Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P53 pot

reimburse a policyholder is a fixed percentage—
usually 80 percent—of the approved charges—
the amount of a submitted bill which the
insurer considers reasonable and will reimburse
after the policyholder has paid the
DEDUCTIBLE,
which is usually the first $100 of medical
expenses. The insured becomes a coinsurer for
the remaining 20 per cent of the approved
charges as well as for the amount by which
the individual medical bills exceed the approved
charges.
COINTELPRO
Between 1956 and 1971, the Federal Bureau of
Investigation (FBI) condu cted a campaign of
domestic counterintelligence. The agency’s Do-
mestic Intelligence Division did more than
simply spy on U.S. citizens and their organiza-
tions; its ultimate goal was to disrupt, discredit,
and destroy certain political groups. The divi-
sion’s operations were formally known within
the bureau as COINTELPRO (the Counterin-
telligence Program). The brainchild of former
FBI director J. Edgar Hoover, the first COIN-
TELPRO campaign targeted the U.S. Commu-
nist party in the mid-1950s. More organizations
came under attack in the 1960s. FBI agents
worked to subvert
CIVIL RIGHTS groups, radical
organizations, and white supremacists. COIN-
TELPRO existed primarily because of Director

Hoover’s extreme politics and ended only when
he feared its exposure by his critics. A public
uproar followed revelations in the news media
in the early 1970s, and congressional hearings
criticized COINTELPRO campaigns in 1976.
In 1956 Hoover interpreted a recent federal
law—the Communist Control Act of 1954 (50
U.S.C.A. § 841)—as providing the general
authority for a covert campaign against the
U.S. Communist party. Officially, the law
stripped the party of “the rights, privileges,
and immunities attendant upon legal bodies
created under the jurisdiction of the laws of the
United States.” Hoover saw the party as a pe ril
to national security and ordered a large-scale
effort to infiltrate and destabilize it.
Employing classic
ESPIONAGE techniques, FBI
agents joined the party and recruited infor-
mants. They spread dissension at party meetings
by raising embarrassing questions about the
recent Soviet invas ion of Hungary, for instance,
or about Soviet premier Nikita Khrushchev’s
denunciation of the Soviet leader
JOSEPH STALIN,
who had been a hero to U.S. Communists.
Agents also engaged in whispering campaigns
identifying party members to employers and
neighbors. The FBI intensified its harassment by
enlisting the

INTERNAL REVENUE SERVICE (IRS) to
conduct selective tax audits of party members.
And it spread rumors within the party itself—
employing a practice known as snitch jacketing—
that painted loyal members as FBI informants. In
all, the government executed 1,388 separate
documented efforts, and t he y worked: whereas
party membership was an estimated twenty-two
thousand in the e arly 1950s, it fell to some three
thousand by the end of 1957.
After his initial success, Hoover did not rest.
From the late 1950s through the end of the
1960s, he unleashed his agents against a wide
range of political groups. Some were civil rights
organizations, such as the National Association
for the Advancement of Colored People (
NAACP)
and the
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE
(SCLC). Others were radical, such as the BLACK
PANTHER PARTY
,theAMERICAN INDIAN MOVEMENT,
and the Socialist Workers party. Yet another
target was the nation’s oldest white hate group,
the
KU KLUX KLAN, although Hoover was less
enthusiastic about pursuing it and did so chiefly
because of political pressure resulting from
the Klan’s highly publicized murders of civil
rights workers. In internal FBI memorandums,

Hoover’s motive for these operations is given as
the need to stamp out
COMMUNISM and subver-
sion, but the historical record reveals a muddier
picture. What turned Hoover’s attention to the
NAACP, for example, was the organization’s
criticism of FBI hiring practices for excluding
minorities.
In their scope and tactics, these FBI
operations occasionally went much further than
the original anti-Communist COINTELPRO
effort. They involved at least twenty documen-
ted burglaries of the offices of the SCLC, an
organization headed by
MARTIN LUTHER KING Jr.
Hoover detested King, whom he called “one of
the most reprehensible … individuals on the
American scene today,” and urged his agents to
use “imaginative and aggressive tactic s” against
King and the SCLC. To this end, agents bugged
King’s hotel rooms; tape-recorded his infideli-
ties; and mailed a recording, along with a note
urging King to commit suicide, to the civil
rights leader’s wife. The COINTELPRO opera-
tion against the radical Black Panther party,
which Hoover considered a black nationalist
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
508 COINTELPRO
hate group, tried to pit the party’s leaders
against each other while also fomenting violence

between the Panthers and an urban gang. In at
least one instance, FBI activities did lead to
violence. In 1969 an FBI informant’s tip
culminated in a police raid that killed Illinois
Panther chairman Fred Hampton and others;
more than a decade later, the federal govern-
ment agreed to pay
RESTITUTION to the victims’
survivors, and a federal judge sanctioned the
bureau for covering up the facts in the case.
Political changes in the early 1970s weakened
Hoover’s position. Critics in the media and
Congress began to question Hoover’s methods,
and the newly created
FREEDOM OF INFORMATION
ACT
(FOIA), 5 U.S.C.A. § 552, promised to pierce
the veil of secrecy that had always protected him.
In 1971 a break-in at an FBI field office in
Pennsylvania yielded secret documents that were
ultimately published. Fearing greater exposure of
FBI counterintelligence programs, Hoover for-
mally canceled them on April 28, 1971. Some
small-scale operations continued, but the days
when agents had carte blanche to carry out the
director’s will were over.
Hoover died May 2, 1972, at the age of 77.
His death was followed by the realization
of his greatest fear. In 1973 and 1974
NBC reporter Carl Stern gained access to

COINTELPRO documents through an FOIA
claim. More revelations followed, producing a
public outcry and leading to an internal
investigation by Attorney General
WILLIAM B.
SAXBE. The U.S. Congress was next: In 1975 and
1976, hearings of the House and Senate Select
Committees on Intelligence further probed
COINTELPRO. Even as Hoover’s legacy was
laid bare, supporters tried to keep the cover on:
House lawmakers kept their committee’s report
secret. The Senate did not; its report, released
on April 28, 1976, denounced a “pattern of
reckless disregard of activities that threatened
our constitutional system.”
Along with revealing other instances of FBI
illegalities under Hoover, the investigation of
his activities set in motion a process of reform.
Congress ultimately limited the term of the
director of the FBI to ten years, to be served at
the pleasure of the president, a safeguard
designed to ensure that no single individual
could again run the bureau indefinitely and
without check. Details about COINTELPRO
continue to be made public through govern-
ment documents.
FURTHER READINGS
Gentry, Curt. 2001. J. Edgar Hoover: The Man and the
Secrets. New York: Norton.
Hakim, Joy. 2007. History of US Volume 10: All the People

1945–2005. New York: Oxford Univ. Press.
Kleinfelder, Rita L. 1993. When We Were Young: A Baby-
Boomer Yearbook. New York: Simon & Schuster.
Powers, Richard G. 1987. Secrecy and Power: The Life of J.
Edgar Hoover. New York: Free Press.
v
COKE, SIR EDWARD
An influential figure of Renaissance England
and a great jurist, SIR EDWARD COKE bravely
fought for the supremacy of the
COMMON LAW
over the monarchy. He served in numerous
high public offices under Elizabeth I, who reigned
from 1558 to 1603, James I, who reigned from
1603 to 1625, and Charles I, who reigned from
1625 to 1649—and his continual efforts to
restrain the last two rulers remain a significant
part of his legacy. He was frequently a member of
Parliament (M.P.), and in the 1620s, he became a
leading figure of that body, staunchly advocating
the rights and freedoms of Parliament against
challenges from James I and Charles I.
Coke was a contemporary of such great
figures of Elizabethan England as William
Shakespeare, Edmund Spenser, Sir Walter
Raleigh, Ben Jonson, and
FRANCIS BACON.Heis
most well-known for his influential legal
writings, particularly his four-volume Institutes
of the Laws of England. He also published,

during his career, Reports, a compendium of
leading cases of common law with his own
analyses that finally constituted thirteen
volumes. Coke’s ideas formed part of the
intellectual background for the American Revo-
lution and the U.S. Constitution. His writings
on English common la w, along with those of
SIR WILLIAM BLACKSTONE, greatly influenced
U.S. law and were considered required reading
for U.S. lawyers until well into the nineteenth
century.
Coke was born February 1, 1552, at Mile-
ham, Norfolk, England, into a family of Norfolk
gentry, the only son amon g eight children. His
father was a barrister, or trial lawyer, and Coke
took up the same profession. In 1572, after
being educated at Norwich Grammar School; at
Trinity College, Cambridge; and at Clifford’s
Inn, London, he was admitted to the Inner
Temple—one of the
INNS OF COURT that served as
colleges in the university of law. He became a
barrister in 1578, and quickly rose to great
THE GREATEST
INHERITANCE THAT A
MAN HATH IS THE
LIBERTY OF HIS
PERSON
, FOR ALL
OTHERS ARE

ACCESSORY TO IT
.
—SIR EDWARD COKE
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COKE, SIR EDWARD 509
prominence in his profession and in the
political sphere of his time. He was aided in
his rise by his friendship with William Cecil,
Baron Burghley, the chief minister to Queen
Elizabeth I. Coke became recorder of Coventry
in 1585 and of Norwich in 1586, M.P. for
Aldeburgh in 1589, recorder of London and
SOLICITOR GENERAL in 1592, and M.P. for Norfolk
and Speaker of the Commons in 1593.
In 1582 Coke married Bridget Paston. The
union brought him a considerable fortune in
money and land, as well as seven child ren. With
his later political power, he was able to add
greatly to his wealth over the course of his life.
His first wife died in 1598. His subsequent
marriage a few months later to Lady Elizabeth
Hatton, 26 years his junio r and granddaughter
of Burghley, was a troubled one and ended
in separation. He had one daughter by Lady
Hatton.
In 1594 Coke became attorney general for
the Crown, or “the quenes atturney,” as a
contemporary put it, winning the post in
competition against Bacon, a noted philosopher
and politician and Coke’s chief rival dur ing his

public career. As attorney general, Coke was
responsible for defending the interests and royal
prerogative, or power, first of Queen Elizabeth
and then of King James. He supervised state
prosecutions in several major
TREASON trials,
including those of the earls of Essex and
Southampton (1600–01); Raleigh (1603); and
the conspirators involved in the Gunpowder
Plot (1605), an attempt by Catholic opponents
to blow up the House of Lords. A gifted speaker,
Coke also proved in such trials that he could be
brutal in court. He said of Raleigh, a former
favorite of Queen Elizabeth and hero of the
realm, “[T]hou hast a Spanish heart, and thyself
art a spider of hell” and “there never lived a
viler viper upon the face of the earth than
thou.” Coke was so powerful at this point in his
career that in 1601 he was able to invite the
queen to his estate at Stoke Poges, where he
presented her with jewels and other gifts valued
at over £1,000.
Coke’s responsibilities as “the queen’s
attorney” were diametrically opposed to those
in his later role as champion of the common law
against the Crown. In 1606 he was made chief
justice of the Court of
COMMON PLEAS, a position
as judge of the common law that soon put him
at odds with King James. Through this position,

Coke sought to limit thejurisdiction of the royal
courts—particularly the ecclesiastical, or
church, courts and the Chancery, or courts of
the king’s lord chancellor—by maintaining that
▼▼
▼▼
Sir Edward Coke 1552–1634
15501550
16001600
16251625
16501650
15751575
◆◆◆◆◆◆◆◆◆
❖❖
1552 Born,
Mileham,
Norfolk, England
1558–1603
Reign of Elizabeth I
1589
Became a
member of
Parliament
1594 Became
attorney
general for
the Crown
1606 Appointed
chief justice of
the Court of

Common Pleas
1578 Became
a barrister
1603–25
Reign of James I
1613 Appointed chief justice of the King's Bench
1616 King James dismissed Coke
1617 Reappointed to Privy Council and Star Chamber
1621 Helped draft the Protestation of
December 1621, which caused King
James to dissolve Parliament
1628 Led the movement to put forward the
Petition of Right; first volume of the Institutions
of the Laws of England published
1634 Died,
Stoke Poges, England
1625–49
Reign of Charles I
Sir Edward Coke.
LIBRARY OF CONGRESS
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
510 COKE, SIR EDWARD
the king was bound by the tradition of common
law in making decisions. Coke told King James
that he could not make judicial decisions that
were in conflict with common-law precedent.
He argued that the common law was a system of
“artificial reason and judgment,” the accumu-
lated wisdom of many decisions over hundreds
of years that could only be acquired through

laborious study. The common law was therefore
not amenable to arbitrary change by one
individual, even if that individual was the king.
In Fuller ’s case (1607–8), for example, Coke
argued that “the king in his own person cannot
adjudge any case.” He also delivered an opinion
in 1610 in which he stated that the king cannot
change any part of the common law or create
through royal proclamation a new offense
under the law. Coke’s concept of the common
law’s authority over the monarchy eventually
became part of the English constitution.
In 1613 Coke was made chief justice of the
King’s Bench, moving to a lower-paying posi-
tion that Bacon and other enemies inflicted on
him as punishment and with the hope that it
would force Coke to give in to the demands of
the Crown. However, shortly thereafter, Coke
was appointed to the
PRIVY COUNCIL, the king’s
formal body of advisers. Again, he stubbornly
asserted the superiority of the common law over
the powers of the king and the king’s advisers.
He clashed with the Court of King’s Bench and
with the king in several more prominent
cases—including the king’s attempts to hold
several ecclesiastical benefices, or offices, at the
same time—and in 1616 James dismi ssed Coke
from office. Ever resilient—and ever valuable to
the state because of his great legal skills and

knowledge—by 1617 he was back in the
PRIVY
Council and the STAR CHAMBER, a court of law
made up largely of members of the Privy
Council.
In 1620 Coke again entered Parliament, this
time as a member from a Cornwall borough.
While in Parliament in this last stage of his
public career, Coke became a leading advocate
for that body’s independent power against the
king. He participated in the
IMPEACHMENT of
Bacon as lord chancellor and helped draft the
Protestation of December 1621, which stated
that “the liberties, franchises, privileges and
jurisdictions of Parliament are the ancient and
undoubted birthright and inheritance of the
subjects of England” and that Parliament “hath
and of right ought to have freedom of speech”
in England. This document caused James to
dissolve that session of Parliament and dismiss
its leaders. Coke, at age 70, received the most
severe sentence of anyone in Parliament and
was put in the Tower of London for nine
months.
Coke soon became an M.P. again, sitting for
Coventry in the Parliament of 1624. James I
died in 1625, the same year that Coke sat in
Parliament for Norfolk, and the throne was
taken by Charles I. In 1628, Coke spent his last

term in Parliament, for Bucking hamshire. That
year, he led the movement to put forward the
Petition of Right, which guaranteed the subjects’
rights with respect to the monarchy, including
protection against arbitrary imprisonment,
freedom from
TAXATION without parliamentary
representation, and
DUE PROCESS OF LAW.Inhis
defiant reply to the petition, King Charles was
adamant about what he called his “sovereign
power” to rule the country. Later, in an
eloquent speech before Parliament, Coke ques-
tioned the king’s phrase, reminding the mem-
bers of the importance of
MAGNA CARTA,the
medieval document that protected the nobility,
Parliament, and, to a certain degree, the
common people from arbitrary royal decrees.
“Take we heed what we yield unto,” Coke
declared. “Magna Carta is such a fellow that he
will have no sovereign.”
Coke retired from public life shortly after
this speech. Despite his effort s, ideas such as
those contained in the Petition of Right were
not embodied in formal law until much later in
English history. Sadly, Coke suffered the
indignities of royal prerogative once again in
July 1634, several months before his death,
when his papers were ransacked and stolen by

royal officials. Though Coke was very old and
infirm, the king still deemed him “too great an
oracle among the peop le” and therefore dan-
gerous to the power of the monarchy. Coke died
in his house at Stoke Poges in September 1634.
Coke’s legal writings served as invaluable
guides to jurists for centuries after his death. His
Reports (1600–1611, 1650–59), covering a peri-
od of 40 years, were the preeminent legal texts
of their time. These 13 volumes were based on
careful notes on cases he had heard since he had
been nominated to the bar. Arranged by subject,
they went into greater detail than had previous
LAW REPORTS , including coverage of earlier
precedents affecting contemporary judicial deci-
sions. They are different from modern legal
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COKE, SIR EDWARD 511
reports in that they reflect Coke’s own inter-
pretations of the law, with each report forming
a brief treatise on the relevant points of law.
They also contain numerous factual errors and
misinterpretations of legal precedent.
Coke’s four-volume Institutes of the Laws of
England (1628–64) was the first significant legal
work to be written partly in English. The first
volume, called Coke upon Littleton (1628),
contains the text of Sir Thomas Littleton’s
1481 treatise on property, On Tenures, with an
English translation and commentary by Coke.

The second volume (1642) deals with statutes of
Parliament, the third (1664) with
CRIMINAL LAW,
and the fourth (1644) with the JURISDICTION and
history of different English courts. Though the
Institutes reflect many of Coke’s own short-
comings—they have been criticized for their
disorganization, inaccuracies, a nd idiosync rasies —
they nevertheless put into modern language
and make accessible a body of law that would
have otherwise remained obscure and difficult
to gather.
Coke’s ideas later influenced the American
Revolution, particularly through the voice of
James Otis Jr., a lawyer in Massachusetts. In
arguing the
WRITS OF ASSISTANCE CASE in 1761,
Otis used Coke’s writings to support his
contention that an unwritten English constitu-
tion had been developed by precedent over the
years, and that any act of Parliament deemed to
be in violation of that constitution could be
declared
VOID by the judiciary. The relevant
passage in Coke is taken from Dr. Bonham’s
case (1610):
It appears in our books that in many cases
the common law will control acts of Parlia-
ment, and sometimes adjudge them to be
utterly void: for when an act of Parliament is

against common right or reason, or repug-
nant, or impossible to be performed, the
common law will control it, and adjudge
such act to be void.
Leaders of the American Revolution, in-
cluding JOHN ADAMS, used such ideas in the
eighteenth century to lobby for power to void
Parliamentary laws that were considered to be
harmful. Such ideas also influenced the devel-
opment of the U.S. Constitution and the power
of
JUDICIAL REVIEW, which allows the judiciary
to strike down legislation that violates the
Constitution.
FURTHER READINGS
Bowen, Catherine D. 1990. The Lion and the Throne: The Life
and Times of Sir Edward Coke 1552–1634. Boston: Little,
Brown.
Boyer, Allen D. 2003. Sir Edward Coke and the Elizabethan
Age. Stanford, Calif.: Stanford Univ. Press.
Hostettler, John. 1997. Sir Edward Coke: A Force for Freedom.
Chichester, England: Barry Rose.
Powell, Damian. 2000. “Coke in Context: Early Modern
Legal Observation and Sir Edward Coke’s Reports.”
Journal of Legal History 21, no. 3 (December).
Woolrych, Humphry W. 2009. The Life of the Right
Honourable Sir Edward Coke, Knt., Lord Chief Justice
of the King’s Bench. Charleston, S.C.: BiblioBazaar.
CROSS REFERENCES
English Law “Dr. Bonham’s Case” (In Focus).

v
COKE, RICHARD
Richard Coke achieved prominence as a politi-
cian and jurist in the state of Texas.
Coke was born March 13, 1829, in
Williamsburg, Virginia. He graduated from the
College of William and Mary in 1849 and was
admitted to the Texas bar in 1850. After a tour
of military duty during the Civil War, Coke
became a district court judge in 1865 and
subsequently presided as an
ASSOCIATE JUSTICE of
the Texas Supreme Court from 1866 to 1867.
In 1874 Coke was elected governor of Texas.
Two years later he became a member of the U.S.
Senate, representing Texa s until 1894. He died
May 14, 1897, in Waco, Texas.
Richard Coke 1829–1897
▼▼
▼▼
18251825
19001900
18751875
18501850
◆◆◆◆◆◆
❖❖
1829 Born,
Williamsburg, Va.
1850 Admitted
to Texas bar

1859 Served on committee that induced Native Americans of
the Upper Brazos River to move to the Indian Territory
1862–65 Served in the 15th Texas
Regiment during Civil War
1865 Became district court judge
1866–67 Served as associate
justice of Texas Supreme Court
1874 Elected
governor of
Texas
1887 Supported
the Interstate
Commerce Act
1897 Died,
Waco, Tex.
1876 Elected to
represent Texas
in U.S. Senate
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
512 COKE, RICHARD
COLD WAR
The cold war was a pivotal era in the twentieth
century. The term cold war itself, popularized in
a 1946 speech by prime minister Winston
Churchill of Britain, describes the ideological
struggle between democracy and
COMMUNISM
that began shortly after the end of WORLD WAR II
and lasted until 1991. For the foreign policy of
the United States, the cold war defined the last

half of the twentieth century. It was a war of
ideas, of
THREATS, and of actual fighting in the
countries of Korea and Vietnam, pitting western
nations against the Soviet Union and China and
their Communist allies. The 1940s and 1950s
saw the cold war bloom into a period of
unparalleled
SUSPICION, hostility, and persecu-
tion. Anti-Communist hysteria ran through
each branch of government as the pursuit of
U.S. Communists and their sympathizers con-
sumed the energies of the
EXECUTIVE BRANCH,
lawmakers, and the courts. Rarely in the
nation’s history have constitu tional rights been
so widely and systematically sacrificed.
The cold war began in the aftermath of
World War II. Although only recently allied
against Germany, the United States and the
Soviet Union saw their relationship quickly
disintegrate. The division of Europe, with the
Soviet bloc countries sealed off behind what
Churchill called the “iron curtain,” had been the
first blow. A fear that Communism would
undermine the security of the United States
took hold of the nation’s leaders and citizens
alike. Measures had to be taken to safeguard the
country from infiltration, it was popularly
believed, and the government began a vigorous

campaign against Communist activity. On
March 21, 1947, President
HARRY S. TRUMAN
took a significant early step toward protecting
the country from Communism by issuing an
order establishing so-called loyalty boards
within each department of the executive branch
(Exec. Order No. 9835, 3 C.F.R. 627). These
boards were designed to hear cases brought
against employees “disloyal to the Government”
and, on the evidence presented, remove disloyal
employees from federal service.
The loyalty boards deviated from the tradi-
tional standard of presumed innocence. Instead,
the boards made their determinations based on
whether “reasonable grounds exist for belief”
that an accused employee was disloyal. Thus,
instead of having to prove
BEYOND A REASONABLE
DOUBT
that the accused person was guilty of
A family sits in their
bomb shelter, a
common feature of
many homes during
the early years of the
Cold War when fear
of a nuclear war with
the Soviet Union was
intense.

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COLD WAR 513
disloyalty, it was sufficient to bring enough
evidence against the accused person to damn that
person in the eyes of the board. This abridgment
of due process, which ended jobs and ruined
reputations, grew harsher under the administra-
tion of President
DWIGHT D. EISENHOWER.By
amending the order in 1951, Eisenhower made
it even harder for an accused employee to prove
his or her innocence (Exec. Order No. 10,241, 16
Fed. Reg. 3690). Now, the
BURDEN OF PROOF was
reduced to a showing of “reasonable doubt as to
the loyalty of [the] person,” a standard amenable
to trumped-up charges.
The intensity of domestic fears grew in
1949, following the announcement by Presid ent
Truman that the Soviets had developed the
atomic bomb. Only a year later, the
KOREAN WAR
broke out. These events ushered in a period of
bomb she lters, air raid drills in schools, civilian
anti-Communist organizations, and suspicion
of anyone whose ideas, behavior, personal life,
or appearance suggested belief in or sympathy
for Communism. Terms such as Pinko, Red,
and Communist sympathizer found their way
into the national vocabulary.

During the late 1940s, the House Un-
American Activities Committee (HUAC),
created to investigate subversives, provoked
widespread concern that government officials
had given secrets to the Soviets. Over the next
decade, in a climate of general suspicion that it
helped foster, it also investigated union leaders,
academics, and, most dramatically, Hollywood.
The right to freedom of association meant little
to congressional investigators. HUAC subpoe-
naed private citizens and confronted them with
a no-win choice: cooperate in naming Com-
munists or face
CONTEMPT charges. Crucial to the
success of these hearings was the cooperation of
the
FEDERAL BUREAU OF INVESTIGATION (FBI), which
provided the committee with both public
support and information.
At the same time, Senator
JOSEPH R. MCCARTHY
conducted his own hearings through the
Permanent Subcommittee on Investigations.
From 1950 to 1954, McCarthy’s charges about
alleged Communist operatives in the
STATE
DEPARTMENT
and the Army captivated the nation.
Like HUAC activities, his witch-hunt shattered
reputations and lives, but it backfired when he

attacked the U.S. Army. Censured by the U.S.
Senate in 1954, he ultimately gave history a
word that symbolizes the zealous disregard for
fairness in accusation: McCarthyism.
Starting in 1948, the
JUSTICE DEPARTMENT
prosecuted members of the American Commu-
nist party under the
SMITH ACT of 1940 (18 U.S.
C.A. § 2385), a broadly written law that
prohibited advocating the violent overthrow of
the government. The U.S. Supreme Court
upheld 12 convictions in Dennis v. United
States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed.
1137 (1951), and this ruling cleared the way for
141 subsequent indictments. Over the next
several years, 29 convicted party members were
sent to jail. In time, Congress provided
prosecutors with new ammunition through
the
MCCARRAN INTERNAL SECURITY ACT of 1950
(50 U.S.C.A. § 781 et seq.) and the Communist
Control Act of 1954 (50 U.S.C.A. § 841).
Anti-Communist hysteria decreased some-
what following the embarrassment of McCarthy.
However, the cold war continued. HUAC
operated throughout the 1960s, as did the
Senate Permanent Subcommittee on Investiga-
tions; both continued to locate the nation’s
troubles in the work of alleged subversives. And

from the late 1950s to the 1960s, the FBI, under
the direction of J. Edgar Hoover, secretly fought
Communists and other targets through its
Counterintelligence Program (
COINTELPRO).
Although the domestic waging of the cold
war had diminished by the early 1970s, the
international struggle continued. Over the next
two decades the cold war drew the United States
into military involvement in Asia, Africa, and
Central America. After Vietnam, the United
States fought communism by supporting anti-
communist factions in Angola, El Salvador,
Nicaragua, Guatemala, and Afghanistan. During
the 1980s the United States shifted to an
economic strategy, hoping to bankrupt the
Soviet Union through an arms race of unprece-
dented scale. The cold war effectively ended
with the breakup of the Soviet Union in 1991.
FURTHER READINGS
Craven, John Pina. 2001. The Silent War. New York: Simon &
Schuster.
Hakim, Joy. 2007. History of US Volume 10: All the People
1945–2005. New York: Oxford Univ. Press.
la Feber, Walter. 2006. America, Russia, and the Cold War,
1945–2007. 10th ed. Boston: McGraw-Hill.
Levering, Ralph B. 1982. The Cold War: 1945–1972.
Arlington Heights, Ill.: Harlan Davidson.
Mendelsohn, Jack. 1999. “History and Evaluation of the
Role of Nuclear Weapons in the Cold War.” Case

Western Reserve Journal of International Law 31 (mid-
summer).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
514 COLD WAR
Neusner, Jacob, and Noam M. M. Neusner. 1995. The Price
of Excellence: Universities in Conflict during the Cold War
Era. New York: Continuum International.
Rosenn, Max. 1995. “Presumed Guilty.” Univ. of Pittsburgh
Law Review (spring).
Tatum, Dale C. 2002. Who Influenced Whom?: Lessons from
the Cold War. Lanham, MD: Univ. Press of America.
Wenger, Andreas, and Doron Zimmermann. 2003. Interna-
tional Relations: From the Cold War to the Globalized
World. Boulder, CO: L. Rienner.
CROSS REFERENCES
Communism “House Un-American Activities Committee”
(In Focus); Hiss, Alger; Nixon, Richard Milhous; Rosenbergs
Trial.
COLLATERAL
Related; indirect; not bearing immediately upon
an issue. The property pledged or given as a
security interest, or a guarantee for payment of a
debt, that will be taken or kept by the creditor in
case of a default on the original debt.
That which is collateral is not of the essence.
Collateral facts are facts that are not indepen-
dently provable from, and that are not directly
relevant to, issues in a
CAUSE OF ACTION. Collateral
heirs are those individuals who are not directly

related to the deceased through
CONSANGUINITY.
Similarly, collateral ancestors are uncles and
aunts, as contrasted with direct ancestors, such
as parents and grandparents.
COLLATERAL ATTACK
An attempt to impeach or overturn a judgment
rendered in a judicial proceeding, made in a
proceeding other than within the original action or
an appeal from it.
A defendant may make a
COLLATERAL ATTACK
on a judgment entered against him or her in
some instances. If a
DEFAULT JUDGMENT is entered
against the person, he or she may collaterally
attack the authority of the issuing court to
render it, claiming that there was a lack of
PERSONAL JURISDICTION.
Similarly, if a man leaves his wife and moves
to another state where he obtains a
DIVORCE that
contains no support provisions for the woman,
she may directly attack the judgment by
appealing it in the state where it was entered
or initiate a collateral attack by bringing her
own divorce action in her state of residence.
A collateral attack may also be made upon a
judicial proceeding in a single state.
COLLATERAL ESTOPPEL

A doctrine by which an earlier decision rendered
by a court in a lawsuit between parties is
conclusive as to the issues or controverted points
so that they cannot be relitigated in subsequent
proceedings involving the same parties.
Collateral estoppel is an
AFFIRMATIVE DEFENSE
that must be pleaded by a DEFENDANT in civil
actions. The similar affirmative defense of RES
JUDICATA
differs from collateral ESTOPPEL in that it
completely precludes the relitigation of a claim,
demand, or
CAUSE OF ACTION, as opposed to an
issue or controverted point, in a subsequent
proceeding between the same parties to an
earlier action.
The application of the collateral estoppel
doctrine promotes the speedy administration of
justice by preventing the continuous, duplica-
tive
LITIGATION of fruitle ss claims when relitiga-
tion of them is unlikely to change the original
decision made regarding them.
Requirements
Issues or findings of fact, not conclusions of
law, are subject to collateral estoppel only in
certain cases. The issue against which collateral
estoppel is claimed must be identical to an issue
already litigated in the earlier case and must

have been fully litigated at that time. In
addition, the court must have actually decided
the issue. The decision on the issue must have
been integral in the outcome of the original
lawsuit. This last requirement assures the issue
was vigorously litigated so that it is fair to
prevent its relitigation in a second action
because there is little likelihood that the results
will be different the second time.
If an action has been settled by the
agreement of the parties, most jurisdictions will
not apply collateral estoppel, since the issues
have not been fairly and fully litigated.
Persons Affected
Collateral estoppel is binding only upon those
parties to the first action in which a decision
was made and anyone who might be regarded as
in
PRIVITY with those parties, such as a BAILOR and
BAILEE or a principal and his or her agent. In
many jurisdictions a party in a lawsuit who is
not subject to the estoppel effect of a prior
judgment because the party was not a party to
the original action in which the judgment was
rendered can, in certain instances, use that
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COLLATERAL ESTOPPEL 515
judgment to bind his or her adversary who had
been a party in the former action.
A defendant who, in a second action, pleads

the defenses of collateral estoppel against the
PLAINTIFF uses it defensively. In many jurisdictions
this use of the doctrine is considered fair because
the plaintiff has the advantage of selecting the
defendant and the forum in which the case is to
be decided. The decision to commence the
second lawsuit is based, in part, upon the findings
or issues in the first action, and, therefore, it is not
unreasonable to bind the plaintiff by the issues or
findings made in that case.
In contrast, a plaintiff in a subsequent
lawsuit who asserts collateral estoppel against
a defendant uses the doctrine of fensively to
buttress his or her cause of action. Fewer
jurisdictions, however, permit its offensive use
since the defendant against whom it would be
applied has neither the choice of forum nor of
adversary.
Limitations
Collateral estoppel has limited applicability in
cases where the issues raised in the court where
the action was first heard were beyond its
jurisdiction. In antitrust cases brought in federal
court, which has exclusive jurisdiction over such
matters, prior state court rulings concerning
antitrust violations made during the course of
deciding the legality of a contract will not be given
collateral estoppel effect. Courts reason that the
punitive and exclusive nature of the federal
remedy in antitrust cases precludes collateral

estoppel based upon state court decisions.
In contrast, federa l courts have applied
collateral estoppel in patent cases to any
underlying facts decided by state courts but
not to facts alleged to prove the issue of patent
validity or
INFRINGEMENT.
The availability of collateral estoppel is also
limited by changes in the law that take place
between the original and subsequent action.
Collateral estoppel will not apply if modifica-
tions in the applicable law alter the operative
facts needed to obtain a favorable ruling. To do
otherwise would deny an individual
EQUAL
PROTECTION
of law merely because of the luck
of the person who obtained the previous ruling.
Criminal Matters
Jurisdictions differ on whether to give an
estoppel effect to a criminal conviction of a
party currently involved in a civil lawsuit.
Traditionally, estoppel was not permitted, since
the plaintiff in the
CIVIL ACTION was not a party
to the criminal proceeding. In the early twenty-
first century, a number of states give full
collateral estoppel effect to a previous criminal
conviction.
ACQUITTAL of a crime is not given

collateral estoppel effect in a civil proceeding
because the plaintiff in the civil suit was not a
party to the criminal proceeding and could not
offer
EVIDENCE against the defendant. This rule
prevented
O. J. SIMPSON from using his acquittal
of
MURDER as a defense in the civil trials brought
against him by the families of Nicole Brown
Simpson and Ronald Goldman following the
murder trial.
In addition, the difference betw een the
BEYOND A REASONABLE DOUBT standard of proof
necessary for a criminal conviction and the
PREPONDERANCE OF EVIDENCE standard in civil
actions would make it unfair to allow the
acquitted defend ant to use his or her acquittal
to bind the opponent in the civil matter in
which the standard of proof to obtain a judgment
is not as stringent.
COLLATERAL HEIR
A successor to property—either by will or descent
and distribution—who is not directly descended
from the deceased but comes from a parallel line of
the deceased’s family, such as a brother, sister,
uncle, aunt, niece, nephew, or cousin.
COLLATERAL WARRANTY
In real estate transactions, an assurance or
guaranty of title made by the holder of the title

to the person to whom the property is conveyed.
Such a
WARRANTY is not the same as a
covenant
RUNNING WITH THE LAND, since it run s
only to a particular convenantee who accepts
the land from the holder of title and not to each
successive owner of the land upon taking
ownership of it.
COLLECTIVE BARGAINING
Collective bargaining is the process through which
a labor union and an employer negotiate the scope
of the employment relationship.
A
COLLECTIVE BARGAINING AGREEMENT is the
ultimate goal of the
COLLECTIVE BARGAINING
process. Typically, the agreement establishes
wages, hours, promotions, benefits, and other
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
516 COLLATERAL HEIR
employment terms, as well as procedures for
handling disputes arising under it. Because the
collective bargaining agreement cannot address
every workplace issue that might arise in the
future, unwritten customs and past practices,
external law, and informal agreem ents are as
important to the collective bargaining agree-
ment as the written instrument itself.
Collective bargaining allows workers and

employers to reach voluntary agreement on a
wide range of topics. Even so, it is limited to
some extent by federal and state laws. A
collective bargaining agreement cannot accom-
plish by contract what the law prohibits. For
example, a union and an employer cannot use
collective bargaining to deprive employees of
rights they would otherwise enjoy under laws
such as the
CIVIL RIGHTS statutes (Alexander v.
Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011,
39 L. Ed. 2d 147 [1974]). Collective bargaining
also cannot be used to
WAIVE rights or obliga-
tions that laws impose on either party. For
example, an employer may not use collective
bargaining to reduce the level of safety stan-
dards it must follow under the Occupational
Safety and He alth Act (29 U.S.C.A. §§ 651 et
seq.). Furthermore, the collective bargaining
agreement is not purely voluntary. One party’s
failure to reach agreement entitles the other to
resort to certain legal tactics, such as strikes and
lockouts, to apply economic pressure and force
agreement. Moreover, unlike commercial con-
tracts governed by state law, the collective
bargaining agreement is governed almost exclu-
sively by federal
LABOR LAW, which determines
the issues that require collective bargain ing, the

timing and method of bargaining, and the
consequences of a failur e to bargain properly or
to adhere to a collective bargaining agreement.
National Labor Relations Act
Congress passed the National Labor Relations
Act (NLRA) (29 U.S.C.A. §§ 151 et seq.) in 1935
to establish the right of workers to engage in
collective bargaining and other group activities
(§ 157). The NLRA also created the
NATIONAL
LABOR RELATIONS BOARD
(NLRB), a federal agency
authorized to enforce the right to bargain
collectively (§ 153). The NLRA has been
amended several times since 1935, most notably
in 1947, 1959, and 1974.
The NLRA governs labor relations for
businesses involved in interstate commerce
only; thus, it does not protect the collective
bargaining interests of all categories of workers.
Several classes of employers fall outside the
NLRA, including those working for the U.S.
government and its wholly owned corporations,
states and their political subdivisions, railroads,
and
AIRLINES. The NLRA also does not protect
certain types of workers, such as agricultural
workers, independent contractors, and supervi-
sory and managerial employees. But other
federal and state laws often provide protection

for workers not covered under the NLRA. For
example, federal government workers enjoy the
right to bargain collectively under the
CIVIL
SERVICE
Reform Act of 1978, which is patterned
largely after the NLRA and enforced by the
Federal Labor Relations Authority. Railroads
and airlines are generally governed by the
Railway Labor Act, the predecessor to the
NLRA. Plus many states have adopted statutes
similar to the NLRA that protect the rights of
state and local government workers to bargain
collectively.
Sections 8(a)(5) and 8(b)(3) of the NLRA
define the failure to engage in collective
bargaining as an
UNFAIR LABOR PRACTICE (29 U.S.
C.A. § 158(a)(5), (b)(3)). The
AGGRIEVED PARTY
may file an unfair labor practice charge with the
NLRB, which has the authority to prevent or
halt the performance of unfair labor practices
(§ 160).
Law of Collective Bargaining
The law of collective bargaining encompasses
four basic points:
n
The employer may not refus e to bargain
over certain subjects with the employees’

National Basketball
Association (NBA)
Commissioner David
Stern (right) shakes
hands with NBA
Players Association
Executive Director
Billy Hunter during a
June 2005 press
conference in which a
new collective
bargaining agreement
between the league
and players was
announced.
NATHANIEL S. BUTLER/
NBAE VIA GETTY IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
COLLECTIVE BARGAINING 517