Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P5 ppt

a personality disorder, are likely to engage in
predatory acts of sexual violence. Kansas invoked
the act in committing an inmate who had a long
history of sexually molesting children and who
was scheduled for release from prison shortly
after the act became law.
In a 5–4 decision written by Associate
Justice
CLARENCE THOMAS, the Court rejected
arguments that someone can be confined to a
mental institution only if the person has been
diagnosed with a mental illness. The Court also
rejected arguments that the Kansas law violated
the
DOUBLE JEOPARDY provision of the FIFTH
AMENDMENT
to the U.S. Constitution, even
though, under the law, persons who are first
imprisoned for a sex crime may be institution-
alized again when their criminal sentence has
been served, based on some of the same
evidence that had been used to convict them.
The Kansas law created a civil commitment
procedure that would result in confinement in
a mental hospital, the Court said, and the
protection against double jeopardy is only
triggered by subsequent criminal punishments
and prosecutions.
The U.S. Supreme Court’sdecisionwas
hailed by Kansas and the 38 other states that
hadurgedthejusticestoupholdthelaw.

However, defense lawyers, civil libertarians, and
mental health professionals warned that the
decision might allow states to lock up convicts
who are not truly dangerous to society. In effect,
said several mental health experts, the ruling
misuses mental hospitals for punishment pur-
poses, singling out one category of violent
criminal for unlimited
INCARCERATION without
the safeguards a fforded to criminal defendants
in the
BILL OF RIGHTS. Dissenting justices echoed
these sentiments in Hendricks, writing that while
they agreed in principle with the idea that states
may confine sexual predators who are deemed
to be mentally abnormal, in this case it appeared
that Kansas had not tried to treat the mental
problems of the convict whose case was before
the court. As a result, they wrote, his institution-
alization functioned more like a punishment,
and, therefore, it was unconstitutional.
Although 20 states have laws authorizing
civil commitment for sexual predators, courts
in many of those states have been highl y
circumspect in applying them. For example,
the Iowa Supreme Court ruled that the state
could not commit a prison er, who was s erving
a criminal sentence for operating a motor
vehicle without the owner’ sconsent,asa
sexually violent predator, even though the

prisoner had been convicted for sexually
violent offenses in the past ( In re Detention of
Gonzales, 658 N.W.2d 103 [Iowa 2003]). The
prisoner was not confined for a sexually
violent offense at the time that state filed its
petition for commitment. Further, the state
failed to prove, or even to allege, a recent
OVERT
ACT
that met the statutory definition for being
a sexual predator.TheIowaSupremeCourt
reasoned that it would n ot be just or reason-
able “to allow the state to reach back in time,
seizeonasexuallyviolentoffenseforwhicha
defendant was discharged, and couple this with
a present confinement for a totally differen t
offense—or,perhaps,atrivialone—and use
the Sexually Violent Predator Act to confine
the person .”
In other jurisdictions, federal courts have
been asked to intervene and invalidate state
laws governing the procedures by which
repeat sex offenders are committed following
release from prison. In 2007, for example, the
Mental Hygiene Legal Se rvice (MHLS) filed a
DECLARATORY JUD GMENT action attacking the
constitutionality of New York’s Sex Offender
Management and Treatment Act, which created
a new legal regime for “sex offenders requiring
civil commitment or supervision .” Mental

Hygiene Law (10.01 et seq. Section 10.06)
authorized involuntary civil detention pending
the commitment trial, based on a finding at the
PROBABLE CAUSE hearing that the individual may
have a mental abnormality. Section 10.07 of
the law authorized civil commitment for a
person who had been found incompetent to
stand trial but had never been convicted of a
sexual offense in a criminal proceeding, so long
as in a civil commitment hearing the state made
a showing by clear and convincing evidence
that the person was guilty of a sexual offense.
The U.S. district court for the Southern District
of New York struck down both provisions as
unconstitutional. Section 10.06 was unconstitu-
tional, the court ruled, because it permitted civil
detention pending trial based on a finding of
mental abnormality without an individualized
finding of current dangerousness. Section 10.07
was unconstitutional, the court declared, be-
cause it allowed detention of individuals absent
a finding
BEYOND A REASONABLE DOUBT that such
individuals committed the acts that constituted
the crime for which they had been charged
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
28 COMMITMENT
(Mental Hygiene Legal Serv. v. Spitzer, 2007 WL
4115936 [S.D.N.Y. Nov. 16, 2007]).
Courts have also been asked to review the

constitutionality of laws authorizing the civil
detention of juvenile sex offenders. These laws
have been usually upheld, at least when applied
to situations in which the state seeks to commit
a juvenile offender to a juvenile sex-offender
facility while he or she is still a juvenile. The
commitment proceedings grow more contro-
versial when the state seeks to use a sex offense
the person committed while still a juvenile as
one reason to justify civil detention of that
person after he or she commits a sexually
violent offense as an adult. On the one hand, a
juvenile’s criminal records are protected from
disclosure as confidential in most jurisdictions,
and using those records during an adult civil
commitment proceeding would seem to violate
that confidentiality. On the other hand, state
officials argue that persons who commit
SEX
OFFENSES
when they are juveniles present a
serious risk to society because they have more
years in which to commit repeat offenses than
do older, adult offenders.
Only a few courts have ruled on whether
records of juvenile sex offenses may be
admissible during an adult civil commitment
proceeding, but courts that have made such
rulings generally have allowed their admission.
A Pennsylvania Superior Court ruled that an

adult defendant’s juvenile history was admissi-
ble to establi sh that an adult defendant, who
pleaded
NOLO CONTENDERE to aggravated indecent
ASSAULT and corruption of minors, was a
sexually violent predator. The defendant had
been almost continuously committed to mental
health and juvenile detention facilities through-
out his teenage years, the court observed, and
records from those facilities documented re-
peated instances of inappropriate sexual and
physical outbursts. Finally, the court noted that
the defendant had not benefited from the sex
offender treatment he had undergone as a
juvenile or as an adult. The court concluded
that the probative value of this evidence was too
compelling for it to ignore (Commissioner v.
Woods, 909 A.2d 372 [2006]). Two years later, a
Kansas court reached the same conclusion (In re
Colt, 39 Kan.App.2d 643, 183 P.3d 4 [2008]).
Because several legal commentators have ques-
tioned these outcomes, however, the law in this
area is still very fluid .
FURTHER READINGS
Haycock, Joel, et al. 1994. “Mediating the Gap: Thinking
about Alternatives to the Current Practice of Civil
Commitment.” New England Journal on Criminal and
Civil Confinement 20.
James, Nathan, and Kenneth R. Thomas. 2008. Civil Com-
mitment of Sexually Dangerous Persons. Hauppauge, NY:

Nova Science Publishers, Inc.
Miller, Robert D. 1987. Involuntary Civil Commitment of the
Mentally Ill in the Post-Reform Era. Springfield, IL:
Thomas.
Parry, John. 1994. “Involuntary Civil Commitment in the
Nineties: A Constitutional Perspective.” Mental and
Physical Disability Law Reporter 18.
Winick, Bruce J. 1999. “Therapeutic Jurisprudence and the
Civil Commitment Hearing.” The Journal of Contem-
porary Legal Issues 10.
CROSS REFERENCES
Guilty; Patients’ Rights.
COMMITMENT FEE
Compensation paid to a lender by a borrower for
the lender’s promise to give a mortgage at some
future time.
A
COMMITMENT FEE, frequently employed in
REAL ESTATE transactions, is an expense separate
from interest charged on the loan to be secured
by the mortgage. The controversy surrounding
nonrefundable commitment fees arises when a
borrower decides not to proceed with the loan
and then demands return of the fee on the
premise that the lender has performed no
services to earn it. The courts have consistently
rejected this contention and held that the lender
is entitled to the commitment fee either as
LIQUIDATED DAMAGES for breach of contract or as
compensation for earmarking the funds for loan

to the borrower.
COMMITTEE
An individual or group of people to whom
authority has been delegated by a larger group
to perfor m a particular function or duty. A part
of a legislative body made up of one or more
individuals who have been assigned the task of
investigating a certain issue and reporting their
observations and recommendations to the legis-
lature. The Senate has various committees, such
as the Committee on Nuclear E nergy. T he name
given to the person or group of people appointed
by a court and charged with the r esponsibility
of acting as the guardian of an incompetent
person.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMITTEE 29
COMMODITY
A tangible item that may be bought or sold;
something produced for commerce.
Commodities are defined as marketable
goods or wares, such as raw or partially
processed materials, farm products, or jewelry.
Intangibles, such as human labor, services, or
advertising, are generally not considered to be
commodities.
COMMODITY CREDIT CORPORATION
The COMMODITY CREDIT CORPORATION (CCC) is a
federal agency that was established to stabilize
and protect farm income and prices; to assist in

the maintenance of balanced and sufficient
supplies of useful or serviceable agricultural
goods, especially articles of merchandise mov-
able in trade; and to promote the orderly
distribution of such products. It was organized
on October 17, 1933, pursuant to an
EXECUTIVE
ORDER
, as an agency of the United States.
From October 17, 1933, to July 1, 1939, the
CCC was managed and operated in close
affiliation with the Reconstruction Finance
Corporation. On July 1, 1939, it was transf erred
to the
AGRICULTURE DEPARTMENT under a presi-
dential
REORGANIZATION PLAN. Adoption by Con-
gress of the Commodity Credit Corporation
Charter Act on June 29, 1948, established the
CCC as an agency and instrumentality of the
United States under a permanent federal
charter.
The CCC is managed by a board of directors
and is subject to the general supervision and
direction of the secretary of agriculture, who is
an
EX OFFICIO director and chairperson of the
board. The board consists of seven members (in
addition to the secretary of agriculture) who are
appointed by the

PRESIDENT OF THE UNITED STATES
by and with the ADVICE AND CONSENT of the
Senate.
The CCC does not have operating person-
nel. In carrying out its principal operations, the
CCC utilizes the personnel and facilities of the
Farm Service Agency (FSA) and, in certain
foreign trade operations, the Foreign Agricul-
tural Service. A commodity office in Kansas
City, Missouri, has specific responsibilities
concerned with the disposal (through donation,
sale, or transfer) of designated commodities and
products held by the CCC.
Commodity Stabilization
The CCC administers commodity loan pro-
grams, which are part of the price supp ort
system that has dominated U.S. agriculture
since the 1930s. Farmers who agree to limit
their production of specially designated crops
can sell them to the CCC or borrow money at
support prices. The CCC manages loan pro-
grams for wheat, corn, rice, grain sorghum,
barley, oats, oilseeds, tobacco, peanuts, cotton,
and sugar.
Commodities acquired under the stabiliza-
tion program are disposed of through domestic
and export sales, transfers to other government
agencies, and donations for domestic and
foreign welfare use. The CCC is also authorized
to exchange surplus agricultural commodities

acquired by the CCC for strategic and other
materials and service s produced abroad.
Support Programs
Under PUBLIC LAW 480, the Agricultural Trade
Development and Assistance Act of 1954, as
amended (7 U.S.C.A. §§ 1691 et seq.), the
CCC carries out other assigned activities. Along
with providing domestic assistance to schools,
hospitals, and
NONPROFIT organizations, major
emphasis is directed toward meeting the needs
of developing nations. Under the Food for
Peace Act of 1966, which further amends the
Agricultural Trade Act of 1954, agricultural
commodities are procured and exported to
combat hunger and malnutrition and to
encourage economic improvement in develop-
ing countries.
The CCC is also involved in environmental
issues. In 2000 the Agriculture Department
implemented a two-year, $300 million incentive
program designed to encourage increased
production of biofuels (environmentally-friendly
fuels) such as ethanol and soy-based biodiesel.
As a result, the CCC provided cash incentives to
bioenergy producers who increase their pur-
chase of eligible agricultural commodities to
expand production of ethanol, biodiesel, and
other biofuels. Eligible commodities include
barley, corn, grain sorghum, oats, rice, wheat,

soybeans, and many seed crops.
FURTHER READINGS
Commodity Credit Corporation. Available online at http://
www.fsa.usda.gov/ccc/default.htm (accessed May 16,
2009).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
30 COMMODITY
United States Department of Agriculture. Available online at
(accessed May 16, 2009).
CROSS REFERENCES
Agricultural Law; Agriculture Subsidies
COMMODITY FUTURES TRADING
COMMISSION
The federal regulatory agency for FUTURES
trading, the CFTC was established by the
COMMODITY FUTURES TRADING COMMISSION Act of
1974 (88 Stat. 1389; 7 U.S.C.A. 4a), approved
October 23, 1974. The commission began
operation in April 1975, and Congress renewed
its authority to regulate futures trading in 1978.
Its authority was again renewed with the
Commodity Futures Modernization Act of
2000, which also mandated major reforms of
the commission. The CFTC maintains a com-
prehensive Website at .
The Commodity Futures Trading Commis-
sion (CFTC) consists of five commissioners
who are appointed by the president with the
ADVICE AND CONSENT of the Senate. The commis-
sioners serve staggered five-year terms, and by

law no more than three commissioners can
belong to the same political party. One
commissioner is designated by the president to
serve as chair. The chair’s staff includes the
Office of the Inspector General and the Office of
International Affairs.
To comply with the requirements of the
Modernization Act, the commission underwent
a restructuring in 2002. As a result, it consists of
six major operating units: the Division of
Clearing and Intermediary Oversight, the Divi-
sion of Market Oversight, the Division of
Enforcement, the Office of the Chief Econo-
mist, the Office of the General Counsel, and the
Office of the Executive Director.
The CFTC regulates trading on the 11 U.S.
futures exchanges, which offer numerous kinds
of futures contracts. It also regulates the activities
of some 3,000 commodity exchange members,
360 public brokerage houses (futures commission
merchants), about 38,000 commission-registered
futures industry salespeople and associated
persons, and 2,500 commodity trading advisers
and commodity pool operators. Some off-
exchange transactions involving instruments
similar in nature to futures contracts also fall
under CFTC jurisdiction.
The commission’s regulatory and enforce-
ment efforts are designed to ensure that the
futures trading process is fair and that it

protects both the rights of customers and the
financial integrity of the marketplace. The
CFTC approves the rules under which an
exchange proposes to operate and monitors
exchange enforcement of those rules. It reviews
the terms of proposed futures contracts and
registers companies and individuals who handle
customer funds or give trading advice. The
commission also protects the public by enfor-
cing rules that require customer funds to be
kept in bank accounts separate from accounts
maintained by firms for their own use and that
such customer accounts be marked to present
MARKET VALUE at the close of trading each day.
Futures contracts for agricultural commod-
ities were traded in the United States for more
than one hundred years before futures trading
was diversified to include trading in contracts
for precious metals, raw materials, foreign
currencies, commercial interest rates, and U.S.
government and mortgage securities. Contract
diversification has grown in exchange trading
volume, a growth not limited to the newer
commodities.
The CFTC maintains large regional offices
in Chicago and New York, cities in which eight
of the nation’s 11 futures exchanges are located.
Smaller regional offices are located in Kansas
City and San Francisco, and there is a suboffice
of the Chicago regional office in Minneapolis.

As of 2009, the CFTC was considering
regulations to curb speculation in energy
commodities markets, following 2008’s gross
swings in oil prices, which many experts have
attributed to the actions of greedy traders. One
proposal would limit the size of an investment
in a given commodity by a single
ENTITY.
FURTHER READINGS
Commodity Futures Trading Commission. FY 2010 Pre-
sident’s Budget and Performance Plan. Available online
at />Commodity Futures Trading Commission. Keeping Pace
with Change: Strategic Plan of the Commodity Futures
Trading Commission 2007–2012. Available online at
/>Commodity Futures Trading Commission. Performance and
Accountability Report, November 2008. Available online
at />Goldfarb, Zachary A. 2009. “CFTC Floats Rules Aimed at
Speculation;” Washington Post (July 7).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMODITY FUTURES TRADING COMMISSION 31
COMMON
Belonging to or pertaining to the general public.
Common lands, also known as public lands, are
those that are set aside for use by the community
at large, such as parks and public recreation areas.
Common also means habitual or recurring, such
as offenses that are committed frequently or
repeatedly. A common thief is one who has been
repeatedly convicted of larceny. Some thing that is
common is owned equally by two or more people,

such as a piece of land. A tenancy in common is
an interest in land wherein at least two people
share ownership.
COMMON CARRIER
An individual or busines s that advertises to the
public that it is available for hire to transport
people or property in exchange for a fee.
A
COMMON CARRIER is legally bound to carry
all passengers or freight as long as there is
enough space, the fee is paid, and no reasonable
grounds to refuse to do so exist. A common
carrier that unjustifiably refuses to carry a parti-
cular person or cargo may be sued for damages.
The states regulate common carriers engaged
in business within their borders. When interstate
or foreign transportation is involved, the federal
government, by virtue of the
COMMERCE CLAUSE of
the Constitution, regulates the activities of such
carriers. A common carrier may establish
reasonable regulations for the efficient operation
and maintenance of its business.
COMMON COUNCIL
In English legal history, the name given to
Parliament. In the U.S. legal system, the legislative
body of a city or of a municipal corporation.
COMMON COUNT
A traditional type of common-law pleading that is
used in actions to recover a debt of money of the

defendant based upon an express or implied
promise to pay after performance had been
rendered. In a common-count pleading, the
plaintiff sets forth in account form the facts that
constitute the basis of his or her claim, such as
money had and received and goods sold and
delivered.
Common counts were once used to allege
the grounds for actions of assumpsit, a
COMMON-
LAW ACTION for the recovery of money ow ed by a
DEFENDANT to the PLAINTIFF. The four classes of
common counts were (1) the indebitatus count;
A man hails a cab
in New York’s Times
Square. A taxi is
considered a common
carrier and, as such, is
regulated by the state
in which it operates.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
32 COMMON
(2) the QUANTUM MERUIT count; (3) the quantum
vabelant count; and (4) the ACCOUNT STATED
count. The generalized nature of common
counts enabled a plaintiff to take advantage of
any ground of liability for which proof was
available within the limits of the action of
assumpsit. This is in contrast to special counts

within which a plaintiff had to state a particular
claim or be denied relief.
Common counts are no longer used for
PLEADING purposes but have been replaced by
complaints according to the Federal Rules of
CIVIL
PROCEDURE
and state codes of civil procedure.
COMMON DISASTER
A set of circumstances in which two individuals
die apparently simultaneously.
In a
COMMON DISASTER there is no certainty of
who died first, an important issue that fre-
quently arises in the determination of the
INHERITANCE of property or the distribution of
proceeds of a life insurance policy.
The common disaster clause found in insur-
ance policies and wills is a provision that names
an alternate
BENEFICIARY in the event that the
testator and LEGATEE or the insured and the
beneficiary die simultaneously.
SIMULTANEOUS
DEATH
acts are state laws that provide for the
disposal of property in the event of a common
disaster.
COMMON LANDS
An archaic designation of property set aside and

regulated by the local, state, or federal government
for the benefit of the public for recreational purposes.
COMMON LANDS established by the Federal
government are known as
PUBLIC LANDS.
COMMON LAW
The ancient law of England based upon societal
customs and recognized and enforced by the
judgments and decrees of the co urts. The general
body of statutes and case law that governed
England and the American colonies prior to the
American Revolution.
The principles and rules of action, embodied
in case law rather than legislative enactments,
applicable to the government and protection of
persons and property that derive their authority
from the community customs and traditions that
evolved over the centuries as interpreted by
judicial tribunals.
A designation used to denote the opposite of
statutory, equitable, or civil, for example, a
common-law action.
The common-law system prevails in Eng-
land, the United States, and other countries
colonized by England. It is distinct from the
civil-law system, which predominates in Europe
and in areas colonized by France and Spain. The
common-law system is used in all the states of
the United States except Louisiana, where
French

CIVIL LAW combined with English CRIMI-
NAL LAW
to form a hybrid system. The common-
law system is also used in Canada, except in the
Province of Quebec, where the French civil-law
system prevails.
Anglo-American
COMMON LAW traces its r oots
to the medieval idea that the law as handed down
from the king’s courts represented the common
custom of the people. It evolved chiefly from
three English Crown courts of the twelfth and
thirteenth centuries: the Exchequer, the King’s
Bench, and the
COMMON PLEAS.Thesecourts
eventually assumed jurisdiction over disputes
previously decided by local or manorial courts,
such as baronial, admiral’s (maritime), guild, and
forest courts, whose jurisdiction was limited to
specific geographic or subject matter areas.
EQUITY courts, which were instituted to provide
relief to litigants in cases where common-law
relief was unavailable, also merged with
COMMON-
LAW COURTS. This consolidation of jurisdiction
over most legal disputes into several courts was
the framework for the modern Anglo-American
judicial system.
Early common-law procedure was governed
by a complex system of

PLEADING, under which
only the offenses specified in authorized writs
could be litigated. Complainants were required
to satisfy all the specifications of a
WRIT before
they were allowed access to a common-law
court. This system was replaced in England and
in the United States during the mid-1800s.
A streamlined, simplified form of pleading,
known as
CODE PLEADING or notice pleading,
was instituted. Code pleading requires only a
plain, factual statement of the dispute by the
parties and leaves the determination of issues
to the court.
Common-law courts base their decisions
on prior judicial pronouncements rather than
on legislative enactments. Where a statute
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMON LAW 33
governs the dispute, judicial interpretation of
that statute determines how the law applies.
Common-law judges rely on their predeces-
sors’ decisions of actual controversies, rather
than on abstract codes or texts, to guide them
in applying the law. Common-law judges
find the grounds for their decisions in
LAW
REPORTS
, which contain decisions of past

controversies. Under the doctrine of
STARE
DECISIS
, common-law judges are obliged to
adhere to previously decided cases, or pre-
cedents, where the facts are substantially the
same. A court’sdecisionis
BINDING AUTHORITY
for similar cases decided by the same court or
by lower courts within the same jurisdiction.
The d ecision is not binding on courts of
higher rank within that jurisdiction or in
other jurisdictions, but it may be consid ered
as
PERSUASIVE AUTHORITY.
Because common-law decisions deal with
everyday situations as they occur, social changes,
inventions, and discoveries make it necessary for
judges sometimes to look outside reported
decisions for guidance in a case of
FIRST IMPRESSION
(previously undetermined legal issue). The com-
mon-law system allows judges t o look to other
jurisdictions or to draw upon past or present
judicial experience for analogies to help in
making a decision. This flexibility allows com-
mon law to deal with changes that lead to
unanticipated controversies. At the same time,
stare decisis provides certainty, uniformity, and
predictability and makes for a stable legal

environment.
Under a common-law system, disputes are
settled through an adversarial exchange of
arguments and evidence. Both parties present
their cases before a neutral fact finder, either a
judge or a jury. The judge or jury evaluates the
evidence, applies the appropriate law to the facts,
and renders a judgment in favor of one of the
parties. Following the decision, either party may
appeal the decision to a higher court. Appellate
courts in a common-law system may review only
findings of law, not determinations of fact.
Under common law, all citizens, including
the highest-ranking officials of the government,
are subject to the same set of laws, and the
exercise of government power is limited by
those laws. The judiciary may review legislation,
but only to determine whether it conforms to
constitutional requirements.
FURTHER READINGS
Cantor, Norman F. 1997. Imagining the Law: Common Law
and the Foundations of the American Legal System. New
York: HarperCollins.
Kellogg, Frederic R. 2003. “Justice Holmes, Common Law
Theory, and Judicial Restraint.” John Marshall Law
Review 36 (winter).
Pound, Roscoe. 2008. The Spirit of the Common Law (1921).
Whitefish, MT: Kessinger.
Strauss, David A. 2003. “Common Law, Common Ground,
and Jefferson’s Principle.” Yale Law Journal 112 (May).

Available online at />1717_david_a_strauss.ht ml; website home page:
(accessed July 14, 2009).
CROSS REFERENCES
Adversary System; Engli sh Law.
COMMON-LAW ACTION
A lawsuit governed by the general principles of
law derived from court decisions, as opposed to the
provisions of statutes. Actions ex contractu,
arising out of a breach of contract, and actions
ex delicto, based upon the commission of a tort,
are common-law actions.
COMMON-LAW COURTS
The early royal courts in England that adminis-
tered the law common to all.
For a time after the Norman Conquest of
England in 1066, the king himself sat to hear
cases involving royal interests and the court was
called
CORAM REGE (Latin for “before the king”).
When the king began delegating authority to
administer justice, the tribunal he appoin ted
was called
CURIA REGIS, the King’s Court. Out of
the Curia Regis came the three royal
COMMON-
LAW COURTS. The first offshoot was the Exche-
quer, which originally collected taxes and
administered the king’s finances, but by 1250
was exercising full powers as a court. Next to
develop as a separate court was

COMMON PLEAS,a
court probably established by Henry II during
the latter half of the twelfth century to hear
cases not involving the king’s rights. The
remaining part of the Curia Regis reviewed
decisions of the Common Pleas by issuing writs
of error. This court, later known as the King’s
Bench, also heard cases involving the king’s
interests, particularly criminal matters and cases
involving high noblemen. For many years the
work of the court was written as if proceedings
before it were before the king himself. The
common-law courts competed with the
CHAN-
CERY
, which exercised EQUITY jurisdiction, and
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
34 COMMON-LAW ACTION
their struggles shifted the division of authority
at various times. They were consol idated with
the other high courts of England by the
JUDICATURE ACTS in the late nineteenth century.
CROSS REFERENCES
Law “Common-Law Courts” (Sidebar).
COMMON-LAW MARRIAGE
A union of two people not formalized in the
customary manner as prescribed by law but
created by an agreement to marry followed by
cohabitation.
A fundamental question in

MARRIAGE is
whether the union is legally recognized. This
question is important because marriage affects
property ownership, rights of survivorship,
spousal benefits, and other marital amenities.
With so much at stake, marriage has become a
matter regulated by law.
In the United States, the law of marriage is
reserved to the states and thus governed by state
law. All states place restrictions on marriage,
such as age requirement s and the prohibition
of intrafamilial marriage. Further, most states
recognize marriage only upon completion of
specified procedures. A typical statute requires a
witnessed ceremony solemnized by a lawfully
authorized person, submission to blood tests,
and fulfillment of license requirements. How-
ever, in some states, the marital union of a man
and a woman can still be achieved in the most
simple, time-honored ways.
History
Marriage has evolved over the centuries, but
some basic features have remained constant. In
ancient Rome, it was accomplished by consent
of the parties to live together. No forms were
required, and no ceremony was necessary. This
early Roman model of marriage was displaced
when the Catholic Church declared in 1563 that
marriages were not valid unless contracted in
the presence of a priest and two witnesses. In

England, under the Anglican Church, marriage
by consent and
COHABITATION was valid until the
passage of Lord Hardwicke’s Act in 1753. This
act instituted certain requirements for marriage,
including the performance of a religious
ceremony observed by witnesses.
The American colonies rejected the require-
ment of a religious ceremony but retained the
custom of a ceremony, religious or otherwise.
The ancient Roman concept of marriage by
agreement and cohabi tation was adopted by
early American courts as valid under the
COMMON LAW.
In the 1800s state legislatures began to
enact laws expressly to prohibit marriage
without an observed ceremony and other
requirements.
COMMON-LAW MARRIAGE was pro-
hibited in a majority of jurisdictions. However,
the
FULL FAITH AND CREDIT CLAUSE of the U.S.
Constitution requires all states that prohibit it
to nonetheless recognize a common-law mar-
riage created in a jurisdiction that allows it. U.S.
Const. art. IV, § 1. Laws in all states require a
common-law spouse to obtain a
DIVORCE before
remarrying.
Common-law marriage is allowed in four-

teen jurisdictions: Alabama, Colorado, Georgia,
Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma,
Pennsylvania, Rhode Island, South Carolina,
Texas, and the District of Columbia. The manner
in which a state authorizes common-law mar-
riage varies. Pennsylvania maintains a statute
that declares that the statutory chapter covering
licensed marriage does not affect the recogni-
tion of common-law marriage (23 Pa. Const.
Stat. Ann. § 1103). In Georgia, the operative
marriage statute simply states, “To constitute a
valid marriage in this State there must be—1.
Parties able to contract; 2. An actual contract; 3.
Consummation according to law” (Ga. Code
Ann. § 19-3-1).
Several reasons have been offered for
recognizing common-law marriage. In some
states, including Pennsylvania and Rhode Island,
common-law marriage was originally permitted
to allow for religious and social freedom. Some
state legislatures have noted the private impor-
tance of marriage and assailed the insensitivity
of governments purporting to regulate such a
personal matter. Other states have been reluc-
tant to require licensing and ceremony in
consideration of the financial hardship such
requirements impose on poor citizens.
Features
A common-law marriage has three basic features.
When a common-law marriage is challenged,

proof of the following elements is critical in
most jurisdictions.
1. A present agreement to be married. The parties
must announce to each other that they are
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMON-LAW MARRIAGE 35
married from that moment forward. Specific
words are not mandated, but there must be
evidence of an agreement to be married.
Proof may consist of
CIRCUMSTANTIAL EVIDENCE,
including evidence that the partners have
cohabitated and held themselves out to the
public as being married. However, neither
cohabitation nor a public holding out
constitutes sufficient proof to establish the
formation of a common-law marriage, either
by themselves or taken together. An agree-
ment to marry must be proved by the party
asserting marriage.
2. Cohabitation. The parties must actually live
together in order to support a claim of
common-law marriage. Whether m ainte-
nance of a separate home by one of the
parties will nullify a common-law marriage
is a
QUESTION OF FACT and depends on the
circumstances of the particular case.
3. Public representations of marriage. The
couple must consistently hold themselves

out to the public as married. A married
couple is expected to tell people that they
are married. They should also file joint tax
returns and declare their marriage on other
documents, such as applications, leases,
and b irth certificates.
Legal Applications
A challenge to a common-law marriage can come
from a variety of sources. For example, an insur-
ance carrier or pension provider may contest a
common-law marriage when one spouse claims
benefits by virtue of the marriage. Often, it is one
of the purported spouses who challenges the
existence of a common-law marriage.
In Flores v. Flores, 847 S.W.2d 648 (Tex.
App. Waco 1993), Peggy Ann Flores sought to
prove that she had been married by common
law to Albert Flores. Peggy and Albert were
married in a ceremony on July 18, 1987, and
divorced on March 9, 1989. They continued to
live together until November 1990, when Albert
moved away to live with his girlfriend, Lisa.
Albert and Lisa were married on January 1,
1991.
Peggy filed for a second divorce from Albert
on January 31, 1991. In the same proceeding,
she applied for custody of their child, Joshua,
and
CHILD SUPPORT payments from Albert. The
County Court, Brazos County, found that a

common-law marriage had existed between
Peggy and Albert following their 1989 divorce.
The county court granted the second divorce
and ordere d custody and child support pay-
ments to Peggy. Albert appealed, arguing in part
that there was insufficient evidence to support a
finding both that Peggy and Albert had agreed
to remarry and that Peggy and Albert had
represented to others that they were married.
The Court of Appeals of Texas, Waco,
agreed with Albert. The court of appeals opened
its opinion by listing the important factual
background. According to Peggy’s testimony at
the 1991 divorce proceeding, she had considered
herself married to Albert after the 1989 divorce,
and Albert had, on one occasion, introduced her
as his wife after the 1989 divorce. Peggy’s
employer, Irma Ortega, testified that she did
not kno w of the first divorce, that Albert sent
gifts and affectionate notes to Peggy, and that
Peggy kept a picture of Albert and Joshua at her
workplace. Relatives of both Peggy and Albert
testified that after the 1989 divorce, the
relationship continued much as it had before.
Other testimony revealed that on a visit to a
hospital after the divorce, Peggy told hospital
personnel that she was single. Albert and Peggy
signed a
LEASE together that did not specify
their relationship. Peggy used Albert’s credit

cards, and Albert paid the rent and other bills.
Peggy and Albert also maintaine d a joint bank
account and carried on a sexual relationship.
Albert testified that Peggy had asked him to
stay with her until she got “back on her feet.”
He also testified that he had moved in with
Peggy after the 1989 divorce to help her and
that he had informed Lisa that he was living
with his former wife “and helping her out. ”
The court of appeals then addressed whether
these facts sufficed to establish a common law
marriage in Texas. The court said that while the
facts must demonstrate cohabitation by t he
parties, public representations of marriage by
the parties, and an agreement to be married, all
three elements need not exist simultaneously
for a common-law marriage to exist.
On the issue of whether the couple had
agreed to be married again after the 1989
divorce, the court acknowledged that such an
agreement can be inferred from cohabitation.
However, the court warned that cohabitation is
more common than it once was and that
cohabitation evidence should be weighed more
carefully than it has been in the past. After an
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
36 COMMON-LAW MARRIAGE
examination of the record, the court concluded
that there was no DIRECT EVIDENCE of an
agreement between Albert and Peggy to marry.

The evidence showing that Albert and Peggy
had lived together and shared resources did not
compel a finding of an agreement to be married.
Nor did the evidence support a finding that
Peggy and Albert had held themselves out as
married. According to the court of appeals, one
public representation of marriage did not
constitute a public holding out. Other evidence
offered by Peggy, such as the joint bank account,
was insufficient to support public holding out,
the court found. Thus, the court of appeals
ultimately reversed the judgment of the county
court and ordered that Peggy take nothing but
child support payments from her suit.
Late Twentieth-Century Developments
During the last 15 years of the twentieth century
a growing number of states, counties, and
municipalities granted qualified legal recogni-
tion to unmarried “domestic partners.” Known
in some jurisdictions as “reciprocal benefici-
aries,” unmarried couples who receive legal
recognition as domestic partners may be eligible
for
HEALTH INSURANCE benefits, life insurance
benefits, and child
VISITATION RIGHTS. Depending
on the jurisdiction, domestic partners may also
be entitled to hospital visitation rights.
However, in most jurisdictions domestic
partners may only inherit from their partners or

their partner’s family if they are specifically
named in the deceased’s will. A few states allow
domestic partners to inherit from each other or
each other’s family in the absence of a will,
called
INTESTATE SUCCESSION. By contrast, the law
of all states that recognize common-law mar-
riage allow both parties to the common–law
marriage to inherit under state
INTESTACY laws
when either spouse dies without a will.
Also unlike common-law marriages, domes-
tic partners may not typically ask courts to settle
their post-relationship property disputes. Nor
may domestic partners petition courts for
ALIMONY awards, unless the partners entered a
formal agreement for palimony prior to their
cohabitation. Marvin v. Marvin, 18 Cal.3d 660,
557 P.2d 106, 134 Cal. Rptr. 815 (Cal. 1976).
But if partners do enter a palimony agreement,
they will generally be enforced, unless during
the period of cohabitation the partners resided
in Illinois, Georgia, and Tennessee, the three
states that have expressly refused to recognize
palimony agreements.
Every jurisdiction recognizing domestic
partners as a legal
ENTITY has its own list of
formal requirements that unmarried couples
must satisfy before they will be formally

recognized as domestic partners. The formal
requirements in no two jurisdictions are
identical. However, most jurisdictions do share
many of the same core requirements.
These core requirements include that both
partners must be older than 18 and unmarried,
currently live together, apply together before a
public official with authority to recognize them
as domestic partners, and pay the related fees to
be registered. To end a domestic partnership,
most jurisdictions allow the couple simply to
send a letter to the registrar of domestic partners.
The letter must be dated and signed by both
partners, and it must specifically request that the
domestic partnership be terminated.
Laws in eight states and more than 100
municipalities curre ntly provide legal recogni-
tion for unmarried couples as domestic partners.
This legislation often allows both opposite-sex
and same-sex couples to form domestic partner-
ships, unlike the states that recognize common-
law marriage, none of which expressly permits
homosexual common-law marriages, and some
of which expressly prohibit it. Pursuant to state
and local domestic-partner legislation, 157 For-
tune 500 companies, 3,960 private employers and
unions, and 158
COLLEGES AND UNIVERSITIES were as
of mid-2003 providing benefits to domestic
partners. Although no nationwide statistics

exist, the 2000
CENSUS revealed almost 10,000
domestic partners were registered in St. Louis,
Missouri, alone, and more than 15,000 same-sex
couples were registered as domestic partners in
California.
FURTHER READINGS
Jasper, Margaret C. 2001. Marriage and Divorce. 2d ed. New
York: Oxford Univ. Press.
Legalines on Domestic Relations—Keyed to Wadlington and
O’Brien’s Cases and Materials. 2009. Eagan, MN: West.
“Marriage Laws of the Fifty States, District of Columbia and
Puerto Rico.” Legal Information Institute, Cornell Univ.
Law School. Available online at nell.
edu/wex/table_marriage; website home page: http://
topics.law.cornell.edu (accessed August 20, 2009).
CROSS REFERENCES
Circumstantial Evidence; Cohabitation; Domestic Partner-
ship Law; Survivorship .
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COMMON-LAW MARRIAGE 37