Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P42 docx

particular fact sought to be proved. The party
offering circumstantial evidence argues that this
series of facts, by reason and experience, is
so closely associated with the fact to be proved
that the fact to be proved may be inferred
simply from the existence of the circumstantial
evidence.
The following examples illustrate the differ-
ence between direct and circumst antial evi-
dence: If John testifies that he saw Tom raise a
gun and fire it at Ann and that Ann then fell to
the ground, John’s
TESTIMONY is direct evidence
that Tom shot Ann. If the jury believes John’s
testimony, then it must conclude that Tom did
in fact shoot Ann. If, however, John testifies that
he saw Tom and Ann go into another room and
that he heard Tom say to Ann that he was going
to shoot her, heard a shot, and saw Tom leave
the room with a smoking gun, then John’s
testimony is circumstantial evidence from
which it can be inferred that Tom shot Ann.
The jury must determine whether John’s
testimony is credible.
Circumstantial evidence is most often
employed in criminal trials. Many circum-
stances can create inferences about an accused’s
guilt in a criminal matter, including the
accused’s resistance to arrest; the presence of a
motive or opportunity to commit the crime; the
accused’s presence at the time and place of the

crime; any denials, evasions, or contradictions
on the part of the accused; and the general
conduct of the accused. In addition, much
SCIENTIFIC EVIDENCE is circumstantial, because it
requires a jury to make a connection between
the circumstance and the fact in issue. For
example, with fingerprint evidence, a jury must
make a connection between this evidence that
the accused handled some object tied to the
crime and the commission of the crime itself.
Books, movies, and television often perpet-
uate the belief that circumstantial evidence may
not be used to convict a criminal of a crime. But
this view is incorrect. In many cases, circum-
stantial evidence is the only evidence linking an
accused to a crime; direct ev idence may simply
not exist. As a result, the jury may have only
circumstantial evidence to consider in deter-
mining whether to convict or acquit a person
charged with a crime. In fact, the U.S. Supreme
Court has stated that “circumst antial evidence is
intrinsically no different from testimonial
[direct] eviden ce” (Holland v. Un ited States,
348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150
[1954]). Thus, the distinction between direct
and circumstantial evidence has little practical
effect in the presentation or admi ssibility of
evidence in trials.
FURTHER READINGS
Earley, Pete. 1996. Circumstantial Evidence: Death, Life, and

Justice in a Southern Town. New York: Bantam.
Romano, John F. 1999. “Prohibitions in the Use of
Circumstantial Evidence: Key Tips on Gaining Strategic
Advantage.” Trial Lawyer 22 (January-February).
———. 1986. Strategic Use of Circumstantial Evidence.
Frederick, MD: Wolters Kluwer Law & Business.
Shestokas, David J. 2009. “Circumstantial Evidence in
an American Trial.” Suite101.com. Available online at
/>stantial_evidence_in_an_american_trial; website home
page: (accessed
August 30, 2009).
CITATION
A paper commonly used in various courts— such
as a probate, matrimonial, or traffic court—that
is served upon an individual to notify him or her
that he or she is required to appear at a specific
time and place.
Reference to a legal authority—such as a case,
constitution, or treatise—where particular infor-
mation may be found.
Cases are published in a series of books
called reporters, which are compilations of
judicial decisions made in a certain court, state,
or jurisdiction. Reporters are published in
consecutively numbered volumes, each of which
contains the most recently decided cases. When
the volume numbers on a set of reporters get
too high, the publisher will begin a new set with
a new series of numbers.
To refer to a particular case in a reporter, a

designation including the volume number, the
name of the reporter, and the page number is
given. If, for example, a case decided in the U.S.
Supreme Court were cited as 60 S. Ct. 710, the
case would be in volume 60 of the Supreme
COURT REPORTER on page 710. To promote
uniformity of citations, many lawyers and law
students use The
BLUE BOOK: A Uniform System of
Citation, commonly referred to simply as The
Blue Book. This manual is published jointly by
law schools at Harvard, Yale, Columbia, and the
University of Pennsylvania. Other citation
manuals have also been published.
When a court issues a citation, it orders a
person to appear at a certain time and place .
Failure by the person to adhere to the require-
ments in a citation results in punishment by the
court. On appeal, a court may issue a citation of
appeal, giving parties notice of the appeal and
ordering them to appear in court. Issuance of a
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
398 CITATION
citation is required in order to give an appellate
court jurisdiction over the appeal. The clerk of a
court is generally required to issue a citation.
Police officers also issue citations for minor
offenses, especially for traffic violations. The
citation that an officer gives to a violator states
the charge and requires an appearance before

a judge on a specified date, subject to punish-
ment for failure to appear. Citations issued by
police officers for minor violations are typically
only admissible for a
CRIMINAL ACTION that
is based upon the violation. In most jurisdic-
tions, evidence of an arrest from a citation is not
admissible in a
CIVIL ACTION based upon the
same facts.
CROSS REFERENCE
Legal Publishing.
CITATOR
A volume or set of volumes that is a record of the
status of cases or statutes.
A citator is a guide published primarily for
use by judges and lawyers when they are in the
process of preparing such papers as judicial
decisions, briefs, or memoranda of law. Its
purpose is to provide a judicial history of cases
and statutes as well as to make a note of new
cases. A citator indicates whether or not the law
in a particular case has been followed, modified,
or overruled in subsequent cases.
A citator is usually organized into columns
of citations. Various abbreviations designate
such things as whether a case has been overruled,
superseded, or cited in the dissenting opi nion
of a later case.
The most well-known and commonly used

citator is Shepard’s Citations. The proce ss of
consulting this book or any other citator is
known as shepardizing a case.
CITE
To notify a person of a proceeding against him or
her or to call a person forth to appear in court.
To make reference to a legal authority, such as
a case, in a citation.
Cases, statutes, constitutions, treatises, and
other similar authorities are cited to support a
certain view of law on an issue. When writing a
legal brief, an attorney may wish to strengthen
his or her position by referring to cases that
support w hat he or she is saying in order to
persuade the court to make a ruling favorable
for the client.
CROSS REFERENCES
Precedent; Stare Decisis.
CITIZENS
Those who, under the Constitution and laws of the
United States, or of a particular community or of
a foreign country, owe allegiance and are entitled
to the enjoyment of all civil rights that accrue to
those who qualify for that status.
Neither the United States nor a state is a
citizen for purposes of
DIVERSITY OF CITIZENSHIP,a
phrase that is used in regard to the jurisdiction
of the federal courts, which—under Article III,
Section 2, of the Constitution—empowers those

courts to hear and decide cases between citizens
of different states. Municipalities and other local
governments, however, are deemed to be
citizens.
The term cit izen in Article III of the
Constitution, which established the federal
judiciary, includes corporations; therefore, suits
concerning corporations involve citizens for
federal jurisdictional purposes. The term citizen,
however, as defined by the Fourteenth and
Fifteenth Amendments, does not encompass
either corporations or
ALIENS. Neither corpora-
tions nor aliens receive the protection of the
PRIVILEGES AND IMMUNITIES Clauses of the FOUR-
TEENTH AMENDMENT
and Article IV, as those
clauses protect only citizens.
Aliens, howev er, are considered to be
“persons” for the purposes of the Due Process
Clauses of the Fifth and Fourteenth Amend-
ments and the
EQUAL PROTECTION Clause of the
Fourteenth Amendment. In the 1982 case of
Immigrants take an
oath of citizenship
in a ceremony held
on Ellis Island in
New York City.
Naturalized citizens

have all the rights of
a native-born U.S.
citizen with one
exception: they cannot
serve as president of
the United States.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
CITIZENS 399
Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L.
Ed. 2d 786, the U.S. Supre me Court recognized
that even illegal aliens are “persons” within the
Equal Protection Clause of the Fourteenth
Amendment for purposes of public education.
A corporation is also deemed to be a citizen for
certain purposes. It is a citizen of the United
States and of the state under whose laws it was
organized. A particular state, commonly Dela-
ware, is selected for incorporation because that
state charges lower taxes and its laws favor
businesses. Once the company incorporates in
the designated state, it is a citizen of that state,
but it can apply in any other state for authority
to do business there.
The Fourteenth Amendment to the Consti-
tution provides: “All persons born or natural-
ized in the United States, and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside….”

The important right of citizenship, whether for
native-born or naturalized citizens, cannot be
divested, whether as punishment for a crime or
for any other reason, by the states or the federal
government, including their agencies and offi-
cials (see also Afroyim v. Rusk, 387 U.S. 253, 87
S. Ct. 1660, 18 L. Ed. 2d 757 [1967]). American
citizenship can be relinquished, but it cannot
be taken away unless it was procured through
FRAUD or any other unlawful action.
The Fourteenth Amendment, through the
inclusion of the phrase “all persons,” was
specifically enacted in 1868 specifically to grant
citizenship to former slaves. Since 1924, it has
been judicially interpreted to include American
Indians. U.S. citizenship does not divest an
Indian of tribal citizenship but, rather, coexists
with it.
The Fourteenth Amendment does not,
however, make children who are born within
the territory of the United States of foreign
ambassadors,
CONSULS, and military officers
American citizens. Such children derive their
citizenship from their parents.
Ordinarily, a person who is in a country
other than the one of which he or she is a citizen
owes to that country a type of “temporary
allegiance,” which essentially is a respect for the
laws of the host country, although it is not as

substantial as the loyalty demanded of citizens.
It requires that an alien observe the laws of the
country and, in some countries, even serve in
the military; it ensures the protection of the
alien by the laws of the country.
Ambassadors, consuls, and military officers,
however, owe no allegiance to the foreign
country where they are assigned, and their
children are not “born within the allegiance” of
a foreign country in which they serve.
Citizen of a State
The Fourteenth Amendment provides that
American citizens are also citizens “of the state
wherein they reside,” but U.S. citizenship does
not necessitate residence in a particular state.
Persons living abroad, for example, are citizens
of the United States but not of any state.
One significant legal disadvantage exists for
a person who is not a citizen of a state. The
Constitution provides that federal courts can
hear “Controversies … between Citizens of
different States.” The phrase “Citizens of
different States” includes citizens of Puerto
Rico, the Virgin Islands of the United States,
and Guam. Puerto Rico is in the First Circuit,
the Virgin Islands are in the Third Circuit, and
Guam, Alaska, and Hawaii are in the Ninth
Circuit. A person who is not a resident of a state
or designated area, even if he or she is a U.S.
citizen, cannot satisfy the diversity of citizenship

requirement and therefore cannot bring an
action under the Diversity Clause in a federal
court.
American Citizenship
U.S. citizenship is attained either by birth or
by
NATURALIZATION, the legal procedure that a
qualified person must satisfy in order to be
accepted as a citizen.
Federal law provides that those who are
born in any of the 50 states, Puerto Rico, the
former Panama Cana l Zone, the Virgin Islands
of the United States, and Guam are all native-
born citizens, including the children of an
American Indian, Eskimo, Aleutian, or any
other tribal member.
Persons born in outlying possessions of the
United States, such as Wake Island or Midway
Island, and their children are called nationals.
They owe allegiance to the United States and
enjoy some rights. The term national denotes
everyone who owes alleg iance to the country,
including citizens, but not every national
possesses all of the rights of a citizen.
A person born beyond the geographical
boundaries of the United States and its outlying
possessions, of parents who are both U.S.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
400 CITIZENS
citizens, is a national and a citizen of the United

States at birth if one parent had a residence in
the United States or one of its outlying
possessions prior to the birth of such person.
If only one parent is a citizen and the other is a
national—but not a citizen—the parent who is
a citizen must have been physically present in
the United States or one of its outlying
possessions for a continuous period of one year
prior to the birth of the child in order for the
child to be a national and a citizen of the United
States at birth.
A person born out of wedlock in a foreign
country acquires at birth American citizenship
if the mother was a citizen at the time of such
person’s birth and had formerly been physically
present in the United States or one of its
outlying possessions for a continuous period of
one year preceding the birth.
Derivative Citizenship
A child born in a foreign country can become a
U.S. citizen if his or her parents become
naturalized U.S. citizens. If the child is brought
to the United States before becoming an adult,
and the child’s parents become citizens, then
the child is entitled to claim U.S. citizenship
when he or she becomes an adult. Although his
or her birth certificate will still reflect a foreign-
born status, a person in this situation can obtain
a certificate of nationality by filing an applica-
tion with the

SECRETARY OF STATE.
Rights of U.S. Citizens
Everyone within the jurisdiction of the United
States is protected by most of the guarantees
and safeguards of the Constitution. A U.S.
citizen traveling abroad retains the protection of
the United States. If property of an individual is
stolen while he or she is in a foreign country,
the United States consul can lend him or her
money to return to the United States. U.S.
citizens, of course, must observe and obey the
laws of other countries while they are visiting,
but if a U.S. citizen is arrested, a representative
from the U.S. ambassador’s office can visit him
or her and inform the foreign government that
the treatment of the U.S. citizen will be
scrutinized.
Unlike citizens of other countries, U.S.
citizens are entitled to enter into, and to depart
from, the United States, and to obtain a
PASSPORT
from the government. The passport certifies to
foreign nations that its holder is entitled to all of
the protection afforded by the U.S. government.
The right to enter and leave the United States is
so fundamental, however, that a citizen cannot
be prevented from coming into the United
States merely because he or she has no passport.
Even if someone departs from the country
without obtaining a passport, knowing that he

or she should have done so, he or she must be
permitted to enter upon returning if a birth
certificate or expired passport is presented, or if
the person takes an
OATH as to his or her
citizenship.
However, the U.S. government can prohibit
its citizens from traveling in designated coun-
tries that are hostile to the U.S. and perilous to
U.S. citizens. The passport of a person who
ignores these restrictions can be revoked, and
such a traveler can be denied protection by the
government.
A naturalized citizen has all of the rights of
a native-born U.S. citizen but one: He or she
can never be
PRESIDENT OF THE UNITED STATES.
Article II of the Constitution provides: “No
person except a natural-born Citizen, or a
Citizen of the United States, at the time of
Adoption of this Constitution, shall be eligible
to the Office of President.”
Obligations of Citizenship
The most fundamental duty of a citizen is to be
loyal to the United States. Allegiance is not an
unquestioning acceptance, but a general faith in
the U.S. system. In times of national emergency,
citizens can be required to defend the country,
through military service or alternative service
such as employment in a hospital.

Issues surrounding the duties of citizens
often arise in the same context as the freedoms
enjoyed by citizens of the United States. In one
of his more famous speeches, The Duties of
American Citizenship, President
THEODORE ROO-
SEVELT
said, “It ought to be axiomatic in this
country that every man must devote a reason-
able share of his time to doing his duty in the
Political life of the community. No man has the
right to shirk his political duties under whatever
PLEA of pleasure or business.…”
In the wake of the
SEPTEMBER 11TH ATTACKS in
2001, the case against one American citizen,
John Philip Walker Lindh, demonstrated the
attitude that the U.S. government takes against
nationals who breach their duty of citizenship.
Lindh, also known by the Islamic names
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CITIZENS 401
Suleyman al-Faris and Abdul Hamid, as well as
the nickname “the American Taliban,” con-
verted to Islam in 1997. After visiting such
countries as Yemen and Pakistan to study Islam
at various times from 1997 to 2000, Lindh
began training with the terrorist organization
al-Qaeda in 2001. Both before and after the
terrorist attacks in September 2001, Lindh

served the Taliban regime of Afghanistan in an
ongoing conflict with the Northern Alliance in
northeastern Afghanistan. After his groups
retreated and eventually surrendered, Lindh
was captured by Northern Alliance groups in
November 2001. He was eventually turned over
to the U.S. military, who returned him to the
United States on January 23, 2002.
In the case of United States v. Lindh, 198 F.
Supp. 2d 739 (E.D. Va. 2002), Lindh was
indicted on ten criminal charges, including
CONSPIRACY to MURDER U.S. nationals, contribut-
ing to and conspiring to contribute to al-Qaeda,
and using and carrying firearms and other
destructive devices during crimes of violence.
Lindh pled guilty in July 2002 to a count of
supplying services to the Taliban government
and received a 20-year sentence.
Surrender of Citizenship
Unlike some nations, the United States permits
EXPATRIATION, the voluntary relinquishment of
one’s citizenship. A U.S. citizen can lose his or
her citizenship by declaring that he or she no
longer wishes to be a citizen or to owe allegiance
to the United States, or by performing a
VOLUNTARY ACT that constitutes the surrender
of citizenship, as prescribed by law.
The test of whether an abandonment of
citizenship is voluntary depends on whether the
person’s acts were of his or her own choice and

pertained to allegiance to the United States. If
they were, federal law provides that one has
intentionally and voluntarily surrendered his or
her right to American citizenship.
A loss of citizenship can occur by serving in
the military of another nation; serving as a
public official in a foreig n cou ntry that requi res
an oath of allegiance to that country ; and
attempting to overthrow the U.S. government,
which is established by a conviction for the
crime.
Conduct that might be construed as a
renunciation of citizenship sometimes is insuf-
ficient to prove volu ntary expatriation. If a
person merely enjoys the benefits that are
available in another country, the surrender of
his or her U.S. citizenship is not necessarily
established.
The U.S. Supreme Court has recognized the
power of Congress to specify conduct that
constitutes expatriation, but the right to citi-
zenship is so substantial that such actions must
be closely related to a conspicuous movement of
allegiance away from the United States. Al-
though some courts have ruled that Congress
never is empowered to deprive the native born
of citizenship, this view is not in accordance
with current law.
Conviction of a crime can result in a partial
deprivation of rights of citizenship. Prior to the

twentieth century under English and American
COMMON LAW, convicts actually lost their citizen-
ship, which was known in some jurisdictions as
CIVIL DEATH. In the early twenty-first century,
however, only some rights are divested, even if
the applicable law is called “loss of citizenship.”
A state is empowered to deny someone the
right to vote after his or her conviction of a
FELONY or an “infamous crime,” such as BRIBERY
or PERJURY. This denial of a right of citizenship
can remain in effect until the completion of the
sentence, including periods of
PAROLE,oritmight
be permanent. A
PARDON from the president or a
governor can restore such rights, however. Some
statutes even authorize the courts to restore
rights of citizenship upon proof of the rehabili-
tation of the former prisoner.
International Law
Questions concerning whether someone is a
citizen of one country or another are generally
resolved by treaty, a compact formed between
two or more nations with respect to matters
pertaining to the public welfare pursuant to
principles of
INTERNATIONAL LAW. One person
might qualify for
DUAL NATIONALITY, that is,
citizenship in more than one nation, if he or she

can satisfy the citizenship requirements of
different countries.
International law also recognizes a rule
labeled the “law of the flag,” which determines
the citizenship of persons born on ships. The
rule is responsive to the citizenship laws of
different nations and to treaties that are
rewritten to fulfill new political conditions.
A child born of U.S. parents on a vessel
anywhere in the world is a U.S. citizen. A child
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
402 CITIZENS
born in U.S. waters on a foreign ship is a citizen
of that foreign nation when his or her parents
are citizens of that country. If his or her parents
are from a different country, provisions of treaty
or international law apply. A child born on the
high seas on a foreign vessel of parents from
that same country assumes that country’s
citizenship and not the citizenship of his or
her destination.
FURTHER READINGS
Aleinikoff, T. Alexander, et al, eds. 2001. Citizenship Today:
Global Perspectives and Practices. Washington, D.C.:
Carnegie Endowment for International Peace.
Doak, Robin. 2003. Citizenship. New York: Heinemann
Raintree.
Lister, Ruth. 2003. Citizenship: Feminist Perspective. Washing-
ton Square, NY: New York Univ. Press.
Noorani, A.G. 2002. Citizens’ Rights, Judges and State

Accountability. New York: Oxford Univ. Press.
CITIZENS FOR DECENCY
THROUGH LAW
Citizens for Decency through Law (CDL), one
of the first major anti-pornography organiza-
tions in the United States, was founded in 1956
by lawyer and future financier Charles H.
Keating Jr., after his daughter was sexually
attacked in the 1950s. Believing that
PORNOGRA-
PHY
causes violence and CHILD ABUSE,CDL
memb ers have endeavored to stop the sale of
pornographic material and close movie
theaters that show sexually explicit movi es by
pressuring politicians and judges into enforcing
OBSCENITY laws.
CDL has provided legal advice to cities
investigating dealers in sexually explicit motion
pictures, magazines, and mail-order publica-
tions. CDL attorneys have concentrated on
helping the police and prosecutors to prepare
trials and appeals in obscenity cases, prepare
TESTIMONY before local, state, and federal legisla-
tive committees, and draft model legislation.
Between 1963 and 1981, CDL sponsored or
wrote
AMICUS CURIAE (friend-of-the-court) briefs
for 27 obscenity cases reviewed by the U.S.
Supreme Court. Of those cases, 37 percent had

rulings favorable to CDL’s views. In addition to
providing direct, personal assistance in certain
important cases, CDL’s legal staff have prepared
and mailed comprehensive analyses of develop-
ments in obscenity law to prosecutors around
the United States. The group has also sought to
educate the public on the extent of the traffic in
OBSCENE materials.
Keating, a staunch Roman Catholic who
originally called his group Citizens for Decent
Literature, is perhaps best known as a central
figure in a scandal involving the Lincoln
SAVINGS
AND LOAN ASSOCIAT ION
. Between 1989 and 1993
he was charged with and convicted on numer-
ous civil
RACKETEERING and FRAUD charges and
sentenced to prison. CDL as a national
organization splintered after the scandal, but
local chapters remain active in some cities and
states.
Keating began his career as a
PROSECUTOR in
Cincinnati—a conservative city that now prides
itself on being a national center for anti-
pornography efforts—and first sought to rid
newsstands of sexually explicit materials in the
1950s when he prosecuted a local candy store
accused of selling obscene publications. By

1969 his zealous battles against pornography
had earned him an appointment by
RICHARD M.
NIXON to the Presidential Commission on
Obscenity and Pornography. In 1970 Keating
filed a lawsuit that delayed release of a report by
the commission that recommended repeal of all
adult
CENSORSHIP laws.
Over the years, CDL battled foes ranging
from Larry Flynt, publisher of Hustler magazine,
to Pacific Bell, which allowed indiscriminate
access to dial-a-porn messages. A long-running
skirmish in the 1980s involved an adult movie
theater in an Orange County, California,
shopping center that Lincoln Savings and Loan
sued after the city of Santa Ana failed to close
the theater. Lincoln’s lawsuit charged that the
theater, operated by Mitchell Brothers, attracted
“criminal elements,
ORGANIZED CRIME and per-
sons who practice sexual deviations, such as
homosexuals, lesbians, voyeurs, prostitutes,
pedophiles, sadists, masochists, rapists, etc.,
into the area.” (After the Lincoln bank failed,
the federal government took over the institu-
tion, and the lawsuit was dropped.)
During the administrations of Presidents
RONALD REAGAN and GEORGE HERBERT WALKER BUSH
lawyers recruited from CDL took part in a

controversial and lengthy prosecution of busi-
nesses involved with obscene materials. In
November 1993 the U.S.
JUSTICE DEPARTMENT
dropped this prosecution tactic, which involved
threatening businesses with indictments in
numerous jurisdictions in order to extract
agreements to stop distribution of the materials.
The theory behind the strategy was that the mere
expense of defending themselves in so many
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CITIZENS FOR DECENCY THROUGH LAW 403
places would encourage PLEA bargains by the
businesses. Among the targets of these prosecu-
tions was Adam and Eve, a large distributor of
sexually explicit films, magazines, and books.
A number of federal judges and civil liberties
organizations denounced the multidistrict tactic
as a form of harassment, sweeping in nonob-
scene materials protected by the
FIRST AMENDMENT
in addition to unprotected obscenity.
CDL often worked with other organizations,
including the National Religious Alliance against
Pornography; Morality in Media; the Moral
Majority; Citizens against Pornography; the
American Family Association; and the National
Federation for Decency. It has also been aligned
with smaller compatriot groups such as Citizens
for Legislation against Decadence in Portland,

Oregon; Women against Pornography in New
York; Feminists against Pornography in Chicago
and in Washington, D.C.; and the feminist-
sponsored Pornography Resource Center in
Minneapolis. CDL opponents include the
AMERI-
CAN CIVIL LIBERTIES UNION
and other civil liberties
organizations as well as publishers of pornogra-
phy, such as Oui magazine, which in 1975 dubbed
Keating the number one enemy of pornography.
FURTHER READINGS
Bessler, John D. 1994. “The Public Interest and the
Unconstitutionality of Private Prosecutors.” Arkansas
Law Review 47.
Epstein, Lee. 1993. “Interest Group Litigation during the
Rehnquist Era.” Journal of Law and Politics 9 (summer).
Harlow, Carol. 1992. Pressure through Law. New York:
Routledge.
CIVIL ACTION
A lawsuit brought to enforce, redress, or protect
rights of private litigants—the plaintiffs and the
defendants—not a criminal proceeding.
In the early 2000s, courts in the United
States generally are not divided into
COMMON-
LAW COURTS and equity courts because most
states and the federal government have merged
the procedures for law and equity into one
system. Now all kinds of lawsuits are simply

called civil actions without the former distinc-
tions of procedure in law or in equity. A
criminal proceeding is called a
PENAL action to
distinguish it from civil actions.
CIVIL DEATH
The forfeiture of rights and privileges of an
individual who has been convicted of a serious crime.
Civil death is provided for by statute in
some states. Most civil death statutes apply only
to offenders who have been sentenced to a life
term.
Civil death involves the imposition of
numerous disabilities, including the denial of
the privilege to vote, to hold public office, and
to obtain many job and occupational licenses.
In addition, an offender cannot enter into
judicially enforceable agreements, such as
contracts, and may not obtain insurance and
pension benefits. The offender may also be
deprived of any right to commence certain
lawsuits in court.
Successive marriages can also be affected by
civil death laws. The issue is whether or not the
spouse of a person declared civilly dead may
enter into a subsequent
MARRIAGE. The state
courts are in disagreement on the matter,
although, in most instances, where a
FELONY is

a ground for
DIVORCE, the spouse of the
convicted person may end the marriage.
CIVIL DISOBEDIENCE
A symbolic, non-violent violation of the law, done
deliberately in protest against some form of
perceived injustice. Mere dissent, protest, or
disobedience of the law does not qualify. The
act must be nonviolent, open and visible, illegal,
performed for the mora l purpose of protesting an
injustice, and done with the expectation of being
punished.
By peacefully and openly violating the law
and submitting to punishment, those engaging
in civil disob edience hope to draw attention to
the law they hope to reform, the injustice they
hope to stop, or the policy or practice they hope
to end. By calling into question the justness,
fairness, equity, or propriety of the
STATUS QUO,
persons engaging in civil disobedience usually
appeal to some form of higher law, whether it
be the divine law of god,
NATURAL LAW,orsome
form of moral reasoning.
The philosophi cal underpinnings for civil
disobedience can be found in New Testament
writings which report on the teachings of Jesus.
They also appear in works by Cicero, Thomas
Aquinas,

JOHN LOCKE, and THOMAS JEFFERSON.Ina
famous essay entitled “Civil Disobedience,”
HENRY DAVID THOREAU claimed that the individual
is “a higher and independent power” from
which the state obtains its authority. As
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
404 CIVIL ACTION
individuals, people must not wait for the
government to recognize injustice and instigate
reform, Thoreau said, because the machinery of
government moves too slowly. If individuals
have right on their side, then they must do right
by trying to peacefully and openly change
society.
Civil disobedience has been extensively
employed around the world by nationalist
movements (e.g.,
MOHANDAS GANDHI used civil
disobedience to protest against British colonial
rule in India),
CIVIL RIGHTS leaders (e.g., MARTIN
LUTHER KING
Jr. used civil disobedience to protest
against racial
SEGREGATION laws in the United
States), and anti-war protestors (e.g., Muham-
mad Ali used civil disob edience to protest U.S.
involvement in the
VIETNAM WAR), among others.
CROSS REFERENCES

Civil Rights Movement; Protest.
CIVIL LAW
In the United States, the term civil law has two
meanings. One meaning of civil law refers to a
legal system prevalent in Europe that is based on
written codes. Civil law in this sense is contrasted
with the common-law system used in England and
most of the United States, which relies on prior
CASE LAW to resolve disputes rather than written
codes. The second meaning of civil law refers to the
body of laws govern ing disputes between indivi-
duals, as opposed to those governing offenses that
are public and relate to the government — that is,
civil law as opposed to
CRIMINAL LAW.
The civil law system is derived from the
Roman Corpus Juris Civilus of Emperor Justi-
nian I; it differs from a common-law system,
which relies on p rior de cisions to determine
the outcome of a lawsuit. Most European and
South American countries have a civil l aw
system. England and most of the countries it
dominated or colonized, including
CANADA AND
THE UNITED STATES
, have a common-law system.
However, within these countries, Louisiana,
Quebec, and Puerto Rico exhibit the influence
of French and Spanish settlers in their use of
civil law systems.

In France, the civil law is set forth in the
comprehensive French Civil Code of 1804, also
known as the Code Napoléon. France exported
this legal system to the New World when it
settled Louisiana in 1712. When the French
ceded Louisiana to Spain in 1762, the new
Spanish governor replaced French civil law with
Spanish civil law. France regained control of the
territory in 1803 and the United States pur-
chased it a mere 20 days later. During that brief
period of French rule, the French prefect
abolished all Spanish courts but did not
reintroduce French law. Hence, the new U.S.
governor of Louisiana, William Claiborne, took
control of a territory that lacked a legal system.
Determined to Americanize Louisiana, Clai-
borne attempted to impose
COMMON LAW but
met fierce resistance from Louisianans who had
grown accustomed to their mixture of French
and Spanish laws and culture. Realizing that he
would not be able to mandate a common law
system, he directed the state’s legislature to draft
a civil code based on existing law. Louisiana’s
first civil code, enacted in 1808, drew heavily
from the Code Napoléon and was even written
in French. It was replaced in 1825 by a more
comprehensive and detailed code. Finally, the
Louisiana Civil Code, enacted in 1870 and still
largely in force, clarifies and simplifies the

earlier laws. The 1870 code is written in English,
signaling a shift toward a partial Americaniza-
tion of Louisiana’s legal culture. To this day,
Louisiana enjoys the distinction of being the
only state in the United States to have a civil law
system rather than a common-law system.
The first article of the Louisiana Civil Code
reads: “The sources of law are legislation and
custom” (LA C.C. Art. 1). This means that
judges in Louisiana are obligated to look first to
written laws for guidance in reaching their
decisions. If no statute directly governs the
dispute, judges may base their decisions on
established custom. Article 3 defines custom as
a “practice repeated for a long time and
generally accepted as having acquired the force
of law.” However, Article 3 makes it clear that
custom may not abrogate or conflict with
legislation. Hence, Louisiana judges do not
make law with their decisions; rather, the code
charges them with interpreting, as closely as
possible, what has been written and passed by
the legislature or long established by custom.
Louisiana judges , unlike their common-law
counterparts, are not bound by jud icial prece-
dent. Common-law judges adhere to the
doctrine of
STARE DECISIS, which mandates that
the outcome of a lawsuit be governed by
previous decisions in similar cases. Louisiana’s

civil code does not recognize the binding force
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CIVIL LAW 405
of precedent. However, under the civil law
doctrine of jurisprudence constante, or settled
jurisprudence, judges are expected to follow a
series of decisions that agree on the interpreta-
tion of a code provision.
Although Louisiana is generally called a
civil law state, its code is imbued with some
common-law features, making it a hybrid of
the two traditi ons. The state’sconstitution,
administrative and criminal law, civil and
CRIMINAL PROCEDURE, and rules of evidence all
contain elements derived from common-law
principles. As a result, Louisiana judges operate
under administrative rules that differ from
those found in other civil law jurisdictions. For
example, whereas European judg es a ctively
elicit the facts in a controversy and seldom
use a jury, Louisiana judges operate more like
their common-l aw colleagues, assuming the
role of neutral and passive fact finder or
ARBITER,andleavingtheFINAL DECISION to a jury.
Oral argument is generally absent in a pure
civil law proceeding, whereas Louisiana’spro-
ced ural and ev identiary rules allow oral pre-
sentati ons, resulting in trials that are closer to
those found in a common-law court. F inally,
European courts allow almost unlimited dis-

covery by the accused in a lawsuit, whereas
Louisiana’s procedura l and evide ntiary rules
place certain restrictions on such discovery.
Civil law systems differ from common-law
systems in another important way: In a
common-law jurisdiction, appellate courts, in
most instances, may review only findings of law.
However, civil law appellate courts may review
findings of fact as well as findings of law. This
allows a Louisiana appellate court to declare a
jury’s decision erroneous, impose its own
findings of fact, and possibly even reduce a
damage award. This is a significant consider-
ation for a
PLAINTIFF who has a choice of whether
to file suit in Louisiana or in another state (to
bring suit in a particular state, a plaintiff must
demonstrate some relationship between that
state and the lawsuit). Because a jury award
could be overturned on appeal, the plaintiff
with a strong case may wish to file in a
common-law state. On the other han d, if the
plaintiff is uncertain of success at the trial level,
the possibility of broader review on appeal may
make Louisiana the better choice. As a practical
matter, such dilemmas ari se infrequently, and
most often involve complex multistate
LITI-
GATION
concerning corporations.

FURTHER READINGS
Apple, James G., and Robert P. Deyling. A Primer on the
Civil–Law System. Washington, D.C.: Federal Judicial
Center. Available online at />pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf; website
home page: (accessed August 30,
2009).
Rogowski, Ralf. 1996. Civil Law and Legal Theory. New York:
New York Univ. Press.
Scott, S.P. 2006. The Civil Law. Clark, NJ: The Lawbook
Exchange.
CROSS REFERENCES
Napoleonic Code; Roman Law.
CIVIL PROCEDURE
The methods, procedures, and practices used in
civil cases.
The judicial system is essentially divided
into two types of cases: civil and criminal. Thus,
a study of civil procedure is basically a study of
the procedures that apply in cases that are not
criminal.
Generally, criminal trials are used by the
government to protect and provide relief to the
general public by attempting to punish an
individual. Civil trials can be used by anyone
to enforce, redress, or protect their legal rights
through court orders and monetary awards. The
two types of trials are very different in character
and thus have separate procedural rules and
practices.
PROCEDURAL LAW is distinguished from SUB-

STANTIVE LAW
, which creates, defines, and
regulates the rights and duties of individuals.
Federal and state constitutions, statutes, and
judicial decisions form the basis for substantive
CIVIL LAW on matters such as contracts, torts, and
probate. Procedural law prescribes the methods
by which individuals may enforce substantive
laws. The basic concern of procedural law is the
fair, orderly, efficient, and predictable applica-
tion of substantive laws. Procedural guidance
can be found in court rules, in statutes, and in
judicial decisions.
Federal Rules of Civil Procedure
State and federal courts maintain separate
procedural rules. On the federal level, the
Federal Rules of Civil Procedure govern the
process of civil
LITIGATION at the level of the U.S.
district court, which is a trial court. At least one
U.S. district court operates in each state. Each
district court also exists within one of thirteen
federal circuits. Any appeal of a decision by a
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
406 CIVIL PROCEDURE
U.S. district court is heard by the court of
appeals fo r the federal circuit in which the
district court sits. Appeals of decisions by a U.S.
court of appeals may be heard by the
SUPREME

COURT OF THE UNITED STATES
.
The Supreme Court and the courts of
appeals use procedures contained in the Federal
Rules of Appellate Procedure and in the U.S.
Supreme Court Rules. As reviewing courts, they
are concerned with the district courts’ applica-
tion of the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure are
now contained in title 28 of the
U.S. CODE. Before
1938, the procedural rules in U.S. district courts
varied from circuit to circuit. The rules in the
western United States, for example, were
generally less complex than those in the East.
To add to the confusion, federal civil cases were
designated either at law, which essentially meant
that the relief sought was monetary or equitable,
which meant that the court was asked to act on
principles of fairness and, generally, to award
nonmonetary relief. The distinction was impor-
tant because the procedural rules for a case at
law differed from those for an equity suit.
In response to widespread criticism of
procedural complexity, the U.S. Congress in
1934 passed the Federal Rules Enab ling Act (28
U.S.C.A. §§ 2071, 2072). This act conferred on
the Supreme Court the power to make new
rules for federal courts. In 1938 new rules were
recommended by an advisory committee

appointed by the Supreme Court and approved
by Congress. The new rules featured simplified
PLEADING requirements, comprehensive discov-
ery procedures, a
PRETRIAL CONFERENCE to narrow
the scope of a trial and define issues, and broad
provisions for joining parties and claims to a
lawsuit. In addition, legal and equitable claims
were merged to proceed with the same set of
rules.
After the first set of uniform federal rules
were promulgated, it became clear that contin-
uous oversight of the rules was necessary to
ensure their improvement. In 1958 Congress
created the
JUDICIAL CONFERENCE OF THE UNITED
STATES
, a freestanding body to study federal civil
procedure and propose amendments to the
Supreme Court. The Judicial Conference, in
turn, created the ongoing Committee on Rules
of Practice and Procedure to help fashion the
best procedural rules for federal courts. Subse-
quently amendments to the Federal Rules of
Civil Procedure occurred on a regular basis.
State Courts generally follow the sam e
judicial hierarchy as federal courts. In all states,
a party to a civil suit is entitled to at least one
review of a trial court decision. In some states, a
party may be entitle d to two appeals: one in a

court of appeals, and one in the state supreme
court.
Procedural rules in state courts are similar to
the federal rules. Indeed, many states base their
procedural rules on the federal rules. Thus,
thereisalargemeasureofuniformityamong
the states and among state and federal courts.
Litigation Process: Pleadings,
Justisdiction, and Venue
A CIVIL ACTION is commenced with the filing of a
complaint. The
PLAINTIFF must file the complaint
with the court and must give a
SUMMONS to the
court and a copy of the complaint to the
DEFENDANT. The complaint must set forth
the claims and the legal bases for them.
Before filing the complaint, the plaintiff
must decide where to file it. As a general rule,
cases are filed in state, not federal, courts. The
question of whether a particular court has
authority over a certain matter and certain
parties is one of jurisdiction. Federal courts
generally have jurisdiction over civil actions in
three situations. The most common is when the
parties to the suit live in different states and the
amount of money in controversy exceeds
$50,000. The second instance is when a claim
is specifically authorized by federal statute. The
third is when a claim is made by or against the

federal government or its agents.
The jurisdiction of state courts depends on a
number of variables. Plaintiffs filing in state
court generally prefer to file in their home state.
However, this may be difficult in a case where
the defendant lives in another state and the
injury occurred outside the plaintiff’s home
state. A court in the plaintiff’s home state can
gain jurisdiction over an out-of-state defendant
in several ways. For example, if the defendant
enters the plaintiff’s home state, the plaintiff
may serve the defendant there and force the
defendant to appear there for trial. Or the
plaintiff can show the court that the defendant
has some minimal amount of contact with the
plaintiff’s home state. Or the plaintiff can show
that the defendant has property in the plaintiff’s
home state and the property is the subject
matter of the dispute.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CIVIL PROCEDURE 407