Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P48 pdf

applicability of this rule is whether the employ-
ment or services of the plaintiff were personal in
nature. The rule is not applicable in contracts
that do not require all, or a significant portion,
of the plaintiff’s time, or those that do not
preclude the plaintiff from becoming engaged in
simultaneous performance of other contracts.
Torts
A party who suffers a PERSONAL INJURY is required to
exercise ordinary care an d perseverance to f ind a
cure, thereby reducing the damages to the most
practicable extent. Such an individual should seek
reasonable medical care i f so required by the injury.
It is not necessary for the person to undergo
excessively painful treatment or that which involves
a significant hazard of death o r injury or o ffers a
mere possibility of a cure. The pain inherent in the
necessary medical care and treatment may be taken
into consideration in assessing whether the plaintiff
acted reasonably in declining to submit to it.
Although submission to treatment is not a
prerequis ite to an awa rd of damages, recovery
cannot be obtained for increased damages that
stem from the failure to submit to necessary
medical treatment. Conversely,themerefactthat
medical attention was not sought immediately, or
at all, will not proscribe an award of damages where
the circumstances did not reasonably indicate that
medical aid and attention was necessary.
In addition, an injured party has no absolute
duty to subscribe t o a physician’s advice t o miti-

gate damages. The party might, however, under
some circumstances, be under an
OBLIGATION to
exercise ordinary care in following such advice.
CROSS REFERENCE
Mitigation of Damages.
AVOIDANCE
An escape from the consequences of a specific
course of action through the use of legally
acceptable means. Cancellation; the act of render-
ing something useless or legally ineffective.
A taxpayer may take all legally recognized
deductions in order to minimize the
INCOME TAX
LIABILITY
. This conduct is called TAX AVOIDANCE
and is legal. If, however, a taxpayer claims
deductions to which he or she is not entitled so
that the individual pays less income tax than is
actually owed, then the taxpayer has committed
TAX EVASION, a crime punishable by a fine,
imprisonment, or both.
A
PLEA in CONFESSION AND AVOIDANCE is one
that admits the truth of allegations made in
former
PLEADING but presents new information
that neutralizes or avoids the legal ramifications
of those admitted facts.
AVOWAL

An open declaration by an attorney representing a
party in a lawsuit, made after the jury has been
removed from the co urtroom, that requests the
admission of particular testimony from a witness
that would otherwise be inadmissible because it
has been successfully objected to during the trial.
An avowal serves two purposes. It enables
an
ATTORNEY to have the court learn what a
witness would have replied to a question had
opposing counsel not made an objection to the
question sustained by the court. It also provides
the interrogator with an opportunity to offer
evidence that contradicts the disputed
TESTIMONY.
If, upon appeal, an appellate court decides that
a witness should have been allowed to respond
to such questions before a jury, an avowal will
be a record of the witness’s response.
AVULSION
The immediate and noticeable addition to land
caused by its removal from the property of
another, by a sudden change in a water bed or
in the course of a stream.
When a stream that is a boundary suddenly
abandons its bed and seeks a new bed, the
boundary line does not change. It remains in
the center of the original bed even if water no
longer flows through it. This is known as the
rule of avulsion.

Avulsion is not the same as accretion or
alluvion, the gradual and imperceptible buildup
of land by the continuous activity of the sea, a
river, or by other natural causes.
AWARD
To concede; to give by judicial determination; to rule
in favor of after an evaluation of the facts, evidence, or
merits. The decision made by a panel of arbitrators or
commissioners, a jury, or other authorized indivi-
duals in a controversy that has been presented for
resolution. A document that memorializes the
determination reached in a dispute.
A jury awards damages; a
MUNICIPAL CORPO-
RATION
awards a PUBLIC CONTRACT to a bidder.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
458 AVOIDANCE
BABY M, IN RE
In 1988 the New Jersey Supreme Court declared
surrogacy contracts void against state
PUBLIC
POLICY
but then determined that the best
interests of the child born to the surrogate
mother required that custody of that child be
awarded to the biological father and his wife,
with liberal
VISITATION RIGHTS later being granted
to the biological mother. In the Matter of Baby

M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988).
Mary Beth Whitehead entered into a
contract with William Stern in which she agreed
to be artificially inseminated with Stern’s sperm.
At the time, Mary Beth was married to Richard
Whitehead, with whom she had two children.
In the Surrogate Parenting Agreement Mary Beth
agreed that after the baby was born she would
relinquish the baby to Stern and his wife
Elizabeth and would permit the termination of
her parental rights so that the Sterns could
adopt the baby. In return the Sterns would pay
Whitehead the sum of $10,000, plus expenses.
Elizabeth Stern was not a party to the contract.
Richard Whitehead did not object to the
contract and acknowledged that his wife would
be artificially inseminated by Stern’s sperm.
Prior to the Baby M case, surrogacy agreements
had been most often used when the wife of the
adopting couple was infertile. But in the Baby M
case Elizabeth Stern was not infertile. Instead
the Sterns decided not to have Elizabeth bear a
child due to the possibility that being pregnant
would exacerbate her multiple sclerosis.
Under the Surrogate Parenting Agreement,
Mary Beth was not entitled to payment of her
$10,000 fee until after the child was born,
surrendered to the Sterns, and her parental
rights had been terminated. The contract also
provided that the Whiteheads would receive no

compensation if the child was miscarried prior
to the fifth month of pregnancy and would
receive only $1,000 if the child was miscarried
after that time. Additionally, Whitehead re-
nounced her right to have an
ABORTION, unless it
was medically necessary.
Whitehead gave birth to a baby girl named
Melissa on March 27, 1986. She turned custody
of the child over to the Sterns on March 30,
1986, but immediately regretted doing so.
Alarmed by Whitehead’s anxieties and fearin g
that she might commit
SUICIDE, the Sterns
allowed her to have temporary custody of the
child. After Whitehead refused to return the
baby to the Sterns, William Stern filed an ex-
parte application for an order to
SHOW CAUSE
why the Superior Court of New Jersey should
not issue an order for
SUMMARY JUDGMENT to
enforce the surrogacy contract and a verified
complaint seeking specific enforcement of the
contract. The complaint sought injunctive relief
to obtain custody, termination of Whitehead’s
parental rights, and an order allowing the Sterns
to adopt Melissa.
The trial court issued a
TEMPORARY RESTRAIN-

ING ORDER
and an order requiring the White-
heads to surrender Melissa to William Stern.
B
459
The Whiteheads refused to surr ender the child,
instead removing her from the state of New
Jersey and taking her to Florida. While in
Florida, Mary Beth Whitehead threatened to kill
the child if Stern did not drop his case to
enforce the surrogacy contract. She also threat-
ened to accuse William Stern of sexually
abusing Whitehead’s other daughter. Melissa
was later recov ered by law enforcement officials
in Florida and returned to New Jersey, where
the Sterns assumed custody under the New
Jersey court order.
The case then proc eeded to a trial on the
merits. During trial Mary Beth stressed the
bond that had developed between her and
Melissa, especially after the child ’s birth.
Whitehead testified that she intended to turn
over Melissa to the Sterns but that after the
child was born she was emotionally unable to
do so. She testified that she felt an obligation to
the Sterns but said that the “the obligation [she]
felt to [her] child was stronger.” Whitehead also
offered
TESTIMONY by child development experts
who testified as to the important and the unique

role played by the biological mother in a child’s
early development and the harm that can result
to both the child and the biological mother
when the two are separated immediately after
birth.
The
EXPERT TESTIMONY offered by the Sterns
at trial focused on the best interests of the child.
For example, one doctor focused on the
question of whether the Sterns or the White-
heads would be better suited to meet the needs
of the child, concluding that the Sterns would
be able to make the child feel more wanted,
provide more emotional stability for the child,
provide more educational support, offer greater
capacity to explain to the child what happened
in the circumstances of her conception and
birth, and better assist the child in reaching
maturity. Another doctor testified that the
Sterns could provide a stable and financially
secure household, while the Whitehead house-
hold was dominated by Mary Beth Whitehead,
who had established a pattern of dealing with
her children by “inhibiting their development of
independence.”
The trial lasted 32 days and consisted of
testimony from 23 lay
WITNESSES and 15 expert
witnesses. Ultimately, the trial judge declared
the surrogacy contract valid and enforceable,

awarded custody of Melissa to W illiam and
Elizabeth Stern, and terminated Mary Beth
Whitehead’s parental rights, although the judge
permitted Mary Beth limited visitation rights
pending her direct appeal to the New Jersey
Supreme Court.
The New Jersey Supreme Court affirmed in
part, reversed in part, and remanded the case to
the trial court for further proceedings. Specifi-
cally, the state supreme court reversed the trial
court’s ruling that the surrogacy contract was
valid and enforceable. The supreme court said
the surrogacy contract was unlawful on two
different bases: (1) it conflicted with existing
New Jersey statutes and (2) it violated public
policy.
The high court ruled that the surrogacy
contract conflicted with state laws prohibiting
the use of money in connection with adoptions,
state laws requiring proof of parental unfitness
or
ABANDONMENT prior to the termination of
parental rights, and state laws affording a parent
the righ t to revoke a prior co nsent to
ADOPTION.
The contract also violated important principles
of New Jersey public policy. Among these
principles were the preference for retaining
children with their natural parents; the equal
status of mothers and fathers in custody

determinations; the right of a parent to be fully
informed prior to consenting to the relinquish-
ment of a child; and the pre-eminence of the
child’s best interests in any custodial placement.
Once the surrogacy contract was declared
illegal and unenforceable, the court said, the
issue of custody over a child born pursuant to
an invalid surrogate contract would be decided
by determining the best interests of the child. In
making this determination, the court said it was
required to consider that Mary Beth had acted
improvidently in violating the trial court’s order
by removing Melissa to Florida, threatening to
kill Melissa, threatening to lodge phony sexual-
abuse accusations against William Stern if he
failed to drop his lawsuit, and her overall
propensity to manipulate the system and use
Melissa to achieve her own aims. The court also
said it had to take into account the testimony of
the expert witnesses who testified that stability
in the Whitehead household was at best
doubtful, while the Sterns were much more
likely to provide Melissa with a strong founda-
tion upon which to grow and thrive. Accord-
ingly, the court ordered that custody of Melissa
be awarded to William and Elizab eth Stern. The
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
460 BABY M, IN RE
New Jersey Supreme Court also ordered the
trial court, on remand, to award Mary Beth

Whitehead visitation rights as the trial court
deemed appropriate. Following remand and
after conducting a further hearing, the trial
court granted Mary Beth Whitehead unsuper-
vised, uninterrupted, liberal visitation with
Melissa.
Baby M was the first case decided by a state
court of final jurisdic tion in which the lawful-
ness of a surrogacy contract was addressed.
States responded to the Baby M decision by
passing a flurry of legislation, which fell into
four classes.
The first class of legislation declares all
surrogacy agreements void and/or unenforce-
able in that jurisdiction. Such legislation has
been enacted in Arizona, the District of
Columbia, Indiana, Michigan, New York, North
Dakota, and Utah. The second class of legisla-
tion prohibits only surrogacy agreements in
which the surrogate is compensated with
something of value over the expenses incurred
as a result of the pregnancy. Such legislation has
been adopted in Kentucky, Louisiana, Mary-
land, Nebraska, and Washington. A third class
of legislation addresses one particular aspect of
surrogacy contracts. For example, Alabama,
Iowa, and West Virginia have exempted surro-
gacy agreements from statutory provisions
making it a crime to sell babies.
The fourth class of legislation provides for

the enforceability of surrogacy contracts but
at the same time establishes significant safe-
guards for parties desiring to enter such con-
tracts. For example, Illinois, Florida, Nevada,
New Hampshire, and Virginia make surrogacy
contracts enforceable so long as the parties to
the contract (1) provide proof that the intended
parents are medically unable to conceive or bear
their own children; (2) obtain judicial preauthor-
ization to enter the agreement; (3) participate in
complete medical and psychological examina-
tions; and (4) sign an
INFORMED CONSENT notice
acknowledging that they have entered the
contract after having been apprised of all the
risks in doing so.
In states that have not addressed the subject
by statute, issues regarding the lawfulness and
enforceability surrogacy contracts are resolved
by courts in a manner similar to how the Baby
M case was resolved, that is, by determining the
best in terests of the child and weighing any
competing public policy concerns. However,
disputes over the lawfulness and enforceability
of surrogacy contracts would only come before
the courts in these states if a dispute arose
between the parties to the contract. According
to some figures, as man y as 1,000 babies are
born each year to surrogate mothers without
any judicial interference or oversight.

FURTHER READINGS
Boyer, Paul S. 2001. Oxford Companion to United States
History. New York: Oxford Univ. Press.
NBC. January 25, 2002. Today Show Transcripts.
Richardson, Herbert, ed. 1987. On The Problem of Surrogate
Parenthood: Analyzing The Baby M Case. Lewiston, NY:
Mellen.
Robbins, Sara. 1988. Baby M Case: The Complete Trial
Transcripts. Superior Court of New Jersey, Chancery
Division, Family Part, Bergen County: Transcript of
Proceedings. Buffalo, NY: Hein.
CROSS REFERENCES
Adoption; Artificial Insemination; Custody; Parent and
Child; Surrogate Motherhood; Visitation Rights.
BACK PAY AWARD
A legally enforceable decree ordering an employer
to pay to an employee retroactively a designated
increase in his or her salary that occurred during
a particular period of employment. A decision
rendered by a judicial or quasi-judicial body that
an employee has a legal right to collect accrued
salary that has not been paid out to him or her.
Back pay awards ensue from
LITIGATION
involving employment discrimination and
issues regarding labor-management relations.
Federal
CIVIL RIGHTS legislation provides for
back pay awards to compensate the victim
for economic losses suffered as a result of

discrimination.
BACK TO WORK AGREEMENT
The accord reached between an employer and a
union to which his or her employees belong that
establishes the terms and conditions governing the
return of striking employees to work.
Disputes involving back to work agreements
are subject to applicable federal and state laws
governing labor-management relations.
CROSS REFERENCES
Labor Uni on; Strike.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BACK TO WORK AGREEMENT 461
BACKDATING
Predating a document or instrument prior to the
date it was actuall y drawn. The negotiability of an
instrument is not affected by the fact that it is
backdated.
v
BACON, SIR FRANCIS
Sir FRANCIS BACON was an English lawyer and
statesman whose philosophical theories and
writings influenced the development of scientific
and legal thought in Great Britain and the United
States.
Bacon was born in 1561, the second son of
Sir Nicholas Bacon, the lord keeper of the great
seal, and Lady Ann, whose brother-in-law was
Baron Burghley (William Cecil), the first
minister to Queen Elizabeth I. Bacon, like his

father, was educated at Trinity College, Cam-
bridge, where he enrolled at the age of twelve. In
1576 he was admitted to Gray’s Inn , one of the
four
INNS OF COURT in London, which were
institutions established for
LEGAL EDUCATION.He
also spent time in France as a member of the
English ambassador’s staff, before his father’s
sudden death required him to return to England
and resume his legal education so that he could
support his family. After completing his studies,
Bacon became a barrister in 1582 and then
attained the posts of reader (lecturer at the Inn)
and bencher (senior member of the Inn).
In 1584, at the age of twenty-three, Bacon
was elected to the House of Commons,
representing Taunton, Liverpool, the county of
Middlesex, Southampton, Ipswich, and the
University of Cambridge. In 1594 he argued
his first major case, Chudleigh’s Case (1 Co. Rep.
1136, 76 Eng. Rep. 261 [K.B. 1594]), which
involved the interpretation of complex inheri-
tance statutes. He also began writing about
science and philosophy and started work on his
first major volume, Temporis Partus Maximus
(The greatest part of time), though the book,
along with many of his earliest works, was never
published and so disappeared.
Through his friendship with Robert Dever-

eux, the Earl of Essex, Bacon became acq uainted
with Queen Elizabeth I and he eventually
became her counsel around 1600. As counsel,
Bacon later took part in the prosecution of
Essex, from whom he had become estranged,
for
TREASON, and for these efforts Bacon was
knighted in 1603. In 1605 he published his first
book, The Advancement of Learning, a collection
of essays on philosophy that he dedicated to
King James I. Later the same year, he married
Alice Barnham, the daughter of a wealthy
London politician.
Bacon continued to curry the king’s favor by
assisting James in his plans to unite Scotland
with England, and was named to the post of
SOLICITOR GENERAL in 1607. He also continued to
write, publishing in 1609 The Wisdom of the
Ancients, in which he analyzed the meaning of
ancient myths. Seeking promotion to attorney
general, Bacon advised the king concerning
affairs of state and the relationship between the
Crown and Parliament. He successfully engi-
neered the ouster of the chief justice of the
COMMON PLEAS, SIR EDWARD COKE, a longtime rival
who had earlier occupied
SOLICITOR and ATTOR-
NEY
general posts that Bacon had sought. Bacon
finally became attorney general in 1613, which

enabled him to continue his feud with Coke. He
eventually prosecuted Coke for his role in the
case of Edmond Peacham, a clergyman charged
with treason for advocating rebellion against
OPPRESSION in an unpublished TREATISE, leading to
Coke’s dismissal in 1616. Bacon continued his
Sir Francis Bacon 1561–1626
◆◆◆◆
◆
◆◆◆
◆
❖❖
1626, Died; James I
died same year
1620 Novum Organum published
1617 Appointed lord keeper
of the Great Seal
1618–21 Served as lord
chancellor of England
1603 Elizabeth I died;
James I ascended throne
1600 Became
counsel to Elizabeth I
1613 Became attorney general
1607 Appointed
solicitor
general by
James I
1558 Elizabeth I
became queen

1561 Born,
England
1573 Enrolled in
Trinity College,
Cambridge
1584 Elected
to House of
Commons
▼▼
▼▼
15751575
15501550
16001600
16251625
16501650
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
462 BACKDATING
service to the king and was appointed lord
keeper of the great seal in 1617. A year later, he
became lord chancellor of Engla nd, a post he
held until 1621.
Bacon, a man of great intellect and energy,
was often torn between his ambitions for higher
office and his keen interest in science and
philosophy. Though he was primarily concerned
with his service to the Crown during most of his
adult life, he did devote time to the study of
philosophy. He was an early proponent of
inductive reasoning, the theory that by analyzing
observed facts, one can establish general laws or

principles about how the world works. This
theory is the opposite of deductive reasoning,
which holds that one can draw specific conclu-
sions by reasoning from more general premises.
Bacon believed inductive reasoning to be more
useful because it permitted the development of
new theories that could be more generally and
widely applied to a variety of situations. The legal
systems of many countries, including the United
States, were eventually grounded on the applica-
tion of general laws derived from specific fact
situations to govern conduct.
Bacon was likewise a strong believer in
empiricism, the belief that experience is the
most important source of knowledge. According
to Bacon, scientists should try to learn about the
world by using information gathered through the
senses rather than by using reason or rules set
forth by religious or political authority. Empiri-
cism, like inductive reasoning, also influenced
the development of later legal philosophies, in
this case theories that viewed the law and justice
as emerging from social life and experience.
Bacon was a prolific writer throughout his
life, authoring a number of works expounding
his theories. The Novum Organum, his most well
known and widely read philosophical work, was
published in 1620. The Instauratio Magna (Great
instauration, from the Latin word instaurare, “to
renew or begin afresh”)wasacomprehensive

plan in which Bacon attempted to reorganize and
redefine the sciences; it also contained his views
concerning logic and scientific experimentation.
In his philosophical writings, Bacon argued that
the mind should be purged of what he termed
idols, or tendencies to err. These idols, he
maintained, arose from human nature, individu-
al experience, and language. In addition, Bacon
kept an extensive diary, which was discovered
after his death. The notebook, known as the
Commentarius Solutus (Loose commentary),
contained his notes about, among other things,
his debts, his garden, and his health.
Later in his life, Bacon began to fall out of
favor with the Crown. In 1618 the king criticized
him for interfering in the
MARRIAGE of Coke’s
daughter. In 1621 Bacon was charged with
accepting a bribe concerning a grievance com-
mittee over which he had presided. Bacon
admitted in a full confession that he had received
gifts, but denied that they had influenced his
judgment. Though he begged for mercy, Bacon
found the king unsympathetic to his case and was
forced to resign his office. Bacon was sentenced to
a stiff fine (which was later suspended), impris-
onment in the Tower of London (which actually
lasted only four days), exclusion from holding any
state office, and prohibition from coming within
the vicinity of the Court of King’sBench.

Following his ouster from the court, Bacon
returned to his large estate at Gorhambury, in
rural England, to devote all of his energies to
research and writing. He prepared digests of the
laws and wrote a history of Great Britain and its
monarchs. He planned to write six separate
natural histories, but only two were completed:
Historia Ventorum (History of the winds), which
was published in 1622, and Historia Vitae et Mortis
(History of life and death), which appeared the
Sir Francis Bacon.
LIBRARY OF CONGRESS.
JUDGES MUST BE
AWARE OF HARD
CONSTRUCTIONS
AND STRAINED
INFERENCES
, FOR
THERE IS NO WORSE
TORTURE THAN THE
TORTURE OF LAWS
.
—SIR FRANCIS BACON
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BACON, SIR FRANCIS 463
following year. He also wrote the History of Henry
VII, published in 1622. In 1621 he enlarged his
volume of Essays, which he had first published in
1597, and in 1627 he published The New Atlantis.
He also corresponded with Italian philosophers

and sent his work to them. Over the years, some
writers have suggested that Bacon may have been
the true author of William Shakespeare’splays,
but because no concrete proof has been offered,
the theory has been discounted by most scholars.
Sometime around 1623, Bacon, in ill health,
was finally granted an audience with the king, but
he was not granted a
PARDON for his offenses. In
London, on April 9, 1626, he died of bronchitis
he contracted while conducting experiments on
the effects of refrigeration on poultry.
FURTHER READINGS
Bowen, Catherine D. 1963. Francis Bacon: The Temper of a
Man. Boston: Little, Brown.
Hogan, John C., and Mortimer D. Schwartz. 1985. “A
Translation of Bacon’s Maxims of the Common Law.”
Law Library Journal 77 (fall): 707–18.
Whitney, Charles. 1986. Francis Bacon and Modernity. New
Haven, Conn.: Yale Univ. Press.
Zagorin, Perez. 1998. Francis Bacon. Princeton, N.J.:
Princeton Univ. Press.
CROSS REFERENCES
Coke, Sir Edward; Inns of Court.
BAD FAITH
The fraudulent deception of another person; the
intentional or malicious refusal to perform some
duty or contractual obligation.
Bad faith is not the same as prior judgment
or

NEGLIGENCE. One can make an honest mistake
about one’s own rights and duties, but when the
rights of someone else are intentionally or
maliciously infringed upon, such conduct
demonstrates bad faith.
The existence of bad faith can minimize or
nullify any claims that a person alleges in a
lawsuit.
PUNITIVE DAMAGES, attorney’s fees, or
both, may be awarded to a party who must
defend himself or herself in an action brought
in bad faith.
Bad faith is a term commonly used i n the
law of contracts and other commercial dealings,
such as
COMMERCIAL PAPER, and in SECURED
TRANSACTIONS
. It is the opposite of GOOD FAITH,
the observance of reasonable standards of fair
dealings in trade that is required of every
merchant. A government official who selectively
enforces a nondiscriminatory law against the
members of a particular group or race, thereby
violating the
CIVIL RIGHTS of those individuals, is
acting in bad faith.
v
BADGER, GEORGE EDMUND
George Edmund Badger was a lawyer, judge,
and politician, and the subject of a U.S.

Supreme Court confirmation battle in 1853.
The only son of a lawyer who died
prematurely and a daughter of a Revolutionary
War leader, Badger was born on April 17, 1795,
in New Bern, North Carolina. He was first
educated at a local academy and then attended
Yale College. Because of poverty, he was forced
to leave the college after only two years. He then
returned home to North Carolina to study law.
In 1814 he served for a short time as a major in
a
MILITIA called out to repel a threatene d British
invasion. A year later, he was admitted to the
North Carolina bar. He quickly built a reputa-
tion as a brilliant and persuasive trial and
appellate lawyer. In 1820, after four years of
representing New Bern in the state house of
commons, he was elected a judge of the
George Edmund Badger 1795–1866
❖❖
◆◆◆◆◆
1799 Badger's father,
Thomas Badger, died
1795 Born, New Bern,
North Carolina
1816 Elected to N.C.
House of Commons
1815 Admitted to North
Carolina bar
1820–25 Served as

judge of N.C.
Superior Court
1841
Appointed
secretary of
the Navy
1853 Nomination to U.S.
Supreme Court defeated
1847–55
Served in U.S.
Senate
1861–65
Civil War
1866 Died,
Raleigh, N.C.
▼▼
▼▼
18001800
17751775
18251825
18501850
18751875
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
464 BAD FAITH
superior court, where he served five years before
resigning to practice law in Raleigh.
Initially a strong supporter of
ANDREW
JACKSON
, Badger became a Whig in the mid-

1830s and was appointed secretary of the Navy in
1841 by President
WILLIAM H. HARRISON.Heserved
for less than a year in this position and thus had
little opportunity to have a lasting effect.
However, during his tenure, he did recommend
a home squadron to patrol the Caribbean and
the Gulf of Mexico. He also authorized the
construction of two steam vessels.
In 1846 Badger was elected to the U.S.
Senate. As a senator, he strongly opposed the
policies of the Polk administration. He also
proposed reform of the Supreme Court’sdocket
and advocated salary increases for the justices. In
January 1853 President
MILLARD FILLMORE,who
had lost the 1852 election to
FRANKLIN PIERCE,
nominated Badger for a vacancy on the Court.
Badger’s nomination was met with widespread
criticism from the Democratic papers of the
South. Senators from Alabama, Louisiana, and
Mississippi opposed his nomination because he
resided outside the Fifth Circuit, where the
vacancy on the Court arose. Even the Whig
press, though it supported the proposed appoint-
ment, stated that “as a statesman, [Badger] is of
no account, and as a politician detestable.”
On previous occasions, the Senate had
usually granted quick confirmation to a senator

nominated for the Court, with little debate. But
it postponed consideration of Badger’s nomina-
tion until March 1853, so that Pierce could fill
the vacancy with his own nominee—effectively
defeating Badger’s nomination. The same tactic
would also be used to defeat later Supreme
Court nominees.
Badger served in the Senate until 1855. After
his retirement, he continued to practice law
and took an active role in politics, helping to
organize the Constitutional Union party in
1861. This party was made up of conservative
Whigs who had been alienated by the emer-
gence of
ABRAHAM LINCOLN as the leader of
the Republican party during the presidential
election of 1860. In its platform, the Constitu-
tional Union party took no stand on the issue
of
SLAVERY and strongly advocated preservation
of the Union. Badger was elected as a Union
candidate, but a convention was never held.
Though he was widely known as a national-
ist, when the Civil War broke out Badger was
elected to the North Carolina
SECESSION conven-
tion. At first he argued aga inst secession,
contending that it was unconstitutional. Instead
he offered a
DECLARATION OF INDEPENDENCE, which

was rejected. As a result, he reluctantly voted for
secession.
Badger continued to practice law in North
Carolina until his death in 1866.
FURTHER READINGS
Congressional Quarterly. 2004. Guide to the U.S. Supreme
Court. 4th ed. Washington, D.C.: Congressional
Quarterly.
“George E. Badger (1795–1866). 2000. Department of the
Navy—Naval Historical Center. Available online at
/>g-badger.htm; website home page: tory.
navy.mil (accessed August 28, 2009).
Maisel, L. Sandy, ed. 1991. Political Parties and Elections in
the United States: An Encyclopedia. New York: Garland.
CROSS REFERENCES
Fillmore, Millard; Slavery.
v
BAER, GEORGE FREDERICK
George Frederick Baer was born September 26,
1842, near Lavansville, Pennsylvania. Baer was
educated at Franklin and Marshall College, where
he received an honorary master of arts degree in
1875 and a doctor of laws degree in 1886.
George Frederick Baer 1842–1914
◆◆◆◆
◆
❖❖
1842 Born near
Lavansville, Pa.
1862 Fought in Civil War

battles at Antietam and
Chancellorsville
1861–65
U.S. Civil War
1864 Admitted to Pennsylvania bar
1870 Served as counselor for
Philadelphia and Reading R.R.
1901 Served as
president of Philadelphia
and Reading R.R.
1902 United
Mine Workers went on strike
1914–18
World War I
1914 Died,
Philadelphia, Pa.
▼▼
▼▼
18501850
18251825
18751875
19001900
19251925
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BAER, GEORGE FREDERICK 465
During the Civil War, Baer fought on the
side of the Union at Bull Run, Antietam,
Chancellorsville, and Fredericksburg.
He was admitted to the bar in 1864, moved to
Reading,Pennsylvania,in1868,andin1870

performed the duties of counselor for the
Philadelphia and Reading Railroad Company.
He became a director of the railroad, acted as
legal advisor to magnate J. P. Morgan, and was
instrumental in the restructuring of the railroad in
1893. In 1901 he was president of the Philadelphia
and Reading Railway Company, the Philadelphia
and Reading Coal & Iron Company, and the
Central Railroad Company of New Jersey.
When the United Mine Workers went on
strike in Pennsylvania in 1902, Baer gain ed
notoriety for his lack of sympathy for the plight
of the miners.
Baer died April 26, 1914, in Philadelphia,
Pennsylvania.
BAIL
The system that governs the status of individuals
charged with committing crimes, from the time of
their arrest to the time of their trial, and pending
appeal, with the major purpose of ensuring their
presence at trial.
In general, an individual accused of a crime
must be held in the custody of the court until his
or her guilt or innocence is determined. However,
the court has the option of releasing the
individual before that determination is made,
and this option is called bail. Bail is set by the
judge during the defendant’sfirstappearance.For
many misdemeanors, bail need not be set. For
example, the

DEFENDANT may be released on the
issuance of a citation such as a ticket for a driving
violation or when booked for a minor
MISDEMEAN-
OR
at a police station or jail. But for major
misdemeanors and felonies, the defendant must
appear before a judge before bail is determined.
The courts have several methods available for
releasing defendants on bail. The judge deter-
mines which of these methods is used. One
alternative is for the defendant to post a
BAIL BOND
or PLEDGE of money. The bond can be signed by a
professional surety holder, the accused, or the
family and friends of the accused. Signing the bail
bond is a promise that the defendant will appear
in the specified criminal proceeding. The defen-
dant’s failure to appear will cause the signers of
the bond to pay to the court the amount
designated. The amount of bail is generally an
amount determined in light of the seriousness of
the alleged offense.
A defendant can also be released upon her
or his own
RECOGNIZANCE, which is the defen-
dant’s written, uninsured promise to return for
trial. Such a release occurs only if the suspect
has steady employment, stable family ties, and a
history of residence in the community. Willful

violation of the terms of a personal recogni-
zance constitutes a crime.
Other conditions may also be set regarding the
release of the defendant. The Bail Reform Act of
1984 (18 U.S.C.A. §§ 3141–3150) provided for
many additional conditions that do not rely upon
finances and that reflected current trends to move
away from financial requirements for freedom.
These conditions came about, in part, owing to
concerns regarding the discriminatory nature of
bail toward the poor. The Bail Reform Act allows
for conditional releases dependent upon such
circumstances as maintaining employment, meet-
ing curfews, and receiving medical or psychiatric
treatment.
Civil Actions
A defendant in a CIVIL ACTION can be arreste d to
ensure that he or she will appear in court to
respond to the plaintiff’s claims. Civil arrest
prevents a defendant from leaving the jurisdic-
tion to evade the
LITIGATION, and from attempt-
ing to conceal or dispose of assets in order to
keep the
PLAINTIFF from collecting on the
judgment if the plaintiff prevails. Because civil
arrest is a drastic remedy, state laws must be
consulted to determine when it may be used.
The purpose of bail in a civil action is to ensure
the presence of the defendant at trial and to

guarantee the payment of a debt or the
fulfillment of some civil duty, as ordered by
the court.
The court sets the amount of bail, which is
generally based on the probable amount of
damage against the defendant. In some
instances, if informed of changed circum-
stances, the court might increase or reduce bail.
Cash, as opposed to a bail bond, may be
deposited with the court only w hen authorized
by statute. The purpose of the arrest and the
statutory provisions determine whether this
deposit may be used to pay the judgment
awarded to the plaintiff.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
466 BAIL
Criminal Prosecutions
The objective of bail in criminal actions is to
prevent the imprisonment of the accused prior to
trial while ensuring her or his appearance at trial.
Constitutional and statutory rights to bail prior to
conviction exist for most offenses, but state
constitutional provisions and statutes must be
consulted to determine the offenses to which bail
applies. The Bail Reform Act of 1984 governs bail
in federal offenses. It provides the federal
MAGISTRATE with alternatives to the incarceration
of the defendant. If the charge is a noncapital
offense (an offense not punishable by death), the
defendant may be released on her or his own

recognizance. If there is a reasonable likelihood
that the defendant will not return for trial, the
judge may impose bail. The judge may also release
the defendant into the custody of a designated
person or organization for supervision. Restrict-
ing the residence, extent of travel, and personal
associations of the accused are other options.
Discretion of the Court
A court exercises its discretion with respect to
the allowance of bail. In reaching its decision, it
evaluates the circumstances of the particular
case, including the existence of doubt as to the
accused person’s appearance at trial. Unreasonable
Jail Inmate Population in the U.S. at Midyear, 2000 to 2008
Number in thousands
Year
2000
2001
92%
b
90%
93%
94%
94%
95%
96.3%
94.8%
94.8%
SOURCE: U.S. Bureau of Justice Statistics, Jail Inmates at Mid
y

ear 2008, Statistical Tables, March 2009.
0 100 200 300 400 500 700600 800 900
2002
2003
2004
2005
2006
2007
2008
621.1
677.8
631.2
699.3
665.5
713.9
691.3
736.5
714.0
755.6
747.5
786.9
765.8
795.0
780.2
810.5
785.6
828.4
a
Rated capacity is the number of beds or inmates assigned to facilities within each jurisdiction.
Rated capacity

a
Number of inmates
b
Percentage represents the number of inmates confined divided by the rated capacity and multiplied by 100.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE, A
PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
BAIL 467