Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P19 pptx

state’s POLICE POWER to prescribe regulations that
promote the health, peace, morals, education,
and good order of the people. The state’s police
power, said the Virginia high court, gives the
state legislature authority to make laws that spur
industrial growth, develop resources, and add to
Virginia’s wealth and prosperity.
When the case reached the U.S. Supreme
Court, Chief Justice
WILLIAM HOWARD TAFT
assigned the job of writing the opinion to
Associate Justice Oliver Wendell Holmes Jr.,
then 86-years old. Holmes began his opinion by
detailing the procedural safeguards that were
afforded Buck, though neither Buck nor her
representative had taken issue with them.
Holmes noted that Buck had received notice
of the superintendent’s petition for sterilization,
Buck was given the opportunity to appear at a
hearing where the propriety of her sterilization
was determined based on the evidence pre-
sented, and Buck had the right to
APPEAL all the
way to the highest court in the United States.
“There can be no doubt,” Holmes concluded,
“that so far as procedure is concerned, the rights
of the patient [we]re most carefully considered.”
Holmes next addressed Buck’s substantive
due process claim that she had a constitutional
liberty to procreate. “Carrie Buck is a feeble-
minded white woman She is the daughter

of a feeble-minded mother and the mother
of an illegitimate feeble-minded child,” Holm es
wrote. Then Holmes, a Civil War veteran,
compared Buck’s sacrifice of procreative free-
dom to the sacrifice other U.S. citizens make
when called into military duty for their county:
“We have seen more than once that the public
welfare may call upon the best citizens for their
lives. It would be strange if it could not call
upon those who already sap the strength of the
State for these lesser sacrifices, often not felt to
be such by those concerned, in order to prevent
our being swamped with incompetence. ”
Noting that once sterilized, Buck could be
released from the institution to become a pro-
ductive member of society, Holmes reflected on
what he thought to be the wider benefits of the
Virginia sterilization law: “It is better for the
entire world, if instead of waiting to execute
degenerate offspring for crime, or to let them
starve for their imbecility, society can prevent
those who are manifestly unfit from continuing
their kind. The principle that sustains com p ulsory
vaccination is broad enough to cover cutting
the Fallopian tubes Threegenerationsof
imbeciles are enough.”
As to the equal protection argument,
Holmes said that “so far as the [institution’s]
operations enable those who otherwise must be
kept confined to be returned to the world, and

thus open the
ASYLUM to others, the equality
aimed at will be more nearly reach ed.”
Seven justices joined Holmes’s majority
opinion upholding the Virginia sterilization
law. Only Associate Justice
PIERCE BUTLER dis-
sented, but he did so without filing an opinion.
The dissenting voices of history have been much
louder.
Historians and legal scholars have criticized
Holmes’s opinion for being unenlightened and
unduly harsh, pointing to portions of the
opinion where Holmes assumed that disabled
persons were not among the “best citizens,” that
the “degenerate offspring” of “feeble-minded”
persons would either become criminals or
starve, and that unless such persons were
sterilized society would become swamped by
incompetence. The Supreme Court itself has
since rendered several opinions that have all but
expressly abrogated Holmes’s opinion in Buck,
including one opinion that overturned a forced
sterilization law on grounds that “[m]arriage
and procreation are fundamental to the very
existence and survival of the race” (Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 62
S.Ct. 1110, 86 L.Ed. 1655 [1942]).
In Holmes’s defense, other historians and
scholars have pointed out that the Virginia

sterilization law was written by a democratically
elected state legislature and upheld by three
separate courts. They also note that compulsory
sterilization was part of the Eugenics Movement,
a popular but paternalistic reform movement
that was based on the premise that the “lower
classes” were too ignorant to practice
BIRTH
CONTROL
or otherwise take care of themselves
and that eradicating “feeble-minded” persons
from the population was humane.
Scholars on both sides of the historical
debate acknowledge that Holmes personally was
an enthusiast for population control devices but
question why Holmes’s opinion in Buck v. Bell
could not have been as prescient as his opinions
on other subjects like the
FIRST AMENDMENT,
where his articulation and application of the
“clear-and-present-danger” test revolutionized
free speech jurisprudence. In the final analysis,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
168 BUCK V. BELL
Buck v. Bell serves as a striking counter example
to Holmes’s supporters who like to remember
the former associate justice as an unyielding
liberal champion of individual rights.
FURTHER READINGS
Berry, Roberta M. 1998. “From Involuntary Sterilization to

Genetic Enhancement: The Unsettled Legacy of Buck v.
Bell.” Notre Dame Journal of Law, Ethics & Public Policy
12 (summer).
Cynkar, Robert J. 1981. “Buck v. Bell: ‘Felt Necessities’ v.
Fundamental Values?” Columbia Law Review 81
(November).
Estacio, Richard A. 1988. “Sterilization of the Mentally
Disabled in Pennsylvania: Three Generations without
Legislative Guidance Are Enough.” Dickinson Law
Review 92 (winter).
Leslie-Miller, Jana. 1997. “From Bell to Bell: Responsible
Reproduction in the Twentieth Century.” Maryland
Journal of Contemporary Legal Issues 8 (spring-summer).
Lombardo, Paul A. 2008. “Three Generations, No Imbeciles:
New Light on Buck v. Bell.” Baltimore: Johns Hopkins.
Mahowald, Mary B. 2003. “Aren’t We All Eugenicists?”
Florida State Univ. Law Review 30 (winter).
CROSS REFERENCES
Civil Rights; Due Process of Law; Equal Protection;
Fourteenth Amendmen t; Police Power; Steriliz ation.
BUGGERY
The criminal offense of anal or oral copulation by
penetration of the male organ into the anus or
mouth of another person of either sex or copulation
between members of either sex with an animal.
Buggery is historically referred to as a “crime
against nature.” It is an offense under both
COMMON LAW and statutes. Although prosecution
for buggery is rare, the punishment upon
conviction can be a fine,

IMPRISONMENT, or both.
The term is often used interchangeably with
SODOMY.
BUILDING AND LOAN ASSOCIATION
An organization that exists to accumulate a fund,
composed of subscriptions and savings of its
members, to help facilitate the purchase or
construction of real estate by such members by
lending them the necessary funds.
CROSS REFERENCE
Savings and Loan Association.
BUILDING CODES
A series of ordinances ena cted by a state or local
governmental entity, establishing minimum
requirements that must be met in the construction
and maintenance of buildings.
Building codes have been used by govern-
mental units for centuries to ensure that
buildings remain safe and sanitary. Early
settlements in the United States drafted codes
for such purposes as restrictions on the use of
wooden chimneys to prevent fire. The early
codes were usually only a few sentences in
length, specifying narrow restrictions in con-
struction.
In the early twenty-first century, home and
business construction has become a process
governed by a complex series of rules. A building
code is usually not one document, but rather it
is usually a series of documents setting forth

requirements for several aspects of construction,
such as gas, mechanics, electricity, fire-alarm
systems, and plumbing. Building codes generally
regulate all aspects of a construction project,
including the structural design of a building,
sanitation facilities, environmental control, fire
prevention, ventilation, light, materials used for
the building, and conservation measures. State
and local governmental entities are empowered
to enact building codes as part of their police
powers under the
TENTH AMENDMENT to the federal
Constitution. That amendment has been inter-
preted to allow the states to enact legislation
designed to protect public health, welfare, and
safety.
The development of modern building codes
began in the early twentieth century. Residents
who lived in tenement houses during that time
began a movement that demanded basic
sanitation in their housing. Insurance compa-
nies also advocated the use of safety standards,
due to the potential limitations on the
LIABILITY
of these companies. In 1905 the National Board
of Fire Examiners, the predecessor to the
American Insurance Association, approved the
first National Building Code, which was
designed to be used as model for state and
local governmental units to use when drafting

their own building codes. This model code
proved very popular among legislators because
it provided a respected and comprehensive
source for technical construction requirements
without the burden and expense of researching
and drafting a building code from scratch.
During the
NEW DEAL era of the 1930s, the
federal government sought to modernize the
system of housing in the United States, and
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BUILDING CODES 169
the use of building codes to ensure safety and
sanitation became widespread. Studies during
the late 1960s and early 1970s indicated that the
vast majority of cities had adopted a building
code of some form. As the use of building codes
became more prevalent, the actual codes
themselves became much more comprehensive
and complex. Through the 1970s, the majority
of building codes were enacted at the local level.
A number of model building codes were
developed during the second half of the
twentieth century. By the 1990s four major
building codes were produced, including the
National Building Code, by the American
Insurance Association (AIA); the Basic/National
Building Code (sometimes called the BOCA
Code), by the Building Officials Conference of
America (BOCA); the Southern Standards

Building Code, by the Southern Building Code
Congress International, Inc. (SBCCI); and the
Uniform Building Code, by the International
Congress of Building Officials (IC BO). Most of
these various organizations were formed during
the first half of the twentieth century by code
enforcement officials who wanted to provide a
forum whereby they could exchange ideas about
the implementation of building codes.
Since 1990, roughly half of the states have
enacted legislation providing construction stan-
dards on a statewide basis. The states that enacted
these laws generally have done so in order to
provide uniformity in building regulations across
the state, and also to ensure that building laws
protected all of the citizens in the state equally.
Local governments have retained much of the
responsibility for the actu al implementation of
building regulations in these states. It is not
uncommon for a state to draft statutes that
govern buildings on a general level, while the
local units of the state enact more specific
regulations to apply to that locality. Local
building codes often remain uniform because
these local governments typically rely upon one
of the available model building codes.
The various associations representing code
enforcement officials have formed broader
associations for the purposes of collaboration.
In 1972, BOCA, SBCII, and ICBO formed the

Council of American Building Officials (CABO),
which has successfully drafted such model codes
as the CABO One and Two Family Dwelling
Code and the CABO Model Energy Code. In
1994, the three major model code organizations
formed the International Code Council (ICC),
which has produced several international model
codes. As of 2003, the ICC had developed more
than a dozen international model codes, includ-
ing the International Building Code. The ICC
estimates that 46 states, plus the District of
Columbia, Puerto Rico, and some federal
agencies, enforce or have adopted at least one of
the international codes.
Building codes are directly affected by
ongoing research regarding the performance of
products, materials, or construction methods.
Industry experts develop standards, which are
documents that contain industry consensus
regarding the methods by which the products,
materials, or methods should be designed
or employed. When an organization drafts a
model building code, it typically refers to these
standards in the text of the code. Because the
standards are national in scope, the reference of
these standards ensures that a local building
code requires constructors to meet minimum
national standards concerning details like safety
and performance.
Few question that houses and other buildings

are now designed to be much safer and more
sanitary than were buildings constructed a
century or longer ago, primarily as a result of
the implementation of the various building codes
throughout the United States. However, some
commentators have noted that the requirements
of these codes have caused construction prices to
rise steadily, which in turn causes the costs of
housing and other building usage to rise as well.
Moreover, some critics maintain that the process
of developing building codes is often as much
of a process of negotiation between trade groups
who are protecting their own interests as it is a
completely scientific process.
Those who are involved in the drafting and
implementation of building codes counter that
building codes are designed with the health and
safety of the public in mind. Results of testing
performed during the development of standards
are often readily available for inspection, so if
questions of reliability arise, they often can
be answered through a review of these testing
procedures. Moreover, supporters note that
state and local governmental entities are not
bound to adop t the model building codes, and if
a governmental unit disagrees with a provision
in a model code, it is free to replace that pro-
vision with a requirement of its own creation.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
170 BUILDING CODES

Accordingly, if a member of the public disagrees
with a particular requirement, he or she
generally may raise this issue with the appropri-
ate governing body that decides whether a code
or code provision should be adopted.
FURTHER READINGS
Council of American Building Officials. 2004. An Introduc-
tion to Model Codes. Falls Church, VA: Council of
American Building Officials.
Kelly, Eric Damian. 1996. “Fair Housing, Good Housing or
Expensive Housing? Are Building Codes Part of the
Problem or Part of the Solution?” John Marshall Law
Review 29.
Turner, Michael D. 2001. “Paradigms, Pigeonholes, and
Precedent: Reflections on Regulatory Control of Resi-
dential Construction.” Whittier Law Review 23, no. 3.
BUILDING LINE
A line that a municipal corporation establishes,
beyond which no building may extend to ensure
that its streets will appear uniform.
A building line is also known as the “set
back” requirement.
BUILDING OFFICIALS AND CODE
ADMINISTRATORS INTERNATIONAL
The Building Officials and Code Administrators
International (BOCA) is an association of pro-
fessionals employed in the establishment and
enforcement of
BUILDING CODES, which are the
rules and regulations that govern the design and

construction of buildings. BOCA encourages
cities and states to adopt uniform building
codes, and promotes competence and profes-
sionalism in the enforcement of those codes.
The organization was established in 1915 by
building officials from nine states and Canada.
Their purpose was to provide a forum for the
exchange of knowledge and ideas about build-
ing safety and construction regulation. In 1950,
BOCA published the BOCA Basic Building Code.
This was the organization’s first model code.
Within one year, the BOCA code had been
adopted by fifty cities.
BOCA currently publishes a series of books
called the BOCA National Codes, which contain
detailed standards for all aspects of building
construction. The section on stairways, for
example, precisely describes the acceptable
height, depth, and width of steps, and the
proper placement and configuration of hand-
rails necessary to ensure safety and ease of use.
Separate volumes cover general construction,
mechanical systems, plumbing, fire prevention,
energy conservation, and other areas.
The codes published by BOCA do not in
themselves have the force of law. They can be
enforced only when they have been adopted by
cities, states, or other government bodies with
the authority to issue or withhold building
permits. A city or state is free to adopt the

BOCA codes in whole or in part.
BOCA’s codes have been adopted by many
states and cities in the eastern and midwestern
United States. Other professional associatio ns
perform a similar function in other parts of the
country, and publish their own building codes:
the International Conference of Building Offi-
cials serves western states and publishes the
Uniform Building Code, and the Southern
Building Code Congress serves southern states
and publishes the Standard Building Code. The
three regional organizations are working to-
gether toward creating a single model code for
the United States.
The publication of the codes is BOCA’s
most important functi on. The organization also
publishes manuals, textbooks, and periodicals
for its members. In addition, BOCA continually
develops its model code to keep it up-to-date. It
conducts regular training and education pro-
grams for its members and provides consulta-
tion services for local governments. BOCA
disseminates information on the quality and
acceptability of building materials and systems
as well as on new construction techniques.
BOCA’s membership consists largely of
cities, towns, and government agencies. These
“government members” are represented by
Contractors,
manufacturers,

architects, and
engineers must follow
the recommendations
of BOCA when
building in a
municipality that has
adopted BOCA’s
codes.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
BUILDING OFFICIALS AND CODE ADMINISTRATORS INTERNATIONAL 171
individual officials who administer rules and
regulations on construction, fire safety, property
maintenance, development, and land use. A
typical official of this kind is a building
inspector with duties to examine building plans
and make on-site inspections during construc-
tion. Contractors, manufacturers, and people in
the architectural and engineering professions
may also be members of BOCA.
BOCA is funded by the annual dues of its
members and through the sale of its publica-
tions. It is based in Country Club Hills, Illinois,
a suburb of Chicago.
FURTHER READINGS
“Code Groups to Study Common Format.” 1991. Building
Design & Construction (November 1).
Harkness, Albert. 1995. “Building Codes: A Historical
Perspective.” Building Official and Code Administrator

Magazine (March/April).
International Code Council. “Join ICC” Birmingham,
AL: ICC. Available online at />membership/join.html; website home page: http://
www.iccsafe.org (accessed July 10, 2009).
BULK TRANSFER
A sale of all or most of the materials, supplies,
merchandise, or other inventory of a business at
one time that is not normally done in the ordinary
course of the seller’s business.
Bulk transfers, commonly called bulk sales,
have, in the past, been governed by individual
state laws, generally called Bulk Sales Acts,
which imposed certain requirements on such
transfers. These acts were aimed at preventing a
seller from secretly selling his or her business
and absconding with the proceeds in order to
avoid the repayment of any outstanding debts.
These laws have been superseded in most states
by Article 6 of the
UNIFORM COMMERCIAL CODE
(UCC), which shares the same purpose but
establishes uniform requirements to simplify
commercial transactions. A prospective buyer of
a business must obtain a list of the creditors of
the seller and notify them in advance of the sale
so they can take steps to protect themselves
against the seller’s possible default on his or her
debts. Failure of a bulk transfer to comply with
the UCC neither makes the transfer void nor
destroys the creditors’ rights to repayment.

Depending upon the jurisdiction, the buyer
may become personally liable to the seller’s
creditors up to the value of the assets purchased
or the property sold may be levied upon by the
creditors for the outstanding debts.
A bulk transfer is not the same as a secured
transaction.
BULLETIN
A printing of public notices and announcements
that discloses the progress of matters affecting the
general public and which usually includes provi-
sions for public comment. A summarized report of
a newsworthy item for immediate release to the
public. The official publication of an association,
business, or institution.
BURDEN OF GOING FORWARD
The onus on a par ty to refute or to explain
evidence presented in a case.
The burden of going forward, also called the
burden of producing evidence, burden of pro-
duction, or the burden of proceeding, requires a
party in a lawsuit to refute or explain each item of
evidence introduced that damages or discredits
his or her position in the action, as a trial
progresses. Suppose a person is charged with the
possession of stolen goods. After the prosecution
has introduced evidence of the defendant’s
possession of such goods, the defense bears the
burden of refuting or explaining the evidence.
If the evidence appears unfavorable for the

prosecution, it has the burden of going forward
to produce more evidence to bolster its claim that
the
DEFENDANT committed the crime. The failure
to produce more evidence may result in the
judge’s dismissing the charges against the defen-
dant. If the prosecution produces such evidence,
it shifts the burden of production back to the
defendant, who then must refute the additional
evidence.
The burden of going forward also shifts
during a civil proceeding. It shifts to the
defendant after the
PLAINTIFF rests its case, but
it may shift even before that time. In a
WRONGFUL
DEATH
case, for example, the plaintiff may, at a
certain point in the trial, file a motion asking for
a ruling (sometimes a motion for
SUMMARY
JUDGMENT
or a motion for a DIRECTED VERDICT)in
his or her favor by maintaining that he or she
has presented sufficient evidence to show that
the defendant’s actions resulted in the victim’s
death. The burden then shifts to the defendant
to produce additional evidence to refute the
plaintiff’s claim; otherwise, the judge may grant
the plaintiff’s motion, thus concluding the case

in the plaintiff’s favor.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
172 BULK TRANSFER
BURDEN OF PERSUASION
The onus on the party with the burden of proof to
convince the trier of fact of all elements of his or
her case. In a criminal case the burden of the
government to produce evidence of all the
necessary elements of the crime beyond a reason-
able doubt.
The burden of persuasion is the affirmative
duty of a party to establish his or her right to
judicial relief by convinc ing the trier of fact, the
judge or the jury, that the facts asserted are true
and support the allegations. Whereas the
BURDEN
OF GOING FORWARD
shifts from the prosecution to
the defense in a criminal case, or from the
PLAINTIFF to the DEFENDANT in a civil case, as
evidence is presented and disproved, the burden
of persuasion remains with the plaintiff or the
prosecution until the case is concluded. The
phrase burden of persuasion is often used inter-
changeably with the phrase
BURDEN OF PROOF.
The burden of proof varies depending on
whether the proceeding is criminal or civil. In a
criminal case, the burden of proof required of
the state or government will be satisfied by

evidence that demonstrates “beyond a reason-
able doubt” that the defendant has committed
the crime. Proof
BEYOND A REASONABLE DOUBT
does not require that the proof be so clear that
no possibility of error can exist; no criminal
prosecution would ever prevail if that were the
standard. On the other hand,
REASONABLE DOUBT
will be found to exist (and the defendant fo und
not guilty) if the evidence produced only
demonstrates that it is slightly more probable
that the defendant committed the crime than
that she or he did not. The reasonable doubt
standard has been defined to mean that the
evidence must be so conclusive and complete
that all reasonable doubts are removed.
In a civil matter, a plaintiff is required to
establish his or her case by “a prepond erance of
the evidence.” A preponderance of the evidence
is a body of evidence that is of greater weight or
is more convincing than the evidence offered in
opposition—evidence that as a whole shows
that the facts asserted by the plaintiff and sought
to be proved are more probable than not.
Another burden of proof applied in some
matters is that the evidence must be “clear and
convincing.” This standard of proof falls
somewhere between the civil preponderance-
of-the-evidence standard and the criminal

beyond-a-reasonable-doubt standard. Clear
and convincing evidence requires the trier of
fact to have a “firm belief” that the facts have
been established. The clear-and-convincing
standard, though not used nearly as often as
the other two standards, has been applied to
some civil cases, including suits seeking the
reformation of a contract. In addition, the
SUPREME COURT OF THE UNITED STATES has held that
the clear-an d-convincing standard is the con-
stitutionally required burden of proof in a civil
commitment proceeding (Addington v. Texas,
441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323
[1979]).
FURTHER READINGS
Johnson, Calvin H. 1997. “Current and Quotable: IRS
Restructuring: Burden of Proof vs. Burden of Persua-
sion.” Tax Notes 77 (November 3).
Rothstein, Paul F. and Myrna S. Raeder. 2007. Evidence in a
Nutshell. 5th ed. Eagan, MN: West.
Sprung, Marshall S. 1996. “Taking Sides: The Burden of
Proof Switch.” New York Univ. Law Review 71
(November).
Stratton, Sheryl. 1998. “Burden of Proof Shift—Making Sense
of a Political Provision.” Tax Notes 80 (August 24).
BURDEN OF PLEADING
The duty of a party to plead a matter to be heard
in a lawsuit. The onus on the defendant to
introduce or raise the defense for consideration in
the lawsuit. This concept is also referred to as

burden of allegation.
The
PLEADING burden concerns what a party
must put in his or her pleading when a legal
proceeding is first instituted. In a criminal
proceeding, this initial pleading is an indictment
or information, which alleges that a crime was
committed. In a
MURDER case, for instance, the
PROSECUTOR must plead that the DEFENDANT killed
the victim. The pros ecution thus has the burden
of pleading on the issue of whether the
defendant killed the victim. On other issues in
the case, the burden of pleading may shift to the
defendant. For example, if the defendant claims
that she or he is insane and thus not responsible
for the crime, the defendant has the burden of
pleading insanity.
In a civil matter, the initial pleading is a
complaint, which initiates a lawsuit. For in-
stance, in a
NEGLIGENCE action, the PLAINTIFF has
the burden of pleading that the defendant was
negligent and that the plaintiff has been injured
or damaged by the actions of the defendant.
Likewise, in a contract claim, the plaintiff must
ALLEGE that a contract existed and that the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BURDEN OF PLEADING 173
defendant breached the contract. Failure to

meet the pleading burden can result in dismissal
of the claim.
CROSS REFERENCES
Burden of Proof; Insanity Defense.
BURDEN OF PROOF
A duty placed upon a civil or criminal defendant
to prove or disprove a disputed fact.
Burden of proof can define the duty placed
upon a party to prove or disprove a disputed
fact, or it can define which party bears this
burden. In criminal cases, the burden of proof is
placed on the prosecutio n, who must demon-
strate that the
DEFENDANT is guilty before a jury
may convict him or her. But in some jurisdic-
tion, the defendant has the burden of establish-
ing the existence of certain facts that give rise to
a defense, such as the insanity
PLEA. In civil
cases, the
PLAINTIFF is normally charged with the
burden of proof, but the defendant can be
required to establish certain defenses.
Burden of proof can also define the
BURDEN
OF PERSUASION
, or the quantum of proof by which
the party with the burden of proof must
establish or refute a disputed factual issue. In
criminal case s, the prosecution must prove the

defendant’s guilt
BEYOND A REASONABLE DOUBT.
Judges explain the
REASONABLE DOUBT stan-
dard to jurors in a number of ways. Federal jury
instructions provide that proof beyond a
reasonable doubt is “proof of such a convincing
character that a
REASONABLE PERSON would not
hesitate to act upon it in the most important of
his own affairs.” State judges typically describe
the standard by telling jurors that they possess a
reasonable doubt as to the defendant’s guilt if,
based on all the evidence in the case, they would
be uncomfortable with a criminal conviction. In
giving the reasonable doubt instruction, judges
regularly remind jurors that a criminal convic-
tion imposes a variety of hardships on a
defendant, including public humiliation,
INCAR-
CERATION
, fines, and occasionally the FORFEITURE of
property. Reasonable doubt is the highest stan-
dard of proof used in any judicial proceeding.
Reasonable doubt is also a constitutionally
mandated burden of proof in criminal proceed-
ings. The U.S. Supreme Court has ruled that the
Due Process Clause of the
FIFTH AMENDMENT and
Fourteenth Amendments to the federal consti-

tution prohibit criminal defendants from being
convicted on any quantum of evidence less than
proof beyond a reasonable doubt.
IN RE WINSHIP,
397 U.S. 358, 90 S. Ct. 1068, 23 L. Ed. 2D 368
(1970). Although the reasonable doubt standard
is not specifically mentioned anywhere in the
Constitution, the Court observed that the
standard is so deeply rooted in the nation’s
history as to reflect the fundamental value that
“it is far worse to convict an innocent man than
to let a guilty man go free.”
In civil
LITIGATION the standard of proof is
either proof by a preponderance of the evidence
or proof by clear and convincing evidence. Both
are lower burdens of proof than beyond a
reasonable doubt. A preponderance of the
evidence simply means that one side has more
evidence in its favor than the other, even by
the smallest degree. Clear and convincing
evidence is evidence that establishes the truth
of a disputed fact by a high probability.
Criminal trials employ a higher standard of
proof because criminal defendants often face
the deprivation of life or liberty if convicted
while civil defendants generally only face an
order to pay money damages if the plaintiff
prevails.
FURTHER READINGS

Cooper, S. 2003. “Human Rights and Legal Burdens of
Proof.” Web Journal of Current Legal Issues 3. Available
online at />supreme/judges/brown/hbb-bio.html; website home
page: (accessed August
28, 2009).
Scheibe, Benjamin D. 2003. “Claim of Reverse Engineering
Doesn’t Alter Burden of Proof.” The Los Angeles Daily
Journal 116 (October 2).
Twining, William and Stein, Alex, eds. 1992. Evidence and
Proof. New York: New York Univ. Press.
CROSS REFERENCES
Burden of Persuasion; Due Process of Law; Evidence; Fifth
Amendment; Fourteenth Amendment; Proof; Reasonable
Doubt.
BUREAU OF INDIAN AFFAIRS
See INTERIOR DEPARTMENT.
BUREAUCRACY
A system of administration wherein there is a
specialization of functions, objective qualifications
for office, action according to the adherence to
fixed rules, and a hierarchy of authority and
delegated power.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
174 BURDEN OF PROOF
Organizations such as the armed forces or
administrative agencies are common examples
of bureaucracies.
v
BURGER, WARREN EARL
Warren Earl Burger was a self-made man who

rose from modest origins to become the fifteenth
chief justice of the U. S. Supreme Court.
Burger was born September 17, 1907, in
St. Paul, Minnesota, the fourth of seven children
of Charles Burger and Katharine Schnittger
Burger. His father worked as a railroad cargo
inspector and traveling salesman, and the family
lived on his limited income. Burger began
delivering newspapers at the age of nine to help
with family finances. At Johnson High School
in St. Paul, he participated in music, sports,
student government, and the student newspa-
per. Princeton University offered him a partial
scholarship, but because of his family’s limited
resources, he was unable to accept it. Instead, he
took
EXTENSION courses through the Univ ersity
of Minnesota from 1925 to 1927 and then
attended night classes at St. Paul College of
Law (now
WILLIAM MITCHELL College of Law).
Throughout college and law school, Burger
supported himself by working as an insurance
agent. He earned his bachelor of laws degree,
magna cum laude, in 1931.
Burger was admitted to the Minnesota bar in
1931, then entered private practice in St. Paul
with Boyesen, Otis, and Faricy. He became a
partner in 1935, and the firm was renamed
Faricy, Burger, Moore, and Costello. Burger

concentrated his practice in corporate law,
REAL
ESTATE
, and probate law. At the same time, he
became involved in politics, and in 1934 he
helped organize the Minnesota Young Repub-
licans.
Burger was rejected for military service in
WORLD WAR II because of a spinal injury and
instead served on the Minnesota Emergency
War Labor Board. After the war he returned to
his law practice and became more active in
politics. He had played an important part in
Harold E. Stassen’s successful campaigns for
governor of Minnesota in 1938, 1940, and 1942,
and acted as floor manager for Stassen’spre-
sidential bids at the 1948 and 1952 Republican
▼▼
▼▼
19251925
Warren Earl Burger 1907–1995
19001900
19501950
19751975
20002000
❖
❖
◆
◆
◆

◆
◆
1907 Born,
St. Paul, Minn.
1914–18
World War I
1941–45 U.S.
involvement in World
War II; served on the
Minnesota Emergency
War Labor Board
1931 Earned bachelor of
laws degree from St. Paul
College of Law; admitted
to Minnesota bar
1935 Made partner at Boyeson, Otis and Faricy;
firm renamed Faricy, Burger, Moore and Costello
1952 Appointed assistant
attorney general in the Justice
Department's Civil Division
1950–53
Korean War
1961–73 Vietnam War
1956
Appointed to
the U.S. Court
of Appeals for
the District of
Columbia
1969 Nominated as

chief justice of
the U.S.
Supreme Court
by President
Nixon
1986 Retired from
the Court in order to
chair the commission
honoring U.S.
Constitution's
bicentennial in 1987
1995 Died,
Washington,
D.C.
◆
Warren Burger.
PHOTOGRAPH BY
JOSEPH LAVENBURG,
NATIONAL GEOGRAPHIC.
COLLECTION OF THE
SUPREME COURT OF THE
UNITED STATES.
FREEDOM OF SPEECH
CARRIES WITH IT
SOME FREEDOM TO
LISTEN
.
—WARREN BURGER
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
BURGER, WARREN EARL 175

conventions. These activities brought him to the
attention of prominent Republicans. In 1952 he
was named assistant attorney general in charge
of the Justice Department’s Civil Division,
which handled all civil cases except antitrust
and land
LITIGATION.
Burger’s career as a
JURIST began when he
was appointed to the U.S. Court of Appeals for
the District of Columbia Circuit in 1956. He
quickly established his credentials as a law-and-
order judge, leading the conservative faction of
the court to numerous decisions that favored
police officers and prosecutors and curbed the
rights of criminal defendants.
Burger served on the D.C.
CIRCUIT COURT
until 1969 when President RICHARD M. NIXON
appointed him chief justice of the Supreme
Court. In choosing Burger to replace
EARL WARREN,
Nixon was fulfilling a campaign promise to
restrain the Court, which was, according to him,
favoring the criminals in U.S. society. Burger’s
ethical record was a major consideration in his
nomination, and his opposition to judicial
activism (a philosophy of judicial decision-
making whereby judges allow their personal views
about

PUBLIC POLICY, among other factors, to guide
their decision, usually with the suggestion that
adherents of this philosophy tend to find
constitutional violations and are willing to ignore
precedent), and the expansion of
CIVIL RIGHTS and
liberties made him what Nixon was looking for, a
conservative antidote to the activist liberalism of
the
WARREN COURT.
However, the swift and certain counterrev-
olution that Nixon and others expected from
the Burger Court never mat erialized. Although
the Court diluted some earlier liberal decisions,
particularly in the area of
CRIMINAL PROCEDURE,it
stopped far short of overruling them. And
although the Burger Court was far less sympa-
thetic to the rights of criminal defendants than
the Warren Court had been, it established no
clear pattern of repudiating the earlier doc-
trines. In some areas, such as
AFFIRMATIVE
ACTION
and desegregation, the Burger Court
continued in the direction set by the Warren
Court, and Burger often cast the swing vote that
tipped the balance in favor of the liberals’
position. The Burger Court’s decision in
ROE V.

WADE (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d
147 [1973]) established a constitutional right to
privacy and made
ABORTION legal. Yet Burger
refused to support a movement to give gender
classifications the same level of scrutiny used for
racial discrimination. When viewed as a whole,
the record shows that Burger was an enigmatic
and unpredictable justice but that he generally
stayed the course set by his predecessor. In fact,
the Burger Court never directly overruled any
major doctrine of the Warren years.
Burger was satisfied with his reputation as a
centrist. “It’s always been somewhat comforting
to know,” he once told an interviewer, “that I
have been castigated by so-called liberals for
being too conservative and castigated by so-
called conservatives for being too liberal. Pretty
safe position to be in.”
Burger left his personal imprint on several
important areas of the law. His 1973 opinion in
MILLER V. CALIFORNIA (413 U.S. 15, 93 S. Ct. 2607,
37 L. Ed. 2d 419 [1973]) established the use of
“contemporary community standards” in de-
termining whether material is
OBSCENE.He
authored key decisions interpreting the free
speech and free press guarantees of the
FIRST
AMENDMENT

, including Nebraska Press Ass’nv.
Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d
683 (1976), a 1976 decision prohibiting pre-
publication restraints to protect criminal defen-
dants from negative
PRETRIAL PUBLICITY. Writing
for the majority, Burger declared that “prior
restraints on speech and publication are the
most serious and least tolerable infringement on
First Amendment rights.” Burger also delivered
the opinion in validating th e legislative veto (I.N.S.
v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77
L. Ed. 2d 317 [1983]), thus preventing Congress
from blocking presidential acti on without
passing a law.
Burger’s most fam ous criminal opinion was
UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct.
3090, 41 L. Ed. 2d 1039 (1974), in which he
ordered the embattled president, then deeply
enmeshed in the
WATERGATE scandal, to release
to Special Prosecutor
LEON JAWORSKI the tape
recordings that implicated the president in the
Watergate cover-up. Nixon’s resignation was a
direct result of Burger’s ruling.
One of Burger’s goals as chief justice was to
modernize and streamline the courts to make
them more accessible and functional, and he
worked tirelessly toward that end. Burger

originated the idea of employing professional
court administrators, implemented continuing
education for judges, and improved coordi-
nation between federal and state courts. In
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
176 BURGER, WARREN EARL
addition, he was noted for his outspoken
criticism of ill-prepared litigators who use the
courts for what he called on-the-job training.
Burger retired from the bench in 1986
to chair the commission honoring the two
hundredth anniversary of the signing of the
Constitution, which occurred on his eightieth
birthday, September 17, 1987. He ended his last
day on the bench without fanfare, simply
announcing that the Court had completed its
term and would
RECESS until the first Monday in
October. Asked about his future plans, he said,
“I have a lot of other things I want to do. I
never had any ambition to be a judge. I loved
practicing law. If tradition didn’t prohibit it, I’d
love to go back to practicing law.” Upon his
retirement, one of his law clerks commented
that Burger’s most important legacy may be that
“he kept most of society’s problems truly in
balance.”
Burger died July 25, 1995.
FURTHER READINGS
Maltz, Earl M. 2000. The Chief Justiceship of Warren Burger,

1969–1986. Columbia, S.C.: Univ. of South Carolina
Press.
Reske, Henry J. 1995. “The Diverse Legacy of Warren
Burger.” ABA Journal 81 (August).
Significant Supreme Court Opinions of the Honorable Warren
E. Burger, Chief Justice of the United States. 1984.
Manila, Philippines: Philippine Bar Association.
CROSS REFERENCES
Criminal Procedure; Freedom of Speech; Freedom of the
Press; Obscenity.
BURGLARY
The criminal offense of breaking and entering a
building illegally for the purpose of committing
a crime.
Burglary, at
COMMON LAW, was the trespas-
sory breaking and entering of the dwelling of
another at night with an intent to commit a
FELONY therein. It is an offense against posses-
sion and habitation. The common-law elements
of the offense have be en modified in most
jurisdictions by statutes that tend to make the
crime less restrictive.
Elements of the Offense
Trespass The trespass elem ent of the offense
signifies that it must occur without the consent
of the victim. If the thief gains entry by
misrepresenting his or her identity, the element
of trespass is satisfied, as there is no consent to
entry.

Breaking Breaking consists of creating an
opening for entry into the building. It can be
accomplished by removing an object that is
blocking an entry or by blasting open a wall.
The use of force is not required. The breaking
element is satisfied if access is obtained by
opening a closed door or window, regardless of
whether these are locked.
At common law, entering through a pre-
existing opening did not constitute breaking. If
one gained access through an open door or
Persons Arrested for Burglary
a
, by Sex and
Age, in 2007
b

SOURCE: FBI, Crime in the United States, 2007.
a
Defined as “breaking and entering” in many jurisdictions.
b
Numbers may not add up to 100 due to rounding.
Total: 228,846
55 years and over 1.2%
45–54 years 7.0%
Under 15 years 8.1%
15–17 years
18.8%
18–24 years
31.7%

25–44 years
33.2%
Female
14.5%
Male 85.4%
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
BURGLARY 177