Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P14 ppsx

require the appointment of counsel. Two
adjacent districts may be combined to reach
this total.
Each defender organization submits to the
director of the Administrative Office an annual
report of its activities along with a proposed
budget. Because they rely on grants and not
regular funding, community defender organiza-
tions submit grant proposals to the Administra-
tive Office for the coming year. The director
then submits the proposed budgets and grants
to the Judicial Conference of the United States
for approval. After budgets are determined, the
director pays the defender organizations. The
director also compensates private counsel
appointed to defend individuals charged in
federal court.
In wake of the
SEPTEMBER 11TH ATTACKS in
2001, the Administrative Office relied on its
newly created Office of Emergency Prepared-
ness. This office worked with courts around the
United States to develop crisis response plans to
deal with emergency evacuations, relocations,
and the continuation of court business. The
office also arranged for the testing of court-
houses for hazardous materials.
FURTHER READINGS
Administrative Office of the U.S. Courts Website. Available
online at />(accessed June 25, 2009).
U.S. Government Manual Website. Available online at http://

www.gpoaccess.gov/gmanual/ (accessed June 25, 2009).
CROSS REFERENCES
District Court; Federal Courts; Justice Department;
Magistrate.
ADMINISTRATIVE PROCEDURE
ACT OF 1946
Since its original enactment in 1946, the
Administrative Procedure Act (APA), 5 U.S.C.A.
§§ 501 et seq., ha s governed th e process that
federal a dministrative agencies follow. The sta tute
applies t o all federal agencies except for those that
are expressly exempted from its prov i sions.
Despite the broad n ature of the act, however, it
allows flexibility among the various agencies in
carrying out their responsibilities.
Although a number of administrative agen-
cies were created during the nineteenth and
early twentieth centuries, no federal law at the
time governed the conduct of these agencies.
Legislation that was enacted during the
NEW DEAL
era of the 1930s established a new series of
administrative agencies. In 1936 President
FRANKLIN D. ROOSEVELT established the President’s
Committee on Administrative Management.
The committee’s report found that agencies
were “irresponsible” and that they had been
given “uncoordin ated powers.” Moreover, the
report characterized administrative agencies as a
“headless ‘fourth branch’ of government.”

The committee found that the laws that
created administrative agencies failed to distin-
guish between the legislative and executive
functions of those committees. It recommended
that each of the existing administrative agencies
be moved into the
EXECUTIVE BRANCH of the
government and that the judicial powers of the
agencies be limited. Members of Congress and
many commentators at the time disagreed with
the committee’s findings. At the center of the
debate was the need to maintain a
SEPARATION OF
POWERS
with respect to the work of federal
agencies.
In 1939 President Roosevelt established the
Attorney General’s Committee on Administra-
tive Procedure. The committee was charged
with the responsibility of reviewing criticisms of
the federal administrative processes and formu-
lating recommendations for improvement in
these processes. The committee issued its recom-
mendations in 1941 in a detailed report of almost
500 pages. Legislation was drafted based upon
the recommendations of the 1941 report, but
the U.S. entrance into
WORLD WAR II interrupted
the enactment of the statute. After the war, the
legislation was reintroduced, and following a

series of compromises, Congress enacted the
Administrative Procedure Act in 1946.
In 1947 the
DEPARTMENT OF JUSTICE issued the
Atto rney General’s Manual on the Administrati ve
Procedure Act. This document explain s how the
act can be applied and remains valuable as a
research tool in the early 2000s. Some of
the information in this manual provides
analysis that the courts had not considered as
of 2009.
The purpose of the APA is to provide
minimum procedural standards that federal
administrative agencies must follow. It distin-
guishes between two major forms of adminis-
trative functions: agency rulemaking and agency
adjudication. Administrative rulemaking is
analogous to
LEGISLATIVE ACTS, whereas ADMINIS-
TRATIVE ADJUDICATION
is analogous to judicial
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
118 ADMINISTRATIVE PROCEDURE ACT OF 1946
decision. This distinction contained in the APA
has long been the subject of scholarly debate.
Some argue that such a dichotomy is unneces-
sarily rigid and that it might not always allow for
the most appropriate procedures for a particular
agency. Supporters of the distinction between
rulemaking and adjudication contained in the

APA note that this distinction best represents the
basic functions of administrative agencies.
The rulemaking provisions of the APA are
more detailed than those governing adjudica-
tions. Most agencies engage in not ice-and-
comment rulemaking, which is required as the
minimum rulemaking procedure under the
APA. Under notice-and-comment rulemaking,
agencies are required to give the public advance
notice of the contents of a proposed rule and to
offer citizens an opportunity to express their
views of the proposed rule before the agency.
Some agencies are required by the statutes that
created them to follow more stringent stan-
dards, whereby all of the agency’s actions during
rulemaking are conducted “on the record.” This
latter type of rulemaking is known as formal
rulemaking.
The APA defines and governs only those
types of adjudications that are required by
statute to be conducted “on the record after
opportunity for an agency hearing.” If an
agency is required to conduct such a formal
adjudication under the APA, it must engage in a
proceeding that resembles a trial. However, if
the agency is not required to conduct such a
hearing, the APA remains silent. Accordingly ,
an agency may adopt its own procedure for an
informal adjudication, so long as the agency
otherwise does not violate the U.S. Constitution

or other law.
Other provisions of the APA govern
JUDICIAL
REVIEW
of agency actions and public access to
agency-created law and information emanating
from agencies. The judicial-review provisions
under the APA have given rise to the greatest
amount of scholarship regarding federal admin-
istrative law, although these provisions are
contained in only six sections of the APA.
Courts have similarly grappled with judicial
review of agency actions. For instance, Chevron
U.S.A., Inc. v. National Resources Defense
Council, Inc. (467 U.S. 837, 104 S. Ct. 2778,
81 L. Ed. 2d 694 [1984]) has been cited more often
than any other decision in the history of the U.S.
Supreme Court. In Chevron, the U.S. Supreme
Court held that interpretive decisions of admin-
istrative agencies are entitled to substantial
judicial deference. In doing so, it enhanced the
efficacy of administrative bodies in mitigating the
transition costs of legislative law.
The APA was designed to increase access to
agency law by allowing the public to participate
in agencies’ decision-making process. In 1966
Congress enacted the
FREEDOM OF INFORMATION
ACT
, Pub. L. No. 89-487, 80 Stat. 250 (codified

as amended at 5 U.S.C.A. § 552), which greatly
increased the amount of government informa-
tion that is available to the public. Congress
later enacted similar laws designed to make
governmental decisions open to the public,
including the
PRIVACY ACT OF 1974, Pub. L. No.
93-579, 88 Stat. 1896 (codified as amended at
5 U.S.C.A. § 552a); the Government in the
Sunshine Act of 1976, Pub. L. No. 94-409, 90
Stat. 1241 (codified at 5 U.S.C.A. § 552b); and
the Electronic Freedom of Information Act of
1996, Pub. L. No. 104-231, 110 Stat. 2422
(codified as amended at 5 U.S.C.A. § 552).
In 2005 the Judiciary Committee of the
House of Representatives began collaborative
research under the Administrative Law, Process
and Procedure Project, intended to review the
efficacy of federal
ADMINISTRATIVE LAW AND
PROCEDURE
. Several studies were commenced,
including the solicitation of comments from
public agencies, law schools, the
AMERICAN BAR
ASSOCIATION
, and several other organizations.
One important study, conducted by the
CON-
GRESSIONAL RESEARCH SERVICE

(CRS) analyzed the
outcome of cases appealed to all 12 U.S. Circuit
Courts of Appeal over a ten-year period that
challenged administrative agencies or their
rulemaking. An interim report was presented
in a hearing before the Judiciary Committee’s
Subcommittee on Commercial and Administra-
tive Law in November 2006. The report, which
contained more than 1,400 pages, summarized
various recommendations and the proposed
adoption of several of them. Most addressed
a perceived need for more standardization
of procedures. Following this, various federal
agencies published notices in the Federal
Register, outlining proposed changes and soli-
citing comment, ultimately making changes as
warranted.
In November 2008, then-Democratic presi-
dential candidate
BARACK OBAMA campaigned on
a platform promising more transparency in the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADMINISTRATIVE PROCEDURE ACT OF 1946 119
federal government and more access by the
public to governmental records and policy-
making efforts. As one of his first official acts,
President Barack Obama signed
EXECUTIVE ORDER
13489 on January 21, 2009, which revoked the
previous Executive Order 13233 from the Bush

administration that had severely restricted
release to the public of presidential records. At
that time, Obama signed two other memoranda
focusing on transparency and openness. One
directed the attorney general to issue new
guidelines to agencies for compl ying with the
letter and spirit of the FOIA. In the other,
Obama asked three senior officials to produce
an “open government” directive within the first
120 days of the administration. Said Obama,
“[T]he old rules said that if there was a
defensible argument for not disclosing some-
thing to the American peop le, then it should
not be disclosed. That era is now over. Starting
today, every agency and department should
know that this administration stands on the side
not of those who seek to withhold information
but those who seek to make it known.”
FURTHER READINGS
Allen, William H. 1986. “The Durability of the Administra-
tive Procedure Act.” Virginia Law Review 235.
Bonfield, Arthur Earl. 1986. “The Federal APA and State
Administrative Law.” Virginia Law Review 297.
“Executive Order 13489 of January 21, 2009.” Presidential
Documents, Federal Register, Vol. 74, No. 15, January
26, 2009. Also available at .
gov/2009/pdf/E-9-1712.pdf
Funk, William F., and Richard H. Seamon. 2009. Adminis-
trative Law: Examples and Explanations. 3d ed. New
York: Aspen Publishers, Inc.

Obama, Barack H. 2009. Remarks to White House Senior
Staff with the signing of Executive Order 13,489,
January 21. Available at />presdocs/2009/DCPD200900012.htm.
Prepared Testimony of the Administrative Law, Process and
Procedure Project, Before the Subcommittee on
Commercial and Administrative Law of the Committee
on the Judiciary, House of Representatives, 109th
Congress. November 14, 2006. Available online at
http://com mdocs. ho use. go v/commi ttees/ju diciary/h ju
30838.000/hju30838_0.htm; website home page: http://
judiciary.house.gov (accessed August 5, 2009.
Stein, Jacob A., et al. 2003. Administrative Law. New York:
LexisNexis/Matthew Bender.
ADMINISTRATOR
A person appointed by the court to manage and
take charge of the assets and liabilities of a
decedent who has died without making a valid
will.
When such a person is a male , he is called
an admini strator, whereas a woman is called an
administratrix. An administrator c.t.a. (cum
testamento annexo, Latin for “with the will
annexed”) is appointed by the court where the
TESTATOR had made an incomplete will without
naming any executors or had named incapable
persons, or where the executors named refuse
to act. A public administrator is a public official
designated by state law to perform the duties
of administration for persons who have died
INTESTATE.

An executor differs from an administrator
in that he or she is named in the decedent’s will
to manage the estate. If an executor dies while
performing these duties, a court will appoint an
administrator de bonis non cum testamen to
annexo (Latin for “of the goods not [already]
administered upon with the will annexed”)to
complete the distribution of the decede nt’s
estate. This term is often abbreviated: adminis-
trator d.b.n.c.t.a.
ADMIRALTY AND MARITIME LAW
A field of law relating to, and arising from, the
practice of the admiralty courts (tribunals that
exercise jurisdiction over all contracts, torts,
offenses, or injuries within maritime law) that
regulates and settles special problems associated
with sea navigation and commerce.
History of Admiralty and Maritime Law
The life of the mariner, spent far away from the
stability of land, has long been considered an
exotic one of travel, romance, and danger. Stories
of pirates, mutinies, lashings, and hasty trials—
many of them true—illustrate the peculiar,
isolated nature of the maritime existence. In
modern times, the practice of shipping goods by
sea has become more civil, but the law still gives
maritime activities special treatment by acknowl-
edging the unique conflicts and difficulties
involved in high-seas navigation and commerce.
The roots of maritime law can be traced as far

back as 900
B.C., which is when the Rhodian
Customary Law is believed to have been shaped
by the people of the island of Rhodes. The only
concept in the Rhodian Laws that still exists is the
law of jettison, which holds that if goods must
be thrown overboard (jettisoned) for the safety
of the ship or the safety of another’s property, the
owner of the goods is entitled to compensation
from the beneficiaries of the jettison.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
120 ADMINISTRATOR
Codes enacted by medieval port cities and
states have formed the current U.S. maritime
law. The eleventh-century Amalphitan Code, of
the Mediterranean countries; the fourtee nth-
century Consolato del Mare, of France, Spain,
and Italy; the twelfth-century Roll of Oleron,
from England; and the thirteenth-century Law
of Visby all drew on the customs of mariners
and merchants to create the unique
SUBSTANTIVE
LAW
of admiralty that still exists in the early
twenty-first century. Procedural differences
existed be tween maritime cases and other civil
proceedings until 1966, when the U.S. Supreme
Court approved amendments to the Federal
Rules of
CIVIL PROCEDURE that brought admiralty

and maritime procedural rules into accord with
those used in other civil suits. The substantive
maritime law, however, has remained intact.
Admiralty and Maritime Law in the
Early 2000s
The terms admiralty and maritime law are
sometimes used interchangeably, but admiralty
originally referred to a specific court in England
and the American colonies that had jurisdiction
over torts and contracts on the high seas,
whereas substantive maritime law developed
through the expansion of admiralty court
jurisdiction to include all activities on the high
seas and similar activities on
NAVIGABLE WATERS.
Because water commerce and navigation
often involve foreign nations, much of the U.S.
maritime law has evolved in concert with the
maritime laws of other countries. The federal
statutes that address maritime issues are often
customized U.S. versions of the convention
resolutions or treaties of international maritime
law. The
UNITED NATIONS organizes and prepares
these conventions and treaties through branches
such as the International Maritime Organiza-
tion and the International Labor Organization,
which prepares conventions on the health,
safety, and well-being of maritim e workers.
The substance of maritime law considers

the dangerous conditions and unique conflicts
Admiralty law
concerns personal
injuries or loss of
cargo suffered during
accidents such as this
one, in which the
freighter Republic of
Colombia was struck
by the Trans Hawaii.
BETTMAN/CORBIS.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ADMIRALTY AND MARITIME LAW 121
involved in navigation and water commerce.
Sailors are especially vulnerable to injury and
sickness owing to a variety of conditions, such
as drastic changes in climate, constant peril,
hard labor, and loneliness. Under the Ship-
owners’
LIABILITY Convention (54 Stat. 1693
[1939]), a shipowner may be liable for the
maintenance and cure of sailors injured on ship
and for injuries occurring on land. Courts have
construed accidents occurring during leave as
being the responsibility of the shipowner
because sailors need land visits in order to
endure the long hours of water transportation.
Assigning responsibility for onboard
NEGLI-

GENCE
was a long-standing problem, but the
JONES ACT of 1920 (46 U.S.C.A. § 688 et seq.)
solidifies the right of sailors to recover from an
employer for injuries resulting from the negli-
gence of the employer, a master, or another
crew member. The 1920 Death on High Seas
Act (46 App. U.S.C.A. § 761 et seq.) allows
recovery by the beneficiaries of a sailor’s estate
when the sailor dies by negligence, default, or
wrongful act on the high seas “beyond a marine
league from the shore of any state [territory or
dependency].” A marine league is one-twentieth
of a degree of latitude, or three miles.
Accidents suffered by nonmaritime persons
on docks, piers, wharfs, or bridges do not qualify
for the application of maritime law principles.
However, personal injuries suffered while indi-
viduals were aboard a ship or as a result of an
air-to-water airplane crash are considered within
the jurisdiction of admiralty law.
The Longshoremen’s and Harbor Workers’
Compensation Act (33 U.S.C.A. § 901 et seq.
[1927]) sets up a federal system to compensate
injured maritime workers who do not sail.
Through the Federal Office of Workers’ Com-
pensation Programs, employees such as steve-
dores (workers who load and unload ships) and
ship service operators can receive compensation
for injuries suffered in the course of their

employment. U.S. sailors benefit from Title 46
of the U. S. Code, which sets a schedule for
sailors’ earnings and the conditions of their
contracts. Title 46 also lists the qualifications for
sailor employment (§§ 7301 et seq.), the hours
and conditions of the employment (§§ 8104
et seq.), and the living conditions that must
be provided (§§ 11101 et seq.).
Federal laws also address the problems that
beset ships and the life-or-death decisions made
by carriers. The Carriage of Goods by Sea Act
(46 U.S.C.A. §§ 1300–1315 [1936]) regulates the
rights, responsibilities, liabilities, and immuni-
ties regarding the relationship between shippers
and carriers of goods. The Salvage Act (46 U.S.
C.A. §§ 727–731 [1912]) provides for compen-
sation to persons who help save a ship or cargo
from danger or help recover a ship or cargo
from actual loss. To qualify for salvage remu-
neration, a person must not be acting in service
of the ship or in performance of a contract, and
the help given must have contributed at least in
part to a wholly or partially successful salvage of
the ship or goods.
The
CASE LAW of the United States is rich in
the areas of sailors’ rights respecting the
unseaworthiness of vessels, compensation for
vessel suppliers and servicers, and the liabilities
arising from collisions, towage, pilotage, and

groundings. The
MARITIME LIEN Act (46 U.S.C.A.
§§ 31341–31343 [1920]) gives a
LIEN to any
person who, upon the order of the ship owner,
furnishes repairs, supplies, towage, use of dry
dock or marine railway, or other necessaries to
any vessel, without allegation or proof that
credit was given. The Ship Mortgage Act (46 U.
S.C.A. §§ 31301–31330 [1920]) regulates the
mortgages on ships registered in the United
States, and also provides for enforcement of the
maritime liens obtained through the Maritime
Lien Act.
In case of collision or other damage to a
vessel, an
IN REM proceeding is often used to
recover
DAMAGES. An in rem action is a lawsuit
brought against an offending thing (in admiralty,
usually the ship), whereas an
IN PERSONAM action
is a suit brought against a person. Rule C of the
Supplemental Rules for Certain Admiralty and
Maritime Claims (1985) provides necessary
details for the
SEIZURE of an offending owner’s
vessel or property if a
DEFENDANT vessel owner
does not live in the state in which a suit is

brought. The practical effect of Supplemental
Rules B to E is to make it easier for a
PLAINTIFF
to bring actions against out-of-state and foreign
vessel owners and to provide for the attachment
and
GARNISHMENT of the offending vessel.
An important consideration in any lawsuit is
venue. Under Article III, Sec tion 2, of the U.S.
Constitution, federal courts have the power to
try “all Cases of admiralty and maritime
Jurisdiction” (art. III,
SEC. 2). However, state
courts can also hear admiralty and maritime
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
122 ADMIRALTY AND MARITIME LAW
cases by virtue of the “saving-to-suitors” clause
of 28 U.S.C.A. § 1333(1). This clause allows a
plaintiff to sue in state court through an
ordinary
CIVIL ACTION when the court’s COMMON
LAW
is competent to give a remedy. In such
actions, the state court must apply the federal
law of admiralty to the admiralty claims.
Nevertheless, if a plaintiff believes he or she
will fare better before a local tribunal, the
option is available.
When no applicable federal statute exists,
the governing law of a maritime case will be the

uniform laws as expounded by the U.S.
Supreme Court and applicable to all torts and
contracts, whether the case is tried in federal or
state court. Maritime case law—not the general
common law—will govern a contract dispute
only if the subject matter of the co ntract
pertained to water commerce. Maritime pre-
cedents will govern a tort claim only if the
negligent or reckless actions involved commer-
cial activity on navigable waters.
Charter parties are often a topic of concern
in maritime law. A charter party, or charter, is an
agreement among a shipowner, a crew (the
charterer), and the owner of the goods to be
transported. Charter parties come in three
types: time, voyage, and demise. A time charter
is the lease of a ship to a charterer for a specified
period of time. A voyage charter is the lease of a
ship for a specific number of voyages. A demise
charter (so called because the shipowner effec-
tively relinquishes ownership for a certain
period, causing a “demise” in ownership interest)
is usually a bareboat charter, which means that
the charterer supplies the master and crew for
the ship. Other demise charters provide that the
shipowner’s master and crew take charge of the
vessel.
In contrast to the usual contract practice of
providing risk-of-loss insurance for one party,
charters utilize what is called a general average.

General average is the traditional, primitive f orm of
maritime risk allocation whereby all participants
in a charter agree to share any damages resulting
from an unsuccessful voyage. Most parties to a
charter obtain i nsurance to cover their portion of
risk. However, because a charter involves multiple
parties, and because insurance policies are subject
to interpretation, insurance coverage does not
always prevent disputes over damages.
Risk of loss is sometimes decided according
to a
BILL OF LADING. This document confirms a
carrier’s receipt of goods from the owner
(consignor), verifies the voyage contract, and
shows rightful ownership of the goods. In
Lekas & Drivas, Inc. v. Goulandris, 306 F.2d
426 (2d Cir. 1962), the SS Ioannis P. Goulandris
had chartered to carry olive oil, cheese, and
tobacco from the western Greek port of Piraiévs
to the United States via the Strait of Gibraltar.
On October 28, 1940, with the Ioannis docked
in Piraiévs, Italy attacked Greece, and the
Ioannis was requisitioned by the Greek govern-
ment for a military mission.
On November 10, 1940, the Ioa nnis finally
set sail with its cargo for the United States via
the Suez Canal and the Red Sea, and around
Cape Horn. After an arduous journey that
included two crossings of the equator, hull
damage, and lengthy repairs, the Ioannis came

into port at Norfolk, Virginia, on May 3, 1941.
En route, the tobacco had been damaged, much
of the olive oil had leaked from its drums, and
the cheese was “‘[m]elted with a terrible stench,
and worthless.’”
Despite the Ioannis’s brave participation in
wartime activities, the intended recipients (con-
signees) of the tobacco and olive oil sued the
Ioannis and were able to recover for the losses
suffered as a result of the damage. However, on
the subject of the cheese, the court refused to
allow recovery by Lekas and Drivas, which had
consigned the cheese to itself.
Lekas argued that the crew of the Ioannis
was negligent in storing the cheese in the
structure at the stern above the main deck,
known as the poop. According to Lekas, it was
inappropriate for the cheese to be in the poop.
The poop lacked ventilation, and it was not
refrigerated. However, according to the bill of
lading between Lekas and the Ioannis, special
cooling was not necessary and had not be en
contracted for. The cheese was also stored on
lighters (large, flat-bottomed barges used for
loading and unloading ships) during the 35 days
needed for repairs of the Ioannis, and Lekas
claimed that this storage was improper. But
because wartime conditions were responsible
for the length of repairs and the lack of proper
storage space for the cheese, the court ultimately

held that the Ioannis was not negligent in its
handling of the cheese.
In addition to the state and federal govern-
ments, municipalities ca n affect t he private enjoy-
ment of maritime activity. In Beveridge v. Lewis,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADMIRALTY AND MARITIME LAW 123
939 F.2d 859 (9th Cir. 1991), a ppellants Richard
Beveridge, P eter Murray, Gregory Davis, a nd
Peter Eastman challenged a Santa Barbara city
ordinance (Santa Barbara Municipal Code
§ 17.13.020) that prohibited the anchoring or
mooring of b oats within 30 0 feet o f Stear ns Wharf
from De cember t o M arch. Santa Barbara had
acquired ownership of Stearns Wharf in 1983,
passed the ordinance in 1984, and started issuing
citations for noncompliance shortly thereafter.
Beveridge, Murray, D avis, and Eastman all owned
boats moored or anchored within 300 feet of
Stearns Wharf, and the four, re presented by
Eastman, brought suit against the city in 1989,
seeking in junctive r elief a gainst enforce ment of the
ordinance.
At trial, Eastman argued that the Santa
Barbara ordinance conflicted with the Ports and
Waterways Safety Act of 1972 (PWSA) (33 U.S.
C.A. §§ 1221 et seq.), a federal act designed to
reduce the loss of vessels and cargo, protect
marine environment, prevent damage to struc-
tures on or adjacent to navigable waters, and

ensure compliance with vessel operation and
safety standards. The trial court dismissed the
case, reasoning that the ordinance was neither
preempted by, nor in conflict with, the federal
statute.
On appeal, the Ninth
CIRCUIT COURT of
Appeals agreed that the Santa Barbara ordi-
nance was not in conflict with the PWSA,
because the federal act was not intended to limit
a municipality’s control over its local shores.
The appeals court also rejected the proposition
that the enactment of the PWSA implicitly
foreclosed the enactment of similar ordinances
by municipalities, and Santa Barbara’s control
over the Stearns Wharf was complete.
Admiralty and maritime matters will always
deserve laws carefully crafted to suit the
complexity and urgency of maritime endeavors.
The international nature of high-seas navigation
and its attendant perils demand no less. Federal,
state, and local control of navigable waters can
affect everyone from the largest charter party to
a private boat owner.
FURTHER READINGS
Healy, Nicholas J., and David J. Sharpe. 2006. Cases and
Materials on Admiralty. 4th ed. Eagan, MN: West.
Lucas, Jo Desha. 2003. Admiralty: Cases and Materials.
5th ed. New York: Foundation.
Robertson, David W. 2008. Admiralty and Maritime Law in

the United States: Cases and Materials. 2d ed. Durham,
NC: Carolina Academic.
Schoenbaum, Thomas J. 2004. Admiralty and Maritime Law.
4th ed. Eagan, MN: West.
CROSS REFERENCES
Carriers; Environmental Law; Navigable Rivers; Piracy;
Salvage; Shipping Law; Territorial Waters.
ADMISSIBLE
A term used to describe information that is
relevant to a determination of issues in any
judicial proceeding so that such information can
be properly considered by a judge or jury in
making a decision.
Evidence is admissible if it is of such a
character that the court is bound to accept it
during the trial so that it may be evaluated by
the judge or jury. Admissible evidence is the
foundation of the deliberation process by which
a court or jury decides upon a judgment or
VERDICT.
The
FEDERAL RULES OF EVIDENCE regulate the
admissibility of evidence in federal courts. State
rules of evidence determine evidence that is
admissible in state court proceedings.
ADMISSION
A voluntary acknowledgment made by a party to
a lawsuit or in a criminal prosecution that certain
facts that are inconsistent with the par ty’s claims
in the controversy are true.

In a lawsuit over whether a
DEFENDANT neg-
ligently drove a car into the
PLAINTIFF pedestrian,
the defendant’s apology to the plaintiff and
payment of the plaintiff ’s medical bills are
admissions that may be introduced as evidence
against the defendant.
An admission may be express, such as a
written or verbal statement by a person con-
cerning the t ruth, or it may be implied by a
person’s conduct. If someone fails to deny
certain assertions which, if false, would be
denied by any
REASONABLE PERSON, such failure
indicates that the person has accepted the truth
of the allegations.
An admission is not the same as a confes-
sion. A confession is an acknowledgment of
guilt in a criminal case. Admissions usually
apply to civil matters; in criminal cases they
apply only to matters of fact that do not involve
criminal intent.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
124 ADMISSIBLE
Admissions are used primarily as a method
of disc overy, as a pleading device, and as
evidence in a trial.
Once a complaint is filed to commence a
lawsuit, the parties can obtain facts and

information about the case from each other to
assist their preparation for the trial through the
use of discovery devices. One type of discovery
tool is a request for admission: a written
statement submitted to an opposing party
before the trial begins, asking that the truth of
certain facts or the genuineness of particular
documents concerning the case be acknowl-
edged or denied. When the facts or documents
are admitted as being true, the court will accept
them as such so that they need not be proven at
trial. If they are denied, the statements or
documents become an issue to be argued during
the trial. Should a party refuse to answer the
request, the other party can ask the court for an
order of preclusion that prohibits denial of
these facts and allows them to be treated as if
they had been admitted.
By eliminating undisputed facts as issues in
a case, requests for admissions expedite trials.
Matters that are admitted are binding only for
the pending case and not for any other lawsuit.
Judicial admissions—made in court by a
party or the party’s attorney as formal acknowl-
edgments of the truth of some matter, or as
stipulations—are not considered evidence that
may be rebutted but are a type of pleading
device. Averments in a pleading to which a
RESPONSIVE PLEADING is required are admitted if
they are not denied in the responsive pleading.

If a party has made an admission in a pleading
that has subsequently been amended, the
pleading containing the admission will be
admissible as evidence in the case. In civil
actions any offers to
SETTLE the case cannot be
admitted into evidence.
A plea of guilty in a criminal case may
usually be shown as an admission in a later civil
or criminal proceeding, but it is not conclusive.
The defendant may explain the circumstances
that brought it about, such as a
PLEA BARGAINING
deal. Any admissions or offers to plead guilty
during the plea-bargaining process are
INADMIS-
SIBLE
as evidence. Many courts refuse to admit
a guilty plea to a traffic offense as evidence
because many people plead guilty to avoid
wasting their time and money by appearing in
traffic court. A guilty plea that has subsequently
been withdrawn and followed by a plea of not
guilty cannot be used as an admission in either a
criminal or civil case. It is considered an
unreliable admission that has a potentially
prejudicial effect on the opportunity of the
defendant to get a fair trial.
Admissions are used as a type of evidence in
a trial to bolster the case of one party at the

expense of the other, who is compelled to admit
the truth of certain facts. They may be made
directly by a party to a lawsuit, either in or out
of court; or implicitly, by the conduct of a
party or the actions of someone else which
bind the party to a lawsuit. When an admission
is made out of court, it is hearsay because it
was not made under
OATH and not subject to
CROSS-EXAMINATION. Although hearsay cannot be
used as evidence in a trial because of its
unreliable nature, admissions can be introduced
as evidence because they are considered trust-
worthy. An admission by a party can be used
only to prove the existence of the fact admitted
and to
IMPEACH the credibility of the party.
An admission by a witness can be introduced
as evidence only to discredit the witness’s
TESTIMONY.
An admission against interest is a statement
made by a party to a lawsuit, usually before the
suit, that contradicts what he or she is now
alleging in the case. Because the statements tend
to establish or disprove a material fact in the
case, they are considered admissions against
interest. The truth of such statements is
presumed because people do not make detri-
mental statements about themse lves unless they
are true. Such an admission is considered an

exception to the hearsay rule and, therefore, can
be used as evidence in a lawsuit.
ADMISSION TO THE BAR
The procedure that governs the authorization of
attorneys to pra ctice law before the state and
federal courts.
Statutes, rules, and regulations governing
admission to practice law have been enacted to
protect the
PUBLIC INTEREST, in terms of prevent-
ing the victimization of clients by incompetent
practition ers. The courts have inherent power
to promulgate reasonable rules and regula-
tions for
ADMISSION TO THE BAR. Although this
authority is vested exclusively in the courts,
the legislature can, subject to constitutional
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADMISSION TO THE BAR 125
limitations, issue reasonable rules and regula-
tions governing bar admission provided they
do not conflict with judicial pronouncements.
The highest state court administers the
admission of applicants to the state bar, usually
requiring successful completion of a bar exami-
nation and evidence of good moral character.
With respect to admission to the federal bar,
federal district courts are empowered to issue
requirements for admission separately from
those of the state courts. If, however, a federal

district court, pursuant to a rule, derivatively
admits to its bar those admitted to the state bar,
it cannot arbitrarily deny admission to an
applicant who is a member in good standing
of the state bar. In most instances, the federal
district courts have considerable latitude in
establishing requirements for admission to
practice before them, but their rules must not
contravene federal law.
In terms of the federal bar, an attorney is
also eligible for admission to the bar of a court
of appeals, if he or she has been admitted to
practice before the Supreme Court or the
highest court of a state or another federal court
and if the lawyer is of good moral and
professional character. The attorney must
comply with the procedural requirements and
take and subscribe to the following
OATH: “I,
[name], do solemnly swear (or affirm) that I will
demean myself as an attorney and counselor of
this court, uprightly and according to law; and
that I will support the Constitution of the
United States.”
In order to gain admission to the bar of the
Supreme Court, an attorney must have prac-
ticed for thre e years in the highest court of a
state, territory, district, commonwealth, or
possession. The person must be of good
character in terms of both his or her private

and professional lives and complete the speci-
fied procedures, including taking or subscribing
the following oath: “I, [name], do solemnly
swear (or affirm) that as an attorney and as a
counselor of this court I will conduct myself
uprightly, and according to law, and that I will
support the Constitution of the United State s.”
In some instances, a particular board is
empowered to promulgate rules pertaining to
applicants seeking to practice before it as
attorneys. For example, the
SECURITIES AND
EXCHANGE COMMISSION
has implied authority
under its general statutory power to determine
qualifications for attorneys practicing before it.
Under federal law, the commissioner of
PATENTS
and trademarks, subject to the approval of the
secretary of commerce, can promulgate regula-
tions governing the recognition and conduct of
attorneys appearing before the U.S.
PATENT AND
TRADEMARK OFFICE
.
Qualifications for admission to the bar must
be rationally related to the applicant’sfitnessto
practice law; therefore, a state cannot prevent a
person from practicing law for racial, political, or
religious reasons. Good moral character is a

prerequisite to the right to admission to practice
law and, at a minimum, consists of honesty. Lack
of good moral character is demonstrated by an
immutable dishonest and corrupt nature and not
by radical political beliefs or membership in
lawful, but controversial, political parties.
In regard to the effect of criminal conduct
upon the evaluation of an applicant’s character,
a conviction for the commission of a
FELONY is
not, per se, sufficient to demonstrate a lack of
good moral character. It will be incumbent
upon the applicant, however, to prove complete
rehabilitation. Although a conditio nal
PARDON is
insufficient to remove objections to bar admis-
sion, a felony conviction will not prevent an
applicant from practicing law if he or she has
received a full pardon and is otherwise qualified.
MISDEMEANOR convictions do not necessarily
result in a finding of lack of good moral character,
but mere conduct that does not culminate in a
conviction might present an i n surmounta ble
obstacle to admission if it indicates a lack of
Admission to the Bar by Examination, 2003 to 2007
SOURCE: National Conference of Bar Examiners, “2007 Statistics,” The Bar
E
xaminer, May 2008.
Number of admissions
Year

2003
2004
2005
2006
2007
0 10,000 20,000 30,000 40,000 50,000
49,151
49,127
50,270
53,871
54,618
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
126 ADMISSION TO THE BAR
moral f itness. In some cases, an applicant has
been rejected for want of good moral character
becauseheorshehasmadefalsestatementsor
concealed material f acts in the application for
admission or in other legal documents. In other
cases, the withholding or falsification on the
application of minor matters has been viewed as
having no effect on an evaluation of character;
the same principle applies t o unintentional
concealment of information.

Admission to the bar cannot be denied
because the applicant is not a United States
citizen, but the states can impose reasonable
residency requirements upon all applicants
prior to, or during, the time a license is sought.
This requirement enables the state examining
authority to investigate the character of the
applicant, but it must be rationally related to the
attainment of this objective. While a majority of
states have some form of residency requirement
for admission to the bar, the emerging trend is
to nullify durational residency requirements
that mandate that an attorney live in a state for a
prescribed period as a prerequisite to certifica-
tion to practice law.
Applicants for admission to practice law
must take a bar examination, unless they are
exempted from this requirement by statute or
court rule. According to the National Confer-
ence of Bar Examiners, 80,319 applicants took a
bar examination in 2008, of which 70,172 were
first-time takers. Overall, 71 percent, or 56,915
examinees, passed. However, among first-time
takers from
AMERICAN BAR ASSOCIATION (ABA)-
approved law schools, 85 percent passed,
whereas repeat-takers had a 43 percent pass rate.
The examination can be taken more than once.
In rare cases, an attorney who has been disbarred
or suspended can take a special bar examination

for reinstatement. In 2008 only 20 disbarred or
suspended attorneys across the U.S. took a
reinstatement exam (seven, or 35 percent, passed).
Attorneys from other states can be admitted
to prac tice in the state without examination
upon providing the required proof of pract ice
in another state that has reciprocity provisions,
pursuant to which an attorney licensed in one
state can be admitted to the bar of another state,
if the first state grants
RECIPROCAL rights to
attorneys admitted to practice in the other state.
Under the device of
PRO HAC VICE, an attorney
can be admitted to practice in a jurisdiction
without having to take the bar examination, but
only on a limited basis and only for a particular
case. Such an attorney must be a member in
good standing of a bar of other states or
countries.
In order to practice law, an attorney must
obtain a certificate or license, which is a
privilege rather than a
PROPERTY RIGHT. Attorneys
must also comply with the court rules or
statutes governing the registration system,
which is used to maintain a current list of all
attorneys authorized to practice law in the state.
Generally, admission by court order constitutes
sufficient registratio n, but in some states,

attorneys sign the roll or file a certificate with
the clerk of the court to establish that they have
been duly admitted to practice.
An applicant for admission to the bar is
entitled to notice of, and a hearing on, the
grounds for rejection either before the commit-
tee on character and fitness or the court. The
courts can review the decision of bar examiners
who deny an applicant admission to the bar,
and the courts can ascertain whether the
examiners acted after a fair investigation and
hearing, exercised their discretion impartially
and reasonably, and conducted their proceed-
ings in compliance with the requirements of
procedural due process.
The legal profession has tried in recent years
to diversify the population of attorneys. First-
year law student statistics compiled by the
American Bar Association show that for the
2008–2009 academic year, out of 49,414 stu-
dents, 23,407 (roughly 47 percent) were women.
A stea dy supply of new attorneys continue to
enter the profession each year. According to the
National Council of Bar Examiners, in 2008,
56,357 persons were admitted to state bars by
examination; 7,888 by court motion, and 468 by
diploma privilege.
FURTHER READINGS
American Bar Association (ABA), 2009. “Legal Education
and Bar Admissions 2008 Statistics.” Available online at

/>20-%201.pdf; website home page: net.
org/ (accessed August 5, 2009)
American Bar Association Publishing Company. 2009. Rules
for Admission to the Bar in the Several States and
Territories of the United States. Charleston, SC: BibioLife
LLC.
Glen, Kristin Booth. 2002. “When and Where We Enter:
Rethinking Admission to the Legal Profession.”
Columbia Law Review 102 (October): 1696–1740.
Moeser, Erica. 2002. “Bar Admission in the United States
2001: Framing the Discussion for Response to
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADMISSION TO THE BAR 127