with their own
into a contract even though the con- attorneys. See also postnuptial
tract’s exact terms have not yet agreement and separation agreement.
been decided; non-binding.
property settlement agreement. See
binding agreement. An enforceable separation agreement.
agreement or contract.
separation agreement. An agreement
collective bargaining agreement. A between spouses made during a
contract between an employer and a divorce or while obtaining a legal
union or other representative, vol- separation concerning child cus-
untarily selected by a majority of tody, child and spousal support,
the employer’s workers within a property distribution, and other
bargaining group, concerning the matters. Such agreements are usu-
wages, hours, and other conditions ally incorporated into the parties’
of employment for that group. divorce decree or into a judicial
decree granting a separation to the
divorce agreement. An agreement parties. Frequently referred to as
between spouses made during a property settlement agreement (PSA).
divorce concerning child custody,
child and spousal support, property simple agreement. An agreement for
distribution, and other matters. which nothing is legally required to
Such agreements are usually incor- make it enforceable other then some
porated into the parties’ divorce evidence that the agreement was
decree. See separation agreement. made and the parties consent to it.
gentlemen’s agreement. An agreement unconscionable agreement. Same as
not intended by the parties to be adhesion contract. See contract.
legally enforceable, but that is
expected to be performed or followed aid and abet v. To order, encourage,
as a matter of friendship or honor. facilitate, or to actively, knowingly,
May or may not involve illegal sub- intentionally, or purposefully assist, or
ject matter such as gambling bets. otherwise promote or attempt to pro-
postnuptial agreement. An agreement mote the commission of a crime or a tort.
between spouses made during their Affirmative conduct is regarded; aiding
marriage to determine the right to and abetting cannot be established by
support and each other’s property in omission or negative acquiescence. The
case of death or divorce. Such
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21 alienation of affections

person who aids and abets is usually just alien n. 1 One who is not a citizen,
as liable, and subject to the same meas- national, or subject of a particular coun-
urement of damages and penalties, as try. 2 One who is not a citizen, national,
the person who commits the crime or the or subject of the country in which he
tort. See also accessory, accomplice resides. 3 One who is born in or owes
and conspiracy. his allegiance to a foreign country.
air piracy See hijack. deportable alien. An alien who may
be deported because she was an
air rights n. The ownership or right to inadmissible alien when she
use any or all of the airspace above one’s entered the United States or has
real property. violated the regulations (for exam-
ple, by committing a serious crime)
a.k.a. abbr. “Also known as.” See governing the conduct of aliens who
alias. are within the country.

aleatory adj. Dependant on the occur- illegal alien. 1 An alien who enters or
rence of an uncertain contingent event. remains in the United States with-
out legal authorization or by fraud.
aleatory contract n. A contract in 2 An alien who marries an American
which the performance of at least one citizen, but with no intention of liv-
party depends upon the occurrence of an ing with his or her spouse as hus-
band and wife, for the purpose of
uncertain future event. improperly entering the United
Alford plea n. A guilty plea entered as States or avoiding deportation.
part of a plea bargain by a criminal inadmissible alien. An alien who can-
defendant who denies committing the not legally enter the United States.
crime or who does not actually admit his There are many reasons why an alien
guilt. In federal courts, such plea may be may be prohibited from entry, includ-
accepted as long as there is evidence ing a criminal record or poor health.
that the defendant is actually guilty.
nonresident alien. An alien who per-
Named after North Carolina v. Alford manently resides outside the United
(1970). States.
ALI abbr. See American Law resident alien. An alien who legally
Institute. established permanent residency in
alias n. 1 An assumed or additional the United States.
name used by a person, frequently to alienation n. In real property law, the
conceal her true identity, or such a name voluntary and absolute transfer of title
applied to a person by others. See also of possession, by gift, sale, or testamen-
known as. 2 An alias writ. tary instrument, of real property from
alias writ See writ. one to another.

alibi n. 1 In a criminal action, a alienation of affections n. In tort law,

defense that the defendant was some- the willful or malicious interference
where other than the scene of the crime with the relationship between a husband
when the crime was committed. 2 The and wife by a third party without justifi-
fact or state of being somewhere other cation or excuse. The interference may
than the scene of the crime when the be adultery or some other act that
crime was committed. deprives one of the affection of a spouse.
04_542109 [Link] 3/28/06 12:16 PM Page 22

alienee 22

It also includes mental pain and suffer- behalf to mitigate the punishment that
ing such as anguish, humiliation, embar- is about to be imposed. The defendant
rassment, and loss of social position as does not have to be sworn before he
well as actual financial losses caused by makes his address, his comments are
the disruption or destruction of the mar- not subject to cross-examination, and
ital relationship. See consortium. the opportunity may include the right to
offer evidence (such as an explanation
alienee n. One to whom property is for his conduct or a reason why severe
alienated. sentence should not be imposed) beyond
a request for mercy or an apology for his
alienor n. One who alienates property
conduct. 2 A similar procedure where
to another person or entity.
the victim of a crime is given in some
alimony n. Money paid after divorce to states the opportunity to personally
former spouse for support, usually for a speak, before punishment is imposed,
specified period of time, by court order about the pain and suffering suffered or
or written agreement. If paid during about the convicted defendant. 3 The
pendency of the divorce proceedings, procedure by which a guilty plea can be
referred to as alimony pendente lite. See accepted in a criminal action. The
pendente lite. process usually consists of a series of
questions designed to assure the judge
aliunde rule n. The doctrine that a that the defendant understands the
verdict may not be called into question charges, is guilty of the crime he is
by a juror’s testimony without a founda- accused of, understands the conse-
tion for that testimony being first estab- quences of a guilty plea and that he is
lished by competent evidence from entitled to a trial, and is voluntarily
another source. For example, a verdict entering the plea.
may not be overturned on the testimony
of a juror that he was bribed, unless allodial See ownership and allodium.
there was first evidence from another
allodium n. Real property owned
source of the bribery.
absolutely and free of any obligation to
ALJ n. abbr. Administration law judge. another with a superior vested right.

allegation n. 1 An assertion of fact allowance n. 1 A portion or share,

that one intends to prove at trial, espe- especially of money. 2 A portion of a
cially one in a legal pleading such as a decedent’s estate awarded by statute to
complaint, counterclaim, or indictment. the decedent’s survivors for support dur-
2 Any declaration of something to be ing the administration of the estate,
true without giving any proof. regardless of whether they have any
rights to the estate or any testamentary
Allen charge n. In criminal law, an disposition or competing claims to the
instruction given by a judge to encour- estate. If statutorily available is only to
age a deadlocked jury to make a the surviving spouse, it is known as a
renewed effort to reach a verdict. spousal (or widow’s or widower’s)
Named after Allen v. United States allowance. If statutorily available is to
(1896). surviving spouse, children, or parents, it
is known as a family allowance. See also
allocution n. 1 The procedure during elective share. 3 The court-ordered
sentencing when a judge gives a con- financial award to a fiduciary for serv-
victed defendant the opportunity to ices rendered. 4 A deduction.
make a personal statement on his own
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23 a mensa et thoro

alluvion n. The creation of land alternative minimum tax See tax.

caused by the gradual depositing, either
by artificial or natural forces, of earth, alternative pleading See pleadings.
sand, gravel, and similar materials
alternative writ See writ.
along the shoreline of a river or ocean by
running water. The new land becomes ambiguity n. A confusion or uncer-
the property of the owner of the property tainty about the intention or meaning,
to which it is attached, provided the especially of a provision in a contract or
accumulation is so gradual that it can- statute.
not be visibly perceived from moment to
moment. See also accretion, reliction, latent ambiguity. An ambiguity that
alluvium, and avulsion. is not obvious and is unlikely to be
found while using reasonable care.
alluvium n. The land created by allu- For example, a third party contract
vion. that provides for a payment to be
made to a charity, but two charities
alonge n. A piece of paper occasion- exist with the same name. Extrinsic
ally attached to a negotiable instrument evidence, if allowed, may be
for the signing of endorsements once the required to determine the correct
original instrument is filled with interpretation of the ambiguity.
However, if each party, in good faith
endorsements. interprets the ambiguity differently,
also known as n. Phrase used before the meeting of the minds necessary
to create a valid contract is not
a list of names used by a specific indi- present.
vidual in order to avoid confusion about
the person’s true identity or by others patent ambiguity. An ambiguity that
when referring to the individual. See is obvious or apparent upon reason-
also a.k.a. and alias. able inspection.
alteration See material alteration. ameliorating waste See waste.
alter ego n. The other self. A doctrine amenable adj. 1 Legally answerable;
allowing a court to ignore the limited required to respond; responsible; sub-
personal liability of a person who acts in ject to. 2 Capable of being tested,
a corporate capacity and impose per- adjudged, or brought to judgment. 3
sonal liability for the corporation’s Susceptible to; disposed toward; capa-
wrongful acts when it is shown that the ble of being persuaded.
individual was using the corporation to
conduct personal business and that there amend v. To add to, delete, correct,
was no real separation between the indi- revise, or otherwise alter.
vidual’s and the corporation’s identity.
See also corporate (corporate veil). amendment n. 1 The addition, dele-
tion, correction, or other changes pro-
a.k.a. abbr. See also known as. posed or made to a document. The term is
usually capitalized when referring to an
alternative dispute resolution n. amendment in the United States
Formal methods of settling disputes Constitution (for example, the Fifth
other than by court action, collectively Amendment). 2 The act or process or
referred to as alternative dispute resolu- revising something. See also emendation.
tion or ADR. See also arbitration, con-
ciliation, mediation, and summary a mensa et thoro adv. Latin. From
proceeding. board and hearth. See also divorce.
04_542109 [Link] 3/28/06 12:16 PM Page 24

amercement 24

amercement n. 1 The imposition of a Americans with Disabilities Act n.

discretionary fine or penalty in an Federal law enacted in 1990 to protect
amount not set by statute. 2 The fine individuals with physical or mental dis-
or penalty so imposed. abilities from intentional or uninten-
tional discrimination in housing,
American Arbitration Association n. employment, education, access to public
A national organization that promotes services, etc. Abbreviated ADA.
the use of arbitration to resolve com-
mercial and labor disputes. It also main- AMEX abbr. See American Stock
tains a panel of arbitrators for those Exchange.
who wish to utilize their services.
Abbreviated AAA. amicus brief See brief.

American Bar Association n. The amicus curiae n. Latin. Friend of the

largest national organization of lawyers, court. One who is not a party to an
it promotes improvements and reform in action but petitions the court or is
the administration of justice and in the invited by the court to provide informa-
provision of legal services to the public. tion or submit her views because she
Abbreviated ABA. has a strong interest in the case at hand
or a perspective that may not be ade-
American Bar Foundation n. A sub- quately presented by the parties.
sidiary of the American Bar Association
that funds and sponsors projects in law- amnesty n. A pardon for past criminal
related education, research, and social offenses for a class or group of individu-
studies. als who are subject to trial but have not
yet been convicted. Amnesty may be lim-
American Civil Liberties Union n. A ited or conditional. For example, amnesty
national organization of lawyers and may be offered only to those who perform
others who are interested in enforcing a certain act, such as community service,
and preserving the individual rights and within a specific period of time. Also
civil liberties guaranteed by the federal referred to as grant of amnesty.
and state constitutions. Abbreviated
ACLU. amortize v. 1 To gradually extinguish
a debt in advance of its maturity, usually
American Law Institute n. A by paying regular installments in excess
national organization of attorneys, of the accrued interest each time a peri-
judges, and legal scholars who seek to odic interest payment is due. See also
promote consistency, clarity, and simpli- sinking fund. 2 To arrange to gradu-
fication in the law through such projects ally extinguish a debt. 3 To apportion
as the Restatements of the Law and the the initial cost of an intangible asset
Model Penal Code. Abbreviated ALI. each year over the course of the asset’s
useful life until the entire cost has been
American Stock Exchange n. The used up.
second largest stock exchange in the
United States. Located in New York City, amount in controversy n. The mone-
it frequently engages in the trading of tary damages sought by a party in an
stock of small or new companies action; the value of a claim even if not
because of its less rigid listing require- expressly stated in the pleadings. See
ments. Abbreviated as AMEX and ASE. aggregation doctrine and jurisdiction
See also New York Stock Exchange. (jurisdictional amount).
04_542109 [Link] 3/28/06 12:16 PM Page 25

25 annul

AMT abbr. Alternative minimum tax. annex v. 1 To add, affix, or append as

See tax. an additional or minor part to an already
existing item, such as a document,
ancestor n. 1 One, such as a parent, building, or land. 2 To attach as an
grandparent, great-grandparent, who attribute, condition, or consequence.
precedes another in lineage. 2 Any
relative from whom one inherits by annexation n. 1 The act of annexing;
intestate succession. the state of being annexed. 2 The
point in time when an addition or adden-
ancient document See document. dum becomes part of the thing to which
ancillary adj. Auxiliary; collateral; it attached. 3 The formal act of a polit-
dependant; supplemental; subordinate. ical unit, such as a nation, state, or
municipality, annexing land to its’
ancillary administrator n. A person domain. 4 Annexed land.
appointed by the court in a state where
the descendant was not domiciled to annotation n. Comments that ana-
manage the assets and liabilities and to lyze, explain, or criticize, or a collection
oversee the distribution of decedent’s of brief summaries of appellate cases
estate in that state. Such an administra- that have applied or interpreted, a par-
tor usually works as an adjunct to the ticular statutory provision. These com-
executor or administrator appointed in ments and summaries are appended to,
the state where the decedent was domi- and published with, the statute in a set
ciled. of volumes. For example, the United
States Code Annotated contains the
ancillary claim n. A claim that is aux- statutes of the United States and, after
iliary to, supplemental to, or dependant each statutory provision are the com-
on another claim. For example, a claim ments and summaries pertaining to that
against a physician who negligently pre- provision.
scribed an unsafe drug may be ancillary
to a claim against the drug manufac- annuitant n. One entitled to the peri-
turer who produced the medication. See odical payments, but not the principal,
jurisdiction. of an annuity.

ancillary jurisdiction See jurisdic- annuity n. A fixed sum paid out at

tion. regular intervals for a certain period of
time and subject to limitations set by the
and his heirs See heir. grantor. For example, a person may be
entitled to fixed and periodic payments
Anders brief n. A request filed by a for the rest of his life once he reaches a
court-appointed attorney to withdraw certain age. See also life estate and
from the appeal of a criminal case trust.
because of his belief that the grounds for
the appeal are frivolous. Named after annul v. 1 To cancel, make ineffective,
Anders v. California (1967). invalidate, nullify, void. 2 To judicially
declare something to be void either from
animus adj. Latin. Purposefully; inten- the date of decree or ab initio. 3 To
tionally. 1 Animosity; hostility; ill will; make an ecclesiastical or judicial decla-
strong dislike; hate. 2 The animating ration that a marriage is void ab initio
thought, intention, or purpose of an act. and never existed. See also divorce.
04_542109 [Link] 3/28/06 12:16 PM Page 26

answer 26

answer 1 v. To respond to a pleading, grandchildren could receive nothing,

discovery request, or other judicial but with it, the grandchildren would
process or procedural step. 2 v. To receive the gift that would have gone to
address or counter allegations, account the son. Often, these statutes apply
for one’s actions, or otherwise put up a only to the heirs of the testator’s rela-
defense. 3 v. To assume the liability or tives who are named as devises and
responsibility for another’s actions. 4 legatees in the testamentary document.
v. To pay a debt or other liability; to suf- See also lapse.
fer the consequences for one’s actions.
5 n. A pleading that is a defendant’s antitrust law n. The body of law, pri-
principal response to a plaintiff’s com- marily consisting of federal statutes,
plaint. It denies, admits, or otherwise designed to promote free competition in
addresses each of the allegations in the trade and commerce by outlawing vari-
complaint. It also usually sets forth the ous practices that restrain the market-
defendant’s affirmative defenses and place. See also Clayton Act and
counterclaims. See also reply. Sherman Antitrust Act.

ante adv. Latin. Before. Before in time, APA abbr. See Administrative
order, or position; in front of. See also Procedure Act.
post. a posteriori adv. Latin. From what
antenuptial agreement n. Same as comes after. Inductive; empirical; rea-
prenuptial agreement, although less soning or the ascertaining of truth by
commonly used. See agreement. actual experience or observation. See
also a priori.
anticipatory breach See breach of
contract. apparent adj. 1 Readily perceived;
manifest; obvious; visible. 2 Seeming,
anticipatory repudiation Same as antic- but not actual or real. See also actual
ipatory breach. See breach of contract. and constructive.
antidumping law n. A federal statute apparent authority See authority.
authorizing the imposition of special
duties on imported foreign goods when appeal n. 1 The process to seek and
the manufacturers are attempting to sell obtain a review and reversal by a court
the goods in the United States at less of a lower court’s decision. 2 The
than fair value to the material detriment process to seek and obtain a review and
of American industry. See dumping. reversal of an administrative decision by
a court or by a higher authority within
antilapse statute n. A statute the administrative agency. See also cer-
enacted in most states allowing the tiorari, notice of appeal, trial (trial de
heirs of a devisee or legatee who dies novo), and writ of error.
before the testator to take the testa-
mentary gift intended for the devisee or appeal (as of) (by) right. An appeal in
which a court or administrative
legatee. Without the statute, the gift agency must review the decision
would fail and go to the residuary bene- that is sought to be reversed.
ficiary (if any) or to the testator’s intes-
tate heirs. For example, without the appeal by permission. An appeal in
statute, a bequest to a son who dies which a court or administrative
before his father would lapse, and the agency’s review of a decision is
04_542109 [Link] 3/28/06 12:16 PM Page 27

27 appellant

within the court or agency’s discre- appearance n. 1 The coming into a

tion. Also called discretionary court to participate in a court proceed-
appeal. See also certiorari. ing by a party who has been validly
consolidated appeal. An appeal in served process or by a party who is vol-
which the issues to be reviewed in untarily submitting itself to the court’s
two or more cases are similar jurisdiction. 2 The coming into a court
enough that it is practical to unite to participate in a court proceeding by a
the reviews into a single appeal. See witness or an interested person or by a
also joinder. lawyer acting on behalf of a party or
interested person.
cross appeal. An appeal by an
appellee, usually considered at the compulsory appearance. An appear-
same time as the appeal by the ance by one who is required to do so
appellant. because he has been validly served
with process.
direct appeal. An appeal of a trial
court’s decision made directly to the entry of appearance. The formal act
jurisdiction’s highest appellate of an attorney notifying a court of
court without first seeking review his representation of a party to the
by the intermediate appellate proceedings, either by written docu-
courts. For example, although a ment, or orally in open court.
United States District Court deci-
sion is usually first reviewed by one general appearance. An appearance
of the Untied States Court of wherein a party consents to the
Appeals before the United States court’s jurisdiction and waives the
Supreme Court considers it, a direct ability to later contest the court’s
appeal bypasses the Court of authority to reach a binding deci-
Appeals and sends the District sion against her in the case.
Court decision directly to the
Supreme Court. initial appearance. A criminal defen-
dant’s first appearance in court.
interlocutory appeal. An appeal of a Usually, this is when the charges
trial court’s interim decision while are read to the defendant or the
the case is still pending in the trial defendant is given a copy of the
court. Some interlocutory appeals charges, the defendant is advised of
his rights and enters a plea, and the
involve legal questions whose reso- amount of bail (if bail is not denied)
lution are necessary for the trial is determined. See also arraign-
court to reach a proper decision in ment and presentment.
the action. Others involve issues
that are entirely separate from the special appearance. An appearance
merits of the case. In most states, made for the sole reason of contest-
interlocutory appeals are permitted ing the court’s jurisdiction over the
only in limited circumstances and defendant.
are rarely granted. voluntary appearance. An appear-
appeal (as of) (by) right See appeal. ance by one who has not yet been
served with process in the case.
appealable decision Same as appeal-
able order. See order. appellant n. A party who appeals a
court or administrative agency’s deci-
appealable order See order. sion. See also appellee.

appeal bond See bond.

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appellate 28

appellate adj. Relating to a specific ment. 3 The allocation after every

appeal or to appeals in general. census of the seats in the United States
House of Representatives among the
appellate court See court. states based on population.
appellate jurisdiction See jurisdic- apportionment of liability n. In tort
tion. law, the division of liability for the plain-
tiff’s injuries among multiple tortfea-
appellee n. The opponent of the party
sors. In some cases, some of the liability
who appeals a court’s or administrative
may be apportioned to the plaintiff as
agency’s decision.
well. See indemnity, liability, and set-
applicant n. One who applies for or tlement.
requests something.
appraisal rights n. The statutory right
application n. 1 The act of applying or available in most states for a corpora-
making a request. 2 An oral or written tion’s minority shareholders who object
formal motion, request, or petition. to certain extraordinary corporate
actions (the nature of which varies state
apply v. 1 To make a formal motion or to state, but usually includes consolida-
request to a court. 2 To be relevant; to tions and mergers) to have a fair price of
have bearing upon; to be instructive. 3 their stock determined in a judicial pro-
To devote, use, or assign for a particular ceeding prior to the action and to
purpose. require the corporation to repurchase
their stock at that price. See also fault.
appointed counsel See counsel
(assigned counsel). appraise v. To determine the fair price
or market value of something. See also
appointee n. 1 One who is appointed market value and assess.
or assigned to a position or a public or
private office or to perform a task. 2 appreciation n. 1 The incremental
One who will receive property pursuant increase in an asset’s value, usually
to a power of appointment. See also because of inflation. Compare deprecia-
power of appointment. tion. 2 The awareness or understand-
ing of the meaning, significance, value,
appointment n. 1 The appointment, or worth of something.
designation, or placement of an individ-
ual in a job, office, or position, or to per- unrealized appreciation. The appreci-
form a duty. 2 A job, office, position, ation in the value of property that
or duty to which one has been has not yet been subject to tax. See
appointed. 3 The act of designating also realization.
who will receive property pursuant to a appropriation n. 1 The taking of con-
power of appointment. See also power trol or possession of property, especially
of appointment. the government’s taking of private prop-
apportionment n. 1 The allocation, erty for a public purpose. 2 The act by
distribution, or division of something a legislative body to designate or set
into proportionate shares. 2 The draw- aside public funds for a government
ing of the boundaries of legislative dis- expenditure. 3 In tort law, the taking
tricts so that each district is of the name or likeness of one person by
approximately equal in population. See another for a commercial purpose. It is
also gerrymandering and reapportion- considered an invasion of privacy.
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29 argument

appurtenant n. A right or thing, such tract to an arbitrator or group of

as an easement, attached to or associ- arbitrators rather than to proceed
ated with land, that benefits or burdens with litigation. Usually, a breach or
the use or enjoyment of the property by repudiation of a contract will not
its owner and continues to do so when nullify the clause.
title passes to another. binding arbitration. Arbitration pro-
ceeding that is final and binding by
APR abbr. Annual percentage rate. prior agreement of the parties, or by
a priori n. Latin. From what is before. legal rule or statute; no right of
appeal or further proceedings. com-
Deductive reasoning or the ascertaining pulsory arbitration. Arbitration
of truth by proceeding from an assump- required by law rather than by the
tion to its logical conclusion rather than mutual agreement of the parties to
by actual experience or observation. For a dispute.
example, one who walks by a store when
its alarm is sounding and sees that its nonbinding arbitration. Arbitration in
window is broken can deduce that a bur- which the parties to the dispute are
glary has occurred without having not required to abide by the arbitra-
watched the burglars commit the actual tor or arbitrators’ decision and may
crime. ignore the decision and submit the
dispute to litigation.
arbiter n. One called upon to decide a
legal dispute outside of a court. See also arbitrator n. A neutral person who
arbitrator and conciliator. resolves disputes between parties.
Usually, the parties to the dispute
arbitrary adj. 1 Determined or choose the arbitrator. See also arbitra-
founded on individual discretion, espe- tion, arbiter, and conciliator.
cially when based on one’s opinion, judg-
ment, or prejudice, rather than on fixed arguendo adv. Latin. In arguing. 1
rules, procedures, or law. See also Hypothetically; for the purpose or sake
abuse of discretion. 2 Absolute; of argument. A term used to assume a
despotic; completely unreasonable; lack- fact without waiving the right to ques-
ing any rational basis. This type of deci- tion it later on. For example, a defense
sion is often called arbitrary and attorney may state to the judge:
capricious. “Assuming arguendo that the defendant
committed the crime, the statute of lim-
arbitration n. A method of alternative itations prevents the state from prose-
dispute resolution whereby a dispute, cuting him for it.” 2 During the course
with the consent of all the parties, is of an argument or a conversation. For
submitted to a neutral person or group example, “Mr. Smith mentioned
for a decision, usually including full evi- arguendo that his client had three prior
dentiary hearing and presentations by convictions.”
attorneys for the parties. Often, arbitra-
tion is the only form of proceeding per- argument n. 1 The reason or reasons
mitted under the terms of contracts; see offered for or against something. 2
arbitration clause. See also conciliation, The formal oral or written presentation
mediation, and summary proceeding. of such reasons intended to convince or
persuade. 3 The section of an appel-
arbitration clause. A clause in a con- late or trial brief in which a party pre-
tract requiring the parties to submit sents its interpretation of the law.
all disputes arising from the con-
04_542109 [Link] 3/28/06 12:16 PM Page 30

argumentative 30

closing argument. At a trial, the final them a copy of the charges. The defen-
statement given by the parties or dant is also advised of his rights (for
their attorneys to the judge or jury, example, the right to plead not guilty
before deliberation, in which they and to have a jury trial) and enters a
summarize the evidence and the plea, and the amount of bail (if bail is
applicable law, present their inter- not denied) is determined.
pretation of the same, and ask that
a judgment or verdict be reached in array 1 n. A group of people called
their or their clients’ favors. into court at the same time for potential
oral argument. 1 A party or his attor- jury duty. From such a group the mem-
ney’s oral presentation to a court bers of a jury or juries will be selected.
stating the factual and legal rea- 2 n. The members of such a group who
sons why the court should decide a are empaneled to be a jury. 3 v. To
legal issue or take particular action empanel a jury for a trial. 4 n. The list
in their favor. 2 The procedure by of empaneled jurors. 5 v. To call out
which such arguments from all par- the names of the jurors as each is
ties are heard by the court. empaneled.
reargument. The oral, and some- arrear n. 1 The state of being late in
times written, presentation of addi- the payment of a debt or the perform-
tional arguments to a court on a ance of an obligation. 2 An overdue or
matter previously argued before the unpaid debt or unfinished duty. See also
court, but on which no decision has arrearage.
yet been rendered, for the purpose
of advising the court of some con- arrearage n. An overdue debt. See
trolling appellate court decision or also arrear.
principle of law that was previously
overlooked or of some misapprehen- arrears See arrear.
sion of facts. See also reconsidera-
tion and rehearing. arrest n. The intentional deprivation,
whether actual or constructive, of a per-
argumentative adj. Stating facts and son’s freedom by legal authorities using
suggesting that particular inferences forcible restraint, seizure, or otherwise
and conclusions can be drawn from taking the individual into custody, espe-
them. cially in response to a warrant or a sus-
picion based on probable cause that the
armed robbery See robbery. person being arrested has committed a
crime. The person making the arrest
arm’s length adj. Of or relating to the must have the present power to control
bargaining position or dealings of two or the person being arrested. Furthermore,
more unrelated parties of approximately the intent to make an arrest must be
equal bargaining power who are not con- communicated to the individual who is
nected, on close terms, or in a confiden- being detained and that person must
tial relationship with each other and understand that the seizure or detention
whose mutual dealings are influenced is an intentional arrest. See also privi-
only by their own self-interest. lege and resisting arrest.
arraignment n. The first step in a citizen’s arrest. An arrest made by a
criminal prosecution wherein the defen- private individual rather than by a
dant is formally advised of the charges law enforcement officer. Such
against him. This is done by reading the arrests are lawful only if 1) an
charges to the defendant or by giving offense was committed in the pres-
04_542109 [Link] 3/28/06 12:16 PM Page 31

31 articles of impeachment

ence of the person making the arrest warrant See warrant.

arrest, or 2) the person making the
arrest has reasonable cause to arson n. 1 In common law, the willful
believe that the person arrested has and malicious burning of someone else’s
committed a felony. dwelling house. In some states, the term
includes, under specific circumstances,
false arrest. An arrest made by a per-
son who falsely claims to be a law the burning of a dwelling house by its
enforcement officer or by a law owner. 2 Under modern statutes, the
enforcement officer who has no intentional causing of a dangerous fire
legal grounds for making an arrest. or explosion for the purpose of destroy-
See also false imprisonment. ing one’s own or another’s property.
malicious arrest. 1 An arrest made art 1 v. To utilize knowledge or skill
without probable cause and for an according to rules and principles to cre-
improper purpose. 2 An arrest ate something. 2 n. A business, occu-
made with knowledge that the per- pation, or pursuit that depends upon a
son arrested did not commit the skill. 3 n. In patent law, the method,
crime he is charged with. See also
malicious prosecution. process, or technique for creating some-
thing or for achieving a useful result.
parol arrest. An arrest ordered by a
judge or magistrate while presiding article n. 1 A separate and distinct
over a court proceeding. Such an part of a written instrument, such as a
arrest is done without a written contract, statute, or constitution, that is
complaint and is executed immedi- often divided into sections. 2 A writ-
ately, for example, an arrest of a ten instrument, containing a series of
person in a courtroom who has been rules and stipulations that are each des-
found in contempt of court. ignated as an article.
pretextual arrest. A valid arrest made Article I court See court.
for a minor offense with the intent
to hold the person in custody while Article I judge See judge.
investigating his involvement in a
more serious offense for which Article III court See court.
there is yet no lawful grounds to
arrest the suspect. Article III judge See judge.
warrantless arrest. An arrest made in articles of association n. A written
a public place without a warrant agreement legally creating an associa-
that is based on either the probable tion and sets forth the purpose and rules
cause that the person committed a of the organization.
felony or the person committing a
misdemeanor in the law enforce- Articles of Confederation n. The first
ment officer’s presence. constitution of the United States, rati-
fied in 1781 and replaced eight years
arrest of judgment n. The court’s later with the present Constitution of
refusal to render or enforce a judgment the United States.
after a verdict has been reached because
of some apparent defect or error in the articles of impeachment n. A formal
proceedings or because the verdict is statement of the reasons to remove a
not supported by the evidence. public official from office. See impeach-
ment.
arrest record See criminal record.
04_542109 [Link] 3/28/06 12:16 PM Page 32

articles of incorporation 32

articles of incorporation n. A written assault n. 1 In criminal and tort law,

agreement setting forth the basic struc- an act, usually consisting of a threat or
ture of a corporation. The document nor- attempt to inflict bodily injury upon
mally includes the name, duration, and another person, coupled with the appar-
purpose of the corporation; the names ent present ability to succeed in carry-
and addresses of its initial board of ing out the threat or the attempt if not
directors; and the number and classes of prevented, that causes the person to
shares of stock that it will be allowed to have a reasonable fear or apprehension
issue. Normally, the corporation is not of immediate harmful or offensive con-
legally created until the articles of incor- tact. No intent to cause battery or the
poration are filed with a state govern- fear or apprehension is required so long
ment. See also by-law and charter. as the victim is placed in reasonable
apprehension or fear. No actual physical
artificial person See person. injury is needed to establish an assault,
but if there is any physical contact, the
as of right adj. Description of a court
act constitutes both an assault and a
action that a party may take without
battery. 2 In criminal law, in some
permission of the court, as opposed to
states, the term includes battery and
requiring leave of court.
attempted battery. 3 Any attack. 4
ascendant See ancestor. v. The act of inflicting bodily injury upon
another. See also mayhem.
ascent n. The passing of an estate to
an heir who is an ancestor of the intes- aggravated assault. A criminal
tate. See also descent. assault accompanied by circum-
stances that make it more severe,
ASE abbr. See American Stock such as the victim’s suffering seri-
Exchange. ous bodily injury or an assault com-
mitted with a dangerous and deadly
as is adj. In the condition it presently weapon. The additional circum-
exists or as found on inspection immedi- stances that make the act an aggra-
vated assault are set by statute.
ately prior to purchase, even if damaged
or defective, without modification and sexual assault. 1 Rape. 2 Any sex-
without any express or implied war- ual contact with another person
ranties. When referring to a sale of without the other’s consent or when
goods that were sold as is, based on an the other lacks the capacity to give
inspection of a sample, the goods deliv- legally effective consent.
ered must be of the same type and qual-
ity or better than the sample was assault and battery See battery.
immediately prior to its inspection.
assembly n. 1 A group of people gath-
asportation n. The carrying away or ering, coming together, or meeting, or
moving the personal property of another. already so assembled, for a common
It does not matter how short the dis- purpose. 2 A legislative body, espe-
tance or slight the movement as long as cially, in many states, the lower house of
the person who carries away or moves the state legislature.
the property is knowingly and intention-
ally exercising control of the property unlawful assembly. Three or more
individuals gathering, coming
without the consent and to the exclusion together, or meeting with the com-
of the rights of the owner. See also cap- mon intention of committing a vio-
tion, larceny, robbery, and trespass. lent crime or some act, lawful or
04_542109 [Link] 3/28/06 12:16 PM Page 33

33 assize

unlawful, that will breach the world-renowned author cannot unilater-

peace. ally assign her contract to write a book
to another writer.
assess v. 1 To determine the value of
something, especially of real estate for assigned counsel See counsel.
property tax purposes. See also
appraise. 2 To establish the amount assignee n. One to whom a duty, inter-
of, and then charge, a fine, taxes, or est, or right is assigned.
another payment. 3 To require stock-
holders and partners to fill the need for assignment n. The transfer of a duty,
additional capital by making additional interest, or right from one party to
contributions to their corporation or another. See also subrogation.
partnership. assignment for benefit of creditors. An
assignment of most of a debtor’s
asset n. 1 Any property or right that is property to another who, acting as a
owned by a person or entity and has trustee, consolidates and liquidates
monetary value. See also liability. 2 the assets and pays the debtor’s
All of the property of a person or entity creditors with any surplus being
or its total value; entries on a balance returned to the debtor.
sheet listing such property.
assignment of a lease. An assignment
capital asset. For income tax pur- of a lessee’s entire interest in a
poses, most property of the tax- lease. The assignor remains sec-
payer except for a few certain ondarily liable to the landlord and
business assets (for example, inven- will have to pay the rent if the
tory and stock in trade) and other assignee does not. See also sub-
property excluded by the Internal
Revenue Code. lease.

intangible asset. An asset that is not assignment of error n. The list in an

a physical thing and only evidenced appellant’s brief of the trial court’s
by a written document. For exam- alleged errors, upon which the appellant
ple, a debt that is owed to a tax- seeks a modification, reversal, or vaca-
payer is an intangible asset. tion of the trial court’s decision.
tangible asset. An asset that is a assignor n. One who transfers a duty,
physical thing, such as land, build- interest, or a right to another.
ings, and goods.
assigns n. The plural of assignee. See
assign v. 1 To transfer one’s duty, heirs and assigns.
interest, or right to another, especially
regarding property or under a contract, assisted suicide See suicide,
so that the transferee has the same duty, assisted.
interest, or right as the transferor had.
assize n. 1 Often spelled assizes: a
See also assignment and delegate. 2
session of a court or legislative body.
To appoint. 3 To identify.
2 The time or place of, or a law enacted
assignable n. Capable of being by, such a session. 3 A cause of
assigned. Certain rights and duties can- action, especially one relating to the
not be assigned while others are not ownership or possession of land. 4 A
assignable without the consent of the trial, especially one presided over by an
other parties involved. For example, a itinerant judge and held in the county
04_542109 [Link] 3/28/06 12:16 PM Page 34

assizes 34

that is the location of the land, dispute, trade association. An association of

or crime in question. 5 The jury at businesses or business organiza-
such a trial. tions that share common concerns
or engage in similar activities, such
general assize. The action, or the as a chamber of commerce or a
trial or jury in an action, to deter- trade council.
mine the ownership of land.
Association of American Law Schools
assizes See assize. n. A national organization of law schools
that have each graduated at least three
associate n. 1 A colleague, compan-
classes of students and have offered
ion, partner, or fellow employee. 2 A
instruction for at least five years.
junior member of an association, institu-
Abbreviated AALS.
tion, organization, profession, or society.
3 A junior member of a law firm who assumpsit n. Latin. He undertook. 1
typically works on salary and does not An enforceable promise or undertaking
share in the ownership, profits, or deci- that is not under seal. 2 An action for
sion-making of the firm. expectation damages caused by the
breach of a promise or a contract not
associate judge See judge.
under seal.
association n. A group of individuals express assumpsit. Such a promise
meeting or associated for fellowship or a that is made orally or in writing.
common purpose. See also freedom of
association. implied assumpsit. Such a promise
that is presumed due to individual’s
unincorporated association. An conduct or the circumstances of the
organized, but unincorporated situation.
group of individuals. Thus, the
organization does not have a legal general assumpsit. An action based
existence separate from its mem- the breach of an implied promise or
bers. However, if it has certain char- contract to pay a debt. Also called
acteristics, such as centralized common assumpsit.
management, that make it more like
a corporation than a partnership, it special assumpsit. An action for
may be treated and taxed as a cor- expectation damages based on the
poration. breach of an express promise or
contract to pay a debt.
joint stock association. Same as joint
stock company. See also company. non assumpsit. A defendant’s claim,
in the form of a pleading, that he or
professional association. 1 A group of she did not promise or undertake
members of a profession organized any obligation as alleged in a com-
to practice their profession plaint.
together. The association may be a
partnership, corporation, or some assumption n. 1 Something the truth
other entity. 2 A group of mem- of which is taken for granted; a supposi-
bers of a profession organized to
promote, improve, regulate, or deal tion. 2 The act of taking for or on one-
with the public on behalf of their self, especially accepting, or agreeing to
profession, such as a bar associa- take the responsibility for, the obligation
tion. 3 In some states, the same of another.
as a professional corporation. See
also corporation.
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35 attachment

assumption of risk n. 1 In contract at issue See issue.

law, the act or agreement to take on a
risk of damage, injury, or loss, often at large adj. 1 Free from confinement,
stated as the risk “passes” to the pur- control, or restraint. 2 Chosen by the
chaser upon the occurrence of a certain electorate of, or representing the resi-
event, e.g., shipment of goods. 2 In dents of, an entire political unit, such as
contract law, an employee’s express a state, country, or city, as opposed to a
agreement to undertake the risks that subdivision of the unit, such as a district,
normally accompany or arise from that riding, or ward. 3 Not ordered or organ-
occupation. 3 In tort law, that a plain- ized by topics, especially when referring
tiff voluntarily accepted or exposed him- to a group of statutes or ordinances.
self to a risk of damage, injury, or loss,
at law adj. Relating to law, as opposed
after appreciating that the condition or
to equity. See equity and operation of
situation was clearly dangerous, and
law.
nonetheless made the decision to act; in
such cases, the defendant may raise the at will n. A status or relationship that
plaintiff’s knowledge and appreciation can be terminated for any reason, or for
of the danger as an affirmative defense. no reason, at any time without prior
Successful invocation of assumption of notice.
risk as an affirmative defense will result
in a reduction or elimination of damages at-risk adj. Characterization of per-
assessed against the defendant. This son or property subject to unique jeop-
defense has been strictly limited in ardy or threat, as in the case of youth
many states, and is unavailable in cer- “at-risk” for increased likelihood of
tain types of actions, e.g., product liabil- delinquency due to home and environ-
ity cases. See also negligence. mental factors, or finances “at-risk” due
to vagaries of stock market, global
assurance 1 n. a promise or guaran- instability, health issues of individual
tee, an act that inspires confidence. 2 v. having such finances, etc.
the act of promising or assuring.
atrocious n. An act that is outra-
asylum n. A place of refuge, sanctu- geously cruel, vile, and wicked and that
ary, or shelter, especially an institution demonstrates a depravity and insensi-
for the maintenance and care of people tive brutality, especially when using
requiring special assistance. senseless, excessive, or extreme vio-
political asylum. 1 The decision by lence during the commission of a crime.
a country’s government to allow attach v. 1 To add, affix, annex, bind,
within its border a person from
another country and to protect that fasten, or join as a part. 2 To seize or
person from prosecution and perse- take by legal process; to carry out an
cution by that other country’s gov- attachment, for example, to attach the
ernment. 2 The protection and funds in a debtor’s bank account to pay
refuge granted by a country to citi- a judgment. 3 To adhere or become
zens and residents of other coun- legally effective, especially in connec-
tries who obtain entry unto the tion with something or upon some event.
premises of its foreign embassies For example, certain rights and respon-
and consulates. sibilities attach to becoming a parent.
at bar See bar. attachment n. 1 The seizure or freez-
at equity See equity. ing of property by court order while an
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attainder 36

action is pending so that its ownership 3 To certify by oath or signature. 4 To

can be determined, it can be secured to affirm a document’s authenticity by
be sold to satisfy a judgment, or its sale signing it as a witness to its execution
or transfer can be prevented so that any by another person.
future judgment arising from the action
may later be secured or satisfied. See attestation n. The act of authenticat-
also garnishment and replevin. 2 The ing a document by observing its execu-
writ ordering such a seizure or freezing tion at the request of the party signing
of property. 3 In commercial law, the the document, and then signing it as a
creation of a security interest in prop- witness.
erty when the debtor agrees to the secu- attorn v. 1 To turn over or transfer
rity, receives value from the secured something to another. 2 To acknowl-
party, and obtains rights in the property. edge a new landlord and agree to
attainder n. In common law, the auto- become his or her tenant.
matic elimination of one’s civil rights attorney n. Lawyer; one who dis-
and liberties when sentenced to death or penses legal advice to clients and advo-
declared an outlaw for committing a cates for them.
felony or treason. See also civil death
and bill of attainder. attorney in fact. One who is the
agent or representative of another
attempt n. The intentional and overt and is authorized, pursuant to a
taking of a substantial step toward the power of attorney, to act on their
commission of a crime that falls short of behalf.
completing the crime. The mere plan-
ning of a crime, as well as soliciting attorney at law. 1 One who is spe-
cially trained and licensed by a
another to commit the crime, does not state to practice law. 2 One
constitute an attempt to commit the whose profession is to provide
crime. Attempt is a crime distinct from advice or to act or represent others
the offense that the criminal was in legal matters. See also district
attempting to commit. Various legal attorney, public defender, and
tests are used to determine when, counsel.
between planning a crime and commit-
ting it, a person’s actions constitute an attorney of record. The attorney at
attempt. See also conspiracy and solic- law or the law firm designated in a
itation. court’s records as representing a
particular party in a particular
attendant adj. Accompanying; result- action. As long as a party is repre-
ing in. For example, in criminal law, the sented by an attorney of record, all
definitions of several crimes require the documents, correspondence, and
presence or absence of attendant cir- other communications that are
cumstances; for example, the absence of intended for that party, whether
consent to be touched is required for an from the court or the other parties
offensive touching to be considered a in the action, must go instead to the
battery. attorney of record.
attest v. 1 To bear witness; testify. 2 attorney-client privilege See privilege.
To affirm as accurate, genuine, or true.
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37 authority

Attorney General n. The chief legal audit n A formal inspection of the

officer of the United States or of a state, accounting procedures and records and
who advises the federal or state govern- the financial situation of an individual,
ment on legal matters, represents the business, organization, or government
federal or state government in litigation, entity to verify the accuracy and com-
and heads the United States Department pleteness of the records or their compli-
of Justice or a state’s legal department. ance with another set of standards.
Abbreviated A.G. See also solicitor(s)
general and United States Attorney. authenticate v. 1 To prove that some-
thing, such as a document, is what it
attorney, power of See power of purports to be, especially so that the
attorney. item can be admitted into evidence at a
trial or hearing. For example, a party
attorney’s fees n. The sum charged to wishing to admit a letter into evidence
a client by an attorney at law for the pro- may ask the witness whether it is,
fessional services performed for the indeed, the letter he received, does he
client. The sum reflects a contingent recognize the handwriting, and similar
fee, flat fee, hourly fee, compensation questions. 2 To place a mark, such as
for out-of-pocket expenses, or some a signature or a stamp, on a document
combination thereof. See also contin- to signify that it is authentic, effective,
gent fee and retainer. or valid. 3 To approve or adopt a writ-
attorney’s lien n. An encumbrance ing as one’s own.
asserted by a lawyer against a client’s self-authentication n. The act of prov-
file, money or property as security for ing that something, usually a document,
unpaid legal fees. Strictly limited right is genuine or true without the use of
to assert such a lien in most jurisdic- extrinsic evidence. For example, nota-
tions, and prohibited by ethical rules in rized documents and certified copies of
others. Also referred to as a charging public records are usually deemed to be
lien or retaining lien. self-authenticating.
attractive nuisance doctrine n. In authority n. 1 The authorization, per-
tort law, the doctrine that one who has a mission, power, or right to act on
dangerous condition or thing on his another’s behalf and to bind them by
property that is likely to attract a curi- such actions. See also agency, agent,
ous child is under a duty to take reason- and principal. 2 The right or power to
able steps to protect the child from it. command, govern, or enforce obedience.
For example, one has a duty to fence or 3 A legal writing, such as a judicial deci-
cover an unsupervised swimming pool. sion, law review article or legal treatise,
The fact that the child is a trespasser or a statute’s legislative history that
does not negate the duty, but is one of provides information or insight on how
many factors to be taken into account in to interpret and apply the law. See also
determining the exact extent of the precedent.
property owner’s duty and the level of
care required of him. actual authority. Authority, express
or implied, intentionally given by a
auction See sale. principal to an agent.
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automatic stay 38

adverse authority. Authority that is autre or auter n. French. Other,

detrimental to a party’s argument or another. See also estate.
position regarding a question or an
issue. Usually, when a lawyer finds autrefois acquit n. French. Formerly
such authority, he is under an ethi- acquitted. A plea by a person indicted
cal obligation to reveal it to the for a crime for which he or she had pre-
court, but it is done in such a way viously been tried and acquitted. See
(for example, arguing that the deci- also double jeopardy and autrefois
sion in a previous case should be convict.
narrowly construed or was wrongly
decided) as to minimize the author- autrefois convict n. French. Formerly
ity’s effect upon his client’s case. convicted. A plea by a person indicted
apparent authority. Authority that for a crime for which he or she had pre-
can be reasonably inferred by a viously been tried and convicted. See
third party to have been given to an also double jeopardy and autrefois
agent based upon the third party’s acquit.
dealings with the principal or upon
the principal’s representations even autre (or auter) vie n. French.
if the principal did not intend to give Another’s life. See estate.
the agent such authority.
aver v. To formally assert as a fact,
binding authority. See precedent. such as in a pleading; to allege.
persuasive authority. Authority that averment n. 1 The act of averring. 2
is not binding on a court but still A positive affirmation, allegation, or
merits consideration. For example,
a scholarly work or the decision of a declaration of facts, especially in a plead-
higher court in another jurisdiction. ing, as opposed to an argumentative
statement or a statement based on induc-
primary authority. Authority that is tion or inference; generally this term is
issued by law-making bodies, such used in civil proceedings, as opposed to
as a court’s decision or a statute’s allegation in criminal proceedings.
legislative history.
averment of notice. See also notice.
secondary authority. Authority that
analyzes and explains the law, but immaterial averment. An averment
is not issued by a court or legisla- that provides unnecessary informa-
ture. For example, an annotation, tion and detail.
law review article, or legal treatise. negative averment. An averment that
automatic stay See stay. is stated in the negative, but is actu-
ally affirmative in substance. For
automobile guest statute See guest example, the negative averment “he
statute. is not old enough to marry” really
means that “he is too young to
autopsy n. The post-mortem examina- marry.” Although one who makes a
tion of a human body, including its dis- simple denial in a pleading does not
section and the removal and inspection carry the burden of proof, the party
of the major organs, to determine the who asserts negative averment has
cause of death. the burden to prove the averment’s
affirmative substance.
autoptic evidence See evidence.
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39 AWOL

a vinculo matrimonii adv. Latin. From award 1 n. The final decision of an

the bond of marriage. See divorce. arbitrator. 2 The final decision of a
court, jury, or administrative tribunal
avoid v. Slang. To annul, cancel, make granting damages or other relief to a
void, or nullify for some legal reason a party. 3 v. To formally grant such
transaction to which one is a party or relief. See also confirmation, judg-
owes an obligation. For example, a child ment, and order.
who is under the age of capacity may
disavow a contract and avoid her obliga- AWOL abbr. See absent without
tions under it because she lacks the leave.
legal capacity to enter into a contract.
See also annul, voidable, and ratify.
avoidance n. 1 The act of keeping
away from, escaping, evading, or pre-
venting. 2 Same as confession and
avoidance. 3 Same as tax avoidance.
4 Same as voidance.
avulsion n. The sudden and percepti-
ble removal or severing of land from the
property or jurisdiction of which it was a
part by natural forces such as a flood or
an abrupt change in the course of a river.
Despite the removal or severing of the
land, the boundaries between jurisdic-
tions or properties are not altered by
avulsion. For example, if a river was the
boundary between two states, the
boundary remains the same although
the course of the river has changed. See
also alluvion, accretion and reliction.
05_542109 [Link] 3/28/06 12:16 PM Page 40

B
court by or on behalf of one accused of
committing a crime, to obtain release
from incarceration and to ensure the
person’s future appearance in court
when required during the criminal pro-
ceeding. See also preventive detention
and recognizance. 2 v. To obtain for
oneself or another the release from incar-
ceration by providing security to ensure
the person’s future appearance at every
stage in a criminal proceeding. 3 v. To
temporarily give possession of personal
property to someone. See also bailment.
BAC abbr. Blood alcohol content. excessive bail. Bail set in an amount
greater than what is reasonable, in
bad character n. A person’s predispo- light of the seriousness of the
sition to commit evil acts. alleged crime and the risk that
the defendant might flee, to ensure
bad check See check. the person’s appearance at every
stage of a criminal proceeding. The
bad debt n. An uncollectible debt aris- Eighth Amendment to the United
ing due to the debtor’s refusal to pay, States Constitution prohibits the
insolvency, or bankruptcy. setting of bail in excessive
amounts.
bad faith n. Dishonesty of purpose;
lack of fairness and honesty; the contin- bail bond See bond.
uous and willful failure to fulfill one’s
duties or obligation. See also good bail bondsman See bailsman.
faith. bailee n. One who temporarily pos-
badge of fraud n. The facts or circum- sesses the personal property of another
stances surrounding a transaction that pursuant to and agreement between
indicate that one party is trying to hin- them. See also bailment.
der or defraud another party, especially bailer See bailsman and bailor.
a court, an opposing party in an action,
or a creditor. Such badges include, bailiff n. 1 A court officer charged
among other things, the transfer of with maintaining order in the court-
property in anticipation of litigation or room, with taking care of the judge’s
execution. See also fraud. and jury’s needs, and, in criminal pro-
ceedings, with the custody of the defen-
badge of slavery n. 1 A legal disabil- dant. 2 A sheriff’s deputy or other
ity imposed on a slave, such as the officer who executes writs and serves
inability to vote, own property, or enter processes and warrants of arrest. 3
into a contract. 2 Any visible trace of One who oversees the administration of
slavery, such as racial discrimination in land, goods, and other property, includ-
public education. 3 Any public or pri- ing the collection of rent, for the owner.
vate act of racial discrimination that
Congress can prohibit under the bail jumping v. To flee, hide, or other-
Thirteenth Amendment to the United wise avoid an appearance at any stage
States Constitution. in a criminal proceeding while free on
bail.
bad title See title.
bail 1 n. Security, such as cash, a
bond, or property, pledged or given to a
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41 balance sheet

bailment n. The delivery of personal leaves personal property on the

property from one person (the bailor) to bailee’s person or land. If the bailee
another (the bailee) in trust for some refuses to return the property upon
special purpose, as according to an the bailor’s demand or refuses to
express or implied contract. Only the permit the bailor to remove the
lawful possession of the property, and property, he can be liable for con-
not ownership, is transferred. The rights version. See also property.
and duties of the parties as to the prop-
erty depend on the purpose of the bail- bailment offense See offense.
ment and the terms of the contract. See
bailor n. 1 Same as bailsman. 2
also lease.
One who temporarily gives possession
actual bailment. A bailment created of personal property to another, pur-
by the actual or constructive deliv- suant to an agreement between them.
ery of personal property to a bailee The bailor does not have to be the owner
or his agents. of the property. See bailment.
bailment for hire. A bailment in bailsman n. One who provides bail to
which the bailor merely takes pos- secure the release of a criminal defen-
session of personal property in dant.
exchange for compensation.
bailment for mutual benefit. A bail- bait and switch v. The practice of
ment in which the bailee, in advertising a product or service at a low
exchange for compensation, pro- price to bring customers into a store
vides the bailor with some addi- and, once they are there, urging them to
tional benefit as to the bailor’s buy a more expensive product or service
personal property, such as cleaning by disparaging the original item or by
or repair work. saying that it is no longer available. This
is illegal in most states, especially when
constructive bailment. A bailment in
which, due to the particular circum- the original product or service was not
stances, the bailee has a legal obli- available at the time it was advertised.
gation to return the personal
property to its owner, even if the balance 1 n. To determine the differ-
owner is not the bailor or if the ence between the sum of the credits and
bailee did not voluntarily take pos- the sum of the debits of an account. 2
session of the property. v. The act of estimating, measuring, or
weighing two things in comparison to
gratuitous bailment. A bailment in each other. For example, the balancing
which the bailee accepts personal of the risks and benefits of filing a law-
property without expecting compen- suit. 3 v. To offset or counteract. 4 v.
sation. For example, a gratuitous
bailment is created when a bailee To place or keep in equilibrium or pro-
borrows the bailor’s property. In portion, such as balancing competing
gratuitous bailments, the bailee is interests. 5 n. The result of balancing.
liable to the bailor for the loss of or
damage to the property only if it balance sheet n. A financial state-
was caused by the bailee’s gross ment that indicates the value of an
negligence. entity’s current fiscal situation as of a
specific date, consisting of a summary of
involuntary bailment. A bailment in the value of assets and a summary of
which the bailor, without any negli- the value of its liabilities and the own-
gence, unavoidably or accidentally ers’ equity.
05_542109 [Link] 3/28/06 12:16 PM Page 42

balancing of the equities 42

balancing of the equities n. A court’s savings bank. A bank that receives

weighing of such factors as policy and deposits, maintains savings
the convenience or hardship to the par- accounts (from which funds can
ties in order to determine the fairness of usually be withdrawn only after a
granting or denying equitable relief set period of time or advance
(such as an injunction). notice), pays interest on them at
usually higher rates than commer-
balancing test n. The weighing, espe- cial banks, and makes certain
cially by a court, of competing values loans. However, a savings bank can-
and interests and deciding which one not maintain checking accounts and
will prevail, in an attempt to achieve is allowed to invest only in certain
equality or fairness between those val- types of corporate and government
ues and interests. bonds and securities.
balloon mortgage See mortgage. bankrupt n. 1 A person or entity
unable to pay debts due to insolvency.
balloon note See note.
2 A person (or entity) who has filed a
balloon payment See payment. voluntary petition for bankruptcy or
against whom an involuntary petition
banc See en banc. for bankruptcy has been filed. See also
debtor. 3 The state of having been
B and E (or B & E) abbr. Breaking declared bankrupt by a Bankruptcy
and entering. See burglary. Court.
bank n. A financial institution, bankruptcy n. A federal judicial proce-
whether incorporated or not, with a sub- dure by which most debts owed by a per-
stantial portion of its business consist- son or entity are extinguished or reduced
ing of receiving deposits and or the payment of which are delayed.
maintaining savings accounts and
checking accounts. Most also issue Chapter 7 bankruptcy. A bankruptcy
loans and credit, exchange currencies, proceeding whereby most of the
transmit funds, and deal in negotiable debtor’s assets are collected and
bonds and securities issued by corpora- sold, the proceeds are distributed
tions and the government. among the creditors, and the
debtor’s liabilities are discharged.
commercial bank. A bank, often Also called a straight bankruptcy.
organized as a public corporation,
that offers the broadest range of Chapter 11 bankruptcy. A bank-
services allowed by law, but that is ruptcy proceeding whereby a
required to keep a larger percent- debtor, usually a business, is
age of its deposits on reserve than allowed to reorganize itself and
is required of savings and loan asso- restructure its finances under court
ciations and savings banks. supervision and to arrange and
carry out a court-approved repay-
savings and loan association. A finan- ment plan with its creditors while
cial institution, often organized and continuing to operate its business.
operated like a bank, with a primary Also called reorganization.
purpose to make loans so that indi-
viduals can purchase or construct Chapter 12 bankruptcy. A bank-
homes, but that also provide vari- ruptcy proceeding whereby a farmer
ous banking services. See also with a regular income who is insol-
building and loan association. vent can keep and continue operat-
05_542109 [Link] 3/28/06 12:16 PM Page 43

43 bar association

ing his farm while arranging and side exclusively over bankruptcy pro-
carrying out, under court supervi- ceedings filed within a designated United
sion, a repayment plan with his States District Court’s jurisdiction.
creditors.
bankruptcy trustee n. See trustee.
Chapter 13 bankruptcy. A bank-
ruptcy proceeding whereby a person bar 1 n. A legal obstacle or barrier
with a regular income is allowed to that prevents or destroys a legal action
propose a plan to reduce her obliga- or claim, especially one that prevents
tions or extend the period to pay
those obligations and allow her the relitigation of an issue or the forma-
future earnings to be collected by a tion of a valid contract. See also double
trustee and paid to the debtor’s jeopardy, estoppel, merger, plea, and
unsecured creditors. Also called res judicata. 2 v. To prevent, prohibit,
rehabilitation. or act as a bar to. 3 n. In bar. As a bar
to an action. For example, if a defendant
involuntary bankruptcy. A bank- in a criminal action was acquitted ear-
ruptcy proceeding initiated by a lier of the same charges that he is now
creditor to legally declare a debtor
to be bankrupt and to impound all of accused, he may plead double jeopardy
the debtor’s non-exempt property, in bar. 4 adj. At bar. Now before the
distribute it or its proceeds to the court. For example, an action that is
creditors, and extinguish the before the court may be referred to as
debtor’s liability. the case at bar. 5 n. The legal profes-
sion in general. 6 n. A group of attor-
voluntary bankruptcy. A bankruptcy neys admitted to practice law in a
proceeding voluntarily initiated by a particular jurisdiction or before a partic-
debtor who files a petition with the ular court or who practice in a common
bankruptcy court to be legally field or area of expertise in the law. 7
declared a bankrupt and, during the n. The railing in a courtroom that sepa-
proceeding, surrenders his property rates the area used by the judge,
in order to discharge his debts. lawyers, and court personnel to conduct
judicial business from the seating pro-
Bankruptcy Act n. The federal
vided for observers. See also bench.
statute, adopted in 1898, that governed
all bankruptcy cases filed before bar association n. A professional
October 1, 1979. organization of attorneys who practice
law within a specific geographic area
Bankruptcy Code n. The federal
(for example, a state bar association) or
statute, adopted in 1978, that governs
who practice in a common field or area
all bankruptcy cases filed after
of expertise in the law (for example, a
September 30, 1979. Superseded
defense attorneys’ bar association).
Bankruptcy Act.
integrated bar. A bar association in
Bankruptcy Court n. A United States which membership is legally
District Court, or the bankruptcy judges required of all attorneys who prac-
assigned to a given United States tice law in that state or jurisdiction.
District Court, that deals only with Also called a compulsory bar,
bankruptcy proceedings. mandatory bar, and unified bar.
bankruptcy judge n. A United States voluntary bar. A bar association that
District Court judge appointed by a attorneys do not need to join in
United States Court of Appeals to pre- order to practice law.
05_542109 [Link] 3/28/06 12:16 PM Page 44

bare license 44

bare license See license. quarrels. Was a crime under the com-
mon law and is a statutory crime in most
bar examination n. A written exami- states. See also abuse of process,
nation administered by a state or an champerty, and maintenance.
established licensing authority, such as
a state bar association, usually lasting barrister n. 1 In England, a lawyer
two or more days, that tests the legal who argues cases in court. See also
knowledge of individuals seeking a solicitor. 2 In the United States, a
license to practice law in a particular lawyer.
state. See admission.
barter 1 n. The exchange of goods or
bargain 1 n. A voluntary agreement services without the use of money. 2
between parties for the exchange or pur- v. To negotiate, engage in, or conclude a
chase of goods or services, regardless of barter.
whether the transaction is legal or the
consideration is sufficient for the agree- basis n. The amount or value assigned
ment to constitute a contract. to a taxpayer’s cost of acquiring, or
Synonymous with contract. 2 v. To investment in, an asset. Primarily used
negotiate the terms of an agreement. when determining the taxpayer’s gain or
loss when the property is sold, bartered,
bargain and sale n. A written contract or exchanged or the asset’s deprecia-
to convey the legal title of, and raise a tion.
use in, real property in exchange for
valuable consideration recited in the adjusted basis. The value of a tax-
payer’s basis in an asset, after mak-
agreement without requiring the parties ing additions or subtractions to his
to enter the land and perform a livery of or her original basis, to reflect cer-
seisin. Unless it includes a covenant of tain events, such as capital
seisin and right to convey, the agree- improvements and depreciation,
ment contains no guarantees as to the that affect the value of the property
seller’s title to the property. See also subsequent to the taxpayer’s acqui-
deed. sition of or investment in the asset.

bargainee n. The purchaser of land in carryover basis. The basis of an

a bargain and sale. See also bargainor. asset transferred from one owner to
another by gift or in trust at the
bargaining unit n. A group of employ- time of the transfer.
ees represented by a labor union or recovery of basis. See recovery.
other group engaged in collective bar-
gaining with a company or industry. stepped-down basis. The taxpayer’s
Also called a collective bargaining unit. basis in an asset after the basis has
been decreased to a certain value
bargainor n. The seller of land in a (usually its fair market value) upon
bargain and sale. See also bargainee. a certain date or event. For exam-
ple, the basis of inherited property
barrato See barrator. is its fair market value as of the
date of the decedent’s death or an
barrator n. One who commits barra- alternate valuation date and the
try. Also called barrato or common decedent’s stepped-down (or
barrator. stepped-up) basis in the asset is the
new owner’s original basis.
barratry n. The persistent incitement
or initiation of groundless lawsuits and
05_542109 [Link] 3/28/06 12:16 PM Page 45

45 bench memorandum

stepped-up basis. The taxpayer’s son’s or the perpetrator’s sexual

basis in an asset after the basis has organs. See also rape.
been increased to a certain value
(usually its fair market value) upon simple battery. A battery with no
a certain date or event. accompanying aggravated circum-
stances and not resulting in serious
substituted basis. The basis of one bodily injury.
asset that substitutes for that of
another asset when the first asset battle of the forms n. The conflict
has been exchanged or otherwise between the incompatible terms in
transferred in return for the second preprinted standardized forms exchanged
asset. The taxpayer does not incur by a buyer and seller while negotiating a
any gain or loss, but substitutes the contract.
basis of the asset she transferred to
the property she acquired. bearer n. A person in possession of a
negotiable instrument, document of
bastard n. 1 Same as illegitimate title, security, or other similar document
child. See child. 2 The child of a mar- that is marked “payable to bearer” or is
ried woman whose father is not the indorsed in blank. Depending upon its
woman’s husband or whose paternity is nature, the document is called a bearer
not conclusively established. bond, bearer instrument, bearer paper,
or the like and, if it is for the payment of
bastardy proceeding n. See paternity money, it is said to be payable to bearer.
suit.
before the fact See accessory.
battered-person syndrome n. The
medical and psychological condition of a below adv. 1 Later in the same docu-
person who has suffered (usually per- ment. See also infra. 2 Of or in a court
sistent) emotional, physical, or sexual whose decision can be appealed. For
abuse from another person. Also called example, when referring to a lower
battered child syndrome or battered court’s decision, an appellant court may
woman syndrome depending on the cir- rule that “the decision below” is
cumstances. In the case of a woman, her affirmed or reversed.
husband or partner inflicts the injuries.
See also abuse. bench n. 1 Judges collectively or of a
particular court. See also bar. 2 The
battery n. The harmful or offensive area in the courtroom where the judge
touching of any part of another person’s sits.
body or of something, such as clothing
or carried umbrella, that is so closely bench memo See bench memoran-
attached to the person that it is custom- dum.
arily regarded as part of the person. The
bench memorandum n. A short mem-
touching may be in anger or a result of
orandum summarizing the facts, issues,
some other intentional wrong. Any
and arguments in a case, prepared
amount of touching is considered a bat-
either by a judge’s law clerk or by the
tery, even if harmless, if it is offensive to
lawyers in the case, for the judge to use
the person who is touched. See also
when preparing for trail, for hearing the
assault and mayhem.
lawyers’ oral arguments, or in drafting a
aggravated battery. See aggravated. decision. Also called bench memo.
sexual battery. The forced penetra-
tion of or contact with another per-
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bench ruling 46

bench ruling n. An oral decision benefit n. That which is helpful;

given, or a written decision read aloud, advantage; financial assistance; gain;
by a judge to the parties and their privilege; profit.
lawyers from the bench.
benefit-of-the-bargain rule n. 1 In
bench trial See trial. breach of contract cases, the principle
that the aggrieved party is entitled from
bench warrant See warrant. the party who breached the contract to
everything that he would have received,
beneficial n. A right or interest that
including profits, if the breach had not
derives from something other than legal
occurred. 2 In cases involving fraud or
title. See estate, interest, owner, use,
misrepresentation of the value of prop-
and equitable.
erty, the principle that the defrauded
beneficiary n. A person entitled to an party is entitled to damages equal to the
advantage, benefit, or profit (such as an difference between the misrepresented
inheritance under a will or the proceeds value and the lower amount that repre-
of an annuity, insurance policy, or prop- sents the true value of the property.
erty held in trust) arising from an Also called loss of bargain. See also out-
appointment, assignment, disposition, of-pocket rule.
instrument, or legal arrangement.
bequeath v. 1 To give a gift of per-
creditor beneficiary. A third-party sonal property by means of a will. See
beneficiary who is to receive the also devise. 2 In some states, to give
benefit of a contract in satisfaction a gift of any type of property by means of
of a debt, duty, or liability owed to a will.
them by the party who purchased
the benefit. Under certain circum- bequest n. 1 A gift of personal prop-
stances, the execution of the con- erty (usually other than money) by
tract itself may discharge the means of a will. Also, any personal prop-
obligation. In any case, the contract erty given by means of a will. See also
must be primarily for the third per- devise and legacy. 2 In a broader
son’s benefit.
sense, any gift of property by means of a
donee beneficiary. A third-party ben- will. Also, any property given by means
eficiary who is to receive the benefit of a will, including a devise or a legacy.
of a contract as a gift from the party
who purchased the benefit. conditional bequest. A bequest that is
effective or continues unless some
incidental beneficiary. A person who particular event does or does not
is not a party to, but is the unin- occur. For example, a bequest from
tended beneficiary of, a contract or a parent to a child that is to effec-
trust. Such a person has no legally tive only if the child is still a minor
enforceable right to the benefit they at the time of the parent’s death is a
receive. conditional bequest, because the
parent may die after the child
intended beneficiary. A person who is reaches adulthood.
not a party to a contract or trust,
but is intended by the parties to executory bequest. A bequest that
benefit from the contract or trust. does not take effect until after the
Such a person has the ability to occurrence of a particular event.
legally enforce the contract or trust For example, a bequest from a par-
once their right to the benefit vests. ent to a child that is effective only if
the child is 18 years of age or older
third-party beneficiary. A person who at the time of the parent’s death is
is not a party to, but is the intended
beneficiary of, a contract.
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47 bid-shopping

an executory bequest, because the beyond a reasonable doubt n. The

child must have first reached his standard for conviction in a criminal
18th birthday to receive it. trial; evidence sufficient to convince a
general bequest. A bequest of a gen- reasonable person beyond doubt of the
eral type of property rather than of guilt of the defendant. The requirement
a specific item of personal property. of proof beyond a reasonable doubt is
For example, a bequest of “furni- not so stringent as to preclude the pos-
ture” rather than “oak chair.” A sibility of error, as is, “beyond the
bequest to be paid out of the general shadow of a doubt,” nor as loose as, “the
assets of the testator’s estate. preponderance of the evidence,” as is
the standard in a civil trial.
pecuniary bequest. See legacy.
residuary bequest. A bequest of what BFOQ abbr. See bona fide occupa-
remains in the testator’s estate tional qualification.
after the payment of debts and the
satisfaction of all other bequests. BFP abbr. Bona fide purchaser. See
purchaser.
specific bequest. A bequest of a spe-
cific item of personal property. bias n. A mental tendency, inclination,
preconception, prejudice, taint.
best efforts n. Diligence beyond a
mere good faith effort to fulfill an obli- bias crime See crime (hate crime).
gation. See also good faith and dili- bid 1 n. An offer to pay a specific price
gence. for something. 2 n. An offer to perform
best evidence rule n. The rule that, to work or supply services at a specific
prove the contents of a writing, record- price. 3 v. The act of submitting an
ing, or photograph, the original is offer to buy.
required unless it is not available for firm bid. A bid that is publicly
some reason other than the serious fault announced when made and that is
of the party trying to prove the contents binding and cannot be revised until
thereof. If the original is unavailable, it is accepted or rejected.
the testimony of the person who created
the original or the person who read it (if open bid. A bid that is publicly
announced when made and that the
a writing), listened to it (if a recording), bidder may repeatedly revise as
or saw it (if a photograph) may testify to competing bids are announced.
its content. However, modern eviden-
tiary rules usually permit the use of sealed bid. A written bid that is
mechanical, electronic, or other similar secret and not disclosed until all
copy instead of the original. submitted bids (which are also writ-
ten and secret) are simultaneously
bestiality n. 1 Sexual intercourse opened and considered.
between a person and an animal. 2 In
a broader sense, any sexual activity or bid-shopping v. The legitimate prac-
contact between a person and an animal. tice whereby a general contractor, after
See also crime (crime against nature), being awarded a contract, tries to
buggery, and sodomy. reduce his own costs by disclosing to
interested subcontractors the lowest
betterment n. An improvement that bids he received for subcontracts, and
adds to the value of real property. then inviting even lower bids.
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bigamy 48

bigamy n. 1 The crime of marrying a no bill or no true bill. The words used
person while legally married to another. in a grand jury’s notation on a bill of
The second marriage is void. 2 In indictment indicating that insuffi-
some states, the crime of cohabiting cient evidence exists to support a
with a person of the opposite sex while criminal charge set forth in the pro-
posed indictment. Such a decision
legally married to another. See also by the grand jury prevents the pros-
monogamy and polygamy. ecution from pursuing a criminal
action against the defendant based
bilateral contract See contract. on those charges until a new grand
bill 1 n. A draft of a proposed statute jury is selected.
submitted to a legislature by one of its revenue bill. A piece of legislation for
members for consideration and possible the purpose of levying taxes. By the
enactment. United States Constitution, all fed-
eral revenue bills must originate in
appropriation bill. A bill that, if the House of Representatives. A
enacted, would authorize the expen- similar provision constraining the
diture of government funds. origin of revenue bills to one partic-
ular house of the state legislature is
engrossed bill. The draft of a bill as it part of many of the various state
is adopted by one house of a legis- constitutions.
lature and before it is sent to the
other house for consideration. See true bill. The words used in a grand
also enrolled bill. jury’s notation on a bill of indict-
enrolled bill. The final draft of a bill ment indicating that sufficient evi-
after it is adopted by both houses of dence exists to support a criminal
a legislature, printed, checked for charge set forth in the proposed
errors, and signed by the presiding indictment that, if proved, would
officers of both houses before it is result in the defendant’s conviction.
sent to the president or a governor Once the bill of indictment is
for approval or rejection. See also indorsed as a true bill and filed with
engrossed bill. the court, the prosecution must pur-
omnibus bill. 1 A bill that contains sue a criminal action against the
proposals on a variety of subjects. defendant based on those charges
Usually, such a bill will have one unless the court approves a dis-
major provision dealing with one missal.
topic and several minor provisions
regarding matters unrelated to the 2 n. A statement by one person or entity
major subject. 2 A bill that con- to another regarding money owed for
tains all proposals on a single (usu- goods sold and services performed.
ally broad) subject, such as an Usually, the statement is in the form of
omnibus education bill that includes an itemized list of the goods and serv-
all proposals regarding, however tan- ices, along with the amount owed for
gentially, the subject of education.
each item. 3 v. To submit a request for
private bill. A bill concerning the payment for goods sold and services
interests, or affecting, only one or a performed. 4 n. In equity law, the ini-
small number of individuals, enti- tial pleading wherein a party sets out
ties, or localities. their cause of action. See also com-
plaint and petition.
public bill. A bill concerning the gen-
eral interests of, or affecting, the
whole community, state, or country.
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49 bill of pains and particulars

bill of attainder n. 1 Any legislative bill of indictment n. 1 A proposed

act that imposed a sentence of death and indictment submitted by the prosecution
attainder upon one or more specific indi- to a grand jury, listing the deeds of crim-
viduals or groups without a trial or other inal misconduct allegedly committed by
judicial proceeding. 2 In United States a defendant. 2 An indictment as
constitutional law, any legislative act approved by a grand jury. See indict-
that prescribes a punishment on one or ment and bill.
more specific individuals or groups or
denies them of civil or political rights bill of lading n. A document issued by
without a trial or other judicial proceed- a carrier or by a shipper’s agent that iden-
ing. Such enactments are prohibited by tifies the goods received for shipment,
the United States Constitution. See also where the goods are to be delivered, and
attainder, bill of pains and particulars, who is entitled to receive the shipment.
and civil death. Abbreviated B/L.

bill of certiorari n. In equity law, a clean bill or clean bill of lading. A bill
pleading that seeks the removal of an of lading with no added notations
that change or qualify its terms.
action to a higher court for appellate
review. See also certiorari. order bill or order bill of lading. A bill
of lading that is negotiable and that
bill of costs n. An itemized and certi- states that the goods can be deliv-
fied (or verified) list of the expenses ered only when the bill of lading is
incurred by the prevailing party in a law- presented to the carrier. Title to the
suit. The pleading is submitted to assist bill of lading and to the goods iden-
the court in determining how many, if tified in it can be transferred by the
any, of these costs should be paid by the shipper, indorsing and giving up
losing party. possession of the document to
another, who is then entitled to
bill of discovery n. In equity law, a receive the goods from the carrier.
pleading that seeks the disclosure of straight bill or straight bill of lading.
facts known by the adverse party. See A nonnegotiable bill of lading that
also discovery. merely specifies the specific place
and person the carrier is to deliver
bill of exceptions. n. 1 A written the goods to.
statement from a trial judge to an appel-
late court listing a party’s objections or through bill or through bill of lading.
exceptions made during the trial and the A bill of lading issued by the first of
grounds on which they were based. 2 multiple connecting carriers who
In some states, a detailed record made, are going to ship the goods. By issu-
after a trial judge has excluded evi- ing the document, the first carrier
dence, of what that evidence was so assumes responsibility for the other
that, in case of an appeal, the appellate carriers for the shipment’s eventual
court can better determine whether it arrival and delivery at the desig-
was proper for the evidence to be nated place and person.
excluded at trial. For example, if the
trial judge excluded a letter from evi- bill of pains and particulars n. Any
dence, the letter might be read into the legislative act similar to a bill of attain-
record so its contents may be part of the der that imposes a punishment less
bill of exceptions. See also exception. severe than death. Such enactments are
forbidden by the United States
bill of exchange See draft. Constitution’s prohibition of bills of
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bill of particulars 50

attainder. See also attainder, bill of memorandum of the important points of

attainder, and civil death. the parties’ contract and is usually
accompanied by the buyer’s first pay-
bill of particulars n. In criminal law, a ment. 3 The buyer’s first payment
written statement of the charges toward the purchase of real property.
brought against the defendant specify- See also earnest money.
ing the details of the alleged acts of
wrongdoing that will be brought up at binding adj. Obligatory.
trial. Such a document is usually filed in
response to a defendant’s request for binding agreement See agreement.
more specific information when the binding arbitration See arbitration.
criminal charges are vague or ambigu-
ous. In some states, a bill of particulars binding authority See precedent.
can also be used in civil actions.
binding over See bind over.
bill of review n. In equity law, a plead-
ing requesting a trial court to explain, binding precedent See precedent.
revise, or reverse a final decree issued
by the court. bind over v. 1 To require a person to
do something (usually to appear in
bill of rights n. 1 A section or adden- court). 2 To imprison or place a per-
dum, usually in a constitution of a coun- son into a law enforcement officer’s
try, state, or other similar political physical custody for imprisonment to
entity, specifying the civil and political guarantee the person’s attendance at a
rights of the entity’s citizens or resi- judicial proceeding (usually a criminal
dents and the limits on the entity’s gov- trial). Also called binding over and
ernment to infringe on or interfere with bound over.
those rights. 2 Any formal list of
rights given to a group of individuals by biological child See child.
statutes or by adoption by an organiza- B/L abbr. See bill of lading.
tion or institution. For example, a law
concerning the provision of services for Blackacre n. The name of a fictitious
the elderly may include a senior citi- piece of land frequently used, especially
zens’ bill of rights. in law school, when discussing concepts
and issues of the law concerning real
Bill of Rights n. The first ten amend- property and future interests. When the
ments to the United States Constitution. discussion involves two fictitious pieces
bill of sale n. A document that con- of land, the second tract is frequently
veys title to personal property from a referred to as Whiteacre.
seller to a buyer. black letter law Same as hornbook
bind v. To subject to a legal obligation. law. See hornbook.

binder n. 1 A document giving a per- blackmail See extortion.

son temporary insurance coverage until blackmail suit See suit.
her application for insurance is rejected
or until the insurance policy is issued. blanket bond See bond.
2 A document in which the parties to a
sale of real property declare their inten- blanket search warrant See search
tion to transfer ownership of the prop- warrant.
erty. The document usually includes a
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51 bona fide occupational qualification

blank check Same as blank indorse- ple, an ordinance prohibiting the opera-
ment. See indorsement. tion on Sunday of a dance hall within
city limits is a blue law if it was enacted
blasphemy n. The act of reviling, for religious purposes.
ridiculing, or being disrespectful or
irreverent of, by words or conduct, blue sky law n. The popular name for
God, religion, a religious doctrine, a reli- the statute, found in every state, that
gious icon, or anything considered regulates within the state the sale of
sacred. A crime under the common law corporate securities to the public. These
if the blasphemy was directed towards laws are the states’ counterpart to the
Christianity or Christian doctrine and federal securities acts. See securities
icons and is still a statutory crime acts.
(although rarely enforced) in many
states. board of directors n. The governing
body of a corporation elected by the
blockbusting v. The inducement of shareholders to establish and carry out
people by a real estate agent to sell real corporate policy, select the corporation’s
property quickly, and frequently for less officers, make certain major decisions
than what the property is worth, by concerning the corporation’s business
spreading rumors about ethnic minori- and finances, and to oversee the corpo-
ties moving into the neighborhood and ration’s operations.
thereby generating business for the real
estate agent. This practice is outlawed board of pardons n. A state agency
by many state laws as well as by the fed- authorized to grant pardons to and com-
eral Fair Housing Act of 1968. mute the sentences of convicted crimi-
nals. Also called a pardon board.
blood alcohol concentration (or blood
alcohol content) n. The amount of bodily heir See heir.
alcohol in an individual’s bloodstream
bodily injury See injury.
expressed as a percentage of the total
composition of one’s blood. The percent- body politic n. The people who are
age is used to determine whether the subjected to or owe allegiance to a sin-
person is legally drunk, especially in gle organized political governmental
regard to laws prohibiting the driving of authority, such as a state or country.
vehicles while under the influence of
alcohol. boilerplate n. Any standardized lan-
guage or working that is almost always
Bluebook, the n. The most frequently found in certain legal documents such
used guide on how to cite court case, as contracts and deeds. The terms are
statutes, treatises, law review articles, often in fine print and typically deal with
legislative debates and hearings, and matters that are either noncontroversial
other authorities on the status and inter- or nonnegotiable. See also contract,
pretation of the law. Formerly titled, and fine print, and unconscionable.
now subtitled, “A Uniform System of
Citation.” bona fide adj. Latin. In good faith.
Acting, being, carried out, or made in
blue laws n. Laws regulating or pro- good faith; authentic; genuine; sincere.
hibiting certain otherwise legal activi-
ties, especially commercial activities, bona fide occupational qualification
either on Sunday or all the time for n. Employment practices that would
essentially a religious reason. For exam- constitute discrimination as to certain
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bona fide purchaser 52

individuals of a particular religion, gen- ferred, so is also the ownership of

der, national origin, or age range (but the bond and the entitlement to the
not race or color) when the otherwise repayment of the debt and accom-
illegal discrimination is a bona fide qual- panying interest payments.
ification that is reasonably necessary for blanket bond. A bond, frequently in
the normal performance of the duties of the form of a fidelity bond, to pro-
that particular occupation. For example, tect against the wrongful action of
a designer of women’s clothes by neces- one or more of a group or class of
sity is permitted to hire only female individuals. For example, a summer
models to show off new designs. Such camp for children might provide a
practices are not illegal under federal blanket bond against acts of child
law. In addition, religious organizations abuse by any of its camp coun-
and schools are allowed to hire only selors.
members of that religion even if religion completion bond. A bond to guaran-
is not a bona fide occupational qualifica- tee that a contractor will complete a
tion for that position (such as the project according to the terms of a
requirement that all teachers in a contract. In the event of the con-
parochial school be Catholic, even tractor’s default, the surety may
though they teach subjects that do not complete the project or pay dam-
require Catholic background). Abbr. ages to the aggrieved party up to
BFOQ. the amount of the limits of the bond.
Also called performance bond.
bona fide purchaser See purchaser. convertible bond. A bond that, under
bona fides n. 1 Same as good faith. specified circumstances, can be
exchanged for shares of stock in the
2 Credential, documents, or other evi- corporation that issued the bond.
dence of authenticity, good faith, legiti-
macy, or trustworthiness. fidelity bond. A bond to protect
against the loss caused by the
bond n. A written promise to pay or wrongful conduct of an employee.
forfeit money or perform some act upon
the occurrence or nonoccurrence of a fiduciary bond. A bond required of a
specific act or the passage of a specified trustee, administrator, executor,
amount of time. See also indenture. guardian, conservator, or other fidu-
ciary to protect against the loss
appeal bond. A bond required of the caused by misconduct during the
appellant in a civil case to ensure that performance of the person’s duties.
the appellee’s costs will be paid if the
appeal is dropped or unsuccessful. general obligation bond. A govern-
ment bond for which repayment is
bail bond. A bond given to a court by to be made from general tax rev-
a surety to secure the release of a enues rather than from any specific
criminal defendant from incarcera- fund or from the proceeds of any
tion and to guarantee the defen- specific civic improvements or proj-
dant’s future appearance in court, ect. Also called a bond for general
when required, during the criminal purposes.
proceeding pending against him.
See also bailsman. judicial bond. A bond to protect the
adverse party in a civil case against
bearer bond. A bond payable to the loss caused by any delay or
whomever has possession of it. inability to utilize property as a
Whenever possession is trans- result of the lawsuit.
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53 bond

junk bond. A corporate bond that serial bond. One of several bonds
pays high interest, because the issued at the same time, each of
company issuing it has a great risk which has a different maturity date.
of going out of business.
series bonds. A group or groups of
municipal (or state) bond. A bond bonds issued as a result of the same
issued or guaranteed by a local or bond indenture, but offered to the
state government or governmental public at different times and with
body. different maturity dates and inter-
est rates.
payment bond. A bond to ensure that
the employees, subcontractors, and supersedeas bond. A bond required of
suppliers of materials for a general the losing party in a civil action for
contractor on a construction project the amount of the judgment. The
will be paid by the bonding com- bond is frequently a requirement for
pany, which acts as an insurer, if the delaying the execution of the judg-
contractor fails to pay them. ment while the losing party is
appealing the case. Also called
peace bond. A bond required by a supersedeas.
court of a person who has previ-
ously engaged in public distur- surety bond. 1 A bond provided,
bances or disorderly conduct or has usually for a fee, by one party, such
threatened to do so again to ensure as an insurance company, to protect
that, if she breaches the peace in against the potential actions or
the future, she will pay the court an default of another party, by guaran-
amount up to the limits of the bond. teeing to perform certain acts or to
See also breach and conduct. pay an amount up to the limits of
the bond if the other party acts or
penal bond. A bond to secure pay- fails to act as prescribed in the
ment of a specified sum as a penalty bond. Also called a suretyship bond.
if an obligation is not met. Often See also surety and suretyship. 2
used to ensure that the terms of a A long-term, interest-bearing
contract are performed. Also called instrument, in the form of a certifi-
a penalty bond. cate, issued to the public by a cor-
porate or governmental entity as a
personal bond. A bond issued by the way to borrow money. The obligor
party whose own potential action or promises to repay the money on or
default will trigger the payment or before a specific date and makes
forfeiture of money up to the limits regular interest payments until
of the bond. See also surety bond. then. The owner of the bond is not a
registered bond. A bond that is not stockholder and has no ownership
payable to an individual only interest in the entity, but is only a
because he or she has possession of creditor, and the debt is often
the certificate evidencing the bond’s secured by a lien on the entity’s
existence, but instead is payable property. See also debenture.
only to whomever the issuer’s
records indicate is the owner of the zero-coupon bond. A bond for which
bond. no interest is paid before its matu-
rity. It is purchased at a discount
revenue bond. A bond issued to raise price and redeemed at its maturity
funds for a specific project. The for its face value.
money used to repay the debt can
derive only from the proceeds of
that project.
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bonded 54

bonded adj. Acting under, placed tax. 2 In commercial law, money or

under, protected by, or secured by a property given or received to balance or
bond. For example, a bonded contractor. equalize an exchange property.
bond for general purposes n. See bootleg 1 v. To make or distribute
bond (general obligation bond). something illegally, without required
authorization or registration, or without
bondholder n. The owner of a bond. payment of the appropriate taxes. 2 n.
Something that is made or distributed in
bond indenture See indenture.
such a fashion.
bondsman n. 1 One who, usually for a
borrowed servant doctrine (or bor-
fee, guarantees a surety bond for
another. 2 Same as bailsman. rowed servant rule) n. The common
law principle that the employer of a bor-
bonus n. 1 Wages paid in addition to rowed employee, rather than the
the compensation ordinarily given or employee’s regular employer, is liable
required under an employment contract. for the employee’s actions that occur
A bonus is payment for services (such as while the employee is under the control
for recognition of exceptional work per- of the temporary employer. Sometimes
formance) or on consideration, and is referred to as borrowed employee doc-
neither gift nor gratuity. 2 Anything trine.
given or provided for free in addition to
borrowing statute n. A state statute
what is usual, agreed to, or legally due.
specifying the circumstances when the
bonus stock n. Extra shares of stock, statute of limitations of another state
usually common stock, given without will be applied to in-state lawsuits
payment or other consideration by a cor- whose cause of action arose in the other
poration along with a bond or other state.
stock, usually preferred stock, as an
bounty n. 1 A benefit, premium, or
incentive for the public to purchase the
reward offered or given, especially by a
bond or other stock.
government, to cause a person to take
book 1 n. A ledger or register record- some specific action. 2 A gift or favor
ing particular transactions or events generously bestowed. 3 Liberality in
such as financial transactions and police giving.
arrests. 2 v. To enter or record the
details of a transaction or event into bounty hunter n. A person who, for an
reward or fee, pursues and captures bail
such a book. 3 v. The process at a
jumpers or individuals who have not yet
police station of completing an arrest,
been arrested but are charged with or
including fingerprinting and photo-
suspected of committing a criminal
graphing the defendant.
offense.
book value n. The value according to
boycott v. 1 A concerted action by two
a corporation’s books of an asset’s worth
or more individuals or entities to avoid
minus its accompanying liabilities. See
commercial dealings with a business or
also market value.
to induce others to take the same
boot n. 1 In tax law, the extra money, action. This may include the refusal to
unrelated or non-like-kind property, or work for the business and to purchase
assumption of liabilities included in an or distribute the company’s products.
otherwise like-kind nontaxable exchange While peaceful boycotts are generally
of property. The boot is subject to income legal, boycotts that use coercion or
05_542109 [Link] 3/28/06 12:16 PM Page 55

55 breach

intimidation to prevent others from deal- brain death See death.

ing with the targeted business are not.
2 To engage in a boycott. See also pick- brand name See trademark.
eting and strike.
Brandeis brief n. A brief, usually an
consumer boycott. A concerted appellate brief, that utilizes economic,
refusal of consumers to purchase sociological, or other scientific and sta-
the products or services of a busi- tistical evidence in addition to legal
ness to indicate displeasure with principle when presenting arguments in
the manufacturer, seller, or provider a case. Named after Louis D. Brandeis,
of the product. who filed such a brief with the United
group boycott. A concerted refusal of States Supreme Court in Muller v.
a group of competing businesses to Oregon (1908) during his successful
conduct commercial transactions defense of a state law limiting the max-
with a company with whom they imum workday of female laundry work-
would otherwise do business. Such ers.
boycotts are illegal under the
Sherman Antitrust Act. breach n. A violation of a law, obliga-
tion, or promise.
primary boycott. A union-organized
boycott of an employer with which breach of the close. The common law
the union’s membership have a trespass of entering another’s land
labor dispute. For example, a union either unlawfully or without author-
involved in a dispute over wages ization.
with a business may encourage cus-
tomers not to buy that company’s breach of duty. 1 The failure to per-
products. form a legal or moral obligation
owed to a person or to the public.
secondary boycott. A boycott of a tar- 2 The failure to act as required by
geted company’s customers or sup- the law. 3 The failure to exercise
pliers with whom the boycotters the care that a reasonable person
have no direct dispute to compel would exercise in the same or simi-
those customers and suppliers to lar situation.
refrain from doing business with the breach of fiduciary duty. The failure
targeted company. Such boycotts of a fiduciary to fulfill his duties
are illegal under the Taft-Hartley with a high standard of care.
Act if organized by a union.
breach of the peace. The criminal
Brady rule n. Evidence or information offense of provoking violence, cre-
favorable to the defendant in a criminal ating a public disturbance, or
case that is known by the prosecution. engaging in public conduct that
Under the United States Supreme Court offends public morals or under-
mines public safety. See also bond.
case of Brady v. Maryland (1963), the
prosecution must disclose such material breach of promise. A common law
to the defendant if requested to do so. action for breaking off a marriage
Under subsequent United States engagement. Abolished in many
Supreme Court cases, the material must states.
also be disclosed, even if not requested,
breach of trust. The breach by a
if it is obviously helpful to the defen- trustee of the terms of a trust or of
dant’s case. These requirements are col- her general fiduciary duties.
lectively known as the Brady rule.
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breach of contract 56

breach of warranty. A violation of an from the further performance of his

express or implied agreement or own obligations under the contract.
warranty relating to the title, qual- For example, if a person purchases
ity, content, or condition of goods a car with a radio, but the vehicle
sold or of goods delivered to a does not have one when it is deliv-
bailee. ered, the nonbreaching party can
sue for the cost of the radio and its
breach of contract n. A violation of a installation, but he is also obligated
contract by either failing to perform to pay for the automobile. Also
one’s own contractual obligations or by called immaterial breach.
interfering with another party’s perform-
ance of their obligations. breaking and entering n. Two of the
elements constituting the crime of bur-
anticipatory breach. A party’s posi- glary. Under the common law, forcible
tive and unequivocal action or state- entry into a building (however slight)
ment, before the time his
contractual obligation is due, indi- without permission used to be required,
cating that he does not intend or but many state laws now only require
will not be able to perform when the one to enter (for example, through an
time to do so arrives. In most unlocked door or open window) or
states, the nonbreaching party may remain on the premises (for example,
choose to treat the repudiation as hiding in a closet until no one else is left
an immediate breach of the contract in the building) without authorization.
and sue for damages without wait-
ing for the time the breaching Breathalyzer n. A device that meas-
party’s performance is actually due. ures that blood alcohol content of a per-
The nonbreaching party can also son by analyzing the content of the
urge the repudiating party to per- moisture in her breath. Usually used by
form when performance is due, police when a person is suspected of
without giving up the right to sue. If
the repudiating party withdraws his driving while intoxicated.
repudiation before there has been a bribe 1 n. Money or other valuable
material change in the nonbreach-
ing party’s position, the breach will consideration (including a gift or favor)
be nullified. Also called anticipatory given or promised with the intent to cor-
repudiation or constructive breach. ruptly influence the judgment or actions
See also repudiation and voluntary of a person, especially one in a position
disablement. of trust such as a public official or juror.
2 v. To give or promise a bribe. 3 v. To
material breach. A breach of a con- gain influence by a bribe.
tract that destroys the value of the
contract for the nonbreaching party, bribery n. The criminal act or practice
excusing her from the further per- of voluntarily giving, offering, receiving,
formance of her own obligations or soliciting a bribe to influence the offi-
under the contract and giving her
the right to sue for damages. Also cial conduct of a person in a position or
called total breach. office of public trust. See also kickback.

partial breach. A breach of a contract commercial bribery. The voluntary

giving, offering, receiving, or solicit-
that does not substantially affect ing of a bribe to influence the dis-
the value of the contract for the cretionary conduct or decision of
nonbreaching party. Thus, while the an agent, officer, or employee of a
nonbreaching party has the right to business.
sue for damages, he is not excused
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57 burden of allegation

bridge loan n. Short-term loan to women enter the legal profession, more
cover excessive or concurrent obliga- gender-neutral phrases, such as “my col-
tions, as in the case of a loan to cover league,” are being used.
two separate mortgages until borrower
is able to sell one home. buggery n. Anal sex with another per-
son or with an animal. See also bestial-
brief 1 n. A written statement pre- ity and sodomy.
pared by a lawyer and submitted to the
court that outlines the pertinent facts of bugging v. Intercepting, listening to,
the case, the questions of law to be or recording a conversation, usually
decided, the position of the lawyer’s done covertly, by the use of an electronic
client as to those questions, and the device. See also pen register and wire-
legal arguments and authorities (for tap.
example, statutes and appellate court
building and loan association n. A
decisions) that support that position.
quasi-public corporation to which its
See also memorandum.
members contribute money that is
amicus brief. The brief submitted by loaned back to the members so they can
an amicus curiae. Also called brief buy or build homes. See also bank.
amicus curiae.
bulk sale n. Any sale of a large quan-
appellate brief. A brief submitted tity of materials, merchandise, supplies,
when the case is on appeal. or other inventory that is not in the
reply brief. A brief that responds to seller’s ordinary course of business.
the arguments previously raised in Also called bulk transfer. Regulated by
an opponent’s brief. the Uniform Commercial Code that is
designed to prevent a seller from mak-
trial brief. A brief usually submitted ing such a sale, and then spending or
just before a trial. disappearing with the proceeds without
first paying his creditors.
2 v. to counsel in an advisory capacity, as
in “to brief” one’s senior partner on the bulk transfer See bulk sale.
status of the case before going to court.
burden n. 1 A duty, obligation, or
broker n. A person or entity who, for a responsibility. 2 Something that
commission or a fee, brings together causes anxiety or is grievous or oppres-
buyers and sellers of property or serv- sive. 3 In property law, anything that
ices and, while acting as the agent of encumbers or restrict the use or value of
one or both of the parties, helps them land, such as an easement, restrictive
negotiate contracts. covenant, or zoning ordinance. The bur-
den indefinitely binds the current and all
brokerage n. 1 The business or office future owners until it is extinguished, so
of a broker. 2 A broker’s commission or it is the land, and the landowner, that is
fee. burdened by the encumbrance or restric-
brother n. A traditional term of colle- tion. See estate.
giality (for example, “I respectfully dis- burden of allegation n. The burden on
agree with my brother Smith on the a party seeking to raise an issue at trial
issue of . . . .”), by which lawyers or to make allegations about it in a plead-
judges refer to one another. When refer- ing. Also called burden of pleading or
ring to more than one, the plural, pleading burden.
brethren, is used. However, as more
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burden of evidence 58

burden of evidence n. The burden on the burden shifts to the other party to
a party seeking to support a claim or disprove such fact or assertion.
defense at trial to produce sufficient evi-
dence at trial to have the issue merit Burford abstention See abstention.
consideration by the fact-finder. Also burglar n. An individual who commits
called burden of going forward (with burglary.
evidence), burden of introducing evi-
dence, burden of proceeding, burden burglary 1 n. The common-law
of producing evidence, burden of pro- offense of forcibly entering a dwelling at
duction, duty of producing evidence, night to commit a felony therein. 2 v.
and production burden. See also proof Under many modern statutes, the act of
(burden of proof), verdict, dismissal, breaking and entering into any building
nonsuit, and prima facie case. at any time with the intent to commit a
felony (or, in some states, a felony or
burden of going forward (with evi- petit larceny and, in other states, any
dence) See burden of evidence. crime) therein. See also larceny and
burden of introducing evidence See robbery.
burden of evidence. business, course of See ordinary
burden of persuasion n. The burden (ordinary course of business).
on a party at trial to present sufficient business invitee See invitee.
evidence to persuade the fact-finder, by
the applicable standard of proof, of the business judgment rule n. The legal
truth of a fact or assertion and to con- doctrine that a corporation’s officers and
vince the fact-finder to interpret the directors cannot be liable for damages
facts in a way that favors the party. Also to stockholders for a business decision
called persuasion burden or risk of non- that proves unprofitable or harmful to
persuasion. See also proof (burden of the corporation so long as the decision
proof). was within the officers’ or directors’ dis-
cretionary power and was made on an
burden of pleading See burden of informed basis, in good faith without
allegation. any direct conflict of interest, and in the
burden of proceeding See burden of honest and reasonable belief that it was
evidence. in the corporation’s best interest.

burden of producing evidence See but-for cause See cause.

burden of evidence. but-for test n. In criminal and tort
burden of production See burden of law, the principle that causation exists
evidence. only if the harm suffered by a party
would not have happened in the absence
burden of proof See proof. of (“but for”) the defendant’s conduct.
burden shifting v. The shifting of the buyer n. One who buys or agrees to
burden of proof from one party to make a purchase. See also purchaser.
another at trial, after each party pres-
ents sufficient evidence to initially per- buyer in the ordinary course of busi-
ness. A person who buys goods in
suade the fact-finder of the truth or the usual manner from a person in
falsehood of a disputed fact or assertion, the business of selling such goods
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59 by-law

and who does so in good faith and poration purchase, the interest or
without knowledge that the sale shares of any withdrawing or deceased
violates another person’s ownership owner or stockholder. See also continu-
rights or security interest in the ation agreement.
goods. Such a buyer will have good
title to the item purchased. See also by-law (also bylaw) n. A rule or
holder in due course. administrative provision adopted by an
ready, willing, and able buyer. A per- association, corporation, or other body,
son who is legally and financially subordinate to the body’s articles of
able and has the disposition to incorporation, charter, or constitution,
make a particular purchase. that regulates the body’s self-govern-
ment and the rights and duties of its offi-
straw buyer. See straw person (or cers and members. See also ordinance.
man).
buy-sell agreement n. An agreement
among the owners of a business or the
stockholders of a closed corporation to
purchase, or to have the business or cor-
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C
cancel v. 1 To blot out, deface, mark
off, perforate, destroy, or otherwise
physically alter a writing to render it
void. 2 To annul, terminate, or revoke
a promise or obligation.
cancellation n. 1 The act, or the
marks or perforations made in the act, of
canceling something. 2 A remedy by
which a court calls in, annuls, and
retains possession of a void or rescinded
written legal document because it may
cause unnecessary litigation or make a
person’s title to property unclear. For
C & F n. abbr. Cost and freight. Both example, a court may call in, annul, and
the initials and phrase are used in offers retain possession of a void deed to real
and contracts for the sale of goods to estate that a party used to falsely claim
indicate that the quoted price includes title to someone else’s real property, in
the cost of the freight to a named desti- order to prevent any such claims in the
nation as well as the cost of the goods. future.
See also C.I.F.
canon n. 1 A rule or principle, espe-
calendar n. A list of the civil and crim- cially one that is fundamental. 2 A
inal cases scheduled on a particular day, rule or standard of conduct, in the form
week, or other time period for trial or of a general maxim, adopted by a pro-
some other hearing (such as an arraign- fessional organization to guide the con-
ment, sentencing, or the hearing of duct of its members. See also Model
arguments concerning pretrial motions) Rules of Professional Conduct.
to be conducted before a judge.
capacity n. 1 The function, office,
calendar call n. A courtroom proce- position, or role in which one acts. 2 A
dure in which the judge or a court offi- legal qualification, such as age, that
cer calls out the names of the cases on determines one’s ability to do something
the calendar, is advised by the parties or that has legal consequences (such as
their lawyers whether they are ready to making a contract or getting married).
proceed, and, if they are, sets a date for Also called legal capacity. 3 The men-
trial. In doing so, the judge or court offi- tal ability to perceive, understand, and
cer is said to “call the calendar.” appreciate all relevant facts, to make a
rational decision based thereon, and to
call n. 1 In property law, an identifi- understand the nature and effect of
able natural landmark that serves to one’s actions. See also sane.
delineate the boundary of land. See also
metes and bounds. 2 A demand for criminal capacity. The mental ability
the payment of money or the delivery of required to sufficiently distinguish
a security, such as a bond, by someone right from wrong to hold a person
entitled to make such a demand. See liable for his criminal acts. See also
also puts and calls. insanity and infancy.

calumny n. A false and malicious diminished capacity. Reduced mental

ability caused by such factors as
statement about someone that is alcohol or drug use, disease, mental
intended to injure his or her reputation. retardation, or injury, that prevents
See also obloquy, defamation, and a person from sufficiently distin-
slander. guishing right from wrong to hold
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61 care

them liable for his criminal acts. bution are owned and controlled mostly
See also insanity. by private individuals and businesses for
profit, thus what is produced and the
testamentary capacity. The mental
ability a person must have at the quantities thereof are determined by con-
time he signs a testamentary docu- sumer demand and competition.
ment, such as a will, for the instru-
ment to be valid. Although it varies capricious adj. 1 Characterized by or
from state to state, it usually resulting from caprice, inconsistency in
requires the person to understand feeling or purpose, a whim, or an unpre-
who are the natural objects of his dictable or impulsive behavior. See also
bounty, the nature and extent of his arbitrary. 2 Contrary to the evidence
property, and the consequences of or law.
executing the document. See also
mind. caption n. 1 The heading of a pleading
that contains the names of the parties
capital 1 n. Money or other assets and court, the case index or docket num-
used or available for the production of ber, and the type of pleading the docu-
wealth. 2 adj. A crime punishable by ment is. 2 The taking or carrying
or involving the death penalty. away of an object. See also larceny, rob-
capital crime. Same as capital bery, and trespass. 3 The arrest or
offense. See offense. seizure of a person pursuant to legal
process.
capital offense. See offense.
care n. 1 Serious attention, concern,
capital punishment. See punish- interest, or regard. 2 In negligence
ment. law, the level of caution and prudence
capital asset. See asset. demanded in the conduct of a person in
a given situation. The appropriate level
capital expenditure. The expenditure is determined by measuring the poten-
of money to purchase, improve, or tial dangers in the particular situation,
repair property that has, or whose the risk that the person’s actions might
improvement has, a useful life that bring the risk to fruition, and the possi-
is substantially longer than the ble ways of minimizing or eliminating
length of the taxable year in which the risk. In some situations, the level of
the purchase, improvement, or
repair is made. Not deductible for care owed is determined by statute. See
income tax purposes, but may be also reasonable man, malpractice, and
subject to depletion or depreciation. negligence.
Also called capital expense.
degree of care. The level of care to be
capital expense. See capital expendi- exercised in a particular situation.
ture.
due care. 1 A phrase used to
capital gain. See gain. describe the level of care that an
ordinarily reasonable, intelligent,
capital gains tax. See tax. and prudent person would use
under the same or similar circum-
capital loss. See loss. stances. For example, “Smith’s fail-
ure to exercise due care before the
capital stock. See stock. accident constitutes negligence.”
Depending upon the seriousness of
capitalism n. An economic system in the particular situation and the
which the means of production and distri-
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carjacking 62

known risks, due care may be rea- carryforward See carryover.

sonable care or a higher or lower
degree of care. 2 See reasonable carryover n. The part of an income tax
care. credit or deduction that cannot be
entirely claimed in a given tax year, but
highest degree of care. The highest that a person may apply against (and
degree of care that a very attentive, thereby reduce) their tax liability for a
watchful, and cautious individual
would exercise when dealing with a subsequent year. See also carryback.
particular situation. Among other cartel n. A group of independent pro-
things, this is the degree of care
that trustees and other fiduciaries ducers or sellers in a particular industry,
are required to exercise when carry- or a group of businesses with a common
ing out their fiduciary duties. Also interest, who have joined together to
called extraordinary care and high- reduce competition between themselves
est degree of care. See also breach. by allocating markets, sharing knowl-
edge, or controlling the price and pro-
ordinary care. See reasonable care. duction of a product or service. See also
reasonable care. The degree of care monopoly and oligopoly.
that an ordinarily reasonable, intel- case n. 1 An action, cause of action,
ligent, and prudent person utilizing controversy, proceeding, or suit at law
diligence and good judgment would or in equity filed with a court. 2 Same
exercise or reasonably be expected as trespass on the case. See trespass.
to utilize under similar circum- 3 The aggregate of the evidence pre-
stances. Also called due care and sented at trial by a party in support of
ordinary care. their argument or position.
carjacking See hijack. agreed case. See case stated.
carrier n. A person or commercial case at bar. A case that is proceeding
enterprise (such as an airline) in the towards resolution or trial or is
business of transporting people or under the particular or immediate
goods. attention of the court. Also called
instant case and present case. See
common carrier. A carrier who is also bar and sub judice.
legally required to accept all busi-
ness from the public, so long as the case in chief. 1 The primary case
approved fee for the transport of presented by a party that satisfies
passengers or freight is paid. that party’s initial burden of proof,
as distinguished from the “rebuttal
private carrier. A carrier who is not case”.
legally required to accept business
from the public, but who is hired in case on point. A previously decided
case with facts or legal issues that
particular cases to deliver passen- were similar or comparable to those
gers or goods. in a case at bar. See also precedent.
carryback n. The part of an income case of first impression. A case that
tax credit or deduction, such as a net presents a legal issue that has
operating loss, that cannot be entirely never been considered or decided by
claimed in a given tax year, but that a any court in that jurisdiction. See
person may apply against (and thereby also stare decisis.
reduce) his tax liability for a previous
year. See also carryover.
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63 causation

test case. A case initiated or selected otherwise made ineffective. 2 The

from a group of cases that involve harm to an individual or property as a
the same or substantially similar result of a sudden, unexpected, or
facts and questions of law for the unusual event. 3 An accident, espe-
purpose of testing the constitution- cially one that is fatal or serious.
ality of a law or establishing an
important legal principle. casus omissus n. Latin. Case omitted.
prima facie case. The evidence pre- A legal issue or situation not governed
sented at trial by a party that is suf- by statutory or administrative law or by
ficient to satisfy the party’s burden the terms of a contract. The resolution
of proof and to allow the fact-finder of any legal dispute arising from such an
to decide the case in that party’s issue or situation is governed by the
favor. See also verdict, dismissal, case law or, if it is a case of first impres-
and nonsuit. sion, by whatever guidance the court
rebuttal case. The evidence pre- finds in the common law.
sented at trial by the plaintiff or caucus 1 n. A meeting of the leaders,
prosecution to contradict the evi-
dence presented during the defen- members, or representatives of a politi-
dant’s case in chief. cal party to select the party’s nominees
or convention delegates, plan a cam-
surrebuttal case. The evidence pre- paign, or develop party policy or strat-
sented at trial by the defendant to egy. 2 n . An organized group of
contradict the evidence presented in members of a legislative body who share
the plaintiff’s or prosecution’s a common interest and work together to
rebuttal case. further those interests through legisla-
tion. 3 n. Any group or meeting organ-
case law n. 1 The law based on judi- ized to advance a particular cause. 4
cial opinions, including decisions that v. To meet in or hold a caucus.
interpret statutes, rather than law based
on statutes and other sources. See also causa n. Latin. Case, cause. See also
administrative law, casus omissus, cause.
and common law. 2 The collection of
reported judicial decisions within a par- causa mortis. Latin. Because of
death. Something done or made by a
ticular jurisdiction dealing with a spe- person in anticipation of his own
cific issue or topic. Also called imminent death. See also gift.
decisional law.
causa proxima. Latin. The nearest
cash-basis method See also cash cause. See also cause.
method.
causa sine qua non. Latin. A cause
cash method n. An accounting without which not. Same as but-for
method that records income and cause. See cause.
expenses when they are received or paid
rather than when they are earned or causality n. The relationship between
incurred. See also accrual method and an action or event and the effect that it
completed contract method. produces. Also called causation.

casual employee n. An employee of causation n. The act of causing or pro-

less than full- or part-time status; an ducing an effect or a result. See also
occasional or temporary employee. chain of causation, causality, and
cause.
casualty n. 1 An individual or property
that has been destroyed, injured, lost, or
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cause 64

cause n. 1 An action, event, or force away is the intervening cause. Also

that produces or contributes to an effect called supervening cause.
or result. Also called causation. 2
legal cause. See proximate cause.
The ground or reason for a choice made
or action taken. 3 A matter to be proximate cause. A cause that
decided by a court. directly, without the contribution of
any subsequent action, event, or
but-for cause. A cause without which force, produces an effect or result,
the events or results that follow and without which the effect or
could not occur. Also called causa result would not have occurred.
sine qua non. See also but-for test, Furthermore, the effect or result
causa, and proximate cause. produced by the proximate cause
concurrent cause. 1 One of multiple would have occurred even if there
were a subsequent action, event, or
causes that simultaneously produce force that contributed to the even-
an effect or result that no single tual effect or result. For example, if
cause could. 2 One of multiple a person is fatally injured in an acci-
causes that simultaneously produce dent, the cause of the accident is
an effect or result that any one of the the proximate cause of his death
causes could have produced alone. and not the poor medical care they
for cause. In support of a request received after the accident. Also
made or an action taken. See also called causa proxima, direct cause,
challenge and excuse. efficient cause, and legal cause. See
also remote cause.
good cause. A substantial or legally
sufficient reason for a choice made remote cause. A cause that con-
or action taken or for seeking a par- tributes to, but is not necessary for,
ticular court order. What consti- the production of an effect or result.
tutes good cause usually rests See also proximate cause.
upon the circumstances of a partic- sole cause. The only cause responsi-
ular situation. See also insufficient ble for the production of an effect or
cause. result.
immediate cause. The last of a series superseding cause. A cause that
of causes, although not necessarily arises or occurs after the initial
the proximate cause, of an effect or action, event, or force, and so sub-
result. stantially alters the sequence of
insufficient cause. An insubstantial later actions, events, or forces that
or legally insufficient reason for a the persons responsible for all pre-
choice made or action taken or for vious causes are not liable for the
seeking a particular court order. final effect or result, even if their
See also good cause. own actions were a substantial fac-
tor in bringing about the final effect
intervening cause. A contributing or result. For example, a parent
cause that arises or occurs after the may be negligent for letting her 14-
initial action, event, or force and year-old child drive a car, but the
alters the sequence of later actions, subsequent theft of the vehicle from
events, or forces to produce a final the child would absolve the parent
effect or result. For example, if a of liability for any damages or
person walks into a ditch, the dig- injuries caused by the thief’s use of
ging of the ditch is the initial (that the vehicle.
is, but-for) action, and the subse-
quent removal of the barricade and supervening cause. See intervening
warning signs that kept people cause.
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65 certificate of incorporation

cause of action n. 1 A collection of cede v. To assign; give up; relinquish;

facts that, if true, would entitle a party surrender; transfer; yield.
to be awarded a remedy from another
party by a court; the facts that give a censor 1 v. To officially inspect books,
person the legal right to sue. See also films, letters, newspapers, and other
claim for relief and right of action. 2 media or methods of communication in
A lawsuit. 3 In many states, the same order to suppress them or to delete any
as a claim for relief. portions thereof deemed offensive or
objectionable for moral, political, reli-
cautionary instruction n. An instruc- gious, or other reasons. 2 n. A person
tion given to a jury by the judge, usually who censors the media or other methods
during trial, to disregard certain testi- of communication.
mony or evidence that was improperly
introduced, in lieu of calling a mistrial. censure n. An official condemnation,
reprimand, or expression of adverse crit-
caveat n. Latin. Let him or her beware. icism, usually by a legislative or other
1 An admonition, caution, or warning. formal body, of the conduct of one of its
2 A formal notice or warning given by a members or of someone whose behavior
party to a judge or other court officer it monitors.
concerning his or her behavior and
requesting a suspension of the proceed- census n. The official counting of peo-
ing until the merits of the notice or ple of a country, state, or other similar
warning are determined. 3 A formal political entity.
notice to a court or public official that
cert. abbr. See certiorari.
the notifier has an interest in a matter or
property and requests the suspension of certificate n. 1 An official or sworn
some procedure or proceeding concern- document that formally attests some-
ing the matter or property until the noti- thing to be true. Also called certifica-
fier is given a hearing. tion. 2 A formal document certifying
some interest, permission, right, or sta-
caveat emptor n. Latin. Let the buyer
tus granted to its bearer.
beware. The legal principle that, unless
the quality of a product is guaranteed in certificate of deposit n. 1 A certifi-
a warranty, the buyer purchases the cate from a bank acknowledging the
product as it is and cannot hold another receipt of money and a promise to repay
liable for any defects. Statutes and court it at a specified time and with interest
decisions concerning products liability determined at a specified rate. 2 A
and implied warranties have substan- bank document evidencing a time
tially altered this rule. deposit. Abbreviated C.D.
C corporation See corporation. certificate of incorporation n. 1 In
most states, a certificate issued by the
C.D. abbr. See certificate of deposit.
state indicating that a corporation’s arti-
cease and desist order n. A court or cles of incorporation have been filed, the
administrative agency’s order prohibit- corporation has come into existence, and
ing a person or entity from continuing or that the corporation has the right to oper-
undertaking a particular activity or ate as a corporation. 2 In some states,
course of conduct. See also injunction the same as articles of incorporation.
and restraining order.
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certificate of occupancy 66

certificate of occupancy n. A certifi- have the addressee sign another receipt

cate from a local government agency when the item is delivered, and that
indicating that a building or dwelling receipt is returned to the sender, in
adheres to the local building codes and which case the service is known as “cer-
is ready for occupancy, generally a pre- tified mail, return receipt requested.”
requisite to taking possession. Some court rules provide that service by
certified mail is acceptable.
certificate of service n. The section
of a pleading or motion that certifies certify v. 1 To attest, authenticate, or
that the party filing the document has verify something in writing. 2 To issue
sent a copy of the document to the a certificate. 3 To judicially determine
opposing party or his lawyer. that a person is mentally or otherwise
not competent. 4 To judicially deter-
certificate of title n. 1 A certificate mine that a group of individuals or enti-
issued by the state or local government ties meets the requirements to proceed
identifying the owner(s) of personal or with a class action. See also certifica-
real property, and often listing any tion and decertify.
encumbrances on the property. 2 A
certificate issued by a title insurance certiorari n. Latin. To be more fully
company indicating that it has con- informed. A writ issued at the discretion
ducted a diligent examination of the title of an appellate court directing a lower
of a piece of real property and that, court to certify and deliver the record of
except for the encumbrances noted in a case that is not appealable as of right
the certificate, a person has good title to to the appellate court for possible
the land. This is not, however, a guaran- review. See also appeal and writ of
tee or insurance of good title. error.
certification n. 1 The act of certifying. cession 1 v. The act of surrendering
2 The state of being certified. 3 See or transferring title to real property. 2
certificate. 4 The same as certiorari n. Something that is surrendered or
in some states. 5 The procedure transferred, especially real property.
whereby a federal appellate court
requests the United States Supreme cf. abbr. Compare. In legal citation, a
Court or the highest court of a state to direction to the reader to review a cited
review an issue concerning the applica- authority in which an explanatory or an
tion or interpretation of a law that has analogous (but supportive) proposition
arisen in a case pending before the might be found.
appellate court, in order to give it guid- but cf. In legal citation, a direction
ance. to the reader to review a cited
authority in which a analogous (but
certified copy See copy. contradictory) proposition might be
found.
certified mail n. A delivery service
offered by the United States Postal C.F. abbr. See C & F.
Service that is often used to send legal
notices to addresses within the United C.F.I. abbr. See C.I.F.
States. Upon the payment of a fee, the
sender is given a receipt when an item is C.F.R. abbr. Code of Federal Regulat-
mailed and a record of the delivery is ions.
kept by the addressee’s local post office.
For an additional fee, the sender may
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67 champerty

chain of causation A series of events, facial challenge. An argument, claim,

each of which was caused by the immedi- or lawsuit that a law or government
ately previous event. See also causation. policy always operates in violation
of the United States Constitution or
chain of custody n. The order of a state constitution.
places where, and the persons with
whom, physical evidence was located challenge for cause. A challenge to a
prospective juror based on a spe-
from the time it was collected to its sub- cific cause or reason, such as bias,
mission at trial. prejudice, or a financial or other
interest in the outcome of the trial.
chain of title n. The history of a parcel Usually, there is no limit to the
of real property or of a commercial paper number of challenges for cause
from its original owner or issuer to its available to each party.
current owner or issuer, including all
conveyances and owners in between. challenge to jury array. See challenge
Any gap in the history casts doubt on to the array.
the current owner’s claim of title. See challenge to the array. An objection
also abstract of title and title insur- to an entire jury panel based on the
ance. manner that the panel was selected.
Also called challenge to jury array.
challenge 1 n. An objection, excep-
tion, or other formal questioning of the peremptory challenge. A challenge to
capability or legal qualifications of a per- a prospective juror that may be
son, the existence of a right, or the made without any specific cause or
legality of an action or thing. 2 n. An reason. The number of peremptory
objection by a party or a lawyer to a challenges allowed to each party is
potential juror or jury panel and his or usually limited by statute or court
her request that a judge disqualify the rule.
individual or the panel from hearing that
party’s cause or trial. 3 v. To call into chamber(s) n. 1 The office of a judge.
question. 2 Any location where a judge conducts
official business when court is not in
as-applied challenge. An argument, session. See also in camera.
claim, or lawsuit that a law or gov-
ernment policy, although otherwise champerty 1 n. An agreement
constitutional, is unconstitutional between a litigant and a person who is
when applied to a particular party not a party to the action, including the
or situation. litigant’s lawyer, for that person to pur-
Batson challenge. A defendant’s sue or financially support the litigant’s
claim that the plaintiff or prosecu- claim in exchange for a portion of any
tion excluded potential jurors due to damages awarded. The practice was
their race, color, ethnic background, once prohibited by the common law and
or gender by use of peremptory it is still forbidden in some states,
challenges. Named for the United thereby casting doubt on the legality of
States Supreme Court case of lawyers advancing costs for their
Batson v. Kentucky (1986), which clients, as in the payment of expert wit-
forbids such a use of peremptory
challenges in criminal cases. The ness fees. 2 v. To financially support
principle in Batson was extended to or otherwise maintain or promote
civil cases in Edmonson v. Leesville another person’s claim.
Concrete Co. (1991).
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chancellor 68

chancellor n. 1 Traditionally, the title instructions to the jury and to note any
of the chief judge of a court of chancery. objections the lawyers may have to the
2 Any judge who sits in a court of equity. instructions proposed by the judge. See
charge and jury instruction(s).
chancery (or chancery court) n. 1 The
traditional name for a court of equity. charitable contribution n. A volun-
2 Equity or proceedings administered in tary contribution of money or property
courts of equity. Also called court of to an organization involved in charitable
chancery. activities and without getting or expect-
ing to receive anything of value in return.
change in circumstances n. A modifi- See also charitable organization.
cation, usually substantial, unantici-
pated, and involuntary, in the emotional, charitable deduction See deduction.
financial, or physical condition of one or
both parents, warranting a modification charitable organization n. An organi-
of a child custody or child support order. zation that meets the requirements of
section 501c(3) of the Internal Revenue
change of venue n. The transfer of a Code, operated solely for a religious,
case from a court in one location to a charitable, scientific, literary, educa-
court in another, or from one court to tional, or similar purpose.
another in the same judicial district, for
reasons of fairness or for the conven- charitable trust See trust.
ience of the parties or the witnesses. charter n. 1 A formal document by
See venue. which a sovereign or a government
character evidence See evidence. grants rights, powers, and privileges to
a person, business, or the people.
character witness See witness. 2 The highest law of any organization.
See also articles of incorporation and
charge n. 1 The formal allegation, by-law. 3 The lease or rental of an air-
contained in an indictment, information, plane, bus, ship, or similar mode of
or presentment, that a person commit- transportation.
ted a specific crime. 2 An instruction
to the jury. 3 A claim, debt, encum- corporate charter. 1 A legislative
brance, or lien. 4 An individual or act that establishes a corporation
thing placed in another’s care. (including its purpose and basic
governing structure) or defines a
Allen charge. An instruction given, corporate franchise. 2 See certifi-
generally in a criminal trial, encour- cate of incorporation. 3 See arti-
aging a jury to continue its delibera- cles of incorporation.
tions after reporting a deadlock, on
the basis that considerable expense Great Charter. See Magna Carta.
and time has gone into the trial of
the matter and the jury should make chattel n. Any tangible property that
every effort to come to a resolution. is moveable or transferable. See also
See also jury instruction(s). personal property and real property.

charge conference n. A meeting chattel personal. Any moveable prop-

between a judge and the parties’ erty, tangible personal property, or
lawyers, after the parties have closed an intangible right in such property
(such as a patent). Also called per-
their cases and before the jury is sonal chattel.
charged, to determine the content of the
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69 child

chattel real. Any interest in real set aside sufficient funds from the
property less than a freehold or a drawer’s or maker’s deposit to guar-
fee (such as an easement). Also antee payment of the check on
called real chattel. demand.
chattel mortgage. A lien on assets NSF check. abbr. Not sufficient funds
other than real estate that secures a check. A check that a drawee bank
loan. may not pay because the drawer
has insufficient funds on deposit to
chattel paper. A writing or writings cover it when it is presented for
that evidence a monetary obligation payment. See also check kiting.
as well as a security interest in or a
lease of specific goods. Generally raised check. A check whose face
used when a consumer buys goods amount has been increased. Unless
on credit by signing a promissory done with the agreement of the
note that promises payment in the drawer or maker, the charge consti-
future as well as grants the seller a tutes a material alteration and dis-
security interest in the goods. See charges the drawer or maker, as
also accommodation paper and well as the drawee bank, from pay-
commercial paper. ing any amount on the check.

check n. A draft signed by a person check kiting v. To write a check while

(the drawer or maker) that directs a knowing that there are insufficient
bank (the drawee) to pay, on demand funds in one’s account to cover it.
and without conditions, a specific sum of Depending on the circumstances, check
money to another person (the payee). kiting is often a crime, especially if the
Usually the funds are withdrawn from drawer or maker has previously
an account or a deposit that the drawer deposited a check from another bank
or maker has with the bank. Also called into his account and hopes that the
cheque. funds from that check will reach his
account before the outgoing check is
bad check. A check that is not hon- paid. Also called kite and kiting. See
ored by a drawee bank because it is also check.
forged, the account it is drawn on has
insufficient funds or does not exist, checks and balances n. A system of
or the check is in some other way distribution of power among the execu-
defective. See also check kiting. tive, legislative, and judicial branches of
canceled check. A check with a nota- government, in relatively equal propor-
tion (for example, the word “paid”) tions, such that each branch has the
on it made by the drawee bank that ability to counter the actions of the
indicates that the check has been other two and thus prevent the entire
paid. government from being controlled by
any single branch. See also separation
cashiers check. A check drawn by a of powers.
bank upon its own account rather
than that of an individual depositor Chief Justice of the United States n.
and made payable to another per- The formal title of the presiding justice
son, to the same bank, or to a dif-
ferent branch of the same bank. of the United States Supreme Court.

certified check. A check with a certi- child n. 1 A person under the age of
fication or notation written upon it majority. See also age. 2 Under the
(for example, the word “certified”), common law, a person who is under 14
indicating that the drawee bank has
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child abuse 70

years of age. 3 The son or daughter of posthumous child. Traditionally, a

a person or an individual who is treated child born after his father’s death.
as such. However, because it is now med-
ically possible in some situations to
after-born child. A child born after a keep a deceased pregnant woman
certain event, such as a child born on life-support machine until the
after the execution of a will or the
death of its testator parent. birth of her child, the term can
include a child born after his
biological child. 1 A child born to mother’s death.
his parents. Also called natural
child. 2 A child genetically child abuse See abuse.
related to a specified parent. Also
called genetic child and natural child and dependant care credit See
child. See also adoption. tax credit.
delinquent child. 1 A minor who child custody See custody.
intentionally and constantly
engages in antisocial behavior. 2 child labor law n. A state or federal
A minor who does something that statute that regulates employment of
would be a crime if committed by an children.
adult. Whether the child would be
subject to the juvenile court’s juris- child molestation n. Subjecting a
diction would depend on whether child to any sexual advances, contact, or
the child is over the statutorily other activity.
established age. See also juvenile
delinquent. child neglect [Link] failure of a person
responsible for a child’s care and
foster child. A child cared for and upbringing to safeguard the child’s emo-
raised by an adult, usually selected
by a government agency, who is not tional and physical health and general
his or her natural or adoptive par- well-being. See also abuse.
ents.
child pornography See pornography.
illegitimate child. A child who was
not conceived or born in lawful wed- chilling effect n. In constitutional
lock and who is not later legiti- law, the inhibition or discouragement of
mated. Also called bastard. See the legitimate exercise of a a constitu-
also paternity suit. tional right, especially one protected by
the First Amendment to the United
legitimate child. 1 In common law, States Constitution, by the potential or
a child born or conceived in lawful threatened prosecution under, or appli-
wedlock. 2 Under most modern
statutes, a child born or conceived cation of, a law or sanction.
in lawful wedlock or later legiti- Chinese Wall See ethical wall.
mated by her parents’ subsequent
marriage, her father’s acknowledge- choate adj. Completed or perfected in
ment of paternity, or a judicial and of itself. See also inchoate.
determination of paternity.
neglected child. A child whose par- choice of forum clause n. 1 A provi-
ents or legal custodians fail to safe- sion in a contract in which the parties
guard the child’s emotional and stipulate that any lawsuit between them
physical health and general well- arising from the contract shall be liti-
being. gated before a particular court or in a
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71 circumstance

particular jurisdiction. Because the par- tract for the sale of goods indicating
ties cannot confer jurisdiction upon a that the quoted price includes the com-
court, they must select a court and place bined cost of the goods, insurance, and
that would otherwise have jurisdiction; the freight to a named destination. See
however, since more than one court may also C&F.
have jurisdiction, the parties opt to des-
ignate in advance which one they circuit n. 1 Historically, a judicial dis-
choose. 2 A provision in a contract in trict wherein a judge would travel from
which the parties stipulate that any arbi- town to town to preside over hearings.
tration or conciliation between them 2 A judicial district established in some
arising from the contract shall be held states wherein one or more courts have
before a particular arbitrator or concilia- jurisdiction to hear cases. 3 One of the
tor or group of arbitrators or conciliators twelve judicial districts (along with a
or at a particular place. Also called special nationwide thirteenth circuit) in
forum selection clause. See also choice which the United States is divided for
of law clause. the appellate review of federal trials by
a United States Court of Appeals.
choice of law n. The issue of which
jurisdiction’s law shall apply in an action circumstance n. An act, condition,
that involves events that have occurred event, or fact connected with another
or have an impact in more than one act, condition, event, or fact either as an
jurisdiction. See also conflict of law(s). accessory or as a contributing or deter-
mining element.
choice of law clause n. A provision in
a contract in which the parties stipulate aggravating circumstance. A circum-
that any dispute between them arising stance that increases the culpability
or liability of a person or the meas-
from the contract shall be determined in ure of damages or punishment for a
accordance with the law of a particular crime or tort.
jurisdiction. If the dispute is litigated,
the choice is not binding, but is normally exigent circumstance. 1 An urgent
honored, by the court hearing the law- situation that demands extraordi-
suit. The choice is binding if the dispute nary or immediate action. Such a
is arbitrated. See also choice of forum circumstance often allows for the
clause. circumvention of procedures that
would otherwise be required by law.
churning v. In securities law, the For example, if a car hits a child,
excessive and inappropriate trading of the fact that immediate medical
attention is needed to save the
securities in a customer’s stock invest- child’s life is an exigent circum-
ment account for the purpose of earning stance that excuses the physician’s
the stockbroker more commissions than treatment of the child before
what would have been earned if the parental consent is obtained. 2
stockbroker was concerned only with An urgent situation in which a law
the furtherance of his customer’s inter- enforcement officer who has proba-
ests. This practice is illegal under the ble cause must take immediate
Securities Exchange Act of 1934; how- steps to make an arrest, search, or
ever, there is usually no right of action seizure without a warrant because
for churning. someone’s life or safety is at risk or
because there is an imminent threat
C.I.F. abbr. Cost, insurance, and that a suspect will escape or evi-
freight. Phrase used in an offer or a con- dence will be removed or destroyed.
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circumstantial evidence 72

mitigating circumstance. 1 A cir- cial decision. For example, in

cumstance (such as having a mental Miranda v. Arizona, 384 U.S. 436,
defect at the time of the wrongdo- 444–445 (1966), the numbers 444
ing) that does not exonerate, but and 445 are the pinpoint citation to
reduces the culpability of, a person the pages where the rule is enunci-
for a tort or crime he has committed ated.
and that may result in a reduction of
the damages or punishment to be cite 1 v. To bring forward, provide, or
imposed. See also diminished refer to as authority, illustration, prece-
capacity. 2 A circumstance (such dent, proof, or support. 2 n. A citation
as turning oneself in for arrest) that to a statute, judicial decision, treatise,
does not reduce a person’s culpabil- or other legal authority.
ity for a crime he has committed, citizen n. 1 A person who, due to
but that may result in a reduction of place of birth, naturalization, or other
the punishment to be imposed. See reasons (for example, citizenship of par-
also negligence and defense. ents) is a member of a political commu-
circumstantial evidence See evi- nity or of a civil state, such as a country
dence. or state, and is entitled to all the civil
rights and protections thereof and owes
citation n. 1 A writ issued by a court allegiance to its government. See also
ordering a person to appear at a specific naturalization and resident. 2 For
time and place and, at that time and purpose of federal diversity of citizen-
place, do a specific act or to show the ship lawsuits, a corporation that is
court sufficient cause why he or she can- incorporated or has its principal place of
not do so or should not be required to do business in a state, or an alien granted
so. See show cause order. 2 An order permanent residence in the United
issued by a law enforcement officer to States and residing in a state, is a citi-
appear in court at a specific time to zen of that state.
defend oneself against the criminal alle-
gations contained in the order. See also citizen’s arrest See arrest.
summons. 3 A reference to a legal citizenship clause n. The provision in
authority, such as a statute, court deci- the Fourteenth Amendment to the
sion, or treatise, that supports or con- United States Constitution declaring
tradicts a legal argument or position. that all persons born or naturalized in
See also the Bluebook. the United States and subject to its
parallel citation. An additional refer- jurisdiction are citizens of the United
ence to a court decision that has States and of the state each resides in.
been published in more than one
reporter. For example, the citation civil n. 1 Of or pertaining to all mat-
for the United States Supreme ters concerning the law except for mat-
Court’s famous Miranda case is ters arising under criminal law and
Miranda v. Arizona (1966), with the military law. See also civil law. 2
main citation to the United States Secular. 3 Of or pertaining to the
Reports and with parallel citations duties, rights, and status of citizens and
to the Supreme Court Reporter and to other residents of a country or state.
the Lawyer’s Edition. See also civil disobedience and civil
pinpoint citation The reference to a right.
specific page where a particular civil action See action.
quote or passage is found in a judi-
06_542109 [Link] 3/28/06 12:16 PM Page 73

73 C.J.S.

civil contempt See contempt. such as the freedom of speech or reli-

gion, without governmental influence or
civil court See court. limitation. See also civil right, liberty,
civil death n. 1 Historically, the loss and right.
of all civil rights by a person who had civil procedure See procedure.
been sentenced to death or declared an
outlaw for committing a felony or trea- civil right n. 1 Any governmentally
son. This included the loss of right to recognized or constitutionally or legally
contract, the right to sue, and the right protected economic, personal, or politi-
to protection under the law. See also cal liberty or right of an individual. 2
attainder and bill of attainder. 2 In the United States, any of the liberties
Today, the loss of certain civil rights, and rights guaranteed by the Bill of
such as the right to vote by a person Rights, the Thirteenth, Fourteenth,
convicted of or sentenced to imprison- Fifteenth, and Nineteenth Amendments
ment for a felony. The rights lost, and for to the United States Constitution, and
what crimes or sentences, varies state legislation designed to protect or
to state. encourage the exercise of those rights.
3 Freedom from discrimination, espe-
civil disobedience n. The deliberate, cially that based on race. See also civil
public, and usually nonviolent breaking liberty, liberty, and right.
of a law in order to call attention to the
unfairness or undesirability of a statute Civil Rights Act n. One of the federal
(usually the one that is broken) or some statutes adopted either after the Civil
governmental policy, and to influence War (1861–1865) or in the 1950s and
public opinion concerning the same. 1960s for the purpose of protecting and
encouraging the exercise of the liberties
civil disorder n. A public disturbance and rights guaranteed by the
by three or more people involving acts of Thirteenth, Fourteenth, Fifteenth, and
violence that cause immediate danger, Nineteenth Amendments to the United
damage, or injury to others or their prop- States Constitution, especially the exer-
erty. cise of voting rights and the prohibition
civil forfeiture See forfeiture. of discrimination in employment, educa-
tion, and public accommodations on the
civil law n. 1 A legal system derived basis of age, color, race, religion, or sex.
from Roman law and based on fixed
rules and statutes rather than on a civil union n. A relationship between
court’s interpretation of broad princi- cohabitating members of the same sex,
ples. Prominent in continental Europe, legally recognized in some states, that
Latin America, Scotland, Quebec, and conveys to the couple some or all attrib-
Louisiana. See also common law and utes, benefits, and rights of marriage for
natural law. 2 The law pertaining to purposes of that state’s law, but not for
civil or private rights and duties rather purposes of other states’ laws or federal
than to matters arising under adminis- law. See also cohabitation and mar-
trative, criminal, or military law. riage.

civil liability See liability. C.J. abbr. 1 Chief justice. 2 Chief

judge. 3 Circuit judge. 4 Corpus
civil liberty n. The freedom to exer- juris.
cise a right of personal autonomy or
political expression or participation, C.J.S. abbr. Corpus Juris Secundum.
06_542109 [Link] 3/28/06 12:16 PM Page 74

claim 74

claim 1 v. A demand for money or class action See action.

property. 2 n. An assertion that one is
entitled to, or the perceived or actual Clayton Act n. A federal statute,
right to receive, money or property. 3 adopted in 1914, that amends the
n. The totality of facts that gives rise to Sherman Antitrust Act and prohibits
a right to receive money or property that certain business practices, such as price
is enforceable in court. 4 n. In some discrimination as well as particular
states and in the federal courts, the mergers and acquisitions, if the practice
same as claim for relief. might substantially reduce competition
or create a monopoly in a line of com-
claimant n. An individual or entity merce. See also antitrust law and
who asserts a right or demand to money Sherman Antitrust Act.
or property.
CLE abbr. See Continuing legal
claim for relief n. An assertion of a education.
collection of facts that, if true, would
entitle a party to be awarded a remedy clean hands n. The quality of a person
from another party by a court. See also who acted in an equitable way (that is,
cause of action and claim. fair, just, proper, reasonable, with good
faith) in a dispute or transaction, for
class n. 1 A category of activities, which he or she is now seeking relief or
objects, people, or qualities that have, or asserting a defense in an action in
are considered to have, certain attrib- equity. See also unclean hands.
utes or characteristics in common. 2
An identifiable group of individuals that clear and convincing evidence See
a regulation or statute deals with or acts evidence.
upon differently than it does other peo- clear and present danger n. In con-
ple. If the group is identified by gender, stitutional law, the principle that the
race, national origin, or religion, such a government, notwithstanding the First
group is called a protected class or a Amendment to the United States
suspect class. See also suspect classifi- Constitution, may restrict, prohibit, or
cation. 3 A group of individuals who punish speech or the printing and distri-
have, with the plaintiff in a civil action, bution of words if it is necessary to pre-
a common interest in the subject, facts, vent a clear and present danger of an
and legal issues that the action is based event that the government has a right to
on and who seek to collectively partici-
prevent. For example, the government
pate in the action so all their claims can may prohibit a person from falsely cry-
be adjudicated in a single proceeding. ing out “Fire!” in a crowded room in
For example, the passengers of a cruise order to prevent panic and injury. This
ship who became ill due to the cruise principle was first articulated in the
line’s negligence may constitute a class. United States Supreme Court case of
testamentary class. A group of indi- Schenck v. United States (1919).
viduals who will share a testamen-
tary gift upon the death of a testator clearinghouse n. 1 A place where
but whose exact number and iden- banks daily exchange the checks,
tity is not known until the testator’s drafts, and other forms of indebtedness
death. For example, if a gift is “to that are held by one bank and owed to
my children who survive me,” it will another, and settle their balances all at
not be known until the testator’s one time. 2 A place where brokers in
death who those children are. See stock or commodities exchanges daily
also gift.
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75 closing

settle their debits and credits with one legal research and helps with case
another. 3 A place for the exchange of management and the writing of
information concerning a specific topic. opinions.
clearly erroneous n. The standard client n. One to whom a lawyer for-
that an appellate court normally uses to mally renders legal advice, pursuant to
review a trial judge’s findings of fact an oral or written agreement for such
when a civil case that was tried without advice to be given; any individual to
a jury is appealed. The appellate court whom a lawyer provides advice about
may not reverse the decision merely legal matters.
because, based on the facts, it would
have reached a different conclusion. close 1 n. An enclosed place or tract
However, it may reverse the decision if of land. 2 n. The visible boundary
the appellate court determines that the around an enclosed place or tract of
trial court’s decision was clearly erro- land, consisting of a fence, hedge, wall,
neous, even if there is some evidence in or similar structure, or the invisible
the facts to support the decision. See boundary around an unenclosed place or
also abuse of discretion and error. tract of land. The boundary is “broken”
if anyone crosses the boundary without
clear title See title. permission or an invitation from the
land’s owner. See also breach. 3 n.
clemency n. 1 An act of mercy or The legal interest of one who owns a
leniency. 2 The grant by the president particular piece of enclosed or unen-
or by the governor of a state of an closed land. 4 v. To consummate, con-
amnesty, pardon, or reprieve or of a com- clude, or bring to an end, especially a
mutation of a criminal sentence. discussion or negotiation. See also clos-
clerk n. One who keeps records or ing.
accounts, attends to correspondence, or close corporation See corporation.
does other similar duties in an office.
closed session See session.
court clerk. The court official in
charge of some or all of the admin- closed shop See shop.
istrative aspects of the court’s oper-
ations, including the filing, closely held corporation See corpo-
processing, and maintenance of ration.
court records; preparing summons
and other papers that commence a closing n. 1 The final step in the pur-
lawsuit, including endorsement or chase of real property or of an interest
placement of raised seal to signify in real property when a deed or another
that the papers are official docu- instrument of title is conveyed to the
ments of the court; and entering
judgments. buyer, the purchase price or a portion
thereof is paid, and collateral matters,
law clerk. 1 A law student who is such as the exchange or transfer of any
employed as an assistant to a assignments, insurance policies, leases,
lawyer or judge and does legal and mortgages, are finalized. 2 The
research; helps with the writing of termination of the administration of a
briefs, opinions, and other legal doc- decedent’s estate after the estate’s
uments; and performs similar tasks. assets are distributed, taxes and other
2 A lawyer, usually a recent gradu- liabilities are paid, and all the necessary
ate of a law school, who is employed documents have been filed with the
as an assistant to a judge and does court.
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closing argument 76

closing argument See argument. Code of Federal Regulations n. The

official annual compilation of all regula-
closing statement n. 1 Same as clos- tions and rules promulgated during the
ing argument. See argument. 2 A previous year by the agencies of the
detailed written summary of the costs United States government, combined
(bank fees, legal fees, purchase price, with all the previously issued regula-
and so on) involved in conveyance of tions and rules of those agencies that
real property or an interest in real prop- are still in effect. Abbreviated CFR.
erty.
Code of Military Justice Compilation
cloud on title n. A defect or potential of laws and procedures governing court
defect in the record of the title to real martials and all court proceedings
property that evidences a possible out- involving military personnel.
standing claim or encumbrance (such as
an easement or a lien) that could annul Code of Professional Responsibility
or impair title to the property. See Model Rules of Professional
Conduct.
COBRA abbr. See Consolidated
Omnibus Budget Reconciliation Act of code pleading See pleading.
1985.
codicil n. A testamentary document
co-conspirator See conspirator. that adds to, subtracts from, qualifies,
modifies, revokes, or otherwise alters or
co-conspirator exception n. An explains an existing will. To be valid, it
exception to the hearsay rule that must be executed with the same formal-
allows the acts and statements of one ities as a will.
conspirator, as long as they were done
or said during or in furtherance of the codify v. 1 To arrange, compile, organ-
conspiracy, to be admitted into evidence ize, and systematize into a code the
at the trial of another conspirator, even statutes, or the entire body of law
if done or said in the defendant’s (including case law) of a country or
absence. In federal court and in some state or the statutes or the body of law
states, the act or statement is admissi- concerning a particular area of the law.
ble even if done or said after the con- 2 To enact a statute that restates the
spirators were arrested and in custody. body of a particular area of law includ-
ing applicable common law principles
code n. 1 A systematized collection of and the judicial interpretation of previ-
regulations, rules, or statutes of a par- ous or existing statutes. See also
ticular jurisdiction. See also Code of statute.
Federal Regulations and United
States Code. 2 A systematized collec- codification n. The process of codify-
tion of all statutes, or a single compre- ing existing statutes or an existing body
hensive statute, dealing with one area of of law into a code.
the law. See also Bankruptcy Code,
Uniform Consumer Credit Code, and codifying statute See statute.
Uniform Commercial Code. coerced confession See confession.
co-defendant n. One of multiple defen- coercion n. 1 Constrain or restrain by
dants sued in the same civil action or physical force or the threat of such
formally accused of committing together force. See also duress and undue influ-
the same crime. See also joinder. ence. 2 The improper use of economic
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77 collective mark

power to alter, shape, or otherwise con- collateral ascendant. A relative, such

trol the actions of another. as an aunt, uncle, or cousin, who
has a common ancestor with a per-
cogent adj. Convincing; strongly son but is not that person’s ances-
appealing; compelling action, assent, or tor. Also called collateral. See also
belief. ancestor and descendant.

cognation n. Relationship by blood, collateral attack. An attack in a judi-

whether through a common female or cial proceeding against another
male descendant, rather than by mar- judicial proceeding or a judgment
entered in another court. For exam-
riage. ple, a party in Florida may attack a
cognizable adj 1 Within the jurisdic- judgment entered against him by an
Alaska court on the grounds that
tion of a court, a dispute that a court has Alaska did not have jurisdiction
the power to adjudicate. 2 Capable of over him or the underlying cause of
being known or recognized. action. See also habeas corpus and
direct.
cognovit n. Latin. He has conceded.
An acknowledgment of a debt or liability collateral consanguinity. See consan-
in the form of the debtor’s written con- guinity.
sent to a judgment taken against the
debtor by the creditor, if a particular collateral estoppel. See estoppel.
event does or does not occur. collateral heir. See heir.
cognovit clause n. A contractual pro- collateral source rule. In tort law, the
vision whereby a party agrees to the doctrine that any compensation,
entry of a judgment against him in a par- such as insurance benefits, received
ticular court or courts without any by an injured party from a source
notice or opportunity to present a that is independent of the tortfeasor
defense if he should default on his obli- does not reduce the damages that
gations or otherwise breach the con- the tortfeasor is obligated to pay.
tract. The use of such clauses are See also subrogation.
outlawed or restricted in most states.
collation n. The addition to the estate
cohabitation n. The act of a man and a of an intestate of the value of the
woman, unmarried to each other, pub- advancements made by the intestate to
licly living together in an intimate rela- his or her children so that the estate can
tionship as if husband and wife. be divided in accordance with an intes-
Although a crime in most states, it is tacy statute. See also advancement.
seldom prosecuted. Where illegal, it is
also called illicit cohabitation, lascivious collective bargaining n. In labor law,
cohabitation, and notorious cohabita- negotiations between an employer and a
tion. See also fornication, bigamy, civil labor union or other group representing
union, and marriage. employees concerning the terms and
conditions of the employees’ work. See
collateral 1 adj. Secondary; subordi- also bargaining unit and lockout.
nate; supplemental. 2 n. Property,
including accounts, contract rights, and collective mark n. A servicemark or
chattel paper, that is subjected to a trademark used by the members of an
security interest in exchange for credit association, club, union, or other group
or as security for a debt. 3 adj. to identify and distinguish themselves
Indirect; on a parallel or diverging line. or their products or services. When
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colloquium 78

referring to a collective mark that signi- with governmental authority that,

fies membership in a group, also called although it superficially appears to be
collective membership mark. within the individual’s lawful power, is
actually in contravention of the law. For
colloquium n. In a case of libel or example, a police officer who makes a
slander, the assertions or allegations in false arrest while on duty, or while off
the plaintiff’s pleading, or the evidence duty but when they are wearing a uni-
presented by the plaintiff at trial, show- form or badge, is acting under color of
ing that the alleged defamatory state- law. In some circumstances, the phrase
ment or writing by the defendant also applies to the conduct of private
referred to the plaintiff. See also individuals that is specifically author-
inducement and innuendo. ized or approved by a statute. Depriving
a person of his or her federal civil rights
colloquy n. Any formal conference,
under color of law is, in and of itself, a
conversation, or discussion between the
federal crime and a ground for a cause
lawyers and the judge during a judicial
of action. Also called under color of law.
proceeding.
If the conduct violates a federal civil
collusion n. 1 An agreement between right or criminal law, it is also called
two or more individuals to perpetrate a state action. See also color of title.
fraud or to commit an illegal act. 2 In
color of title n. A written instrument,
divorce law, in states that do not have
such as a forged deed, that falsely
no-fault divorce, an agreement between
appears to convey title. See also color
husband and wife to suppress facts,
of law.
manufacture false evidence, or to do
some act that would create or appear to comity n. The deference and recogni-
create a ground for divorce. If discov- tion that the courts of one jurisdiction
ered, the agreement will cause the give to the law and the judicial decisions
divorce to be denied. and proceedings of another jurisdiction
as a matter of courtesy and respect
color n. 1 A false appearance; dis-
rather than out of obligation. For exam-
guise; pretext; especially the false
ple, comity normally prevents a federal
appearance of a claim to legal right,
court from interfering with a state crim-
authority, or office. See also color of
inal action. Likewise, American courts
law and color of title. 2 The skin
usually recognize the judicial decisions
complexion of people who do not belong
to the Caucasian or Caucasoid ethnic (for example, a judgment or a divorce
decree) of another country if it is deter-
group. The term is frequently added to
mined that the judicial procedures of
“race” in constitutional provisions and
that country are substantially fair. See
statutes barring discrimination.
also abstention, full faith and credit,
Colorado River abstention See and relinquishment.
abstention.
comity clause See privileges and
colorable adj. That which appears immunities.
plausible or reflective of reality, but is
comment n. 1 A scholarly article or
deceptive, intended to conceal, does not
essay, usually written by a law student
correspond with reality, or is not authen-
and published in a law review, analyzing
tic or valid.
a judicial decision and its context in the
color of law n. The conduct of a police law. See also annotation and note. 2
officer, judge, or another person clothed An explanation of a statute, code sec-
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79 commission

tion, or administrative rule written by goods and related matters such as the
the drafters of the statute, section, or financing of credit, secured transac-
rule. See also annotation. tions, and negotiable instruments. Most
commercial law in the United States is
comment on evidence n. Statements set out in the Uniform Commercial Code.
made during a trial by a judge or lawyer
regarding his or her own opinion about commercial paper n. A negotiable
the evidence and the credibility of the instrument evidencing a debt to be
witnesses. In many states, judges are unconditionally paid on demand or at a
not permitted to make such statements. specified time and payable to order or to
Furthermore, a prosecutor may not com- the instrument’s bearer; includes such
ment on the defendant’s refusal to tes- instruments as certificates of deposit,
tify in a criminal action. When made, checks, drafts, and notes. The use of
such prohibited statements are some- commercial paper is generally governed
times called an impermissible comment by the Uniform Commercial Code. Also
on the evidence. called paper. See also accommodation
paper and chattel (chattel paper).
commerce n. The exchange of goods,
materials, products, and services or the commercially reasonable See rea-
travel of people. sonable.
foreign commerce. Commerce that commercial unit n. A unit of goods
involves the transport of goods, that is regarded by trade or commercial
materials, products, services, or usage to be a single whole that cannot
people across international bound- be divided without materially diminish-
aries.
ing or harming its character, market
interstate commerce. Commerce that value, or use; for example, a chair is a
involves the transport of goods, commercial unit.
materials, products, services, and
people within the United States but commingling of funds n. The mixing
across state boundaries. by a fiduciary, trustee, or lawyer of the
money or property of a customer or
intrastate commerce. Commerce that client with his own without a detailed
completely takes place within the and exact accounting of which part of
boundaries of a state. the common funds and property belong
to the customer or client.
commerce clause n. The provision in
the United States Constitution that gives commission n. 1 A formal written
Congress the sole power to regulate the document from a government or court
United States’ foreign commerce, inter- empowering the individual named therein
state commerce, and commerce with to hold an appointive office or to perform
Native American tribes. official duties. In the case of an appointive
office, the individual must receive the
commerce power See commerce
commission before she can act in their
clause.
official capacity. 2 See administrative
commercial frustration See frustration. agency. 3 A group of individuals
appointed by a governmental authority to
commercial name See tradename. perform some public service on an ad hoc
basis. 4 The act of committing or
commercial law n. The substantive
law concerning the purchase and sale of
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commit 80

perpetrating a crime. 5 Compensation tal health facility, or similar institu-

paid to an agent, employee, executor, or tion at the request or with the con-
trustee based on a percentage of the sent of the individual.
money collected or to be collected in a
committee n. 1 A person or group of
transaction or a percentage of the value of
people who are members of a larger
the property involved. See also kickback
body or organization and are appointed
and royalty.
or elected by the body or organization to
commit v. 1 To do; perpetrate. 2 To consider, investigate, or make recom-
order a person’s placement in, or to send mendations concerning a particular sub-
a person to, a hospital, mental health ject or to carry out some other duty
facility, prison, or similar institution, delegated to it by the body or organiza-
especially pursuant to court order. tion on an ad hoc or permanent basis.
2 A person who has been civilly com-
commitment n. 1 A promise, vow, or mitted. 3 The guardian of a civilly
agreement to do something. 2 An committed person or the individual into
order, especially one from a court, whose care an incompetent person has
directing that a person be taken to and been placed. See also conservator.
placed in the care or custody of a hospi-
tal, mental health facility, prison, or sim- commodity n. Any tangible good or
ilar institution. product that is the subject of sale or
barter.
civil commitment. The commitment
of a person to a hospital, mental common area n. 1 In landlord-tenant
health facility, or similar institution law, a part of the premises that is used
upon a civil court’s finding that the by all the tenants, of which the landlord
person is ill, incompetent, addicted retains control and is responsible to
to drugs, or in some similar circum- maintain in a reasonably safe condition;
stances and is a danger to himself for example, an elevator, hallway, or
or others.
stairway. 2 An area that is owned and
diagnostic commitment. 1 The used by the residents of a condominium
incarceration of a person while it is or similar housing development.
determined whether she is compe-
tent to participate in the prepara- common carrier See carrier.
tion and presentation at trial of a
defense in a criminal action. 2 common law n. 1 A legal system
The incarceration of a person after derived from the broad and comprehen-
she has been convicted of a crime sive principles encompassed within the
while an appropriate sentence is unwritten laws of England and applied
determined. in most English-speaking countries,
including the United States (except the
mandatory commitment. The auto-
matic commitment of a person state of Louisiana). The principles are
found not guilty of a crime by rea- created and modified by judicial deci-
son of insanity to a hospital, mental sions; passed on through custom, tradi-
health facility, or similar institution. tional usage, and precedent; are
Required under federal law when adaptable when applied to new facts and
dealing with a person charged with circumstances; and are changeable
a federal crime, but not required by when required. Although much of what
law in most states. was once part of the common law, such
mortgage commitment. See mortgage. as commercial law and criminal law, has
been codified, other areas of the law,
voluntary commitment. The commit-
ment of a person to a hospital, men-
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81 commutative justice

such as contract law, property law, and privileged communication. A commu-

tort law, are still primarily governed by nication made, whether or not dur-
the principles of the common law. See ing course of a confidential
also case law, casus omissus, civil law, relationship, that is legally pro-
and natural law. 2 The legal proce- tected from involuntary disclosure
dures and decisions of courts of law as and may be withheld from evidence.
See also privilege.
distinguished from courts of equity. Also
called law. community n. 1 A group of people liv-
federal common law. The case law ing together or in the same locality or
derived from federal court decisions who share interests or a sense of iden-
interpreting federal statutes or tity. 2 The area, district, locality,
addressing other matters of federal neighborhood, or vicinity where a group
concern. of people lives.
common law marriage See marriage. marital community. A married couple
in a community property state.
common law property state See com-
mon law state. community notification law See
Megan’s Law.
common law state n. A state whose
rules governing the ownership, division community of interest n. A common
and inheritance of income and property grievance, interest, or other similarity
acquired by a husband or wife during the among a group of people that justifies
course of their marriage holds that, sub- treating them as a class for legal pur-
ject to various qualifications, each poses. See also action.
spouse owns and has complete control
community property n. In a commu-
over his or her own income and property.
nity property state, the income and
Also called common law property state
property acquired by a couple during the
and separate property state. See also
course of their marriage, except for the
elective share, equitable distribution,
income or property obtained solely by
property, and community property
one of them by gift or inheritance. See
state.
also property, equitable distribution,
commonwealth n. 1 The people of a and tenancy.
state or country. 2 A state or country
community property state n. A state in
where sovereignty is vested in the people.
which income or property acquired by a
communication n. 1 The exchange, husband or wife during the course of their
imparting, or transmission of ideas, marriage, except for the income or prop-
information, opinions, or thoughts, erty obtained solely by one of them by gift
transmitted electronically or by ges- or inheritance, is community property.
tures, speech, or writing. 2 A message
commutation n. In criminal law, the
so exchanged, imparted, or transmitted.
president’s or governor’s substitution of
confidential communication. A com- a less severe punishment for a greater
munication made during the course one that was imposed by a court in a
of a confidential relationship that is criminal action. See also amnesty, par-
legally protected from involuntary don, and reprieve.
disclosure and may be withheld
from evidence. See also privilege. commutative justice See justice.
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compact 82

compact n. An agreement between more individuals, corporations, or

two or more parties, especially between even other LLCs. Members have
states or a treaty between countries. some of the same protection as
stockholders in a corporation, espe-
interstate compact. An agreement cially, no personal liability.
between two or more states that
has been approved by Congress. parent company. A corporation that
owns more than half of the voting
compact clause n. A provision in the stock of another corporation. Also
United States Constitution that pro- called parent corporation. See also
hibits a state from entering into an affiliate, company, corporation,
agreement with another state or a for- and subsidiary.
eign country without Congressional personal holding company. A holding
approval. company, usually with a limited
number of shareholders and with
company n. A group of individuals, over half of its income coming from
such as an association, corporation, such passive sources as capital
partnership, or union, associated for the gains, dividends, interest, rent, and
purpose of carrying out, maintaining, or royalties. The income is subject to a
performing a commercial or industrial special tax in order to prevent indi-
enterprise. viduals from avoiding income taxes
by placing their assets in such cor-
holding company. A company, usu- porations.
ally a corporation, organized to
influence or control other compa- trust company. A company, usually
nies by such means as owning large incorporated, that provides trust
amounts of stock in other corpora- services, such as administering
tions. See also company. trusts and managing funds and
property held in trust. Trust compa-
joint stock company. An unincorpo-
rated company whose owners pool nies sometimes operate as commer-
capital into a common fund in cial banks as well.
exchange for a number of shares
proportionate to their respective comparative negligence See negli-
investments. However, unlike a gence.
partnership, the shares can be
transferred without the express compelling governmental interest test
consent of the other owners and, See compelling interest test.
unlike a corporation, the owners are
personally liable to the company’s compelling interest test n. In consti-
creditors if the company cannot pay tutional law, a method for determining
its bills. See also company. the constitutionality of a statute that
restricts the practice of a fundamental
limited company. A company, usually right or distinguishes between people
a corporation, in which the investor due to a suspect classification. In order
or shareholder’s liability is limited for the statute to be valid, there must be
to the amount invested or the value a compelling governmental interest that
of the person’s share.
can be furthered only by the law in ques-
limited liability company (LLC). An tion. Also called compelling governmen-
entity that blends features of a cor- tal interest test and, in the case of a
poration and a partnership, but is state statute, the compelling state inter-
neither; owners are called “mem- est test.
bers” and may consist of one or
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83 complaint

compelling state interest test See competition n. Rivalry, as between

compelling interest test. two individuals or entities, a quest to
secure an advantage over another; in
compensating use tax Same as use business, rivalry for customers or a
tax. See tax. share of the marketplace. See unfair
compensation n. 1 Payment for work competition.
done. 2 Payment for injury, loss, or compilation n. 1 In copyright law, an
otherwise depriving a person of some- assemblage of data or preexisting liter-
thing he or she is entitled to. See also acy works that is selected and arranged
damages. in such a way that it results in an origi-
deferred compensation. 1 Payment nal work of authorship. 2 A collection
at some agreed time in the future of updated statutes that have been
for work already done. 2 Payment rearranged to make their use more con-
for work done paid in a tax year sub- venient.
sequent to when the payment is
earned or paid in a manner, such as complainant n. 1 One who enters a
contributing to a qualified pension complaint against another in a civil
or profit-sharing plan, that post- action. 2 One who signs and swears to
pones the employee’s tax liability a criminal complaint.
for the payment.
complaint n. The initial pleading of a
just compensation. The compensa- plaintiff in a civil action that identifies
tion to a property owner required by the court’s jurisdiction, the alleged facts
the Fifth Amendment to the United
States Constitution whenever a that entitle the plaintiff to relief, and the
state government or the federal gov- relief sought. See also ad damnum
ernment takes possession of private clause, bill, petition, and prayer.
property by means of eminent
domain for public use. Generally, amended complaint. A complaint that
the amount of compensation is the substitutes for the original com-
market value of the property at the plaint and adds to, corrects,
time of the taking. See also emi- revises, or subtracts from the
nent domain. alleged facts contained in the origi-
nal complaint.
compensatory damages See dam- criminal complaint. A document,
ages. signed and sworn to by a victim or
witness to a crime or by a police
competent 1 Possessing sufficient officer, alleging facts that give rise
mental ability to understand an issue, to a reasonable belief that a crime
problem, or situation; to make a reason- has been committed and that a per-
able decision concerning it; and to son named in the instrument com-
understand and appreciate the potential mitted that crime. Also called a
consequences of the decision. See also complaint.
capacity, compos mentis, and insanity.
2 Possessing the legal authority, juris- third-party complaint. A complaint
by the defendant in a civil action
diction, qualification, or legally required against a person or entity who is
mental ability to perform a task. not a party to the proceeding, to
competent evidence. See evidence. whom the defendant alleges a right
of contribution or indemnity from
competent witness. See witness. that person, should the defendant
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completed contract method 84

be found liable to the plaintiff. See compromise 1 n. An agreement

also action. between two or more parties to settle dif-
ferences between them by mutual con-
well-pleaded complaint. A complaint cessions. 2 n. The result of such
in a civil action that identifies the concessions. 3 v. To end a dispute
court’s jurisdiction, the alleged by compromise. 4 v. To adjust by
facts that entitle the plaintiff to concessions. 5 n. Something midway
relief, and the relief sought in a between two or more conflicting, differ-
manner sufficient for the defendant ent, or opposing things. 6 n. A partial
to respond to the issues contained payment made by a debtor in exchange
therein. for the creditor’s promise not to seek
completed contract method An payment of the remainder owed or
accounting method that does not record claimed.
the income and expenses of a long-term compromise verdict See verdict.
project until the project is completed.
See also accrual method and cash compulsory adj. Compelled, man-
method. dated, obligatory, or required, especially
if by legal process or a statute.
completion bond See bond.
compulsory appearance See appear-
compos mentis adj. Latin. Master of ance.
one’s mind. In sound mind; mentally
competent. Sometimes shortened to compulsory arbitration See arbitra-
compos. See also non compos mentis. tion.
compound v. 1 To determine the inter- compulsory counterclaim See coun-
est on the principal and on whatever terclaim.
interest has already accrued. 2 To set-
tle a claim or debt for an amount less compulsory joinder See joinder.
than what is alleged to be due. 3 To
compulsory nonsuit See nonsuit.
agree, in exchange for consideration,
not to prosecute a crime or seek punish- compulsory process n. The right of a
ment for the convicted criminal. See defendant to utilize the subpoena power
also compounding a crime. to compel the appearance of favorable
witnesses at trial. In civil actions, the
compounding a crime n. The offense
right is established by statute and, in
committed by a victim of a crime when
some states, by the state constitution.
he or she fails to report or prosecute the
In criminal cases, it is established by
offender or agrees to hamper prosecu-
the due process clause of the Sixth
tion in exchange for a bribe, act of
Amendment of the United States
atonement, or making of amends by the
Constitution. In some cases, the right is
criminal. In some states, it is not a
also available during hearings or inves-
crime if the victim agrees not to prose-
tigations conducted by an administra-
cute when the criminal returns what
tive agency or a legislative committee.
was taken or pays remuneration to the
victim for the injury or loss. See also computer crime See crime.
misprision of felony.
computer fraud See fraud.
compound interest See interest.
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85 conclusion of law

concealed carry law n. A state statute concert of action rule n. In criminal

that allows private individuals to con- law, the doctrine that two or more par-
ceal loaded handguns upon or about ties who agree to commit a particular
their bodies. crime cannot be prosecuted for conspir-
acy or concerted action if the agreed-
concealed weapon See weapon. upon crime can be committed only by
concealment n. 1 The act of hindering the exact number of parties involved.
or preventing the discovery, knowledge, However, if any additional parties also
or sight of something. 2 The hiding or participate in the underlying crime, all
placement of an object out of notice or participants may be liable for conspiracy
sight. or concerted action. Also called
Wharton Rule. See also concerted
active concealment. The concealment action, conspiracy, and tortfeasor.
by deeds or speech of something
that one has a duty to reveal. conciliation n. 1 The amicable resolu-
tion of a dispute. 2 A method of alter-
fraudulent concealment. The failure native dispute resolution whereby a
to inform another of a material fact third party, who is usually but not nec-
that one has a duty to reveal, with essarily neutral, meets with the parties
the intention that the other party and assists them to find a way to settle
rely upon the omission to his or her their dispute. See also arbitration,
detriment. mediation, and summary proceeding.
3 In family law, an attempt by a third
passive concealment. The conceal- party to assist a couple to settle their
ment of something by maintaining differences and stay together. See also
silence when one has a duty to mediation.
speak.
conciliator n. A person who helps par-
concealment rule n. The legal doc- ties to find a way to resolve their dis-
trine that when a plaintiff is hindered or putes. See also conciliation, arbiter,
kept from discovering the existence of a arbitrator, and mediation.
claim by the actions of a defendant, the
statute of limitations is tolled until the conclusion of fact n. A deduction
plaintiff discovers or should have dis- reached without applying any substan-
covered the claim. tive law, but entirely from facts that are
observed or shown to be true or genuine.
concerted action n. Activity that is For example, the determination that
planned, agreed upon, arranged, and Jones’ bicycle had a flat tire when he
carried out by parties acting together purchased it is a conclusion of fact. See
with the shared intent to pursue some also conclusion of law and findings of
scheme or cause. Typically, each party fact.
involved is civilly and criminally liable
for the actions of all the other parties conclusion of law n. An inference
committed in furtherance of the scheme reached by applying substantive law to
or cause. Also called concert of action. the facts. For example, unless there is
See also conspiracy, tortfeasor, and an express or implied warranty or prod-
concert of action rule. ucts liability law that applies to Jones’
bicycle, the substantive legal principle
concert of action See concerted known as caveat emptor will prevent
action.
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conclusive presumption 86

Jones from holding the seller of the bicy- concurrent condition. A condition
cle liable for the bike’s flat tire. See also precedent that must exist, occur, or
conclusion of fact and findings of fact. be performed at the same time as
another, but separate, condition
conclusive presumption See pre- before a duty or obligation arises.
sumption.
condition precedent. A condition
concur v. 1 To agree, approve, or con- (other than lapse of time) that must
sent to, especially regarding an action exist, occur, or be performed before
a liability or obligation arises.
or opinion. 2 Regarding a decision of a
court or court panel that has more than condition subsequent. A condition
one judge, to agree with the opinion of that, if it occurs or comes into exis-
another judge, but not necessarily for all tence, will extinguish a duty or obli-
the same reasons or for a different rea- gation.
son altogether. See also dissent.
condominium n. An individual resi-
concurrent adj. 1 Existing or occur- dential or commercial unit in a multi-
ring at the same time. 2 Cooperating; unit building wherein each unit’s owner
coordinated; united in purpose, action, also owns the common areas, such as
or application. 3 Simultaneously hav- the hallways and elevators, as a tenant
ing authority or jurisdiction over the in common with the other units’ owners.
same legal action, dispute, or matter. See also cooperative.
condemn v. 1 To expropriate private condonation n. 1 The forgiveness,
property, usually land, for public use. purposeful disregard, or tacit approval
See also appropriation and eminent by a victim of another’s illegal or objec-
domain. 2 To adjudge someone guilty tionable act, especially by treating the
of a crime or to impose sentence, espe- other person as if nothing happened. 2
cially a severe penalty such as death or In family law, an act (especially partici-
life imprisonment. 3 To adjudge some- pation in sexual relations) indicating
thing, often a building, to be illegal, forgiveness by one spouse of the other
unfit for public use, or a hazard to the spouse’s improper conduct (such as
public and order it to be destroyed. adultery) when that wrongful conduct is
a potential ground for divorce. In some
condemnee n. 1 A person or entity
states, condonation is an affirmative
whose property has been condemned or
defense in a divorce action if the act
is about to be expropriated. 2 A per-
asserted as grounds for the divorce is
son or entity who claims an interest in
the act that was condoned, the act was
property that is being expropriated.
not repeated after the condonation, and
condemnor n. A governmental or the spouse who acted wrongfully does
semi-public entity that has condemned, not deny conjugal rights to the other
or has the power to condemn, private spouse. See also connivance.
property.
confession n. An admission that one
condition n. 1 A prerequisite or stipu- has committed a crime or any other incrim-
lation in an instrument. 2 A future and inating statement made by a person.
uncertain event, fact, or circumstance coerced confession. A confession
whose existence or occurrence is neces- induced by the police or other law
sary for the existence or determining the enforcement officers’ use of threats
extent of an obligation or liability. See or force.
also estate and fee simple.
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87 conflict of interest

involuntary confession. 1 A confes- confidential communication See

sion induced by the police or other communication.
law enforcement officers’ use of
coercion, deceit, promises, or psy- confidential relation n. Any relation-
chological pressure. 2 A confes- ship that carries with it a special trust
sion obtained in violation of the or dependency based on history, pattern
Miranda Rule. of dealing, familial relationship, or spe-
oral confession. See voluntary confes- cial circumstances.
sion.
confirmation n. 1 An action, declara-
voluntary confession. A confession tion, document, or statement that cor-
that is not involuntary. Also called roborates, ratifies, verifies, gives formal
an oral confession. approval, or assures the validity of
something. See also advice and con-
confession and avoidance n. A plead- sent. 2 A court order enforcing an
ing in which a defendant admits the alle- arbitrator’s decision. See also award,
gations against him, but alleges order, and judgment. 3 In commercial
additional facts that negates the adverse law, an agreement, usually by a bank, to
legal effect of what he has admitted. For honor a letter of credit issued by some-
example, in a state where adultery is a one else, usually another bank, and to
ground for divorce, a plea of condonation seek reimbursement from the instru-
would be a confession and avoidance. ment’s issuer. 4 In property law, a con-
veyance of an interest in real property to
confession of judgment n. 1 A person one who has or claims an existing inter-
or entity’s voluntary agreement to the est in the property, thereby curing a pre-
entry against them of a judgment in vious conveyance that was defective,
favor of another person or entity upon increasing or making permanent a pre-
the occurrence or nonoccurrence of an viously conveyed interest, or making
event without the cost, formality, or time avoidable estate certain and no longer
of a legal action or the presentation of a voidable. See also deed.
defense in court. Also called cognovit
judgment. 2 A judgment taken against confiscation n. The appropriation of
a defendant by a plaintiff pursuant to private property without just compensa-
such an agreement, especially if the tion for the public use or treasury, often as
defendant owes money to the plaintiff at a penalty resulting from a criminal prose-
the time the agreement was made, and cution or when possession of the property
the event that allows the plaintiff to is itself a crime. See also condemn.
enter the judgment is the defendant’s
failure to pay the amount owed or a por- conflict of authority n. 1 A difference
tion thereof on time. Also called cog- of interpretation regarding a point of
novit judgment. 3 The document law between two or more courts, often
wherein a defendant made such an courts of equal importance or rank
agreement before the judgment was (such as the highest appellate court in
entered. two states). 2 A difference of opinion
regarding a point of law between two or
confidence game n. An intentional more legal scholars, especially on a
misrepresentation of past or present point or in an area of law where there is
facts in order to gain a person’s trust so little or no case law.
that she will transfer money or property
to the individual making the misrepre- conflict of interest n. 1 The real or
sentation. Also called a con game. apparent conflict between one’s per-
06_542109 [Link] 3/28/06 12:16 PM Page 88

conflict of law(s) 88

sonal interest in a matter and one’s duty resentatives. 2 v. To meet at a con-

to another or to the public in general gress. 3 n. The legislature of various
regarding the same matter. 2 The real, countries.
apparent, or potential conflict between
the duty owed to one in a matter and the Congress. The national legislature
of the United States consisting of
duty owed to another regarding the two branches, the House of
same matter, especially if the person Representatives and the Senate,
who owes the duty is a lawyer (such as and created by the United States
one who represents two defendants in Constitution.
the same case).
congressional immunity See immu-
conflict of law(s) n. 1 A conflict nity.
between the laws of two or more states
or countries that would apply to a legal congressional intent See legislative
action in which the underlying dispute, intent.
transaction, or event affects or has a
connection to those jurisdictions. 2 conjecture 1 n. A conclusion or infer-
The area of law that deals with the prob- ence based upon incomplete or uncer-
lems arising from such a conflict. See tain evidence. 2 v. To make a
also choice of law, comity, federalism, conclusion or inference based upon such
forum nonconveniens, full faith and evidence.
credit, lex loci contractus, lex loci conjugal 1 adj. Pertaining to mar-
delicti, and uniform laws. riage, the state of being married, or the
conformed copy See copy. relationship between a husband and
wife. 2 n. The sexual relationship or
conforming use See use. relations between a husband and wife.

confrontation clause n. The provision conjugal rights n. The mutual rights

in the Sixth Amendment to the United and privileges between two individuals
States Constitution guaranteeing a crim- that arise from the state of being mar-
inal defendant the right to hear and ried. These include, among other things,
cross-examine at trial all the witnesses affection, companionship, co-habitation,
against them. joint property rights, and sexual gratifi-
cation. See also alienation of affections
confusion of goods n. The mixing of and consortium.
items of personal property of like kind
or nature belonging to different owners conjugal visit n. A visit by a person to
to such an extent that it is impossible to his or her institutionalized spouse (for
identify which specific items belong to example, a prison inmate) during which
which owner. privacy is provided to the couple, usu-
ally to permit them to engage in sexual
con game See confidence game. relations.
conglomerate n. A corporate entity conjunctive denial See denial.
that owns or otherwise controls a group
of other corporations that engage in connect up See connecting-up doc-
unrelated businesses or industries. trine.

congress 1 n. A formal assembly, con- connecting-up doctrine n. The rule

ference, or meeting of delegates or rep- that allows evidence to be admitted at
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89 consequential damages

trial, provided the party submitting it conscientious objector n. A person

will later present other evidence to show who, due to religious belief, refuses to
its admissibility or relevance. Typically, participate as a combatant in any war.
the introduction of subsequent evidence By law, such an individual is exempt
will “connect up” the earlier evidence, from serving as a combatant, but may be
but if the original evidence is never con- required to perform an alternative form
nected to the case, it will be disregarded of service to the country in a civilian or
by the factfinder. non-combatant military role.
connivance 1 n. The assent to, selective conscientious objector. A per-
encouragement of, or promotion of son who does not object to all wars,
another’s wrongdoing by silence or but only to those he considers
feigned ignorance. See also conspiracy. unjust. Such an individual is not
2 v. To be in collusion with another per- exempt from service as a combatant.
son. See also conspiracy. 3 n. In fam- conscious parallelism n. A decision
ily law, the consent by one spouse of the by a business, made independently and
other spouse’s improper conduct (such without any agreement with a competi-
as adultery), either in advance of the tor, to follow a particular course of con-
conduct or while it is occurring, when duct that a competitor has already
that wrongful conduct is a potential taken. See also conspiracy.
ground for divorce.
consecutive sentences See sen-
consanguinity n. The relationship tence.
between people who share a common
ancestor. See also degree, heir, and consecutive tortfeasors See tortfea-
affinity. sor.
collateral consanguinity. The rela- consent v. To acquiesce, agree,
tionship between people who share approve, assent, to voluntarily comply
a common ancestor but are not or yield, to give permission to some act
ascended or descended from one or purpose. See also acquiescence.
another.
age of consent. See age.
lineal consanguinity. The relation-
ship between people who are express consent. Consent that is
ascended or descended from one clear, definite, exact, and unmis-
another. taken.

conscience of the court n. A trial implied consent. Consent that is not

court’s equitable power to resolve a dis- specifically expressed, but that is
pute by applying the community’s (but inferred from one’s conduct.
not the judge’s personal) notions of informed consent. Consent given
decency, fairness, and justice. after being completely advised of
shocks the conscience of the court. the nature, benefits, costs, and
Phrase used when a trial judge risks of a suggested course of
determines that a jury or the parties action.
to an action acted beyond certain
limits of decency and fairness. Such consequential contempt Same as
a determination will be grounds for constructive contempt. See contempt.
invalidating an award or verdict of
the jury or a contract or other act of consequential damages See damages.
the parties.
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conservator 90

conservator n. 1 The court-appointed the enforceability of a contract, but

custodian of the property or financial today a nominal consideration
affairs of a person who is under the age might be viewed as evidence that
of capacity or who has been declared the contract is unconscionable or is,
legally incompetent. See also commit- in reality, a gift rather than a con-
tract.
tee and guardian. 2 In some states,
the same as guardian. past consideration. Consideration
consisting of an act performed or
consideration n. Something of value promise given in the past. For
to either the promisee or the promisor of example, the promise to pay a debt
a contract (usually cash, but also prop- that one is already obligated to pay
erty, a promise to do something or not to is past consideration. A contract
do something, and so on) that is given or based on such consideration is usu-
will be given by the promisee to the ally unenforceable because, typi-
promisor in exchange for a performance cally, the original performance was
or a promise of a performance by the done or the original promise was
made for some reason other than to
promisor. For the contract to be enforce- exchange it for the current perform-
able, the consideration must be some- ance or promise of the promisor.
thing that the promisee, to his or her
detriment or loss, is giving up, or some- sufficient consideration. Consider-
thing that benefits the promisor. ation that is of a great enough value
to be meaningful in light of the per-
gratuitous consideration. Consider- formance or promise that it is being
ation that is neither a detriment or exchanged for.
loss to a promisee nor a benefit to
the promisor. For example, the valuable consideration. Consideration
promise to pay for an item with that is of a great enough value to be
something that is worthless to both meaningful in light of the perform-
the promisee and the promisor is ance or promise that it is being
gratuitous consideration. A con- exchanged for and that has a meas-
tract based on such consideration is urable financial value to either the
unenforceable.
promisee or the promisor.
illegal consideration. Consideration
that contravenes the law, public pol- consideration, failure of See failure
icy, or the public interest. For exam- of consideration.
ple, the promise to physically harm
someone in exchange for an item is consideration, want of See want of
illegal consideration. A contract consideration.
based on such consideration is
unenforceable. consignee n. One who receives cus-
tody, but not ownership, of goods that
nominal consideration. Consideration are consigned. See also consignment.
that is so small that it has no mean-
ingful value in light of the perform- consignment n. The bailment of goods
ance or promise that it is being by their owner (the consignor) to
exchanged for. For example, when another person (the consignee) to have
buying a $10 million business for the consignee sell the goods on behalf of
only one dollar, the dollar is nomi- the consignor in exchange for a portion
nal consideration. Traditionally, of the proceeds or to deliver them to a
courts did not consider the value of
the consideration when determining designated recipient. See also con-
signee.
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91 constant search

consolidated appeal See appeal. for a tort action for alienation of

affections or an element in deter-
Consolidated Omnibus Budget Rec- mining the damages awarded in a
onciliation Act of 1985 n. A federal wrongful injury or death lawsuit.
statute requiring employers who pro-
vide a group health insurance plan for conspiracy n. 1 An agreement or com-
their employees to continue providing bination by two or more individuals to
coverage to an employee for 18 months commit a crime or to commit a lawful
following termination or firing, or to a act by unlawful means. Making the
spouse of an employee in the event of agreement is a crime, even if the unlaw-
divorce, for a period of 36 months fol- ful act that is planned is never per-
lowing the entry of the divorce decree, formed, but most states require overt
provided that the spouse was covered action by one of the conspirators to fur-
by the employee’s health insurance dur- ther the conspiracy before the making of
ing the marriage. Obligation for pay- the agreement becomes criminal. A con-
ment of the health insurance premium spiracy to harm someone is also a tort.
is borne by the terminated employee or, Also called partnership in crime. See
in the event of divorce, by the party des- also tortfeasor, concert of action rule,
ignated in the divorce papers, but in no accessory, accomplice, aid and abet,
event by the employer. Abbreviated attempt, connivance, conscious paral-
COBRA. lelism, and solicitation. 2 Two or
more individuals acting together to com-
consolidation n. 1 The act of combin- mit a crime or to commit a lawful act by
ing two or more things into one. 2 In unlawful means even if they are not
corporate law, the union of two or more aware of each other’s participation or
corporations into a new corporation role in the conspiracy. For example,
along with the dissolution of the original Smith and Jones prepare to commit a
corporations. See also merger. 3 In crime. Jones enlists Adam’s help. Even
civil procedure, the court-ordered combi- though Adams and Smith are unaware
nation of two or more actions that of each other’s participation, there is a
involve the same parties or issues. In conspiracy between the two to commit
the end, there may be a single judgment the crime and they will be held liable for
for all the actions or a separate judg- each other’s actions.
ment for each original action. See also
joinder. seditious conspiracy. See sedition.

consortium n. 1 The affection, compan- conspirator n. One who participates in

ionship, and sexual gratification that one a conspiracy. Also called co-conspirator.
receives from another, especially from a unindicted co-conspirator. One who is
spouse or, in some states, a fellow partic- alleged to have participated in a
ipant in a civil union. See also alienation conspiracy, but is not indicted for
of affections and conjugal rights. 2 In the crime even though one or more
some states, the affection and compan- fellow conspirators are. Also called
ionship between a parent and a child. See unindicted conspirator.
also alienation of affections.
constant search n. A search that is
loss of consortium. The loss of such conducted after a person who is author-
affection, companionship, and sex- ized to do so waives his Fourth
ual gratification as a result of the Amendment rights. The burden of proof
negligent or intentional injury or is thereafter on the prosecution to show
death of a spouse. May be the basis
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constitution 92

that the consent was freely given, with constitutional question n. An issue
no threats having been brought to bear. whose resolution requires the interpre-
tation of a constitution rather than that
constitution n. 1 The fundamental of a statute.
and organic laws and principles of a
country or state that create a system of constitutional right n. A liberty or
government and provides a basis right whose protection from governmen-
against which the validity of all other tal interference is guaranteed by a con-
laws is determined. 2 The fundamen- stitution. See also bill of attainder,
tal rules governing an association. contracts clause, due process, equal
protection, ex post facto law, freedom
Constitution. The Constitution of the of contract, overbreadth, search, and
United States, written in 1787 and self-incrimination (privilege against).
put into effect in 1789.
unwritten constitution. The body of construction n. The process of inter-
fundamental and organic laws and preting, or the interpretation of, a con-
principles contained in a series of stitution, statute, or instrument. See
statutes, court decisions, govern- also legislative history and intent.
mental proclamations, and tradition
that has been accepted as such by canon of construction. Any of the
the government and people (often general principles that courts apply
over generations or centuries). For to construe a statute or instrument
example, the United Kingdom has whose meaning is in dispute.
an unwritten constitution that liberal construction. The interpreta-
includes the Magna Carta (written tion of a constitutional or statutory
in 1215), the Bill of Rights of 1689, provision that applies the original
and other documents and tradition. intent, purpose, and spirit of the
written constitution. A single written writing to circumstances that are
not specifically addressed by the
document that embodies all the fun- constitution or statute. Also called
damental and organic laws and broad interpretation.
principals of a country or state. For
example, the United States has a strict construction. The interpreta-
written constitution. tion of a constitutional or statutory
provision that applies only the lit-
constitutional adj. Consistent with, eral words of the writing to circum-
pertaining to, or mandated by the con- stances that are not specifically
stitution of a country or state. See also addressed by the constitution or
unconstitutional. statute. Also call narrow construc-
constitutional issue See constitu- tion.
tional question. constructive Something that, while
constitutional law n. The body or not actually true, is imputed by the law
branch of law concerned with the study, to exist or to have occurred and treated
interpretation, and application of a as if it were actually so. For example, to
country or state’s constitution, including say “I’m giving you my car” and to turn
the issues of governance, the powers of over the car keys would probably be con-
the branches and levels of government, sidered a constructive delivery of the
civil liberties, and civil rights. vehicle itself. See also legal fiction,
actual, apparent, and impute.
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93 content-based restriction

constructive bailment. See bailment. contempt n. The willful defiance, dis-

regard, or disrespect of judicial or leg-
constructive contempt. See con- islative authority or dignity, especially
tempt.
any disobedience of an order or any con-
constructive delivery. See delivery. duct that disrupts, obstructs, or inter-
feres with the administration or
constructive eviction. See eviction. procedures of a court or legislature. See
constructive fraud. See fraud. also contemner.

constructive notice. See notice. civil contempt. Contempt that con-

sists of the failure to comply with a
constructive service. See service. court order that is issued for
another’s benefit. The usual penalty
constructive trust. See trust. is the daily imposition of a fine or
imprisonment until the person in
constructive-receipt doctrine Same contempt agrees to obey the order.
as constructive receipt of income. See
income. consequential contempt. See construc-
tive contempt.
constructive receipt of income See constructive contempt. Contempt that
income. occurs outside of a judge’s presence
or the immediate vicinity of a court-
construe v. To analyze, explain, inter- room.
pret. See also construction.
criminal contempt. An act or omis-
consultative privilege Same as delib- sion that is in disrespect of the
erative process privilege. See privilege. court and obstructs its administra-
tion or procedures. For example, a
consumer n. One who purchases or party who shouts insults at a judge
leases goods or services for his or her during a trial would be committing
own personal, family, household, or an act of criminal contempt. The
other nonbusiness use. usual penalty is a fixed fine or term
of imprisonment.
consumer goods See goods.
direct contempt. Contempt that
consumer loan See loan. occurs openly in the presence of a
judge or immediate vicinity of a
consumer protection law n. A state courtroom.
or federal law designed to protect con-
sumers against improperly described, indirect contempt. See constructive
damaged, faulty, and dangerous goods contempt.
and services as well as from unfair trade purge[ing] contempt. To comply with
and credit practices. court order so as to have sentence
contemner (or contemnor) n. A person of contempt lifted.
or entity who is guilty of contempt content-based restriction n. In con-
before a judicial or legislative body. stitutional law, a restriction on the exer-
contemplation of death n. The antici- cise of free speech based upon the
pation of one’s own death, whether subject matter or type of speech. Such a
imminent or not, as the major cause for restraint is permissible only if it is based
transferring property to another. See on a compelling state interest and is so
also gift and causa. narrowly worded that it achieves only
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content discrimination 94

that purpose. For example, a statute contingent fee Same as contingency

cannot ban all public demonstrations, fee. See contingency.
peaceful or otherwise, on the subject of
gun control while allowing demonstra- contingent interest See interest.
tions concerning other topics of contro- contingent legacy See legacy.
versy. However, a statute can ban all
inflammatory speeches, regardless of contingent liability See liability.
the topic, that might incite imminent
violence. Also called content discrimina- contingent remainder See remain-
tion. See also discrimination. der.

content discrimination See content- continuance n. The adjournment or

based restriction. postponement to another date of a trial
or other proceeding. See also adjourn.
contiguous adj. 1 Touching at the
edge, at a point, or along a boundary. continuation agreement n. An accord
2 Close, nearby, or in close proximity, between business partners that, should
but not touching. See adjacent and the partnership dissolve, the business
adjoining. will continue without the liquidation
that would otherwise occur. See also
contingency n. A future event or cir- buy-sell agreement.
cumstance whose occurrence is not cer-
tain. continuing injury See injury.
contingency fee. A fee charged for a continuing jurisdiction See jurisdic-
lawyer’s services in an action that is tion.
paid only if the client wins his or
her lawsuit or receives a payment continuing legal education n. 1 The
from an out-of-court settlement. training available to lawyers, usually
Usually, the fee is a percentage of through seminars, to continue their legal
the amount recovered. Further- education, hone their skills, and keep up
more, whatever the result of the with the latest developments within a
action, the client will pay the court particular area of the law. Abbreviated
costs and the other out-of-pocket
expenses (postage, subpoena fees, CLE. 2 The industry of the providers
and so on) incurred by the lawyer of seminars, books, and other materials
during the course of the action. designed to provide such training to
Although contingency fees are fre- lawyers. Abbreviated CLE.
quently charged for a lawyer’s serv-
ices in a civil action, it is unethical mandatory continuing legal education.
to charge this way for services in a Such training to the extent it is
criminal action. Also called contin- required by a state or a state bar
gent fee. See also attorney’s fees association. In most states, lawyers
and champerty. are required to devote a particular
number of hours every year, usually
contingent adj. 1 Possible, but not by attending seminars, in further-
certain to happen. 2 Dependent upon ance of their legal education and in
a future event or circumstance that is improving their skills. Abbreviated
MCLE.
not certain to happen. See also vested.
continuing objection See objection.
contingent beneficiary See beneficiary.
continuing trespass See trespass.
contingent estate See estate.
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95 contract

contra adj. Latin. 1 Against; in contra- aleatory contract. A contract in

diction or opposition to; in answer or which the performance promised by
reply to. See also precedent. 2 In at least one party depends upon the
legal citation, an indication to the reader occurrence of an uncertain future
that the cited authority supports a con- event. For example, a contract with
trary position. an insurance company for the pay-
ment of proceeds in the event that
contraband n. 1 Any goods that are an injury is suffered in the future in
unlawful to possess, sell or otherwise an automobile accident.
distribute or transport, or whose very bilateral contract. A contract
existence is illegal. 2 Smuggled goods. wherein each party is obligated to
fulfill a promise made to the other
contract 1 n. Any legally binding party and is entitled to the comple-
agreement voluntarily entered into by tion of a promise made by the other
two or more parties that places an obli- party.
gation on each party to do or not do
something for one or more of the other breach of contract. See breach of
parties and that gives each party the contract.
right to demand the performance of completely integrated contract. One or
whatever is promised to them by the more documents adopted by the
other parties. To be valid, all parties parties as expressing the complete
must be legally competent to enter a and exclusive statement of all the
contract, neither the objective nor any of terms of their contract. Also called
the obligations or promised perform- entire agreement of the parties,
ances may be illegal, mutuality of the entire contract, or entire contract of
agreement and of its obligations must the parties. See also partially inte-
grated contract and severable con-
exist, and there must be consideration. tract.
See also acceptance, offer, privity, ten-
der, breach of contract, and bargain. contract implied in fact. See implied-
2 v. To enter into or settle by a contract in-fact contract.
or to make a legally binding promise.
3 n. The document containing the terms contract implied in law. See implied-
in-law contract.
of a contract.
contract of adhesion. See adhesion
adhesion contract. A contract that is contract.
so highly restrictive of one party’s
rights and liabilities, but not of the contract under seal. A promise to do or
other, that it is doubtful that it is a not do something that is physically
truly voluntary and uncoerced delivered to the promisee in a sealed
agreement. The concept typically instrument. Under common law, such
arises in the context of standard- a promise bound the promisor even if
form contracts that are prepared by there was no consideration, but the
one party, not subject to negotia- use of such contracts has been modi-
tion, and offered on a “take it or fied or eliminated in most states.
leave it” basis. If the terms of the Also called covenant and sealed
contract are extremely burdensome instrument.
or oppressive, the court may not
enforce it on the grounds that it is cost-plus contract. A contract in
unconscionable. Also called con- which the payment for work done or
tract of adhesion. See also boiler supplies provided equal the total
plate, fine print, and uncon- costs that the contractor incurs,
scionable.
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contract 96

plus a fixed fee or a percentage of the driver to pay for the gasoline,
the profits. Frequently used in even if nothing is said between the
transactions with the government. driver and the attendant. Also
called contract implied in fact. See
divisible contract. See severable con- also implied-in-law contract.
tract.
implied-in-law contract. A contrac-
executed contract. 1 A contract in tual obligation imposed by the law
which all the promises owed by the because of the parties’ conduct or a
parties have been performed and all special relationship between them
the obligations have been dis- or to prevent unjust enrichment.
charged. See also executory contract. For example, when someone
2 A signed contract. receives and uses goods that were
intended for another, the law will
executory contract. A contract in impose an obligation on the recipi-
which all or a portion of the prom- ent of the goods to pay for them.
ised contained therein have not yet The obligation is imposed even if
been performed. See also executed there is opposition or no assent
contract. from the party whom the obligation
express contract. A contract whose is being imposed upon. Also called
terms have been clearly expressed contract implied in law and quasi
in words, whether spoken or in writ- contract. See also implied-in-fact con-
ing, between the parties. See also tract.
oral contract, written contract, and installment contract. 1 A contract in
implied contract. which the obligations of one or
freedom of contract. See freedom of more parties (for example, the
contract. delivery of goods, performance of
services, or payment of money) is
illusory contract. A contract in which authorized or required to be com-
the only consideration given by one pleted in a series of increments over
party is an illusory promise. For a period of time. 2 Under the
example, “For $500, I will provide Uniform Commercial Code, a con-
housekeeping services whenever I tract that authorizes or requires the
am available for the next year.” delivery of goods in separate lots
Traditionally, such a contract was that will each be separately
unenforceable, but in modern court accepted. A severable contract;
decisions, a duty to act in good faith each delivery is, in reality, an inde-
is often read into the promise and pendent contract.
the contract is enforced accordingly.
integrated contract. One or more doc-
implied contract. 1 See implied-in-fact uments expressing one or more
contract. 2 See implied-in-law con- terms of a contract in its final form.
tract. See also express contract. See also completely integrated con-
tract, partially integrated contract,
implied-in-fact contract. A contract and integration.
based on the tacit understanding or
an assumption of the parties and oral contract. An express contract
evidenced by the parties’ conduct. that is not in writing or has not yet
For example, if a person drives her been signed by the parties who will
vehicle to a service station and be obligated to do or not do some-
opens the gasoline tank so that the thing under its terms. See also writ-
service attendant can fill it, there is ten contract.
an implied promise on the part of
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97 contract

output contract. A contract in which industry with only a few blank

a buyer agrees to purchase at a set spaces to be filled in and with a few
price all quantities of a particular predetermined alternate and
good or service that the seller can optional clauses to choose from to
provide over the duration of the con- accommodate slight additions and
tract. See also requirements contract. modifications.
partially integrated contract. An inte- subcontract. A contract whereby a
grated contract of which one or party procures the performance of a
more of its terms is not yet in its part or all of his obligations under
final written form. See also com- another contract by hiring another
pletely integrated contract. party to perform those obligations
for him.
privity of contract. See privity.
unilateral contract. A one-sided con-
quasi contract. 1 See implied-in-law tract in which one party promises to
contract. 2 A name for a claim for do or not do something in exchange
relief for restitution, especially one for the performance of an act that is
for quantum meruit. not promised to be done. For exam-
ple, if a reward is offered for the
requirements contract. A contract in return of a lost watch, nobody is
which a seller agrees to provide at a promising to return the watch, but
set price all quantities of a particu- if it is returned, the promisor will be
lar good or service that the buyer required to pay the promised
needs over the duration of the con- reward.
tract and the buyer agrees, during
that time, to obtain those goods and void contract. 1 A contract that is
services only from the seller. See not legally enforceable. See also
also output contract. voidable contract. 2 A contract
whose terms have been completely
sealed contract. See contract under fulfilled.
seal.
voidable contract. 1 A contract that
severable contract. A contract with can be voided at the will of one or
two or more distinct components more parties. The power to void the
any one of which, if breached or contract is not necessarily available
invalidated, may be considered as to all the parties of the contract. For
an independent contract and not example, a person who is under the
affect the other components of the age of capacity can reject her rights
contract and the parties’ rights and and obligations under a contract
obligations thereunder or put the and make it void without any reper-
promisor in breach of the entire con- cussions, but until she does so, the
tract. For example, a contract to contract is valid. However, an adult
purchase an automobile and to have who entered that same contract
a radio installed in it before delivery cannot void it, and any attempt to
may be regarded as severable if the do so will be a breach of contract
radio is not installed when the vehi- and make her liable for damages.
cle is delivered. Also called divisible 2 A contract that is void to a wrong-
contract. See also installment con- doer, but not to the party who is
tract, completely integrated contract, wronged unless the injured party
and severability clause. decides to treat the contract as
standard-form contract. A contract void. See also void contract.
containing set terms that is repeat- written contract. An express contract
edly used and usually mass pro- that is written and has been signed
duced or preprinted by a party or an by the parties who will be obligated
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contract, freedom of 98

to do something or not do some- gations, provided the regulations are

thing under its terms. See also oral reasonable and necessary.
contract.
contributing to the delinquency of a
yellow dog contract. An employment minor n. The offense of an adult caus-
contract whereby an employee ing or encouraging a minor to become
agrees, as a condition of employ- involved in delinquent or illegal activity,
ment, not to remain in or to join a to engage in conduct in the presence of
union during the course of his a minor that is likely to lead to delin-
employment and to quit his job if he quent or illegal activity by the child, or
does. Such contracts are unenforce- to otherwise encourage a minor’s disre-
able in federal courts and are illegal gard for the law. See also juvenile
in most states. delinquent and corruption of a minor.
contract, freedom of See freedom of contribution n. 1 The right of a debtor
contract. who has paid the entirety of a debt owed
by her and others to recover the others’
contractor n. A party to a contract, proportionate share of the debt. 2 The
especially one who agrees to provide right of a joint tortfeasor who has paid
goods or services to the other parties. more than her proportionate share of a
general contractor. A contractor who judgment to recover the amount in
agrees to undertake a large project, excess of her share from the other tort-
such as the construction of a build- feasors. 3 The right of a joint tortfea-
ing, and who hires and coordinates sor to demand that the other tortfeasors
subcontractors to complete parts of supply their proportionate share of what
the project. Also called a prime con- is required to compensate the injured
tractor. party. 4 A payment made by a co-
independent contractor. A contractor debtor or joint tortfeasor of her propor-
who agrees to provide services to tionate share of what is due. See also
another party, but who retains sig- indemnity.
nificant or complete control over
how the work is done. See also contributory negligence See negli-
employee. gence.

subcontractor. A person retained by a controlled substance n. Any drug

contractor (usually a general con- whose production, possession, importa-
tractor or another subcontractor) to tion, and distribution is strictly regu-
complete a part or all of the obliga- lated or outlawed. These include
tions owed by the contractor under depressants (such as barbiturates), hal-
a particular contract or series of lucinogens (LSD, mescaline, and pey-
contracts. For example, general ote), marijuana, opiates (heroin,
contractors who build houses fre- morphine, and opium), and stimulants
quently hire subcontractors to (amphetamines and cocaine). The sub-
install the plumbing. stances are listed in five categories, or
schedules, according to their character-
contracts clause n. A provision in the istics and the type and degree of regula-
United States Constitution that pro- tion is determined by the category the
hibits states from impairing private con- particular substance is in.
tractual obligations. This clause has
been interpreted so that the states can controlling authority See precedent.
impose regulations governing such obli-
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99 copy

controversy n. 1 A difference in convict 1 n. One whom a court has

views, especially in public, between indi- determined is guilty of an offense, either
viduals taking opposite sides on a par- by accepting a valid guilty plea from the
ticular issue. 2 In constitutional law, individual or upon a verdict of guilty by a
an actual, definite, and concrete dispute judge or jury. 2 v. To prove or officially
over legal rights between parties with find a person to be guilty of an offense.
adverse interests wherein one party is 3 n. One serving a prison sentence.
seeking an adjudication of the dispute
and specific relief of a conclusive nature. conviction n. 1 The act or process by
Also called case or controversy require- which a judge or jury finds someone
ment. See also adversary proceeding. guilty of an offense. See also judgment.
2 A firm belief or opinion.
separable controversy. A cause of
action or claim that is part of a law- cooperative n. 1 An organization or
suit, but is independent and sepa- business enterprise, organized as either
rate from the other causes of action an association (cooperative association)
and claims in the action and can be or corporation (cooperative corpora-
severed and litigated separately tion), owned by those who use its serv-
from them. ices. All profits are shared amongst the
contumacy n. The willful disobedience cooperative’s members in proportion to
of a court’s direction, order, or summons the money or labor each member con-
or any other disrespectful or disruptive tributed. 2 A dwelling owned by a
conduct that would justify a finding of cooperative whose members lease their
contempt. apartments or living quarters from the
cooperative. See also condominium.
conversion n. In criminal and tort law,
the intentional deprivation of another of copy n. 1 A duplicate, imitation, repro-
the benefit and use of his property, with- duction, or transcript of an original. 2
out his authorization or lawful justifica- One of multiple originals.
tion, by possessing or disposing of the certified copy. A copy of a document
property as if it were one’s own or by an to which a statement, usually by the
act (such as damaging or destroying it) person who issued or is keeping the
that interferes with or is inconsistent original, affirming or swearing that
with the owner’s right to sue and pos- the copy and the original have been
sess the property. compared and that the copy is an
exact reproduction of the original.
convertible bond See bond. Also called attested copy or verified
copy.
convertible security See security.
conformed copy. A copy of a docu-
convey v. To transfer or deliver prop- ment to which changes or inser-
erty or the title thereto or a property tions are made to reflect identical
right by a deed or another written changes and insertions made in the
instrument other than a will. original. For example, if a judge
makes changes to a proposed order
conveyance n. The voluntary transfer before signing it, a party would
of an interest in property or a property “conform” a copy by adding to it
right, usually by means of a written those same changes as well as writ-
instrument other than a will. See also ing in the judge’s name where he or
alienation and grant. she signed on the original order.
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copyright 100

copyright n. The exclusive statutory corporation n. An entity, usually a

right of literary (authors, playwrights, business, created by a legislative act or
poets), musical (composers, musicians), by individuals who have agreed upon
visual (painters, photographers, sculp- and filed articles of incorporation with
tors), and other artists to control the the state government. Ownership in the
reproduction, use, and disposition of corporation is typically represented by
their work, usually for their lifetime plus shares of stock. Furthermore, a corpora-
seventy years. The Copyright Act of tion is legally recognized as an artificial
1976 governs most copyrights in the person whose existence is separate and
United States. See also copy and fair distinct from that of its shareholders
use. who are not personally responsible for
the corporation’s acts and debts. As an
coroner n. A public official whose pri- artificial person, a corporation has the
mary duty is to investigate the cause power to acquire, own, and convey prop-
and circumstances of any deaths within erty, to sue and be sued, and such other
his or her jurisdiction that were clearly powers of a natural person that the law
not due to natural causes. may confer upon it. Abbreviated corp.
See charter, corporate, and seal.
corp. abbr. See corporation.
brother-sister corporation. See sister
corporal punishment See punish- corporations.
ment.
C corporation. A corporation that
corporate adj. Of or relating to a par- pays corporate income taxes on its
ticular corporation or to corporations in income rather than having its prof-
general. its taxed as the personal income of
its shareholders. Any corporation
corporate law. The substantive law that is not a S corporation is, by
concerning business organizations default, a C corporation. Also called
and transactions. subchapter C corporation. See also
S corporation.
corporate opportunity doctrine. The
common law principle that the close corporation. A corporation
directors, officers, employees, and owned by a single individual or a
agents of a corporation may not use small group of individuals, often all
any information obtained in their personally involved in the corpora-
corporate capacity to exploit for tion’s business or related to
their own personal benefit a busi- another, who frequently conduct the
ness opportunity that belongs, or corporation’s business without such
should in fairness belong, to the formalities as annual shareholder
corporation. meetings, and whose share of
stocks cannot be sold to anyone
corporate veil. The legal principle outside the group without the prior
that a corporation is distinct from permission of the other sharehold-
its owners and that the corpora- ers. The rights and privileges of
tion’s shareholders are not person- such corporations vary state to
ally liable for the corporation’s acts state. Also called closed corpora-
and debts. See also alter ego, tion, closely held corporation, or
piercing the corporate veil, char- privately held corporation. See also
ter, and seal. publicly held corporation.
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101 corporation

domestic corporation. 1 A corpora- parent corporation. Same as parent

tion whose articles of incorporation company. See company.
have been filed in a particular state.
(The corporation is a domestic cor- private corporation. A corporation
poration of that state.) See also for- created and owned by private indi-
eign corporation. 2 For federal viduals for a nongovernmental, usu-
income tax purposes, a corporation ally business or nonprofit, purpose.
whose articles of incorporation have See also public corporation.
been filed in the United States.
professional corporation. A corpora-
dummy corporation. A corporation tion owned by a small group of indi-
whose sole purpose is to conceal viduals who practice a common
the owners’ identities and to protect occupation that requires a profes-
them from personal liability. sional license (such are accounting,
architecture, law, or medicine).
foreign corporation. A corporation Such a corporation has the same,
whose articles of incorporation have but not all, of the characteristics of
been filed in another state or coun- a private corporation. Abbreviated
try. (A corporation whose articles of P.C. Also called P.A. or professional
incorporation have been filed in one association.
state or country is a foreign corpo-
ration in every other state or coun- public corporation. 1 A corporation
try.) See also domestic corporation. created by a state or the federal
government and, while often finan-
municipal corporation. A political cially independent of the govern-
entity, such as a county, city, town, ment, engages as a government
village, or school district, that is agency in activities that benefit the
created by and derives its limited general public. A publicly appointed
powers of self-government (includ- board of directors manages such a
ing the ability to enter contracts and corporation. See also private corpo-
to sue and be sued) from the state ration. 2 See publicly held corpora-
legislature. See also immunity. tion.
nonprofit corporation. A corporation publicly held corporation. A corpora-
organized for a chartable, cultural, tion whose shares of stock are sold
educational, religious, or some to, freely traded amongst, and
other purpose other than making a owned by a diverse group of share-
profit or distributing its income to holders who are members of the
its shareholders, officers, or others general public. See also close corpo-
similarly affiliated with it. Usually, ration.
such corporations are given special
treatment under state and federal S corporation. A corporation with a
tax laws. Also called not-for-profit small number of shareholders that
corporation. has elected, pursuant to Subchapter
S of the Internal Revenue Code, to
nonstock corporation. A corporation have its income treated as personal
in which ownership is conferred by income to its shareholders for
a membership charter or agreement income tax purposes rather than
that governs the owners’ rights and have the corporation pay the normal
liabilities rather than by the owner- corporate income taxes on the
ship of shares of stock. For exam- income. Also called subchapter S
ple, mutual savings banks and corporation. See also C corporation.
fraternal organizations are usually
nonstock corporations. shell corporation. A corporation that
has no business or ongoing activity
(and sometimes no substantial
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corpus 102

assets) of its own and is typically corroborate v. To confirm, ratify,

used to conceal another corpora- strengthen, or support, especially by
tion’s business activities. additional authority or evidence.
sister corporations. Two or more cor- corroborating evidence See evidence.
porations that are subsidiaries of
the same parent company. Also corruption of a minor 1 n. The
called brother-sister corporations. offense of engaging in sexual inter-
See also affiliate and company. course or other sexual activity with a
subsidiary corporation. A corporation person who is not one’s spouse and who
in which a parent company owns is under the age of consent or another
enough shares to control its activi- age set by statute, especially if there is
ties and the selection of its officers a considerable age difference (usually
and directors. Also called a sub- four years or more) between the
sidiary. offender and the victim. See also rape.
2 v. In some states, to assist or encour-
corpus n. Latin. 1 The main body, age a minor to commit an offense. See
mass, or part of something. 2 A col- also contributing to the delinquency of
lection of things that, when together, a minor. 3 n. The arousal or encour-
can be considered or regarded as a sin- agement of a child’s destructive antiso-
gle thing (such as a collection of writing cial behavior by a parent, guardian, or
by an author). 3 The capital or princi- other caregiver. See also contributing
pal sum (as opposed to income or inter- to the delinquency of a minor.
est). 4 The property or subject matter
of a trust. cosigner n. One who jointly signs a
negotiable instrument with another per-
corpus delicti n. Latin. The body of son to assist the other signer to obtain a
the crime. The objective evidence that loan and, by doing so, assumes full lia-
there has been an injury (physical or bility for the loan should the other
otherwise) or loss and that it was signer ever default on the loan contract.
caused by the criminal act of some per- Also called a comaker. See also accom-
son or thing. modation party and surety.

corpus delicti rule n. The legal princi- cost and freight See C & F.
ple that the prosecution cannot prove
that a crime has been committed from cost basis See basis.
the defendant’s confession alone, but cost, insurance, and freight See
that the prosecution must prove that C.I.F.
corroborating evidence exists that the
crime that the defendant has confessed cost of completion n. A measure of
to did actually occur. damages in a breach of contract action
representing the expense incurred by
corpus juris n. Latin. Body of law. The the nonbreaching party to complete the
law in general, especially when com- breaching party’s promised performance
piled, codified, and published in a single or to have the performance finished by a
text or in a series consisting of a collec- third party. See also damages and spe-
tion of individual laws. Abbreviated C.J. cific performance.
Corpus Juris Secundum n. An author- cost-plus contract See contract.
itative legal encyclopedia that provides
general background knowledge of the
law with footnoted citation to relevant
case law. Abbreviated C.J.S.
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103 count

costs n. The filing fees, jury fees, class action, the lawyer or law firm
court reporter fees, and other expenses, that controls, coordinates, or man-
excluding attorneys’ fees, incurred in ages the litigation and represents
the prosecution of or defense against a the interests of the parties or class
civil suit. When allowed by statute, a as a whole.
court may order the losing party in a local counsel. A lawyer licensed to
civil action to reimburse the successful practice law in a particular jurisdic-
party for his or her costs. Also called tion or before a particular court who
court costs. See also bill of costs. assists a lawyer who is not
licensed, but who has been given
counsel n. One or more lawyers who permission to provide advice and
provide advice to or represent a particu- represent a client in an action in
lar client. In the singular, also called a that jurisdiction or before that
counselor. See also attorney. court, with matters regarding the
application and interpretation of the
assigned counsel. A lawyer appointed local laws as well as with the local
by a court to represent at the gov- court customs, practices, and rules.
ernment’s expense a criminal defen-
dant who cannot afford to retain his of counsel. 1 A lawyer who assists
or her own lawyer. the attorney of record in a trial or
appeal with the preparation, man-
counsel of record. Same as attorney agement, or presentation of a case.
of record. See attorney. 2 A lawyer who is connected to a
law firm, such as a retired partner
general counsel. A lawyer or law firm who regularly provides advice, but
that provides most or all of the legal who is not an associate, member, or
advice and representation utilized partner of the firm.
by a client, especially by one that is
a corporation or engages in busi- special counsel. A lawyer brought in
ness activities. to assist another lawyer or a law
independent counsel. 1 A lawyer or firm in a matter requiring their spe-
law firm retained to provide advice or cial experience, knowledge, or
representation on a particular matter skills or to serve as independent
when it would be a conflict of inter- counsel.
est for the client’s regular lawyers to
do so. 2 A lawyer retained to con- counselor See counsel.
duct an unbiased investigation, espe-
cially one retained by a governmental count n. 1 In a civil action, the state-
body to investigate employees or offi- ment of a distinct cause of action in a
cers of that body for alleged miscon- complaint or similar pleading. 2 In a
duct. See also prosecutor. criminal action, the distinct allegation in
an indictment or information that the
in-house counsel. One or more defendant committed a crime.
lawyers who are employees of a
business and provide legal advice multiple counts. Two or more distinct
and representation only for that causes of action or allegations that
business. the defendant committed an offense
contained in a complaint, indictment,
lead counsel. When more than one information, or similar pleading.
lawyer or law firm is hired to repre-
sent a party or parties in an action, separate count. Any of the individual
especially in an action involving causes of action or allegations that
more than one jurisdiction, or to the defendant committed an offense
represent various plaintiffs in a
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counterclaim 104

in a complaint, indictment, informa- else’s to authenticate, reinforce, or ver-

tion, or similar pleading. ify the first signature.
counterclaim n. A cause of action or course of business See ordinary
claim for relief asserted in opposition to (ordinary course of business).
or as a setoff against the plaintiff’s own
cause of action or claim for relief and course of dealing n. The pattern of
contained in the defendant’s answer to conduct during previous transactions
the plaintiff’s complaint. See also cross- between the parties of a more recent
claim. transaction from which a dispute has
arisen. To resolve the dispute, the
compulsory counterclaim. A cause of courts will look to that pattern to deter-
action or claim for relief that arises mine how the transaction in dispute was
from the same occurrence, transac- intended to be carried out. See also
tion, or subject matter as the plain- course of performance and usage of
tiff’s cause of action or claim for
relief. Generally, the failure to raise trade.
such cause of action or claim for course of employment n. 1 The activ-
relief in the defendant’s answer will
prevent the defendant from bringing ities engaged in, the circumstances that
it up in a subsequent action. exist, and the events that occur that are
normally part of an employee’s job,
permissible counterclaim. A cause of especially those directly related to the
action or claim for relief that does work that the employee was hired to do.
not arise from the same occurrence, 2 The time that the employee takes to
transaction, or subject matter as complete his or her assigned tasks.
the plaintiff’s cause or action or
claim for relief. The failure to raise course of performance n. The pattern
such a cause of action or claim for of completing a recurring obligation
relief in the defendant’s answer will under a contract when all parties are
not prevent the defendant from aware of the nature of the obligation and
bringing them up in a subsequent have had the opportunity in the past to
action. object to how it is done. If a dispute
later arises regarding the performance
counterfeit v. To copy or imitate of that obligation and there was no pre-
something without the right to do so and vious objection, the courts will look to
with the intent to deceive or defraud by the course of performance to determine
representing the copy or imitation to be how the parties intended the obligation
the original or to be genuine if no origi- to be completed. See also course of
nal ever existed (such as passing off a dealing and usage of trade.
painting as a particular work by Claude
Monet when, in fact, Monet never court n. 1 A governmental body that
painted such a piece of art). adjudicates legal disputes by interpret-
ing and applying the law to specific
counteroffer n. An offeree’s counter- cases. See also trial. 2 The regular
proposal to a contract offer. Such a pro- session of a court. 3 The judge or
posal constitutes a rejection of the judges who sit on a court. 4 The build-
original offer as well as an offer for the ing or other locale where a judge or
original offeree to consider. judges adjudicate legal disputes.
countersign v. To sign one’s own appellate court. A court with juris-
name next to one’s own or someone diction to hear appeals from trial
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105 court

courts, administrative agencies, the trials conducted in those United

and, when there is an intermediate States District Courts located within
appellate court, lower appellate the states contained in the court’s
courts. See also trial court. circuit. (The United States, for the
purposes of the Court of Appeals, is
Article I court. A quasi-administra- divided into twelve circuits. There is
tive, quasi-judicial federal court cre- also the special nationwide Federal
ated by Congress under Article I of Circuit, which hears appeals from
the United States Constitution to federal courts and administrative
settle disputes arising from the agencies other than the District
implementation of a statutory Court.)
scheme that Congress has estab-
lished in the exercise of its legisla- civil court. A court that hears the tri-
tive power. For example, pursuant als of noncriminal cases.
to its power to impose and collect
taxes under the United States constitutional court. A court named
Constitution, Congress has estab- or described in a state constitution
lished the United States Tax Court or the United States Constitution
to hear appeals from taxpayers who that exercises the judicial power of
are unsatisfied with the decisions of a state or the federal government.
the Internal Revenue Service. See See also Article III court and legisla-
also legislative court and Article III tive court.
court.
county court. A state court with
Article III court. A federal court that jurisdiction that encompasses a sin-
is part of the judicial branch of the gle county and with powers that are
United States government and determined by a state statute or
derives its jurisdiction from Article constitution. In some states, a
III of the United States Constitution. county court is an administrative,
See also constitutional court and rather than a judicial, governmental
Article I court. body or is a mixture of both.
circuit court. 1 In a state with a court above. An appellate court to
judicial system that is divided into which a case may be appealed.
geographical units known as cir-
cuits for the purpose of holding tri- court below. A trial or intermediate
als, a trial court that sits in the appellate court from which a case is
circuit over which its geographical appealed.
jurisdiction extends. Often, the juris- court en banc. See full court.
diction of such courts is limited to
more serious matters (for example, court of appeals. 1 Usually a state
felonies as opposed to misde- intermediate appellate court. 2 In
meanors). If the circuit encom- Maryland and New York, the high-
passes more than one county, the est appellate court in those states.
court may hold sessions in each
county. 2 In a state with a judicial court of assize and nisi prius. See nisi
system that is divided into geo- prius court.
graphical units known as circuits for
the consideration of appeals on the court of chancery. See chancery (or
intermediate level, an intermediate chancery court).
appellate court that hears appeals
from the circuit over which its geo- court of civil appeals. In some states,
graphical jurisdiction extends. 3 A an intermediate court of appeal.
court of the United States Court of court of claims. See United States
Appeals that considers appeals of Court of Federal Claims.
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court 106

court of common pleas. 1 In some that are considered may be

states, a trial court of general juris- appealed to the United States
diction. 2 In some states, an Supreme Court. This court’s deci-
intermediate appellate court. sions are also subject to review by
the president of the United States.
court of criminal appeals. In some
states, the court of last resort for Court of Military Review. An inter-
criminal actions. mediate appellate court that
reviews court-martial decisions.
court of equity. A trial court that
adjudicates legal disputes primarily court of original jurisdiction. A court
by applying the rules and principles in which, by statute or constitu-
of equity. Courts of equity have been tional provision, a particular type of
merged with courts of law in most action must be initiated and where
states. See also court of law. the evidence is heard, the facts
determined, and the law applied to
court of first instance. See court of those facts for the first time. Also
original jurisdiction. called court of first instance and trial
court.
court of general jurisdiction. A trial
court with unlimited or nearly court of record. A court that is
unlimited jurisdiction to hear any required to keep a permanent
kind of action. See also court of lim- record of all conversations and
ited jurisdiction. statements made and non-verbal
evidence produced during its pro-
court of last resort. The court from ceedings by use of a stenographer
which a particular case can be or other means.
appealed no further. Usually a
state’s highest appellate court or district court. In a state whose judi-
the United States Supreme Court. cial system is divided into geo-
See also intermediate appellate court. graphical units known as districts
for the purpose of holding trials, a
court of law. 1 A trial court that trial court that sits in the district
adjudicates legal disputes primarily over which its geographical juris-
by applying statutes and the rules diction extends. Often, the court’s
and principles of the common law. jurisdiction is limited to one county
2 In states where courts of equity and to less serious matters (for
and courts of law have been example, misdemeanors as opposed
merged, any trial court that adjudi- to felonies). See also circuit court.
cates legal disputes. See also court
of equity. drug court. A state court with juris-
diction to adjudicate lesser offenses
court of limited jurisdiction. A court arising from drug use, usually with
with jurisdiction to adjudicate only an emphasis on medical treatment
specific kinds of legal disputes and supervision rather than punish-
(based on either the subject matter ment for the drug user.
of the action or the amount of dam-
ages sought). See also court of gen- ecclesiastical court. A nongovern-
eral jurisdiction. mental court that is part of the
structure of an organized religion
Court of Military Appeal. An appel- and adjudicates internal church
late court that may review decision issues according to church law. For
of the Court of Military Review. For centuries, such courts also had
those appeals that this court jurisdiction over matters like
declines to consider, this is the divorce and wills that are now
court of last resort. However, cases
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107 court

within the jurisdiction of the civil Netherlands, to provide advisory

courts. legal opinions to the United Nations
and to adjudicate legal disputes
en banc court. See full court. between countries who voluntarily
submit cases for the court’s consid-
family court. A state court with juris- eration. Abbreviated ICJ.
diction to adjudicate family law
issues, such as divorce, child cus- International Criminal Court. A per-
tody and visitation, child and manent international court, tenta-
spousal support, paternity, and tively established by the United
domestic violence. Nations in 1998, to investigate and
adjudicate the most serious viola-
federal court. An Article III court. tions of international law, such as
Most actions involving federal law genocide and war crimes, by apply-
are tried before one of the United ing, until the adoption of an inter-
States District Courts. An appeal of national criminal code, the general
a District Court’s decision would principles of international criminal
normally be heard first by one of the law. Abbreviated ICC.
United States Court of Appeals, and
then by the United States Supreme justice court. A state court, presided
Court (the court of last resort in the over by a justice of the peace, that
federal judiciary). The Supreme has jurisdiction over certain minor
Court also considers appeals of civil and criminal actions that arise
state court decisions involving outside the city limits of any munic-
questions of federal law. There are ipality. See also municipal court.
also a few specialized federal
courts; see also United States Court juvenile court. A state court with
of Federal Claims. jurisdiction over cases involving
children under eighteen years of
full court. In appellate litigation, a age or another age set by the state
session of an appellate court where legislature, especially one concern-
all the judges participate, typically ing cases where the child is alleged
resulting from a motion to recon- to have committed what would be
sider the decision of a three judge an offense if done by an adult.
panel. Also known as an en banc
hearing. kangaroo court. 1 A court that has
no legal authority, is often self-
inferior court. A court whose deci- appointed or established by crimi-
sion may be appealed to another nals or vigilantes, and where few or
court within the same judicial sys- none of the authorized and regular
tem, especially a court of limited, judicial procedures are usually fol-
special, or statutory jurisdiction, lowed. 2 A lawful court whose
such as a family or probate court. procedures are so unauthorized or
irregular that its proceedings are
intermediate appellate court. In those extremely improper or unfair. 3 A
jurisdictions whose appellate court lawful court that followed author-
system is divided into two levels, ized and regular procedures, but is
the lowest appellate court, the deci- so biased against a party as to ren-
sions of which are subject to review der its judgment or verdict unfair.
by the jurisdiction’s highest appel-
late court. See also court of last legislative court. A court created by a
resort. state legislature or the Congress to
settle disputes arising from the
International Court of Justice. implementation of a statutory
The principal judicial body of scheme that the legislature or
the United Nations whose fifteen Congress has established in the
judges usually meet at The Hague,
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court 108

exercise of their legislative powers, the involvement of a court, or out-

as opposed to a court authorized by side a courtroom.
a state constitution or the United
States Constitution as part of the probate court. A state court with
government’s judicial branch. See jurisdiction over proceedings
also Article I court and constitutional regarding the validity of wills, the
court. administration and disposition of
estates, and, in some states, the
magistrate’s court. A state court adoption of minors and the care,
presided over by a magistrate with custody, guardianship, and protec-
jurisdiction over minor offenses and tion of minors, incompetent individ-
civil actions. uals, and their assets. Also called
surrogate court.
military court. A court-martial, mili-
tary commission, the Court of small claims court. A state or munic-
Military Review, and the Court of ipal court that has the jurisdiction
Military Justice. These are not to adjudicate civil actions involving
Article III courts, but courts estab- very small sums of money while
lished by Congress as a part of its using informal courtroom proce-
power to raise and maintain a mili- dures without, usually, the presence
tary force under the militia clause or participation of lawyers.
found in Article I of the United
States Constitution. superior court. 1 In some states, a
trial court of general jurisdiction.
moot court. A fictitious court con- 2 In some states, an intermediate
sisting of law professors or lawyers, appellate court.
before which law students and
other lawyers argue moot or hypo- supreme court. 1 In most states,
thetical cases or cases pending the court of last resort. 2 In New
before a court to learn or practice York, a court of general jurisdiction
oral advocacy skills and trial tech- with trial and appellate divisions.
niques.
Supreme Court of the United States.
municipal court. A city court with The court of last resort in the fed-
exclusive jurisdiction over viola- eral judiciary pursuant to Article III
tions of city ordinances and some- of the United States Constitution,
times jurisdiction over certain with original jurisdiction in all
minor civil and criminal cases that cases involving ambassadors and
arise within the city limits. See also other public ministers and consuls
justice court. as well as in all cases in which a
state is a party. The court also has
nisi prius court. Same as court of appellate jurisdiction over all cases
assize and nisi prius. See nisi prius in federal court as well as those
court. cases in state court involving ques-
tions of federal law. Unless it is oth-
open court. 1 A court that, when in erwise clear, the phrase “Supreme
session, the public is allowed to Court” always means this court.
attend so long as they are orderly
and peaceful. 2 A court that, surrogate court. See probate court.
when in session, is attended by all
the parties and their lawyers. See tax court. A state court that adju-
also ex parte and in camera. dicates disputes between the tax-
payer and the state’s tax collection
out of court. Accomplished or con-
ducted without litigation, without
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109 court reporter

agency over the individual’s tax court-martial n. An ad hoc military

liabilities. court whose judges are commissioned
officers of higher rank than, and of the
Tax Court. An Article I court that
adjudicates disputes between the same branch of the armed services as,
taxpayer and the Internal Revenue the accused. This court is convened to
Service over the individual’s tax try a member of the armed services who
deficiencies. (Disputes over the tax- is accused of violating the Uniform Code
payer’s claim for a refund are con- of Military Justice.
sidered by the United States Court
of Federal Claims.) general court-martial. The highest
military court, comprised of five
term of court. A session of court, officers (unless the defendant
defined by the court’s schedule; may decides to be tried by only one
refer to a single session or a sched- judge) with jurisdiction to try all
ule of sessions over a period of time. offenses under the Uniform Code of
Military Justice and to impose any
trial court. See court of original juris- sanction permitted by the code
diction. (including death).
United States Court of Appeals. The special court-martial. An intermedi-
intermediate appellate court in the ate military court, comprised of
federal judiciary that hears appeals three officers (unless the defendant
from trials conducted by the United decides to be tried by only one
States District Courts and other judge) with jurisdiction to try all
lower federal courts and appeals of noncapital offenses under the
administrative decisions from some Uniform Code of Military Justice.
federal agencies. See also circuit However, the sanctions this court
court. can prescribe may be no greater
than a dismissal from the armed
United States Court of Federal Claims. services or six months imprison-
An Article I court with jurisdiction ment.
to hear all claims against the United
States government that are based summary court-martial. The lowest
on the United States Constitution, a military court, comprised of one
federal statute or regulation, a con- officer. The type of offenses this
tract with the federal government,
or other cause of action not involv- court can try and the sanctions it is
ing a tort. Formerly called the allowed to impose are very limited.
United States Claims Court. Furthermore, the accused may
refuse trial by a summary court-
United States District Court. A fed- martial, in which case he or she will
eral trial court having original juris- be tried by a general or special
diction for most criminal offenses court-martial.
against the United States and for
most of the civil matters described court recorder n. A court reporter
in the United States Constitution. who uses electronic recording equip-
United States Supreme Court. See ment in his job.
Supreme Court of the United States. court reporter n. A person (often cer-
court costs See costs. tified) who makes, by stenography, elec-
tronic recording devices, or other
court en banc Same as full court. See means, a verbatim record of all that is
court. said in a trial, deposition, or similar pro-
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ceeding and from which, if requested enforceable for the duration of the
(and usually for a fee), a transcript can business relationship between the
be prepared. parties, but not afterward except for
the period of time, scope, and terri-
court reports See advance sheets, torial limits that are deemed rea-
reports, and slip opinion. sonable by a court in light of the
adequacy of consideration given in
court rules n. A regulation, often hav- exchange for the covenant, the
ing the force of law, governing the pro- hardship that the enforcement of
cedures of a court and how various the covenant or lack thereof would
matters pending before court are han- impose upon the parties, and the
need of the party seeking to enforce
dled and processed. Also called local the covenant to protect trade
rules and rules of the court. secrets and the like. Sometimes
also called restrictive covenant.
covenant n. 1 A written and legally
enforceable agreement or promise that covenant not to sue. In a settlement
is often a part of a contract or deed, of a claim, dispute, or lawsuit, a
especially one to maintain the status quo promise not to assert or pursue in
of something or to do or not do some- court a right of action arising from
thing during the term of the covenant. the subject of the claim, dispute, or
2 An implied promise that is incidental lawsuit.
to a contract or deed. 3 A warranty, covenant of further assurance. A
especially one made in connection with covenant of title whereby the
the sale or transfer of land. 4 Same as grantor promises to do whatever is
contract under seal; see contract. 5 reasonably necessary to give the
An action under the common law to grantee full title if the title con-
recover damages for the breach of a con- veyed in the deed later proves to be
tract under seal. See also assumpsit. imperfect.

concurrent covenant. A covenant that covenant of (or for) quiet enjoyment.

requires one party to fulfill her 1 A covenant of title, whereby the
promise to do or not do something grantor promises that the grantee’s
at the same time the other party to unimpaired use and enjoyment of
the covenant has to fulfill his prom- the land will not be disturbed by
ise. anyone with a lien or superior right
to the land. 2 A covenant of title,
covenant against encumbrances. A whereby the grantor promises to
covenant of title, whereby the indemnify the grantee against any
grantor promises that there are no defects in the title to the land con-
undisclosed encumbrances (such as veyed or any disturbances of the
easements, liens, or mortgages) on unimpaired use and enjoyment of
the property. the land. Often considered synony-
mous with covenant of warranty.
covenant appurtenant. See covenant
running with the land. covenant of right to convey. See
covenant of seisin.
covenant not to compete. A provision,
often found in employment, partner- covenant of seisin. A covenant of
ship, and sale-of-business con- title, whereby the grantor promises
tracts, in which one party agrees that he or she has at the time of the
not to conduct any business or pro- grant the full ownership, or the right
fessional activity similar to that of to convey, an estate of the quality
the other party. Such covenants are and size that they are purporting to
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111 credit

convey to the grantee. Also called covenant marriage See marriage.

covenant of right to convey.
covenanter n. One who makes a prom-
covenant of (or for) title. A type of ise in a covenant or is bound by it.
covenant usually given by a grantor
in a warranty deed conveying real cover v. 1 In commercial law, to buy,
property to ensure that title is com- or the purchase of, goods on the open
plete and secure. Also called war- market that are similar to those that a
ranty of title. In the plural, also seller of such goods had promised, but
called usual covenants.
failed, to deliver. Under the Uniform
covenant of warranty. A covenant of Commercial Code, the buyer is entitled
title, whereby the grantor promises from the seller the difference between
to defend the title against all rea- the cost of the substituted goods and the
sonable claims of a superior right to original contract price if the buyer acted
the land by a third party and to in good faith and without unreasonable
indemnify the grantee against any delay when obtaining the substituted
losses arising from the claim. Often goods. 2 In insurance law, to currently
considered synonymous with
covenant of quiet enjoyment. protect a particular person against loss
or to currently protect someone or
covenant running with the land. A something against a particular risk.
covenant that relates to a particular
parcel of land without which the coverture n. Under the common law,
land cannot be conveyed and that is the legal condition of a woman, whereby
binding for an indefinite time on all her legal existence was largely sub-
successor grantees. Also called merged into that of her husband so that
covenant appurtenant and running he had almost unlimited control over her
covenant. personal and real property and she
covenant under seal. See contract could not enter into a legally binding
under seal. contract or exercise any power or right
over her own property without her hus-
racially restrictive covenant. A band’s consent. In every state except
covenant that purports to limit all community property states, statutes
future transfers of a piece of real have been enacted that have effectively
property to successor grantees of, abolished coverture by giving wives
or to successor grantees who are
not of, a particular race, color, or almost unlimited control over their per-
ethnic group. Once very common, sonal and real property free of their hus-
these covenants are now unenforce- bands’ authority, claims, or interests.
able.
credibility n. The quality of something
restrictive covenant. 1 A covenant capable of being believed or relied upon
that restrict the use, occupancy, or or that is worthy of confidence. See also
disposition of real property (such as veracity.
specifying the size of lots that the
property can be divided into or the credit 1 n. Approval; deference;
types of buildings that may be con- respect. See also full faith and credit.
structed on the land). 2 See 2 n. Belief; faith; trust. 3 n. The abil-
covenant not to compete. ity to borrow money, the amount made
available as a loan, or the ability to pur-
covenantee n. One to whom a promise chase goods and services without imme-
is made in a covenant or has a right to diate payment, based on the creditor’s
enforce it. faith in one’s ability and intention to
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creditor 112

repay the loan or to pay for the goods common-law crime. An offense that
and services in the future. 4 n. A was a crime under the common law.
reduction in an amount owed or an addi- Nearly all crimes, including offenses
tion to one’s net worth or revenue. 5 v. that were common-law crimes, are
A form of security offered to a seller that now defined by statute and are,
thus, statutory crimes. Also, most
provides for payment by a bank or finan- states no longer recognize common-
cial institution upon certain conditions law crimes.
being met, including delivery of goods
within specified time and whatever computer crime. A crime, such as
other conditions are applicable to the committing fraud over the Internet,
transaction. See also letter of credit. that requires the knowledge or uti-
lization of computer technology.
creditor n. One to whom money is Also called cybercrime.
owed or who gives credit to another. See
crime against nature. One of the
also debtor. three sexual acts (oral sex and anal
account creditor. One to whom the sex, whether with a person of the
balance of an account is owed. See opposite or same sex, and sex with
also debtor. animals) that were considered
crimes under the common law and
judgment creditor. One who has the that, in some cases, are currently a
legal right to collect a specific sum statutory crime. Also called unnatu-
because of a judgment entered in ral act. See also bestiality and
his or her favor in a civil action. See sodomy.
also levy, writ, and debtor.
crime of passion. A crime committed
secured creditor. A creditor who has in a moment of sudden or extreme
been given or pledged collateral to anger or other emotional distur-
protect against loss if the debtor bance sufficient enough for a rea-
fails to fully pay the debt owed. sonable person to lose control and
not reflect on what he or she is
unsecured creditor. A creditor who is doing.
not a secured creditor.
crime of violence. See violent crime.
creditor beneficiary See beneficiary.
cybercrime. See computer crime.
creditor’s bill (or suit) n. A proceed- hate crime. A crime motivated
ing in equity in which a judgment credi- mostly by bias, ill will, or hatred
tor seeks to discover and have delivered toward the victim’s actual or per-
to him property that cannot be reached ceived race, color, ethnicity, country
by the process available at law to of national origin, religion, or sex-
enforce a judgment. ual orientation. Many states impose
extra penalties if a crime is commit-
crime n. An act or omission that ted due to such motivation. Also
violates the law and is punishable by a called bias crime. See also freedom
sentence of incarceration. See also of speech.
felony, misdemeanor, offense, and vio-
high crime. A crime whose commis-
lation. sion offends the public’s morality.
anticipatory crime. See inchoate inchoate crime. One of the three
crime. crimes (attempt, conspiracy, solici-
bias crime. See hate crime. tation) that are steps toward the
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113 criminalist

commission of another crime. Also white-collar crime. Any business or

called anticipatory crime, anticipa- financial non-violent crime, such as
tory offense, and inchoate offense. bribery, consumer fraud, corruption,
infamous crime. 1 Under common embezzlement, and stock manipula-
law, any one of the crimes that tion, committed by business execu-
were considered particularly dis- tives, professionals, and public
honorable and the punishment for officials.
which included ineligibility to hold
public office, to serve on a jury, or to criminal n. 1 One who has committed
testify at a civil or criminal trial. a crime. 2 One who has been convicted
These crimes included treason, any of a crime. 3 Constituting, implying, or
felony, forgery, and perjury, among involving a crime or an element of a
other offenses. 2 Any crime pun- crime. 4 Pertaining to some aspect of
ishable by death or by imprisonment the penal code or its administration.
of more than one year. See also pun-
ishment. career criminal. One who repeatedly
commits crimes, especially of the
status crime. A crime that is defined same type. See also habitual criminal.
by a person’s condition or character
rather than by any wrongful act that habitual criminal. One who has been
they have done. For example, the convicted of one or more crimes in
“crime” of being an alcoholic as the past and, as a result, is subject
opposed to being intoxicated in pub- to a more severe sentence under
lic or drinking alcohol while driving
a vehicle. The United States the habitual offender statute of a
Supreme Court has held that to state for any subsequent crime that
impose a sanction for such crimes they commit. Also called habitual
violates the ban found in the Eighth offender. See also career criminal
Amendment to the United States and three-strikes law.
Constitution against cruel and
unusual punishment. See also criminal conversation n. In tort law,
vagrancy. having sexual relations with another
person’s spouse, especially the act of a
statutory crime. 1 An offense that man having sexual intercourse with
was not a crime under the common another man’s wife. This tort has been
law, but has been made a crime by a
statute. 2 Broadly, any crime that abolished in most states. See also alien-
is defined by a statute. See also ation of affections, adultery, fornica-
common-law crime. tion, and rape.

victimless crime. A crime, such as criminal disenfranchisement n. The

drug use, gambling, and a crime loss of the right to vote by a person con-
against nature, that directly harms victed of or sentenced to imprisonment
no person or property except that of for a felony. See also civil death.
the consenting participants.
criminal intent See intent.
violent crime. Any crime that has as
an element the use, attempted use, criminalist n. One who collects and
or threatened use of physical force scientifically analyzes the physical evi-
against the person or property of dence of crimes, through such tech-
another or any felony that entails a niques as ballistic testing and tissue
substantial risk that physical force
will be used against the person or analysis, to try to determine what hap-
property of another. Also called a pened when the crime was committed.
crime of violence. See also criminologist.
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criminality 114

criminality n. 1 The state, practice, or cross-examination See examination.

quality of being a criminal. 2 The act
or series of acts that constitute a crime. cruel and unusual adj. Characteriza-
tion of punishment that is unduly harsh
criminalize v. 1 To make a particular and goes beyond the recognized pur-
conduct or omission a crime and to poses of punishment in a civilized soci-
establish penal sanctions for it. 2 To ety. “Cruel and unusual punishment”
make a person, or to be the cause of has frequently been asserted in connec-
making that person, a criminal. See also tion with attempts to overturn death
decriminalization. penalty statutes or forms of execution,
e.g., electric chair.
criminal law n. The area of law per-
taining to the violation of offenses as cruelty n. As a ground for divorce, the
well as the investigation, charging, intentional and malicious infliction of
prosecution, and punishment of offend- physical or psychological abuse by a
ers. See also civil law. married person upon his or her spouse
that endangers or severely impairs the
criminal negligence See negligence. spouse’s life or physical or mental well-
being or creates a reasonable apprehen-
criminal procedure See procedure.
sion in the spouse’s mind of physical or
criminal record See record. mental harm. The extent of abuse that a
spouse is expected to tolerate varies
criminologist n. One who studies the state to state, but a single act of cruelty
biological and sociological causes and is normally not enough to constitute
consequences of crime and criminal grounds for divorce. See also abuse.
behavior (such as the effects of mental
defects and social environment). See culpable adj. Deserving of blame.
also criminalist.
culpable mental state See mens rea.
cross appeal See appeal.
cumulative voting See voting.
cross-claim n. A cause of action or
curable defect See defect.
claim asserted between co-defendants
or co-plaintiffs against one another and curtesy n. Under the common law, a
not against the plaintiff or defendant on husband’s entitlement to a life estate in
the opposite side of a civil action. For all the land that his wife possessed at
example, a defendant’s assertion of a her death in either fee simple or fee tail,
right of contribution from a fellow defen- provided the couple had a living child
dant is a cross-claim. See also counter- who was capable of inheriting his or her
claim. mother’s estate. This right has been
abolished in most states. See also
cross-complaint n. 1 A cause of
dower.
action or claim asserted by a defendant
in a civil action against another party in curtesy consummate. The name of a
the same action. 2 A cause of action husband’s right of curtesy after his
or claim asserted by a defendant in a wife’s death.
civil action against one who is not a
party to the action that concerns a mat- curtesy initiate. The name of a hus-
ter related to the underlying dispute in band’s right of curtesy before his
the action. 3 The pleading in which wife’s death, once the right is cre-
one asserts a cross-claim. ated upon the birth of the couple’s
first child.
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115 cybersquatting

curtilage n. The land immediately sur- although the minor still primarily
rounding a dwelling, such as a yard and resides (usually) with only one of
outbuildings, where some of the regular the parents.
activity of the occupant’s home life takes
place, where the occupant has a reason- sole custody. An arrangement
able expectation of privacy, and that is ordered by a court or agreed upon
usually demarcated, fenced off, or other- by the divorced or separated par-
wise clearly protected from public ents of a minor by which only one
scrutiny. Such land is regarded as a part parent makes all the decisions and
of the dwelling itself and is protected has all the authority and responsi-
from warrantless searches under the bilities concerning the care and
Fourth Amendment to the United States upbringing of his or her child, to the
Constitution. Also called open fields exclusion of the other parent.
doctrine or messuage. custom n. A practice, particularly in
custodial interrogation See interro- business, that is so old and universal
gation. that it has obtained the force of law.
custom and usage. See usage of
custody n. 1 The immediate control, trade.
guarding, or keeping of a thing for its
care, inspection, preservation, or secu- customs n. 1 Taxes imposed on
rity. 2 Any significant restraint or con- imports and exports; the United States
trol over a person’s freedom to ensure Constitution prohibits Congress from
his or her presence at a hearing or trial imposing taxes on goods exported from
in a criminal action. 3 The restraint a state. Also called duties. 2 The
and control over a person who is incar- agency or procedure for collecting such
cerated following that person’s convic- taxes, or the place where they are col-
tion of an offense. lected.
child custody. The physical control cybercrime Same as computer crime.
over a minor awarded by a court to See crime.
a parent in a divorce or separation
proceeding or in a similar action cyberfraud Same as computer fraud.
between the unmarried parents of See fraud.
the child. Such control usually
includes the right to have the child cyberlaw n. The area of law dealing
live with the parent who is awarded with the use of computers and the
custody, the right to determine the Internet and the exchange of communi-
upbringing of the child (including
the care, discipline, education, reli- cations and information thereon, includ-
gion, and residence of the child), the ing related issues concerning such
right to make all legal decisions communications and information as the
concerning the child, and the duty protection of intellectual property
to care for and maintain the child. rights, freedom of speech, and public
See also visitation rights. access to information.
joint custody. An arrangement cyberpiracy See cybersquatting.
ordered by a court or agreed upon
by the divorced or separated par- cybersquatting n. The registering of a
ents of a minor by which the parents domain name on the Internet in the hope
share all authority, decisions, and of selling or licensing it at a profit to a
responsibilities concerning the care person or entity who wishes to use it. If
and upbringing of their child,
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cyberstalking 116

the domain name is identical or confus- cy pres n. French. As near as. The
ingly similar to a trademark used by that equitable doctrine that a deed or will
person or entity, the owner of the trade- whose terms cannot be carried out may
mark has a cause of action against who- be modified by a court so that the intent
ever registered and is holding on to the of the instrument’s maker can be ful-
name. Also called cyberpiracy, domain filled as closely as possible.
name grabbing, and domain name
piracy.
cyberstalking v. 1 Using the Internet,
through chat rooms and e-mail, to find,
identify, and arrange to meet a person
whom one intends to criminally victim-
ize. 2 Sending multiple e-mails, often
on a systematic basis, to annoy, embar-
rass, intimidate, or threaten a person or
to make the person fearful that she or a
member of her family or household will
be harmed. Also called e-mail harass-
ment.
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D
speculative damages. Damages
claimed for possible future harm.
These are considered uncertain or
impossible to prove and generally
are not awarded.
treble damages. A tripling of the
actual damages, generally awarded
pursuant to a law or statute;
intended to deter bad conduct.
damnify v. To harm by causing loss or
damage.
dangerous weapon See weapon.
damages n. pl. Financial compensa-
tion demanded by, or directed by a court date rape n. The rape of an individual
to be paid to, a claimant as compensa- with whom the perpetrator is
tion for a financial loss or injury to per- acquainted, typically during a social
son or property. engagement. See also rape.
actual or compensatory damages. d/b/a abbr. Doing business as, identi-
Damages intended to compensate fying an individual’s trade name; for
for a quantifiable loss. example, John James d/b/a James
Productions.
consequential damages. Damages
resulting indirectly from the act dead man’s statute n. An evidentiary
complained of. rule at trial that excludes statements
incidental damages. Under the made by a deceased person if offered in
Uniform Commercial Code, support of a claim against the
expenses reasonably incurred by deceased’s estate.
either party to a transaction in car-
ing for goods after the other party’s death n. The end of life, when physi-
breach of the contract. cal functions and vital signs stop.
liquidated damages. A contractually brain death. An irreversible end to
agreed upon amount to be paid in the functioning of the brain. Often
the event of a breach of the con- used as the legal definition of death.
tract, in lieu of performance or
quantification of actual damages death certificate n. An official docu-
sustained. ment setting forth particulars relating to
a dead person, including name, date of
nominal damages. A small or birth and death, and cause of death, usu-
insignificant amount of money ally certified to by a doctor as to the
awarded by a court or jury to
demonstrate that a defendant is at cause of death.
fault, but that the injury sustained death penalty n. The court- ordered
was minor or non-existent.