West''''s encyclopedia of American law 2ND EDITION Volume 9 pdf

2ND EDITION
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How to Use This Book
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and life events
❚ 5❚ Sidebar expands upon an issue
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❚ 6❚ Quotation from subject of biography
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American law
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How to Use This Book
❚ 1❚ Article Title
❚ 2❚ Definition in italics with Latin
translation provided
❚ 3❚ First-level subhead
❚ 4❚ Timeline for subject of biography,
including general historical events
and life events
❚ 5❚ Sidebar expands upon an issue
addressed briefly in the article
❚ 6❚ Quotation from subject of biography
❚ 7❚ Biography of contributor to
American law
❚ 8❚ Internal cross-reference to entry
within WEAL
❚ 9❚ In Focus article examines a
controversial or complex aspect
of the article topic
❚10 ❚ Cross-references at end of article
❚11 ❚ Full cite for case
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2ND EDITION
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Volume 9
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Detroit • San Diego • San Francisco • New Haven, Conn. • Waterville, Maine • London • Munich
WEAL http v9 5/4/04 4:58 PM Page 3
West’s Encyclopedia of American Law, 2nd Edition
Project Editors
Jeffrey Lehman
Shirelle Phelps
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Library of Congress Cataloging-in-Publication Data
West’s encyclopedia of American law / Jeffrey Lehman, editor, Shirelle
Phelps, editor.— 2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 0-7876-6367-0 (hardcover set : alk. paper)
1. Law—United States—Encyclopedias. 2. Law—United States—Popular
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DEDICATION
West’s Encyclopedia of American Law
(WEAL) is dedicated to librarians
and library patrons throughout the
United States and beyond. Your
interest in the American legal system
helps to expand and fuel the frame-
work of our Republic.
k
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VOLUME 1
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
A–Ba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .507
VOLUME 2
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Be–Col . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .511
VOLUME 3
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Com–Dor . . . . . . . . . . . . . . . . . . . . . . . . . .1

Abbreviations . . . . . . . . . . . . . . . . . . . . . .509
VOLUME 4
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Dou–Fre . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .509
VOLUME 5
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Fri–Jam . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .501
VOLUME 6
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Jap–Ma . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .469
VOLUME 7
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Mc–Pl . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .467
VOLUME 8
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Po–San . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .461
VOLUME 9
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Sar–Ten . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Abbreviations . . . . . . . . . . . . . . . . . . . . . .465
VOLUME 10
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Ter–Z . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .459
VOLUME 11
Milestones in the Law
VOLUME 12
Primary Documents
VOLUME 13
Dictionary of Legal Terms
Cases Index
General Index
vii
Contents
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T
he U.S. legal system is admired around
the world for the freedoms it allows the
individual and the fairness with which it
attempts to treat all persons. On the surface, it
may seem simple, yet those who have delved
into it know that this system of federal and
state constitutions, statutes, regulations, and
common-law decisions is elaborate and com-
plex. It derives from the English common law,
but includes principles older than England,
along with some principles from other lands.
The U.S. legal system, like many others, has a

language all its own, but too often it is an unfa-
miliar language: many concepts are still
phrased in Latin. The second edition of West’s
Encyclopedia of American Law (WEAL) explains
legal terms and concepts in everyday language,
however. It covers a wide variety of persons,
entities, and events that have shaped the U.S.
legal system and influenced public perceptions
of it.
MAIN FEATURES OF THIS SET
Entries
This encyclopedia contains nearly 5,000
entries devoted to terms, concepts, events,
movements, cases, and persons significant to
U.S. law. Entries on legal terms contain a defini-
tion of the term, followed by explanatory text if
necessary. Entries are arranged alphabetically in
standard encyclopedia format for ease of use. A
wide variety of additional features, listed later in
this preface, provide interesting background and
supplemental information.
Definitions Every entry on a legal term is
followed by a definition, which appears at the
beginning of the entry and is italicized. The Dic-
tionary and Indexes volume includes a glossary
containing all the definitions from WEAL.
Further Readings To facilitate further
research, a list of Further Readings is included at
the end of a majority of the main entries.
Cross-References WEAL provides two types

of cross-references, within and following entries.
Within the entries, terms are set in small capital
letters—for example, LIEN—to indicate that
they have their own entry in the encyclopedia.
At the end of the entries, related entries the
reader may wish to explore are listed alphabeti-
cally by title.
Blind cross-reference entries are also
included to direct the user to other entries
throughout the set.
In Focus Essays
In Focus essays accompany related entries
and provide additional facts, details, and argu-
ments on particularly interesting, important, or
controversial issues raised by those entries. The
subjects covered include hotly contested issues,
such as abortion, capital punishment, and gay
rights; detailed processes, such as the Food and
Drug Administration’s approval process for new
drugs; and important historical or social issues,
such as debates over the formation of the U.S.
Constitution.
Sidebars
Sidebars provide brief highlights of some
interesting facet of accompanying entries. They
ix
Preface
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complement regular entries and In Focus essays
by adding informative details. Sidebar topics

include the Million Man March and the branches
of the U.S. armed services. Sidebars appear at the
top of a text page and are set in a box.
Biographies
WEAL profiles a wide variety of interesting
and influential people—including lawyers,
judges, government and civic leaders, and his-
torical and modern figures—who have played a
part in creating or shaping U.S. law. Each biog-
raphy includes a timeline, which shows impor-
tant moments in the subject’s life as well as
important historical events of the period.
Biographies appear alphabetically by the sub-
ject’s last name.
ADDITIONAL FEATURES OF THIS SET
Enhancements Throughout WEAL,readers
will find a broad array of photographs, charts,
graphs, manuscripts, legal forms, and other
visual aids enhancing the ideas presented in the
text.
Indexes WEAL features a cases index and a
cumulative index in a separate volume.
Appendixes
Three appendix volumes are included with
WEAL, containing hundreds of pages of docu-
ments, laws, manuscripts, and forms fundamen-
tal to and characteristic of U.S. law.
Milestone Cases in the Law
A special Appendix volume entitled Mile-
stones in the Law, allows readers to take a close

look at landmark cases in U.S. law. Readers can
explore the reasoning of the judges and the
arguments of the attorneys that produced major
decisions on important legal and social issues.
Included in each Milestone are the opinions of
the lower courts; the briefs presented by the par-
ties to the U.S. Supreme Court; and the decision
of the Supreme Court, including the majority
opinion and all concurring and dissenting opin-
ions for each case.
Primary Documents
There is also an Appendix volume contain-
ing more than 60 primary documents, such as
the English Bill of Rights, Martin Luther King
Jr.’s Letter from Brimingham Jail, and several
presidential speeches.
Citations
Wherever possible, WEAL entries include
citations for cases and statutes mentioned in the
text. These allow readers wishing to do addi-
tional research to find the opinions and statutes
cited. Two sample citations, with explanations of
common citation terms, can be seen below and
opposite.
X PREFACE
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
1. Case title. The title of the case is set in i and
indicates the names of the parties. The suit
in this sample citation was between Ernesto
A. Miranda and the state of Arizona.

2. Reporter volume number. The number pre-
ceding the reporter name indicates the
reporter volume containing the case. (The
volume number appears on the spine of the
reporter, along with the reporter name).
3. Reporter name. The reporter name is abbrevi-
ated. The suit in the sample citation is from
the reporter, or series of books, called U.S.
Reports, which contains cases from the U.S.
Supreme Court. (Numerous reporters pub-
lish cases from the federal and state courts.)
4. Reporter page. The number following the
reporter name indicates the reporter page on
which the case begins.
5. Additional reporter page. Many cases may be
found in more than one reporter. The suit in
the sample citation also appears in volume
86 of the Supreme Court Reporter, beginning
on page 1602.
6. Additional reporter citation. The suit in the
sample citation is also reported in volume 16
of the Lawyer’s Edition, second series, begin-
ning on page 694.
7. Year of decision. The year the court issued its
decision in the case appears in parentheses at
the end of the cite.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966)
12345 67
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1. Statute title.

2. Public law number. In the sample citation,
the number 103 indicates this law was
passed by the 103d Congress, and the num-
ber 159 indicates it was the 159th law passed
by that Congress.
3. Reporter volume number. The number pre-
ceding the reporter abbreviation indicates
the reporter volume containing the statute.
4. Reporter name. The reporter name is abbre-
viated. The statute in the sample citation is
from Statutes at Large.
5. Reporter page. The number following the
reporter abbreviation indicates the reporter
page on which the statute begins.
6. Title number. Federal laws are divided into
major sections with specific titles. The num-
ber preceding a reference to the U.S. Code
stands for the section called Crimes and
Criminal Procedure.
7. Additional reporter. The statute in the sam-
ple citation may also be found in the U.S.
Code Annotated.
8. Section numbers. The section numbers fol-
lowing a reference to the U.S. Code Anno-
tated indicate where the statute appears in
that reporter.
PREFACE XI
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
Brady Handgun Violence Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536 (18 U.S.C.A. §§ 921–925A)
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Editorial Reviewers
Matthew C. Cordon
Frederick K. Grittner
Stephanie Schmitt
Linda Tashbook
M. Uri Toch
Contributing Authors
James Cahoy
Matthew C. Cordon
Richard J. Cretan
Mark Engsberg
Frederick K. Grittner
Lauri R. Harding
David R. Johnstone
Theresa J. Lippert
Frances T. Lynch
George A. Milite
Melodie Monahan
Kelle Sisung
Scott D. Slick
Contributors to
Previous Edition
Richard Abowitz
Paul Bard
Joanne Bergum
Michael Bernard
Gregory A. Borchard
Susan Buie
Terr y Ca r ter

Sally Chatelaine
Joanne Smestad Claussen
Richard Cretan
Lynne Crist
Paul D. Daggett
Susan L. Dalhed
Lisa M. DelFiacco
Suzanne Paul Dell’Oro
Dan DeVoe
Joanne Engelking
Sharon Fischlowitz
Jonathan Flanders
Lisa Florey
Robert A. Frame
John E. Gisselquist
Russell L. Gray III
Frederick K. Grittner
Victoria L. Handler
Heidi L. Headlee
James Heidberg
Clifford P. Hooker
Marianne Ashley Jerpbak
Andrew Kass
Margaret Anderson Kelliher
Christopher J. Kennedy
Anne E. Kevlin
Ann T. Laughlin
Laura Ledsworth-Wang
Linda Lincoln
Gregory Luce

David Luiken
Jennifer Marsh
Sandra M. Olson
Anne Larsen Olstad
William Ostrem
Lauren Pacelli
Randolph C. Park
Gary Peter
Michele A. Potts
Reinhard Priester
Christy Rain
Brian Roberts
Debra J. Rosenthal
Mary Lahr Schier
Mary Scarbrough
Theresa L. Schulz
John Scobey
James Slavicek
Scott D. Slick
David Strom
Wen dy Tien
Douglas Tueting
Richard F. Tyson
Christine Ver Ploeg
George E. Warner
Anne Welsbacher
Eric P. Wind
Lindy T. Yokanovich
xiii
Contributors

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SARBANES-OXLEY ACT OF 2002
The Sarbanes-Oxley Act of 2002 (Public Com-
pany Accounting Reform and Investor Protec-
tion Act, Pub.L. 107-204, July 30, 2002, 116 Stat.
745, July 30, 2002) was enacted by Congress in
the wake of corporate and accounting scandals
that led to bankruptcies, severe stock losses, and
a loss of confidence in the
STOCK MARKET.The
act imposes new responsibilities on corporate
management and criminal sanctions on those
managers who flout the law. It makes
SECURI-
TIES
fraud a serious federal crime and also
increases the penalties for
WHITE-COLLAR
CRIMES
. In addition, it creates a new oversight
board for the accounting profession.
During the 1990s, the stock market rose dra-
matically in value, fueled by the promise of the
INTERNET revolution as well as large corporate
MERGERS AND ACQUISITIONS. Several of that
decade’s changes produced severe consequences
during the first years of the new century. The
five major U.S. accounting firms developed con-
sulting divisions that advised corporations on
ways to maximize their profits. Their advice

often clashed with the traditional auditing func-
tions and standards of these accounting firms.
At worst, the accounting firms forfeited their
traditional oversight function and allowed or
encouraged financial reporting practices that
misled investors. On the corporate side, man-
agers were expected to produce short-term gains
on a quarterly basis to satisfy investment ana-
lysts who worked for stock brokerages. These
analysts were sometimes encouraged and
directed by management to tout the value of
questionable stocks. Some corporate managers,
who skirted or broke laws that mandated honest
financial reporting, transformed the drive for
profitability into a lust for personal fortune. The
bubble burst when the Enron Corporation filed
for
BANKRUPTCY in December 2001 and the
accounting firm of Arthur Andersen was con-
victed of
OBSTRUCTION OF JUSTICE for its
actions in shredding Enron-related documents.
As the stock market plummeted and investor
confidence waned, Congress responded. Senator
Paul S. Sarbanes (D-Md.) and Representative
Michael Oxley (R-Ohio) worked to enact a set of
provisions that would prevent future debacles
such as those that ruined Enron and Arthur
Andersen. President
GEORGE W. BUSH, after ini-

tially downplaying the need for reform, signed
the bill into law on July 30, 2002.
Under the act, the
SECURITIES AND
EXCHANGE COMMISSION
(SEC) has the author-
ity to prohibit, conditionally or unconditionally,
permanently or temporarily, any person who has
violated laws governing the issuing of stock from
acting as an officer or director of an corporation
if the SEC has found that such person’s conduct
“demonstrates unfitness” to serve as an officer or
a director. The act also imposes new disclosure
requirements when companies file financial
reports. Under Section 302 of the act, the SEC is
required to issue a rule that mandates that the
principal executive officer and the principal
1
S
(cont.)
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financial officer certify in each annual or quar-
terly report the accuracy of certain information.
The signing officer must disclose to the auditors
and audit committee any significant deficiencies
in the design or operation of the internal con-
trols, any fraud, whether or not material, that
involves management or other employees who
have a significant role in the issuer’s internal con-
trols, and any significant changes in the internal

controls. Section 906 requires that the chief exec-
utive officer and chief financial officer provide
written statements to be filed with each periodic
report filed under the Securities Exchange Act of
1934 certifying that the periodic report contain-
ing the financial statements fully complies with
the requirements of Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934 and that the
information contained in the periodic report
fairly presents, in all material respects, the finan-
cial condition and results of operations of the
issuer. A knowing violation of Section 906 is
punishable by up to ten years in jail and a $1 mil-
lion fine. A willful violation is punishable by up
to 20 years in jail and a $5 million fine.
Section 303 prohibits any officer, director, or
person acting at their direction “to fraudulently
influence, coerce, manipulate, or mislead” an
accountant who is conducting an audit. Under
Section 304, if an issuer is required to restate its
financial statements as a result of misconduct,
the chief executive officer and chief financial
officer must reimburse the issuer for any bonus
or other incentive-based compensation paid
during the twelve-month period following the
improper reporting. Those officers also must
pay to the company any profits realized from the
sale of its securities during that twelve-month
period.
The Sarbanes-Oxley Act also authorizes the

establishment of a Public Company Accounting
Oversight Board, which will oversee the
accounting profession. Under Section 1 of the
act, the board will have five financially experi-
enced members who are appointed to five-year
terms. Two of the members must be or have
been certified public accountants, and the
remaining three must not be, and must never
have been, CPAs. The chair may be held by one
of the CPA members, provided that he or she
has not been engaged as a practicing CPA for
five years. The board’s members will serve on a
full-time basis. Members of the board are
appointed by the SEC “after consultation with”
the chairman of the
FEDERAL RESERVE BOARD
and the secretary of the Treasury. No member
may, concurrent with service on the Board,
“share in any of the profits of, or receive pay-
ments from, a public accounting firm,” other
than “fixed continuing payments,” such as retire-
ment payments. The Commission may remove
members “for good cause.”
The Accounting Oversight Board will regis-
ter accounting firms, develop auditing standards
and rules of ethics for the profession, and inves-
tigate accounting firms. The board may disci-
pline and sanction accounting firms that violate
rules. It is required to “cooperate on an on-going
basis” with designated professional groups of

accountants and any advisory groups convened
in connection with standard-setting, and
although the board may, “to the extent that it
determines appropriate,” adopt standards pro-
posed by those groups, it will have authority to
amend, modify, repeal, and reject any standards
suggested by the groups. The board must report
to the SEC on its standard-setting activity on an
annual basis.
FURTHER READINGS
Cangemi, Michael P. 2000. Managing the Audit Function. 2d
ed. New York: John Wiley & Sons.
Monks, Robert A. G., and Nell Minow, eds. 2001. Corporate
Governance. 2d ed. New York: Blackwell.
Root, Steven J. 2000. Beyond Coso: Internal Control to
Enhance Corporate Governance. New York: John Wiley &
Sons.
CROSS-REFERENCES
Corporate Fraud “Enron: An Investigation into Corporate
Fraud” (In Focus).
❖
SARGENT, JOHN GARIBALDI
John Garibaldi Sargent served as attorney gen-
eral of the United States under President
CALVIN
COOLIDGE
. He was born October 13, 1860, in
Ludlow, Vermont, to John Henmon and Ann
Eliza Hanley Sargent. He was schooled locally
and then entered Tufts College in Boston, receiv-

ing a bachelor’s degree in 1887. Early in his col-
lege years, Sargent became active in the Zeta Psi
Kappa Society; through the fraternity’s activities
he was introduced to many of Boston’s oldest
and most influential political families, including
the Coolidges.
After college, Sargent returned to Ludlow,
where he married Mary Lorraine Gordon in
1887. Sargent studied law with attorney, and
future Vermont governor, William Wallace
Stickney. Following Sargent’s admission to the
2 SARGENT, JOHN GARIBALDI
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Vermont bar in 1890, he joined Stickney in the
practice of law.
Sargent’s first political appointment came in
1898 when he was named state’s attorney for
Windsor County, Vermont. He served until 1900
when he was appointed secretary of civil and
military affairs for the state of Vermont by his
law partner, who was then serving his first term
as governor. After completing the two-year
assignment, Sargent returned to the firm and
resumed the practice of law. From 1902 to 1908,
he argued the majority of his cases in federal
court, and he established a national reputation
as a trial lawyer.
In 1908 Sargent was named attorney general
of Vermont. While in office, he was involved in

one of the leading cases in the history of Ver-
mont’s highest court. In Sabre v. Rutland Rail-
road Co., 86 Vt. 347, 85 Aik. 693 (1912),
attorneys for the railroad argued that the powers
enjoyed by Vermont’s Public Service Commis-
sion (which regulated railroads) violated the
Vermont Constitution by commingling legisla-
tive, executive, and judicial functions. Sargent,
arguing for Sabre and the state, disagreed. His
position was that the SEPARATION OF POWERS
was only violated when one branch exercised all
of the powers of another branch. The court
agreed with Sargent and recognized the QUASI-
JUDICIAL powers of executive-branch state
agencies. The decision led the way for commis-
sions and boards across the country to wield
court-like powers.
While serving as Vermont’s attorney general,
Sargent also returned to school, receiving a mas-
ter’s degree from Tufts College in 1912. When
Sargent returned to his law firm in 1913, he
turned his attention to partisan politics. He sup-
ported REPUBLICAN PARTY candidates in Ver-
mont and throughout the Northeast and
campaigned vigorously for
WARREN G. HARDING
in 1920 and Calvin Coolidge in 1924.
Sargent was named attorney general of the
United States on March 17, 1925, but only after
the president’s first choice, financier Charles B.

Warren, withdrew after the Senate questioned
his willingness to enforce ANTITRUST LAWS.Sar-
gent proved to be a safe and noncontroversial
alternative. He was confirmed in just one day,
and he served from March 18, 1925, until March
4, 1929.
Sargent was not known as a leader in the
fight for racial equality, but he did ask the presi-
dent to commute the sentence of MARCUS GAR-
VEY in 1927. Garvey was a political activist from
Jamaica who had been convicted of MAIL FRAUD
for his efforts to recruit black Americans for his
Universal Negro Improvement League and
SARGENT, JOHN GARIBALDI 3
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
John Garibaldi Sargent 1860–1939
▼▼
▼▼
18601860
19351935
19101910
18851885
1860 Born,
Ludlow, Vt.
◆
❖
1887 Graduated
from Tufts College
◆
1890 Admitted

to Vermont bar
1900–02 Served
as secretary for
Civil and Military
Affairs of Vermont
1908–12
Served
as attorney
general of
Vermont
◆
1925 Appointed U.S. attorney
general by President Calvin
Coolidge; remained in office
under President Herbert Hoover
◆
1929
Left
public
office
1939 Died,
Ludlow, Vt.
1861–65
U.S. Civil War
1914–18
World War I
❖
◆
1898 Named state's attorney for Windsor County, Vermont
◆

1927 Sought commutation
of Marcus Garvey's mail
fraud sentence
◆
1935 Served as director of the
Vermont Valley, Boston and Main
Railroad; also director of the
Central Vermont Railroad
John Sargent.
CORBIS
68007_WEAL_V09_S_001-428.qxd 5/5/2004 10:32 AM Page 3
African Communities Association Garvey v.
United States, 267 U.S. 604, 45 S. Ct. 464 (1925).
The tainted proceeding against Garvey was
orchestrated by an overzealous young JUSTICE
DEPARTMENT attorney named J. EDGAR
HOOVER.
Sargent was outspoken in his disapproval of
Hoover’s tactics in the Garvey case, and he was
among the first attorneys general to condemn
the gathering of evidence through
WIRETAP-
PING, a tactic approved by Hoover when he was
director of the FEDERAL BUREAU OF INVESTIGA-
TION. Testifying before a congressional commit-
tee, Sargent said, “Wire tapping, ENTRAPMENT,
or use of any illegal or unethical tactics in
procuring information will not be tolerated. . . .”
In 1930 Sargent returned to Vermont and
again took an active role in his law firm. In his

later years, Sargent devoted his time and energy
to local businesses and community organiza-
tions. When years of political infighting finally
forced the reorganization of Vermont’s railroads
in the early 1930s, Sargent was appointed to
oversee the process.
Sargent died at his home in Ludlow, Ver-
mont, on March 5, 1939.
FURTHER READINGS
Justice Department. 1991. 200th Anniversary of the Office of
the Attorney General, 1789–1989. Washington, D.C.:
Department of Justice, Office of Attorney General and
Justice Management Division.
Youssef, Sitamon, et al. 1998. Marcus Garvey: The FBI Inves-
tigation Files. Lawrenceville, N.J.: Africa World Press.
CROSS-REFERENCES
Coolidge, Calvin; Hoover, John Edgar.
SATISFACTION
The discharge of an obligation by paying a party
what is due—as on a mortgage, lien, or contract—
or by paying what is awarded to a person by the
judgment of a court or otherwise. An entry made
on the record, by which a party in whose favor a
judgment was rendered declares that she has been
satisfied and paid.
The fulfillment of a gift by will, whereby the
testator—one who dies leaving a will—makes an
inter vivos gift, one which is made while the testa-
tor is alive to take effect while the testator is living,
to the beneficiary with the intent that it be in lieu

of the gift by will. In
EQUITY, something given
either in whole or in part as a substitute or equiv-
alent for something else.
SAVE
To except, reserve, or exempt; as where a statute
saves vested—fixed—rights. To toll, or suspend
the running or operation of; as, to save the
STATUTE OF LIMITATIONS.
SAVING CLAUSE
In a statute, an exception of a special item out of
the general things mentioned in the statute. A
restriction in a repealing act, which is intended to
save rights, while proceedings are pending, from
the obliteration that would result from an unre-
stricted repeal. The provision in a statute, some-
times referred to as the severability clause, that
rescues the balance of the statute from a declara-
tion of unconstitutionality if one or more parts are
invalidated.
With respect to existing rights, a saving clause
enables the repealed law to continue in force.
SAVINGS AND LOAN ASSOCIATION
A financial institution owned by and operated for
the benefit of those using its services. The savings
and loan association’s primary purpose is making
loans to its members, usually for the purchase of
real estate or homes.
The savings and loan industry was first
established in the 1830s as a building and loan

association. The first savings and loan associa-
tion was the Oxford Provident Building Society
in Frankfort, Pennsylvania. As a building and
loan association, Oxford Provident received reg-
ular weekly payments from each member and
then lent the money to individuals until each
member could build or purchase his own home.
Building and loan associations were financial
intermediaries, which acted as a conduit for the
4 SATISFACTION
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
An example of a saving clause
All acts of limitations, whether applicable to civil causes and
proceedings, or to the prosecution of offenses, or for the
recovery of penalties or forfeitures, embraced in the Revised
Statutes and covered by the repeal contained therein, shall not
be affected thereby; but suits, proceedings, or prosecutions,
whether civil or criminal, for causes arising, or acts done or
committed prior to said repeal, may be commenced and
prosecuted within the same time as if said repeal had not been
made. July 30, 1947, c. 388, §1, 61 Stat. 633.
All acts of limitations, whether applicable to civil causes and
proceedings, or to the prosecution of offenses, or for the
recovery of penalties or forfeitures, embraced in the Revised
Statutes and covered by the repeal contained therein, shall not
be affected thereby; but suits, proceedings, or prosecutions,
whether civil or criminal, for causes arising, or acts done or
committed prior to said repeal, may be commenced and
prosecuted within the same time as if said repeal had not been
made. July 30, 1947, c. 388, §1, 61 Stat. 633.

All acts of limitations, whether applicable to civil causes and
proceedings, or to the prosecution of offenses, or for the
recovery of penalties or forfeitures, embraced in the Revised
Statutes and covered by the repeal contained therein, shall not
be affected thereby; but suits, proceedings, or prosecutions,
whether civil or criminal, for causes arising, or acts done or
committed prior to said repeal, may be commenced and
prosecuted within the same time as if said repeal had not been
made. July 30, 1947, c. 388, §1, 61 Stat. 633.
Saving Clause
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flow of investment funds between savers and
borrowers.
Savings and loan associations may be state
or federally chartered. When formed under
state law, savings and loan associations are gen-
erally incorporated and must follow the state’s
requirements for incorporation, such as provid-
ing articles of incorporation and bylaws.
Although it depends on the applicable state’s
law, the articles of incorporation usually must
set forth the organizational structure of the
association and define the rights of its members
and the relationship between the association
and its stockholders. A savings and loan associ-
ation may not convert from a state corporation
to a federal corporation without the consent of
the state and compliance with state laws. A sav-
ings and loan association may also be federally
chartered. Federal savings and loan associations

are regulated by the
OFFICE OF THRIFT SUPER-
VISION
.
Members of a savings and loan association
are stockholders of the corporation. The mem-
bers must have the capacity to enter into a valid
contract, and as stockholders they are entitled to
participate in management and share in the
profits. Members have the same liability as
stockholders of other corporations, which
means that they are liable only for the amount of
their stock interest and are not personally liable
for the association’s
NEGLIGENCE or debts.
Officers and directors control the operation
of the savings and loan association. The officers
and directors have the duty to organize and
operate the institution in accordance with state
and federal laws and regulations and with the
same degree of diligence, care, and skill that an
ordinary prudent person would exercise under
similar circumstances. The officers and directors
are under the common-law duty to exercise due
care as well as the duty of loyalty. Officers and
directors may be held liable for breaches of these
common-law duties, for losses that result from
violations of state and federal laws and regula-
tions, or even for losses that result from a viola-
tion of the corporation’s bylaws.

The responsibilities of the officers and direc-
tors of a savings and loan association are gener-
ally the same as the responsibilities of officers
and directors of other corporations. They must
select competent individuals to administer the
institution’s affairs, establish operating policies
and internal controls, monitor the institution’s
operations, and review examination and audit
reports. Furthermore, they also have the power
to assess losses incurred and to decide how the
institution will recover those losses.
Prior to the 1930s, savings and loan associa-
tions flourished. However, during the Great
Depression the savings and loan industry suf-
fered. More than 1,700 institutions failed, and
because depositor’s insurance did not exist, cus-
tomers lost all of the money they had deposited
into the failed institutions. Congress responded
to this crisis by passing several banking acts. The
Federal Home Loan Bank Act of 1932, 12
U.S.C.A. §§ 1421 et seq., authorized the govern-
ment to regulate and control the financial serv-
ices industry. The legislation created the Federal
Home Loan Bank Board (FHLBB) to oversee the
operations of savings and loan institutions. The
Banking Act of 1933, 48 Stat. 162, created the
FEDERAL DEPOSIT INSURANCE CORPORATION
(FDIC) to promote stability and restore and
maintain confidence in the nation’s banking sys-
tem. In 1934, Congress passed the National

Housing Act, 12 U.S.C.A. §§ 1701 et seq., which
created the National Housing Administration
(NHA) and the Federal Savings and Loan Insur-
ance Corporation (FSLIC). The NHA was cre-
ated to protect mortgage lenders by insuring full
repayment, and the FSLIC was created to insure
each depositor’s account up to $5,000.
The banking reform in the 1930s restored
depositors’ faith in the savings and loan indus-
try, and it was once again stable and prosperous.
However, in the 1970s the industry began to feel
the impact of competition and increased interest
rates; investors were choosing to invest in money
markets rather than in savings and loan associa-
tions. To boost the savings and loan industry,
Congress began deregulating it. Three types of
deregulation took place during this time.
The first major form of deregulation was the
enactment of the Depository Institutions Dereg-
ulation and Monetary Control Act of 1980 (94
Stat. 132). The purpose of this legislation was to
allow investors higher rates of return, thus mak-
ing the savings and loan associations more com-
petitive with the money markets. The industry
was also allowed to offer money-market options
and provide a broader range of services to its
customers.
The second major form of deregulation was
the enactment of the Garn-St. Germain Deposi-
tory Institutions Act of 1982 (96 Stat. 1469).

This act allowed savings and loan associations to
diversify and invest in other types of loans
SAVINGS AND LOAN ASSOCIATION 5
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besides home construction and purchase loans,
including commercial loans, state and munici-
pal
SECURITIES, and unsecured real estate loans.
The third form of deregulation decreased
the amount of regulatory supervision. This
deregulation was not actually an “official” dereg-
ulation; instead it was the effect of a change in
required accounting procedures. The Generally
Accepted Accounting Principles were changed to
Regulatory Accounting Procedures, which
allowed savings and loan associations to include
speculative forms of capital and exclude certain
liabilities, thus making the thrifts appear to be in
solid financial positions. This resulted in more
deregulation.
In the 1980s, the savings and loan industry
collapsed. By the late 1980s at least one-third of
the savings and loan associations were on the
brink of insolvency. Eight factors were prima-
rily responsible for the collapse: a rigid institu-
tional design, high and volatile interest rates,
deterioration of asset quality, federal and state
deregulation, fraudulent practices, increased
competition in the financial services industry,

and tax law changes.
In an effort to restore confidence in the thrift
industry, Congress enacted the Financial Insti-
tutions Reform, Recovery, and Enforcement Act
of 1989 (FIRREA) (103 Stat. 183). The purpose
of FIRREA, as set forth in Section 101 of the bill,
was to promote a safe and stable system of
affordable housing finance; improve supervi-
sion; establish a general oversight by the
TREA-
SURY DEPARTMENT
over the director of the
Office of Thrift Supervision; establish an inde-
pendent insurance agency to provide deposit
insurance for savers; place the Federal Deposit
Insurance System on sound financial footing;
create the Resolution Trust Corporation; pro-
vide the necessary private and public financing
to resolve failed institutions in an expeditious
manner; and improve supervision, enhance
enforcement powers, and increase criminal and
civil penalties for crimes of
FRAUD against finan-
cial institutions and their depositors.
FIRREA increased the enforcement powers
of the federal banking regulators and conferred
a wide array of administrative sanctions. FIR-
REA also granted federal bank regulators the
power to hold liable “institution-affiliated par-
ties”who engage in unsound practices that harm

the insured depository institution. The institu-
tion-affiliated parties include directors, officers,
employees, agents, and any other persons,
including attorneys, appraisers, and account-
ants, participating in the institution’s affairs.
FIRREA also allows federal regulators to seize
the institution early, before it is “hopelessly
insolvent” and too expensive for federal insur-
ance funds to cover.
Criminal penalties were also increased, in
1990, by the
CRIME CONTROL ACT, 104 Stat.
4789, which included the Comprehensive Thrift
and Bank Fraud Prosecution and Taxpayer
Recovery Act of 1990 (104 Stat. 4859). This act
increased the criminal penalties “attaching” to
crimes related to financial institutions.
FIRREA created the Office of Thrift Super-
vision (OTS) and the Resolution Trust Corpo-
ration (RTC). FIRREA eliminated the FHLBB
and created the OTS to take its place. The RTC
was created solely to manage and dispose of the
assets of thrifts that failed between 1989 and
August 1992. In addition, the FSLIC was elimi-
nated, and the FDIC, which oversaw the bank-
ing industry, began dealing with the troubled
thrifts.
The RTC was in existence for six years, clos-
ing its doors on December 31, 1996. During its
existence, it merged or closed 747 thrifts and

sold $465 billion in assets, including 120,000
pieces of property. The direct cost of resolving
the failed thrifts amounted to $90 billion; how-
ever, analysts claim that it will take approxi-
mately 30 years to fully bail out the savings and
loan associations at a cost of approximately
$480.9 billion.
FURTHER READINGS
American Bar Association. 1995. “How a Good Idea Went
Wrong: Deregulation and the Savings and Loan Crisis.”
Administrative Law Review 47.
———. The Committee of Savings and Loan Associations
Section of Corporation, Banking, and Business. 1973.
Handbook of Savings and Loan Law. Chicago: American
Bar Association.
Calavita, Kitty, Henry N. Pontell, and Robert H. Tillman.
1999. Big Money Crime: Fraud and Politics in the Savings
and Loan Crisis. Berkeley: Univ. of California Press.
Gorman, Christopher Tyson. 1994–95. “Liability of Direc-
tors and Officers under FIRREA: The Uncertain Stan-
dard of §1821(K) and the Need for Congressional
Reform.” Kentucky Law Journal 83.
Turck, Karsten F. 1998. The Crisis of American Savings &
Loan Associations: A Comprehensive Analysis. New York:
P. Lang.
U.S. House. 1989. 101st Cong., 1st sess. H.R. 54 (I). United
States Code Congressional and Administrative News.
CROSS-REFERENCES
Banks and Banking.
6 SAVINGS AND LOAN ASSOCIATION

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❖
SAXBE, WILLIAM BART
William Bart Saxbe, a quotable lawyer, politi-
cian, and U.S. senator from Ohio, served as U.S.
attorney general under President RICHARD M.
NIXON. He also served as ambassador to India
under President GERALD R. FORD.
Saxbe was born on June 24, 1916, in the
farming community of Mechanicsburg, Ohio,
to Bart Rockwell Saxbe, a religious and plain-
spoken community leader who made his living
as a cattle buyer, and Faye Henry Carey Saxbe,
a political free-spirit who counted PATRICK
HENRY among her ancestors. Saxbe’s education
seemed to be influenced by his parents’ example;
when he entered Ohio State University in 1936,
he chose political science as his major field of
study. He received a Bachelor of Arts degree in
1940. In the fall of that year, he married Ardath
Louise (“Dolly”) Kleinhans. They eventually
had three children: William Bart Jr., Juliet
Louise, and Charles Rockwell.
While attending college, Saxbe was a mem-
ber of the Ohio National Guard. After college, he
enlisted in the Army Air Corps, serving from
1940 to 1945. Saxbe was called to serve again
during the Korean conflict in the 1950s; he was
discharged from the reserve with the rank of

colonel in 1963.
Immediately after WORLD WAR II, Saxbe
returned to Ohio with the intention of further-
ing his education. He gave serious thought to
pursuing a career in the ministry of the Episco-
pal Church, but his long-standing interest in
political and community service prevailed.
Saxbe entered law school at Ohio State Univver-
sity in 1945 and, simultaneously, launched a
campaign to serve in the Ohio House of Repre-
sentatives. He was elected and served four terms
from 1947 to 1954. Saxbe completed his law
degree at the end of his second term. He served
as House majority leader in 1951 and 1952, and
as speaker of the House in 1953 and 1954.
Saxbe left the Ohio legislature at the conclu-
sion of his fourth term. He returned to Mechan-
icsburg, where he raised cattle on the family
farm. He also partnered with two longtime
friends to establish the Columbus, Ohio, law
firm of Saxbe, Boyd, and Prine. He practiced law
for two years before re-entering the political
arena in 1956. In 1957, he ran as the Republican
candidate for state attorney general. Over the
next decade, he served four terms in that state
office. As attorney general, Saxbe proved to be a
tough and capable crime fighter. He believed
that
CAPITAL PUNISHMENT was a strong deter-
rent and that stiff prison sentences should be

imposed for gun-related crimes.
SAXBE, WILLIAM BART 7
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
William Bart Saxbe 1916–
❖
1916 Born,
Mechanicsburg,
Ohio
1914–18
World War I
1939–45
World War II
▼▼
▼▼
19501950
19251925
19751975
20002000
◆
◆
◆
1950–53
Korean War
1961–73
Vietnam War
◆
1940–45
Served in
Army Air Force
1947–54

Served in Ohio
House of
Representatives
1957–67
Served as Ohio
attorney general
1968–72
Served in
U.S.
Senate
1975–77
Served as
U.S.
ambassador
to India
1982 Hired as
Independent
special counsel
for the Central
States Teamsters
Pension Fund
1999 Participated
in historic forum
of former U.S.
Attorneys General
at American Bar
Association
convention
1974 Served as U.S. attorney general under Nixon and Ford
1994 Joined his son's law practice at Chester, Hoffman, Wilcox and Saxbe

William B. Saxbe.
AP/WIDE WORLD
PHOTOS
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Although conservative in his views on crime
and money, Saxbe described himself as “liberal on
the rights of people.” In 1968, Saxbe took his
unique mix of fiscal conservatism and social
responsibility to the electorate. He ran as the
Republican candidate for a U.S. Senate seat, and
he won a close election over liberal Democrat
John J. Gilligan. His stand against the Pentagon’s
deployment of antiballistic missiles during the
VIETNAM WAR surprised many of those who
thought his campaign promises were mere rheto-
ric. Gilligan was quoted as saying, “If I had known
he was going to be like this, I would have voted for
him myself.” Saxbe’s voting record on most major
issues showed that he moved gradually to the
right during his four years in the U.S. Senate.
Saxbe was quickly disenchanted with life as a
senator. He felt that many of his senate col-
leagues were sadly out of touch with the elec-
torate. He alienated most of Washington when
he said, “The first six months I kept wondering
how I got [here]. After that, I started wondering
how all of them did.”
In addition to his disdain for the insulated
lives of Washington politicians, Saxbe was frus-
trated with the pace of legislation on Capitol

Hill. To address the problem, he joined forces
with Senator Alan M. Cranston to develop a
two-track system of moving legislation through
the Senate. The system allowed less controversial
bills to pass through the legislative process
quickly, while more volatile measures were held
for debate and discussion. When other efforts to
improve the process stalled, Saxbe removed
himself from the Senate entirely, by taking part
in travel junkets. Saxbe’s pleas for aid to East
Bengal and for discontinuation of aid to Pak-
istan were direct results of his findings while on
a trip; he considered these actions to be among
his greatest achievements in the Senate.
Saxbe’s frustration with Washington was not
limited to the Senate. For example, Saxbe had
defied protocol by challenging Nixon’s Vietnam
policy during a social gathering at the White
House for freshman senators. In response, the
president’s staff kept Saxbe out of the Oval
Office and away from Nixon for almost two
years after that disastrous first meeting with the
chief executive.
Saxbe’s growing contempt for the White
House staff reached a new height in 1971, when
he referred to Nixon aides H. R. Haldeman and
John D. Ehrlichman as “a couple of Nazis” and
again in 1972 when he commented on Nixon’s
professed innocence in the
WATERGATE scandals,

saying that the chief executive sounded “like the
fellow who played the piano in a brothel for
twenty years, and insisted that he didn’t know
what was going on upstairs.” (The Watergate
scandals began with a break-in at the Democra-
tic National Committee headquarters—located
in the Watergate Office Towers—and eventually
toppled the Nixon administration.)
In September 1973, Saxbe announced that
he would not seek reelection to the Senate. Just a
month later, Nixon asked him to accept an
appointment as attorney general of the United
States to replace
ELLIOT RICHARDSON. Richard-
son, Nixon’s third attorney general, had resigned
rather than obey an
EXECUTIVE ORDER to fire
Watergate prosecutor
ARCHIBALD COX. Saxbe
was reluctant to accept the nomination, but he
knew that the administration wanted to avoid a
long confirmation battle and that his past criti-
cism of the president would make him a credible
candidate with both Nixon supporters and
detractors.
After a two-hour discussion with Nixon, in
which the president denied any knowledge or
involvement in the Watergate scandals, Saxbe
accepted the nomination. He took office in Jan-
uary 1974. His goal was to restore the Depart-

ment of Justice’s credibility with the U.S. public
and to keep the public informed of the depart-
ment’s activities.
Saxbe initiated weekly news conferences at
the beginning of his term but curtailed them
quickly when he found that his offhand com-
ments generated more interest than did his sub-
stantive efforts. Among Saxbe’s more printable
gaffes were his reference to
PATTY HEARST as a
common criminal and his observation that Jew-
ish intellectuals of the 1950s were enamored
with the Communist party.
As attorney general, Saxbe supported legisla-
tion limiting access to criminal records of
arrested and convicted persons, and he contin-
ued to favor capital punishment and tough sen-
tences for gun-related crimes. He conducted an
investigation into the FBI’s counterintelligence
program—Cointelpro—and condemned the
program for its harassment of left-wing groups,
black leaders, and campus radicals. He also
worked on two of the biggest antitrust cases in
history, against IBM and AT&T.
After Nixon’s resignation, Saxbe continued
to serve as attorney general in the Ford adminis-
8 SAXBE, WILLIAM BART
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
“I
FEEL VERY

STRONGLY THAT
THE
J
USTICE
D
EPARTMENT IS
THE VERY HEART
AND SOUL OF OUR
COUNTRY
,
BECAUSE
GOVERNMENT
WITHOUT LAW IS
TYRANNY
.”
—W
ILLIAM
B.
S
AXBE
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tration. He resigned in December 1974 to accept
an appointment as U.S. ambassador to India.
For the next 20 years, Saxbe practiced law in
Florida, Ohio, and Washington, D.C., and he
remained active in
REPUBLICAN PARTY politics.
In March 1994, he announced that he would
join the Columbus, Ohio, law firm of Chester,
Hoffman, Willcox, and Saxbe, where his son was

a partner.
Saxbe is often called upon to speak about the
turmoil of the Watergate years and his experi-
ence in the final days of the Nixon administra-
tion. On the eve of Nixon’s funeral in April 1994,
Saxbe acknowledged that he had never made an
attempt to see Nixon again after his resignation
because the former president had lied to him
about his involvement in the Watergate scandals.
Saxbe published an autobiography in 2000
while continuing to practice law at Chester, Will-
cox & Saxbe, where he specialized in general busi-
ness law and strategic counsel. In 2002, the
auditorium of Ohio State University’s Moritz Col-
lege of Law was named the William B. Saxbe Law
Auditorium in recognition of his history of public
service and his generous donations to the school.
FURTHER READINGS
Barrett, John Q. 1998. “All or Nothing, or Maybe Coopera-
tion: Attorney General Power, Conduct, and Judgment
in Relation to the Work of an Independent Counsel.”
Mercer Law Review 49 (winter).
Powell, H. Jefferson. 1999. The Constitution and the Attorneys
General. Durham, N.C: Carolina Academy Press.
Saxbe, William B., with Peter D. Franklin. 2000. I’ve Seen the
Elephant. Kent, Ohio: Kent State Univ. Press.
SCAB
A pejorative term used colloquially in reference to
a nonunion worker who takes the place of a union
employee on strike or who works for wages and

other conditions that are inferior to those guaran-
teed to a union member by virtue of the union
contract.
CROSS-REFERENCES
Labor Union.
❖
SCALIA, ANTONIN
In 1986, Antonin Scalia was appointed to the
U.S. Supreme Court by President
RONALD REA-
GAN
, becoming the first American of Italian
descent to serve as an associate justice. Known
for his conservative judicial philosophy and
narrow reading of the Constitution, Scalia has
repeatedly urged his colleagues on the Court to
overturn
ROE V. WADE, 410 U.S. 113, 93 S. Ct.
705, 35 L. Ed. 2d 147 (1973), the decision recog-
nizing a woman’s right to terminate her preg-
nancy under certain circumstances.
Scalia was born March 11, 1936, in Trenton,
New Jersey. Before he began grade school, Scalia
and his family moved to Elmhurst, New York,
where he spent much of his boyhood. Scalia is
the only child of Eugene Scalia, an Italian immi-
grant who taught romance languages at Brook-
lyn College for 30 years, and Catherine Scalia, a
first-generation Italian-American who taught
elementary school.

In 1953, Antonin Scalia graduated first in his
class at St. Francis Xavier High School, a Jesuit
military academy in Manhattan. Four years
later, Scalia was valedictorian at Georgetown
University, receiving a bachelor’s degree in his-
tory. In the spring of 1960, Scalia graduated
magna cum laude from Harvard Law School
where he served as an editor for the Harvard
Law Review. Known to his friends as Nino, Scalia
was known to many of his classmates as an eager
and able debater.
Upon graduation from law school, Scalia
accepted a position as an associate attorney with
a large law firm in Cleveland, Ohio, where he
practiced law until 1967. He resigned to teach at
the University of Virginia School of Law. In 1970,
Scalia joined the Nixon Administration to serve
as general counsel for the Office of Telecommu-
nications Policy. Under President
GERALD R.
FORD
, Scalia served as assistant attorney general
for the
JUSTICE DEPARTMENT, where he drafted
a key presidential order establishing new restric-
tions on the information-gathering activities of
the
CENTRAL INTELLIGENCE AGENCY and FED-
ERAL BUREAU OF INVESTIGATION
.

In 1977, Scalia left public office to become a
visiting scholar at the American Enterprise
Institute, a conservative think tank in Washing-
ton, D.C. During this same year, Scalia also
returned to academia, accepting a position as
law professor at the University of Chicago,
where he developed a reputation as an expert
in
ADMINISTRATIVE LAW. In 1982, President
Reagan appointed Scalia to the U.S. Court of
Appeals for the District of Columbia, which
many lawyers consider to be the second most
powerful court in the country.
When Chief Justice
WARREN BURGER retired
in 1986, President Reagan elevated sitting justice
SCALIA, ANTONIN 9
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
“J
UDGES IN A
REAL SENSE
‘
MAKE
’
LAW

[T]
HEY MAKE IT AS
JUDGES MAKE IT
,

WHICH IS TO SAY
AS THOUGH THEY
WERE
‘
FINDING
’
IT
—
DISCERNING
WHAT THE LAW IS
,
RATHER THAN
DECREEING WHAT
IT IS TODAY
CHANGED TO
,
OR
WHAT IT WILL
TOMORROW BE
.”
—A
NTONIN
S
CALIA
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WILLIAM REHNQUIST to the chair of chief justice
and nominated Scalia to fill the vacancy of asso-
ciate justice. Confirmed by a vote of 98–0 in the
Senate, Scalia became the first Roman Catholic
to be appointed to the U.S. Supreme Court since

WILLIAM J. BRENNAN JR. in 1957.
Scalia’s tenure on the high court has been
marked by a JURISPRUDENCE of ORIGINAL
INTENT. Proponents of original intent, also called
originalists, believe that the Constitution must be
interpreted in light of the way it was understood
at the time it was framed and ratified. According
to Scalia, originalism has two virtues: preserving
the
SEPARATION OF POWERS in a democratic
society, and curbing judicial discretion.
The Constitution delegates specific enu-
merated powers to the three branches of the
federal government. The Legislative Branch is
given the power to make law under Article I; the
EXECUTIVE BRANCH is given the power to
enforce the law under Article II; and the Judicial
Branch is given the power to interpret and
apply the law under Article III. Originalists
believe that democracy is enhanced when the
lawmaking power is exercised by the federal leg-
islature because, unlike federal judges who are
appointed by the president and given life tenure
on the bench, members of Congress are held
accountable to the electorate at the ballot box.
This separation of powers is blurred, Scalia
argues, when unelected federal judges decide
cases in accordance with their own personal
preferences, which may be contrary to those
expressed by the framers and ratifiers. In such

instances, Scalia asserts, federal judges usurp the
legislative function by making new law that
effectively replaces the popular understanding of
the Constitution at its time of adoption. The
only way to curb this type of judicial discretion
and to preserve the separation of powers, Scalia
concludes, is by requiring federal judges to inter-
pret and apply the Constitution in light of its
original meaning. This meaning can be illumi-
nated, Scalia says, by paying careful attention to
10 SCALIA, ANTONIN
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
Antonin Scalia 1938–
❖
1938 Born,
Trenton, N.J.
1939–45
World War II
▼▼
▼▼
19501950
19251925
19751975
20002000
◆
◆
◆
1950–53
Korean War
1961–73

Vietnam War
◆
◆
◆
◆
◆
◆
◆◆
◆
◆
◆
◆
1957 Graduated from
Georgetown Univ.
1960 Served as editor of law review,
graduated from Harvard Law School
1967–71
Taught law
at UVA law
school
1971–72 Served as general counsel for the
Office of Telecommunications Policy
1972 Became chairman of the Administrative
Conference of the United States
1977
Joined the
University
of Chicago
Law School
faculty

1982
Appointed
to the
U.S. Court
of Appeals
for the
District of
Columbia
1974 Appointed assistant U.S. attorney general
1992
Dissented
in part in
Planned
Parenthood
v. Casey
1986 Appointed associate
justice of the U.S.
Supreme Court
1988 Wrote majority opinion in Coy v. Iowa
1995
Distinguished
Jurist in
Residence,
Touro Law
Center
2000
Voted with
majority
in Bush
v. Gore,

which
halted
disputed
Florida
vote
recount
1996 Dissented in U.S. v. Virginia
1997 A Matter of Interpretation, edited by Amy Gutman, Gordon S. Wood, Laurence H. Tribe, May Ann Glendon and Ronald Dworkin, published; wrote majority opinion in Printz v. U.S.
2002 Delivered widely-debated speech on the death penalty and religious authority for democracy at the University of Chicago
2003 Received Citadel of Free Speech Award from City Club; declared in speech that government has power to curtail rights during wartime
Antonin Scalia.
PHOTOGRAPH BY
JOSEPH LAVENBURG,
NATIONAL GEOGRAPHIC.
COLLECTION OF
U.S. SUPREME COURT
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the express language of the Constitution and the
debates surrounding the framing and ratifica-
tion of particular provisions.
Scalia’s interpretation and application of the
EIGHTH AMENDMENT best exemplifies his judi-
cial philosophy. The Eighth Amendment pro-
hibits
CRUEL AND UNUSUAL PUNISHMENT.
Courts that evaluate a claim under the Cruel and
Unusual Punishments Clause, Scalia argues,
must determine whether a particular punish-
ment was allowed in 1791 when the Eighth
Amendment was framed and ratified. Moreover,

he argues that courts must not take into account
notions of the evolving standards of human
decency. For example, Scalia contends that
CAP-
ITAL PUNISHMENT
was clearly contemplated by
the framers and ratifiers of the federal Constitu-
tion. The
FIFTH AMENDMENT explicitly refer-
ences capital crimes, Scalia observes, and capital
punishment was prevalent in the United States
when the Constitution was adopted. Whether
states presently support or oppose capital pun-
ishment plays only a negligible role in Scalia’s
analysis.
Scalia’s interpretation of the
DUE PROCESS
CLAUSE of the Fifth and Fourteenth Amend-
ments provides another example of his judicial
philosophy. According to Scalia, the Due Process
Clause was originally understood to offer only
procedural protection, such as the right to a fair
hearing before an impartial judge and an unbi-
ased jury. Nowhere in the text of the Constitu-
tion, Scalia notes, is there any hint that the Due
Process Clause offers substantive protection. It is
not surprising then that Scalia has dissented
from U.S. Supreme Court decisions that have
relied on the Due Process Clause in protecting
the substantive right of women to terminate

their pregnancies under certain circumstances
(Planned Parenthood v. Casey, 505 U.S. 833, 112
S. Ct. 2791, 120 L. Ed. 2d 674 [1992]). Likewise,
Scalia disagreed with the Court’s decision that a
state law granting
VISITATION RIGHTS to grand-
parents was unconstitutional because it
infringed upon the fundamental rights of par-
ents to raise their children (Troxel v. Granv ille,
530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000)). No such right, Scalia has commented,
can be found in the express language of any con-
stitutional provision.
Scalia has surprised some observers by his
literal reading of the SIXTH AMENDMENT, which
guarantees the right of criminal defendants to
be “confronted with witnesses against them.” In
Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101
L. Ed. 2d 857 (1988), Scalia wrote that the Sixth
Amendment requires a face-to-face confronta-
tion and that such an opportunity had been
denied when a large screen had been placed
between a defendant charged with CHILD
MOLESTATION
and the child who was accusing
him. The Sixth Amendment, Scalia concluded,
intended for courts to preserve the adversarial
nature of the criminal justice system by protect-
ing the rights guaranteed by the Confrontation
Clause over governmental objections that face-

to-face cross-examination may be emotionally
traumatic for some victims.
Scalia drew the ire of advocates for
GAY AND
LESBIAN RIGHTS
with his dissent in ROMER V.
EVANS
, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed.
2d 855 (1996). The Court invalidated a constitu-
tional amendment by the state of Colorado that
prohibited anti-discrimination laws intended to
protect gays, lesbians, and bisexuals. According
to the majority in the decision, the state consti-
tutional amendment violated the
FOURTEENTH
AMENDMENT
of the U.S. Constitution. Scalia
disagreed, writing a scathing dissent. According
to Scalia, the majority opinion “places the pres-
tige of this institution behind the proposition
that opposition to homosexuality is as reprehen-
sible as racial or religious bias.”
Whether Scalia is writing about the Sixth
Amendment, the Eighth Amendment, or any
other Constitutional provision, some regard his
judicial opinions as among the most well written
in the history of the U.S. Supreme Court. The
clarity, precision, and incisiveness with which he
writes is frequently praised. However, some of
Scalia’s opinions take on an acerbic quality.

Often relegated to the role of dissenting justice,
Scalia is not above hurling invectives at his col-
leagues on the Court, sometimes criticizing their
opinions as silly and preposterous.
Scalia married the former Maureen
McCarthy in 1960. They have nine children.
Scalia has written numerous articles on a variety
of issues and is the author of A Matter of Inter-
pretation: Federal Courts and the Law (1997).
FURTHER READINGS
Frantz, Douglas. 1986. “Scalia Embodies President’s Hope
for Court’s Future.” Chicago Tribune (August 3).
Hasson, Judy. 1986. “Scalia Got Early Chance to Show His
Legal Talents.” Seattle Times (August 5).
Scalia, Antonin, and Paul I. Weizer. 2004. The Opinions of
Justice Antonin Scalia: The Caustic Conservative. New
York: P. Lang.
SCALIA, ANTONIN 11
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
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Scalia, Antonin. 1997. A Matter of Interpretation: Federal Courts
and the Law. Princeton, N.J.: Princeton Univ. Press.
—
. 1989. “Originalism: The Lesser Evil.” University of
Cincinnati Law Review 57.
SCHECHTER POULTRY CORP. V.
UNITED STATES
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935),
is one of the most famous cases from the Great

Depression era. The case tested the legality of
certain methods used by Congress and President
FRANKLIN D. ROOSEVELT to combat the devas-
tating economic effects of the depression. After
the U.S. Supreme Court declared the methods
unconstitutional, Roosevelt publicly scolded the
Court and later used the decision as one justifi-
cation for a controversial plan to stock the Court
with justices more receptive of Roosevelt’s pro-
grams.
At the heart of the Schechter case was legisla-
tion passed by Congress in 1933. The
NATIONAL
INDUSTRIAL RECOVERY ACT
(NIRA) (48 Stat.
195) was passed in response to the unemploy-
ment and poverty that swept the nation in the
early 1930s and provided for the establishment
of local codes for fair competition in industry.
The codes were written by private trade and
industrial groups. If the president approved the
codes, they became law. Businesses were
required to display a Blue Eagle insignia from
the NATIONAL RECOVERY ADMINISTRATION to
signify their compliance with the codes. Typical
local codes set minimum wages and maximum
hours for workers and gave workers the right to
organize into unions and engage in COLLECTIVE
BARGAINING
with management. Codes also pre-

scribed fair trade practices, and many codes set
minimum prices for the sale of goods.
The Schechter Poultry Corporation, owned
and operated by Joseph, Martin, Alex, and Aaron
Schechter, was in the business of selling chickens
at wholesale. The corporation purchased some
of the poultry from outside the state of New
York. It bought the poultry at markets and rail-
road terminals in New York City and sold the
poultry to retailers in the city and surrounding
environs. In April 1934 President Roosevelt
approved the code of fair competition for the
live poultry industry of the New York City met-
ropolitan area (Live Poultry Code). In July 1934
the Schechters were arrested and indicted on 60
counts of violating the Live Poultry Code. The
indictment included charges that Schechter
Poultry had failed to observe the
MINIMUM
WAG E
and maximum hour provisions applicable
to workers and that it had violated a provision of
the Live Poultry Code prohibiting the sale of
unfit chickens. The case became popularly
known as the Sick Chicken case.
The Schechters pleaded not guilty to the
charges. At trial, the Schechters were convicted
on 18 counts of violating the Live Poultry Code
and two counts of conspiring to violate the Live
Poultry Code. An appeals court affirmed their

convictions, but the U.S. Supreme Court agreed
to hear their appeal.
The Schechters presented several arguments
challenging the Live Poultry Code. According to
the Schechters, the code system of the NIRA was
an unconstitutional
ABDICATION of the legisla-
tive power vested in Congress by Article I, Sec-
tion 1, of the U.S. Constitution. The Schechters
argued further that their intrastate wholesale
business was not subject to congressional
authority under the
COMMERCE CLAUSE of Arti-
cle I, Section 8, Clause 3, of the Constitution and
that the procedures for enforcing the NIRA
codes violated the DUE PROCESS CLAUSE of the
FIFTH AMENDMENT.
In support of the Live Poultry Code, the fed-
eral government argued that the code was nec-
essary for the good of the nation. According to
the government, the Live Poultry Code ensured
the free flow of chickens in interstate com-
merce. This arrangement kept chicken prices
low and helped ease, however slightly, the finan-
cial burden on the general public. The govern-
ment also argued that it was within the power of
Congress to enact the NIRA regulatory scheme
that gave rise to the Live Poultry Code because
codes such as the Live Poultry Code applied
only to businesses engaged in interstate com-

merce.
The Court unanimously disagreed with the
federal government. Under the Commerce
Clause, Congress had the power to regulate
commerce between the states, not intrastate
commerce. The power to enact legislation on
intrastate commerce was reserved to the states
under the
TENTH AMENDMENT to the Constitu-
tion. According to the Court, the business con-
ducted by the Schechters was decidedly
intrastate. Their business was licensed in New
York, they bought their poultry in New York,
and they sold it to retailers in New York. Because
it was intended to reach intrastate businesses
like Schechter Poultry, the Live Poultry Code
12 SCHECHTER POULTRY CORP. V. UNITED STATES
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regulated intrastate commerce, and it was there-
fore an unconstitutional exercise of congres-
sional power. The Court reversed the Schechters’
convictions and declared the Live Poultry Code
unconstitutional.
The Schechter decision was decided around
the same time as other, similar Supreme Court
decisions striking down federal attempts to
address the economic crises of the depression.
However, the Schechter decision was a particu-
larly troublesome setback for the Roosevelt

administration. The NIRA was the centerpiece
of Roosevelt’s plan to stabilize the national
economy (the
NEW DEAL), and the government’s
loss in the Sick Chicken case marked the end of
the NIRA and its fair trade codes. Less than one
week after the Schechter decision was
announced, Roosevelt publicly condemned the
Court. Roosevelt declared that the Court’s
“horse-and-buggy definition of interstate com-
merce” was an obstacle to national health.
Roosevelt’s remarks were controversial
because they appeared to cross the line that sep-
arated the powers of the
EXECUTIVE BRANCH
from those of the judicial branch. They sparked
a national debate on the definition of interstate
commerce, the role of the U.S. Supreme Court,
and the limits of federal power. Several citizens
and federal legislators began to propose laws
and constitutional amendments in an effort to
change the makeup of the Supreme Court. At
first, Roosevelt refused to back any of the plans,
preferring instead to wait and see if the Court
would reconsider its stand and reverse the
Schechter holding. After the Supreme Court
delivered another series of opinions in 1936 that
nullified New Deal legislation, Roosevelt began
to push for legislation that would modify the
makeup of the Court. In 1937 the Supreme

Court began to issue decisions upholding New
Deal legislation. Congress never enacted Roo-
sevelt’s so-called court-packing plan.
FURTHER READINGS
Burns, James M. 1990. Crosswinds of Freedom: American
Experience. New York: Knopf.
Cohen, William, and Jonathan D. Varat. 2001. Constitutional
Law: Cases and Materials. 8th ed. New York: Foundation
Press.
Louchheim, Katie, ed. 1983. The Making of the New Deal: The
Insiders Speak. Cambridge, Mass.: Harvard.
Schlesinger, Arthur M., Jr. 2003. The Age of Roosevelt: The
Coming of the New Deal. Boston: Houghton Mifflin.
CROSS-REFERENCES
Federalism.
SCHENCK V. UNITED STATES
Schenck v. United States, 249 U.S. 47, 39 S. Ct.
247, 63 L. Ed. 470 (1919), is a seminal case in
CONSTITUTIONAL LAW, representing the first
time that the U.S. Supreme Court heard a FIRST
AMENDMENT challenge to a federal law on free
speech grounds. In upholding the constitution-
ality of the ESPIONAGE ACT OF 1917 (40 Stat.
217), the Supreme Court articulated the CLEAR
AND PRESENT DANGER doctrine, a test that still
influences the manner in which state and federal
courts decide free speech issues. This doctrine
pioneered new territory by drawing a line that
separates protected speech, such as the public
criticism of government and its policies, from

unprotected speech, such as the advocacy of ille-
gal action.
On December 20, 1917, Charles Schenck was
convicted in federal district court for violating
the Espionage Act, which prohibited individuals
from obstructing military recruiting, hindering
enlistment, or promoting insubordination
among the armed forces of the United States.
Schenck, who was the general secretary of the
Socialist party in the United States, had been
indicted for mailing antidraft leaflets to more
than fifteen thousand men in Philadelphia. The
leaflets equated the draft with SLAVERY, charac-
terized conscripts as criminals, and urged oppo-
sition to American involvement in WORLD WAR I.
Schenck appealed his conviction to the
Supreme Court, which agreed to hear the case.
Attorneys for Schenck challenged the constitu-
tionality of the Espionage Act on First Amend-
ment grounds. FREEDOM OF SPEECH,Schenck’s
attorneys argued, guarantees the liberty of all
SCHENCK V. UNITED STATES 13
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
The 1919 Schenck
case marked the first
time the Court heard
a First Amendment
challenge to a federal
law on free speech
grounds. The Court

was comprised of the
following justices:
(standing, l-r)
Brandeis, Pitney,
McReynolds, Clarke,
(seated, l-r)
Day, McKenna,
White, Holmes,
Van Devanter.
U.S. SUPREME COURT
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Americans to voice their opinions about even
the most sensitive political issues, as long as their
speech does not incite immediate illegal action.
Attorneys for the federal government argued
that freedom of speech does not include the
freedom to undermine the
SELECTIVE SERVICE
SYSTEM
by casting aspersions upon the draft.
In a 9–0 decision, the Supreme Court
affirmed Schenck’s conviction. Justice OLIVER
WENDELL HOLMES JR.
delivered the opinion.
Holmes observed that the constitutionality of all
speech depends on the circumstances in which it
is spoken. No reasonable interpretation of the
First Amendment, Holmes said, protects utter-
ances that have the effect of force. For example,
Holmes opined that the Freedom of Speech

Clause would not protect a man who falsely
shouts fire in a crowded theater.
“The question in every case,” Holmes wrote,
“is whether the words are used in such circum-
stances and are of such a nature as to create a
clear and present danger that they will bring
about the substantive evils that Congress has a
right to prevent.” Holmes conceded that during
peacetime Schenck’s vituperative leaflets might
have received constitutional protection. How-
ever, Holmes said, during times of war no Amer-
ican has the right to speak or publish with the
intent of obstructing the
CONSCRIPTION process
when such speech has a tendency to incite oth-
ers to this unlawful purpose.
The Supreme Court’s decision in Schenck
established two fundamental principles of con-
stitutional law. First, Schenck established that
the First Amendment is not absolute. Under cer-
tain circumstances, the rights protected by the
Freedom of Speech Clause must give way to
important countervailing interests. Preserving
the integrity of the military draft during
wartime and protecting theater patrons from
the perils of pandemonium are two examples of
countervailing interests that will override First
Amendment rights.
Second, Schenck established the standard by
which subversive and seditious political speech

would be measured under the First Amendment
for the next fifty years. Before the government
may punish someone who has published scur-
rilous political material, the Court in Schenck
said, it must demonstrate that the material was
published with the intent or tendency to pre-
cipitate illegal activity and that it created a clear
and present danger that such activity would
result.
Schenck did not settle every aspect of free
speech
JURISPRUDENCE. It left unresolved a
number of crucial questions and created ambi-
guities that could only be clarified through the
judicial decision-making process. It was unclear
after Schenck, for example, how immediate or
probable a particular danger must be before it
becomes clear and present. If Schenck permitted
the government to regulate speech that has an
unlawful tendency, some observers feared, Con-
gress could ban speech that carried with it any
harmful tendency without regard to the intent
of the speaker or the likely effect of the speech
on the audience.
In 1969 the Supreme Court articulated the
modern clear-and-present-danger doctrine in
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct.
1827, 23 L. Ed. 2d 430, stating that the govern-
ment may not forbid or punish subversive
speech except where it advocates or directs

imminent lawless action and is likely to incite or
produce such action.
Under Brandenburg, courts must consider
the intention of the speaker or writer, as well as
her ability to persuade and arouse others when
evaluating the danger presented by particular
speech. Courts must also consider the suscepti-
bility of an audience to a particular form of
expression, including the likelihood that certain
members of the audience will be aroused to ille-
gal action. Despite the reformulation of the
clear-and-present-danger test, Schenck retains
constitutional vitality in cases concerning the
Freedom of Speech Clause, having been cited in
more than one hundred state and federal judi-
cial opinions in the 1980s and 1990s.
FURTHER READINGS
Alonso, Karen. 1999. Schenck v. United States: Restrictions on
Free Speech. Springfield, N.J.: Enslow Publishers.
Dow, David R., and R. Scott Shieldes. 1998. “Rethinking the
Clear and Present Danger Test.” Indiana Law Journal 73
(fall).
Rabban, David. 1983. “The Emergence of Modern First
Amendment Doctrine.” University of Chicago Law
Review 50 (fall).
CROSS-REFERENCES
Communism; Dennis v. United States; Smith Act.
❖
SCHLAFLY, PHYLLIS STEWART
The demise of the EQUAL RIGHTS AMENDMENT

(ERA) on June 30, 1982, can be attributed in
large part to Phyllis Stewart Schlafly. During the
1970s, Schlafly was the United States’ most visi-
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