Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P26 doc

The SEC has responded to these problems
by requiring greater oversight of the accounting
profession in the United States. New regulations
have also modified the accounting methods that
by these companies employed. Nevertheless,
public confidence in U.S. corporations and the
capital markets remains shaken, and much of
the criticism has focused upon the lack of
oversight regarding corporate directors and
officers. Many have called for reforms that will
hold these directors and officers responsible in
instances of malfeasance.
FURTHER READINGS
Barnet, Richard, and Ronald E. Muller. 1974. Global Reach
The Power of the Multinational Corporation. New York:
Simon & Schuster.
Brown, Bruce. 2003. The History of the Corporation. Available
online at />tion/corporation_intro.html; website home page: http://
www.astonisher.com (accessed September 1, 2003).
Cox, James D., Thomas L. Hazen, and B. N. Cox. 2003.
Corporations. Frederick, MD: Aspen.
CROSS REFERENCES
Bonds “Michael R. Milken: Genius, Villain, or Scapegoat?”
(Sidebar); Golden Parachute; Greenmail; Instrumentality
Rule; Preferred Stock; Stockholder’s Derivative Suit;
Transnational Corporation.
CORPOREAL
Possessing a physical nature; having an objective,
tangible existence; being capable of perception by
touch and sight.
Under

COMMON LAW, corporeal heredita-
ments are physical objects encompassed in
land, including the land itself and any tangible
object on it, that can be inherited.
Corporeal is the opposite of incorporeal,
that which exists but is incapable of physical
manifestation, as in the right to bring a lawsuit.
CORPSE
The physical remains of an expired human being
prior to complete decomposition.
Property and Possession Rights
In the ordinary use of the term, a PROPERTY RIGHT
does not exist in a corpse. For the purpose of
burial, however, the corpse of a human being is
considered to be property or quasi-property, the
rights to which are held by the surviving spouse
or
NEXT OF KIN. This right cannot be conveyed
and does not exist while the decedent is living.
Following burial, the body is considered part of
the ground in which i t is placed. Articles of
Delaware: The Mighty Mite
of Corporations
D
B
elaware may be amo ng the United States’
smallest states, but it is the biggest when it
comes to corporations: more than a t hird of all
corporations listed by the New York Stock Ex-
change are incorporated in Delaware.

Delaware’s allure is explained through a
combination of history a nd law. Although in the
early 2000s the state’s corporations law is not
necessarily less restrictive and less rigid than other
states’ corporation laws, Delaware could boast
more corporation friendly statutes before model
corporation laws came into vogue. As a re sult,
corporate lawyers nationwide are more familiar
with Delaware’s law, and its statutes and case law
provide certainty and easy access.
Delaware, more than any other state, relies on
franchise tax revenues; thus, Delaware, more than
any other state, is committed to remaining a
responsive and desirable incorporation site. In
addition, Delaware offers a level of certainty and
stability: the state’s constitution requires a two-
thirds vote of both legislative h ouses to change its
corporations statutes.
Delaware also has a specialized court that is
staffed by lawyers from the corporate bar, and its
highest court has similar expertise. Lawyers in the
state continually work to keep Delaware’s corpo-
rate law current, effective, and flexible. All
combine to make Delaware the first state for
incorporation.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
238 CORPOREAL
PERSONAL PROPERTY that have been buried with
the body, such as jewelry, may be taken by their
rightful owner as determined by traditional

property rules or laws relating to
DESCENT AND
DISTRIBUTION
or wills, as they are material objects
independent of the body.
A corpse may not be retained by an
undertaker as security for unpaid funeral
expenses, particularly if a body was kept without
authorization and payment was demanded as a
condition precedent to its release.
At times, the need to perform an autopsy or
postmortem examination gives the local coro-
ner a superior right to possess the corpse until
such an examination is performed. The general
rule is that such examinations should be
performed with discretion and not routinely.
Some state statutes regulate the times when an
autopsy may be performed, which may require
the procurement of a court order and written
permission of a designated person, usually the
one with property rights in the corpse.
Burial Rights
The right to a decent burial has long been
recognized as COMMON LAW, but no universal
rule exists as to whom the right of burial is
granted. Generally, unless otherwise provided
before death by the deceased, the right will go to
the surviving spouse; if there is none, it will go
to the next of kin. When a controversy arises
concerning the right of burial, each case will be

considered on its own merits. The burial right
per se is a sacred trust for those who have an
interest in the remains.
Although the surviving spouse usually has
the principal right to custody of the remains
and to burial, special circumstances undermine
this right, such as the absence or neglect of the
surviving spouse or the separation of the parties
at the time of death.
When there is no surviving spouse, the next
of kin, in order of age, have the burial rights,
unless a friend or remote relative is found by the
court to have a superior right. The caretaker of
an elderly, childless decedent who lived with the
decedent for years prior to his or her death and
to whom the estate was bequeathed might have
a burial right that is superior to that of relatives.
In the case of the death of a child of
divorced parents, the paramount privilege of
burial is awarded to the parent who had
custody.
The preference of the deceased concerning
the disposition of his or her body is a right that
should be strictly enforced. Some states confer
this right, considering a decedent’s wishes of
foremost importance.
In most instances, the courts will honor the
wishes of the decedent, even in the face of
opposition by the surviving spouse or next of
kin. If for some reason a decedent’swishes

cannot be carried out, direction should be sought
by the court. The court will decide how the body
should be disposed of and will most likely do so
according to the wishes of the surviving spouse
or next of kin, provided those wishes are
reasonable and not contrary to
PUBLIC POLICY.
When an individual wishes to direct the
disposition of his or her remains, no
formality is required. Oral directions are
considered to be sufficient, and an indivi-
dual’s last wish will ordinarily be the
controlling factor, provided it is within the
limits of reason and decency.
Occasionally, a decision by the person who
holds the right to burial can cause controversy
beyond the deceased’s family. One of the more
unusual cases involves the body of Ted
Williams, one of the greatest baseball players
in the history of the game, as well as a military
hero in World War II and the Korean War. John
Henry Williams, Ted’s son, decided when his
father died in July 2002 to freeze the body in
liquid nitrogen in a process called cryonics. The
body is stored in a warehouse in Arizona.
Friends and family have suggested that Ted
In some cases, the
need to perform an
autopsy or
postmortem

examination gives the
local coroner a
superior right to
retain possession of a
corpse until the
examination is
performed.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
CORPSE 239
Williams wanted to be cremated, but his body
remains in a frozen state. John Henry’s decision
has been a major controversy, not only among
close friends and family, but among former
teammates, baseball fans, and commentators.
Duties as to Burial
Public policy favors the concept of what is
colloquially referred to as a “decent burial.”
There is a strong societal interest in the proper
disposition of the bodies of deceased persons. It
is universally recognized that a duty is owed to
both society and the deceased that the body be
buried without any unnecessary delay. This duty
rests upon whoever has the right to bury the
decedent. At common law, the duty was
imposed upon the person under whose roof
the deceased died.
Some state statutes specifically name those
people who are charged with the duty of having

a decedent buried. Statutes of this kind have
been enacted for various poli cy reasons, such as
the general interests of public health and the
protection of public welfare, as well as the relief
of anxiety that some people might experience
concerning the proper disposition of their
remains.
Rights to Disinterment
After a body has been buried, it is considered to
be in the custody of the law; therefore,
disinterment is not a matter of right. The
disturbance or removal of an interred body is
subject to the control and direction of the court.
The law does not favor disinterment, based
on the public policy that the sanctity of the grave
should be maintained. Once buried, a body
should not be disturbed. A court will not
ordinarily order or permit a body to be
disinterred unless there is a strong showing of
necessity that disinterment is within the interests
of justice. Each case is individually decided, based
on its own particular facts and circumstances.
The courts frequently allow a change of burial
place in order to enable people who were together
during life to be buried together, such as
husbands and wives, or family members. Disin-
terment for the purposes of reburial in a family
plot acquired at a later date is generally autho-
rized by law, particularly if the request is made by
the surviving members of the decedent’sfamily.

Disinterment may be allowed under certain
circumstances, such as when a cemetery has
been abandoned as a burial place or when it is
condemned by the state by virtue of its
EMINENT
DOMAIN
power for public improvement.
Consideration of the deceased’s wishes as to
his or her burial place is instrumental in a
decision of a court as to whether or not a body
should be disinterred. Such wishes are of
paramount importance but are not necessarily
controlling in all cases, such as when subse-
quent ci rcumstances require a change of burial.
In states that have statutes regulating the
exhumation or removal of the dead, such
statutes are controlling.
Purchasing a lot in a cemetery entails a
contract that obligates the purchaser and his or
her survivors to abide by and observe the laws,
rules, and regulations of the cemetery as well as
those of the religious group that maintains it.
When a dispute over the right to disinter a
corpse arises, the court must make a finding of
fact as to whether or not the rules or regulations
of the cemetery forbid it.
Rights of Particular Persons to Disinter-
ment The surviving spouse or next of kin of a
deceased person has the right to let the body
remain undisturbed. This right, however, is not

absolute and can be violated when it conflicts-
with the public good or when the demands of
justice require it.
Also, the right to change the place of burial
is not absolute, and the courts take various
factors into consideration when deciding
whether a body should be removed for burial
elsewhere, such as the occurrence of unforeseen
events. If an elderly woman’s husband died and
was buried in New York and she subsequently
moved to California, she might be allowed to
have his remains removed to a different location
to facilitate her visits to his grave.
The consent of the surviving spouse of a
decedent to the decedent’s original resting place
is another factor that the court will consider in
determining whether a body may be disinterred,
particularly if it is against the wishes of the next
of kin. Once consent has been shown, the burial
will usually not be disturbed in the absence of
strong and convincing evidence of new and
unforeseen events.
If a body is improperly buried—that is,
buried in a grave belonging to someone else
who has not consented to the burial—the court
will order the body removed for reburial.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
240 CORPSE
A landowner who allows the burial of a
deceased person on his or her property cannot

later remove the body against the will of the
surviving spouse or next of kin. On the other
hand, the landowner is entitled to object to the
removal of the remains from his or her land. A
landowner may not assert that a burial was
made without his or her consent if he or she
fails to raise any objections within a
REASONABLE
TIME
after the interment of the decedent.
Disinterment for Autopsies The disinterment
of a body may be ordered by the courts for the
purpose of an autopsy. Courts may permit a
body to be exhumed and an autopsy to be
performed under certain circumstances in order
to discover truth and promote justice. If
disinterment for the purpose of examination is
to be allowed,
GOOD CAUSE and exigent circum-
stances must exist to make such action neces-
sary, such as controversy over the cause of
death, or to determine in an heirship proceed-
ing whether or not a decedent ever gave birth to
a child.
Disinterment for an autopsy should not be
granted arbitrarily. The law will only search for
facts by this method in the rarest of cases and
when there is a reasonable probability that
answers will be found through disturbing
interment.

Civil Liabilities
A CIVIL ACTION for breach of contract as to the
care and burial of a corpse may be brought
under certain circumstances. An individual who
makes an agreement to properly bury a corpse
may be subject to a lawsuit if he or she gives the
body an improper burial, negligently allows the
body to be taken from his or her custody, or
allows the body to suffer indignities while in his
or her possession.
General rules that govern damages for
breach of contract have been applied in these
actions.
In one case, an undertaker was sued for
failure to embalm a body in such a manner that
it would be preserved for a reasonably long
time. The
PLAINTIFF recovered damages for
illness and disability suffered when he found
out that the body had disintegrated and become
infested with insects as a result of the under-
taker’s breach of contract. However, exemplary
or
PUNITIVE DAMAGES are not recoverable in such
cases.
Funeral or Burial Expenses Even in the
absence of a contract or statute, a person may
be liable for funeral or burial expenses based on
his or her relationship to the decedent, such as a
HUSBAND AND WIFE ,oraPARENT AND CHILD.

Statutes may also dictate liability. Some statutes
designate the persons charged with the duty of
burial but do not impose financial responsibility
for burial or funeral expenses. Others impose
financial liability on designated people in the
order in which they are named in the statute.
Liability for burial expenses is not ordinarily
imposed on someone merely because that
person received a financial benefit as a result
of the decedent’s death. A joint tenant will not
be charged with fun eral expenses merely as a
result of the joint ownership of property with
the deceased.
Contractual Liability An individual who
would not ordinarily be obligated to pay for
burial or funeral expenses may accept responsi-
bility to do so by contract. The terms of such an
agreement must be very clear. The mere
direction to furnish funeral services does not
automatically create a contract for their pay-
ment. Liability for funeral services cannot be
imposed arbitrarily. The obligation to pay the
costs of a decent burial will be enforced by the
law on those who should properly pay.
Although there is a lack of authority on the
question of who should bear the costs of
disinterment and reburial, it has generally been
held as the responsibility of the person who
caused it to be done.
Torts In the law of torts, there are a large

number of cases involving the mishandling of
corpses. These cases are concerned with mutila-
tion, unauthorized disinterment, interference
with proper burial, and other types of intentional
disturbance. The breach of any duty as well as
the unlawful invasion of any right existing with
regard to a corpse is a tort for which an action
may be commenced. For example, if the wrong
body is delivered to a funeral home and the
family discovers this when they attend the wake,
they may be able to recover damages for mental
suffering. Thus, the right of recovery is not
necessarily based directly on injury to the corpse
per se. Exemplary damages may be awarded in
cases where the injury to plaintiffs was either
malicious or resulting from
GROSS NEGLIGENCE.
The award of damages is subject to appellate
court review, and the adequacy or excessiveness
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CORPSE 241
of the amount awarded is dependent upon the
particular circumstances of each case.
A tort action for damages in such cases may
be maintained to protect the personal feelings of
the survivors and, mainly, to compensate for the
mental distress that has been caused.
Mutilation, Embalmment, and A utopsy An
important component of the right to decent
burial is the right to possession of the body in

the same condition in which it is left by death.
There is no additional basis for recovery where
mutilation is caused simultaneously with death,
as in the case of a person who dies in a train
crash or who is fatally stabbed.
Some statutes authorize the delivery of
corpses to medical colleges for dissection under
certain conditions. It is mandatory, however,
that the consent of relatives be obtained if such
relatives can be found. Only a reasonable
inquiry is necessary, the duty of which is on
the school and on those delivering the body.
The unauthorized embalming of a body
alone does not necessarily support a
CAUSE OF
ACTION
for damages based upon mutilation
or mishandling. When such unauthorized
embalming occurs, combined with the resulting
mental suffering of the next of kin and other
such factors, a legal action may be brought. If,
for example, an unauthorized embalming
contrary to the decedent’s religious beliefs is
performed, an actionable wro ng occurs for
which damages may be granted.
Generally, an unauthorized autopsy is a tort.
No liability exists, however, when an autopsy is
performed in accordance with the consent of
the individual having burial rights or pursuant
to statute or the proper execution of the duties

of the coroner.
Offenses and Prosecutions
Several varied offenses with respect to corpses
are recognized both at common law and under
statute. At common law, it is an offense to treat
a corpse indecently by keeping, handling, and
exposing it to view in order to create the
impression that the deceased is still alive. The
attempt to dispose of a corpse for gain and
profit is a misdemeanor punishable at common
law. Ordinarily, it is a misdemeanor for the
individual possessing the duty of having a body
buried to refuse or neglect to do so, or to
dispose of the corpse indecently. The burning of
a corpse in such a way as to incite the feelings of
the public is a common-law offense.
At common law and often under statute,
interfering with another person’s right of burial
or neglecting to bury or cremate a body within a
reasonable time after death is an offense. It is
also a crime to detain a body as security for the
payment of a debt.
The mutilation of a corpse is an offense at
common law, and under some statutes, the
unauthorized dissection of a corpse is a specific
criminal offense. Someone who receives a
corpse for the purpose of dissection with the
knowledge that it has been unlawfully removed
is subject to prosecution.
The unauthorized disturbance of a grave is

indictable at common law and by statute as
highly contrary to acceptable community con-
duct. Similarly, the unauthorized disinterment
of a body is a criminal offense under some
statutes and at common law.
Some statutes make disinterment for speci-
fied purposes an offense; therefore, an offense is
not committed unless disinterment was done
for such purposes. A case where a body was
exhumed and a portion of the body was
removed by the next of kin for use as evidence
in a malpractice trial, however, did not warrant
prosecution for removal of the body because of
mere wantonness, as set forth in a statute.
Under laws that proscribe opening a grave
to remove anything interred, the act is for-
bidden per se and is conclusive as to the intent
with which it is done. In such cases, no
SPECIFIC
INTENT
, whether felonious or otherw ise, needs to
be shown.
Statutes that make make disinterment an
offense do not apply to exhumations made by
public officials attempting to ascertain whether
a crime has been committed. Similarly, statutes
are not directed against cemetery authorities
who wish to change the place of burial and who
are authorized to do so; nor are they directed
against people who had obtained the permission

of those having burial rights or against those
who, under necessary permit, remove the
corpse of a relative for reinterment.
CORPUS
[Latin, Body, aggregate, or mass.]
Corpus might be used to mean a human
body, or a body or group of laws. The term is
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
242 CORPUS
used often in CIVIL LAW to denote a substantial or
positive fact, as opposed to one that is
ambiguous. The corpus of a trust is the sum
of money or property that is
SET ASIDE to produce
income for a named beneficiary. In the law of
estates, the corpus of an estate is the amount of
property left when an individual dies.
CORPUS
JURIS
means a body of law or a body of the
law. Corpus Juris Secundum (C.J.S.®) is an all-
inclusive, multivolume legal encyclopedia.
CORPUS DELICTI
[Latin, The body of the crime.] The foundation
or material substance of a crime.
The phrase corpus delicti might be used to
mean the physical object upon which the crime
was committed, such as a dead body or the
charred remains of a house, or it might signify
the act itself, that is, the

MURDER or ARSON.
The corpus delicti is also used to describe the
evidence that proves that a crime has been
committed.
CORPUS JURIS
[Latin, A body of law.] A phrase used to designate
a volume encompassing several collections of law,
such as the Corpus Juris Civilis. The name of an
American legal encyclopedia, the most recent
edition of which is known as Corpus Juris
Secundum (C.J.S.).
CORPUS JURIS CIVILIS
[Latin, The bod y of the civil law.] The name
given in the early seventeenth century to the
collection of civil law based upon the compilation
and codification of the Roman system of jurisp ru-
dence directed by the Emperor Justinian I during
the years from 528 to 534
A.D.
CORRELATIVE
Having a reciprocal relationship in that the
existence of one relationship normally implies
the existence of the other.
Mother and child, and duty and claim, are
correlative terms.
In the law governing gas and oil transac-
tions, a correlative right is the opportu nity of
each owner of land making up part of a
common source of supply of oil and gas to
produce an equitable share of such products.

In the law governing
WATER RIGHTS,the
correlative rights doctrine gives the individual
owners of land overlying a strata of percolating
waters limited rights to use the water reasonably
when there is not enough water to meet the
needs of everyone in the area.
CORRESPONDENCE AUDIT
An examination of the accuracy of a taxpayer’s
income tax return conducted through the mail by
the Internal Revenue Service, which sends the
taxpayer a request for proof of a particular
deduction or exemption taken by either complet-
ing a special form or sending photocopies of
relevant financial records.
A correspondence audit is distinguishable
from a
FIELD AUDIT and an OFFICE AUDIT in the
manner in which it is conducted.
CORRESPONDENT
A bank, securities firm, or other financial
institution that regularly renders services for
another in an area or market to which the other
party lacks direct access. A bank that functions as
an agent for another bank and carries a deposit
balance for a bank in another city.
SECURITIES firms may have correspondents
in foreign countries or on exchanges—
organizations that provide facilities for conven-
ing purchasers and sellers ofsecurities—of

which the firms are no t members.
The term correspondent is distinct from
corespondent—a person summoned to respond
to litigation, together with another person,
particularly, a paramour in a divorce action
based on
ADULTERY.
CORROBORATE
To support or enhance the believability of a fact
or assertion by the presentation of additional
information that confirms the truthfulness of the
item.
Thetestimony of a witness is corroborated if
subsequent evidence, such as a coroner’s report
or the testimony of other witnesses, substanti-
ates it.
CORRUPTION OF BLOOD
In English law, the result of attainder, in that the
attainted person lost all rights to inherit land or
other hereditaments from an ancestor, to retain
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
CORRUPTION OF BLOOD 243
possession of such property and to transfer any
property rights to anyone, including heirs, by
virtue of his or her conviction for treason or a
felony punishable by death, beca use the law
considered the person’s blood tainted by the crime.
Attainder and the consequent corruption of
the blood were abolished by English statutes
and are virtually unknown in the United States.

v
CORWIN, EDWARD SAMUEL
Edward Samuel Corwin was a noted historian,
political scientist, and
CONSTITUTIONAL LAW
scholar.
Born January 19, 1878, on a farm in rural
Plymouth, Michigan, Corwin graduated Phi
Beta Kappa from the University of Michigan
in 1900, where he was president of his class. He
entered graduate school at the University of
Pennsylvania, earning his doctor’s degree in
1905. Corwin then took a teaching position at
Princeton University, where he began a long
association with Woodrow Wilson, then presi-
dent of Princeton. Wilson had recruited Corwin
to be one of the first faculty at the university to
teach undergraduates in small seminars called
precepts, one of Wilson’s many educational
innovations. Wilson and Corwin quickly be-
came friends, though Corwin often disagreed
with Wilson’s more conservative views. Corwin
was selected by Wilson to update his book
Division and Reunion, and Corwin wrote part 6
of the text, which was published in 1909.
In 1911 Corwin was promoted to full
professor. Seven years later, he was appointed
to a chair first occupied by Wilson, the
McCormick Professor of Jurisprudence, which
Corwin held until his retirement from Prince-

ton in 1946. In 1924, he also became chair of
the newly formed Department of Politics .
Corwin was known at Princeton as a de mand-
ing yet popular professor; students regularly
voted his co urses on constitutional interpreta-
tion as the most difficult but also the most
valuable.
While pursuing his teaching career, Corwin
authored an impressive number of books and
articles. In his first book, National Supremacy—
Treaty Power vs. State Power (1913), Corwin
explored the complex relationship between
federal and state powe rs in foreign affairs. His
later books, includ ing The President: Office and
Powers (1940, 3d ed. 1948), The Twilight of the
Supreme Court (1934), Court over the Constitu-
tion (1938), Constitutional Revolution, Ltd.
(1941), The Constitution and World Organiza-
tion (1944), Total War and the Constitution
(1947), and Liberty against Government (1948)
established him as a preeminent authority on
the Constitution. Some of his books—including
The Constitution and What It Means Today (first
published in 1920 and now called Edward S.
Corwin’s Constitution and What It Means
Today) and The
CONSTITUTION OF THE UNITED
STATES
of America: Analysis and Interpretation
(1949)—are considered standard texts in the

field of constitutional law and are still kept
current.
In addition to his work at Princeton,
Corwin served as a visiting professor and
lecturer at major universities, including Johns
Hopkins University, New York University,
Boston University, and Yale University. From
1928 to 1929 he was visiting professor at
▼▼
▼▼
Edward Samuel Corwin 1878–1963
18751875
19251925
19501950
19751975
19001900
◆◆◆◆◆◆◆
❖❖
1878 Born,
Plymouth, Mich.
1905 Joined
Princeton
University
faculty
1913 National Supremacy—Treaty
Power vs. State Power published
1914–18
World War I
1918 Appointed McCormick Professor of Jurisprudence
1920 The Constitution and What It Means Today published

1924 Became chairman of the new
Dept. of Politics at Princeton
1928–29
Taught at
Yenching
University
in Beijing
1935–37 Served
as advisor
to Roosevelt
administration
1939–45
World War II
1946 Retired from Princeton
1949–52 Served as editor of the Legislative
Reference Section of the Library of Congress
1950–53
Korean War
1963 Died,
Princeton, N.J.
1961–73
Vietnam War
1948 Liberty against Government published
WHAT THE
PRESIDENCY IS AT
ANY PARTICULAR
MOMENT DEPENDS IN
IMPORTANT MEASURE
ON WHO IS
PRESIDENT

.
—EDWARD CORWIN
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
244 CORWIN, EDWARD SAMUEL
Yenching University, in Beijing. He was also the
recipient of a number of major awards,
including the American Philosophical Society’s
Franklin Medal in 1940 and the Henry M.
Phillips Prize in the Science and Philosophy of
Jurisprudence in 1942.
Corwin’s expertise eventually led him to
federal government service. In 1935 he became
adviser to the Public Works Administration,
and from 1936 to 1937 he acted as special
assistant and consultant to the attorney general,
on constitutional issues. He publicly supported
President Franklin D. Roosevelt’s court-packing
plan—a bill proposed by Roosevelt to expand
the U.S. Supreme Court so that he could
nominate justices who would uphold
NEW DEAL
legislation—but opposed Roosevelt’s run for a
third term as a breach of tradition.
Corwin maintained an active caree r follow-
ing his retirement from Princeton in 1946.
During the 1947–48 academic year, he served as
a visiting professor at Columbia University, and
from 1949 to 1952, he was an editor for the
Legislative Reference Section,
LIBRARY OF CON-

GRESS
, where he directed a major research
project that resulted in the multivolume
Constitution Annotated: Analysis and Interpreta-
tion (1952). In 1954 he became chairman of a
national committee opposed to the Bricker
Amendment, S.J. Res. 1, 83d Cong., 1st Sess.
(1953), which had been proposed to restrict the
president’s treaty-making power.
Corwin, who died in 1963 at the age of 85,
carries the distinction of being the only
nonlawyer among the ten legal scholars and
writers most frequently cited by the
SUPREME
COURT OF THE UNITED STATES
. Corwin was acutely
aware of his important role, noting that “if
judges make law, so do commentators.”
FURTHER READINGS
Corwin, Edward Samuel, ed. 1953. The Constitution of the
United States of America: Analysis and Interpretation.
Washington, D.C.: U.S. Government. Available online
at website home
page: (accessed September 1,
2009).
———. 1978. Edwin S. Corwin’s Constitution and What it
Means Today. Princeton, N.J.: Princeton Univ. Press.
Loss, Richard, ed. 1981. Corwin on the Constitution. Ithaca,
NY: Cornell Univ. Press.
COSIGNER

An obligor—a person who becomes obligated,
under a commercial paper, such as a promissory
note or check—by signing the instrument in
conjunction with the original obligor, thereby
promising to pay it in full.
The cosigner may be held equally responsi-
ble for the payment of the debt or may be
required to pay only upon the failure of the
original obligor to do so, depending upon state
law and the terms of the agreement that also
determine the rights of the cosigner.
Cosigner is synonymous with the t erm
comaker.
COSTS
Fees and charges required by law to be paid to the
courts or their officers, the amount of which is
specified by court rule or statute. A monetary
allowance, granted by the court to a prevailing
party and recoverable from the unsuccessful party,
for expenses incurred in instituting or defending
an action or a separate proceeding within an
action.
A bill of costs is a certified, itemized statement
of the amount of the expenses incurred in
bringing or defending a lawsuit.
A cost bond, or bond for costs, is a promise
to pay litigation expenses; it is provided by a
party to an action as a guarantee of payment of
any costs awarded against him or her. A cost
bond also might be required of an appealing

party in a civil case, in order to cover the
appellee’s expenses if the judgment is affirmed.
Final costs are paid at the conclusion of an
action, the liability for which depends upon its
final outcome.
Interlocutory costs accrue during the inter-
mediate stages of a proceeding, as distingu ished
from final costs.
Security for costs refers to an assurance of
payment that a
DEFENDANT may demand of a
PLAINTIFF who does not reside within the
jurisdiction of the court, for the payment of
such costs as might be awarded to the defen-
dant.
Statutory costs are amou nts specified by law
to be awarded for various phases of litigation.
The award of costs is not a penalty but is a
method used to reimburse an innocent party for
the expenses of litigation. Costs include the
payment of court fees for the commencement of
the litigation; the submission of pleadings or
other documents; or the
SERVICE OF PROCESS or
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COSTS 245
other papers by a public officer. The appoint-
ment by a court of a referee to hear extremely
technical testimony, or a receiver to retain and
preserve the defendant’s funds or property

during litigation, is included in costs. Costs
entail expenditures made in interviewing parties
or witnesses prior to trial and the fees that are
properly paid to witnesses who testify. Printing
expenses for maps or nece ssary documents are
also included.
Costs do not include the compensation of
an attorney. Expenditures in terms of the
adversary nature of the proceedings, however,
are included. Only when specifically authorized
by law may attorney’s fees be awarded in
addition to costs.
Prevailing Party
A party must request the court to award costs.
The court generally defers its decision until
judgment is rendered, then determines whether
the
PREVAILING PARTY is entitled to costs. The
successful party is not required to prevail on
every issue or to obtain the entire amount of
damages sought. Costs are also awarded to a
party prevailing on appeal, even though the case
was lost in the trial court.
Under the Federal Rules of
CIVIL PROCEDURE,
after which most states have patterned their
own procedural rules, “costs shall be allowed as
of course to the prevailing party unless the court
otherwise directs.” Since state laws vary on this
subject, however, the applicable state law must

be consulted to determine the exact rules.
Costs cannot be assessed against a party
merely because of tenacity in pursuing the
claim. In Delta Air Lines, Inc. v. August, 450 U.S.
346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981),
the justices held that plaintiffs who lose their
lawsuits in federal court after rejecting a
settlement offer (a proposal to avoid litigation
by compromis ing a disputed claim that does not
admit liability) are not required to pay the
defendant’s costs and attorney fees.
Parties may determine the imposition of
costs pursuant to an agreement. The court will
enforce a contractual provision or a stipulation
provided neither is unconscionable or the result
of
FRAUD.
When cases involve multiple parties—
more than one plaintiff or more than one
defendant—a court may allocate costs among
the losing parties.
If one party is a stakeholder—a person who
is or might be exposed to multiple liability from
adverse claims—the stakeholder’s costs are
generally obtained from all the other parties to
an interpleader action or from the stake: funds
or property deposited by two persons with a
third person, the stakeholder, for delivery to the
person entitled to it upon the occurrence of a
particular event.

Amount
In some instances, the amount of costs is
specified by law, which restricts a party who is
awarded costs to the figure permitted by law for
each component of the total costs.
Security
A court may order a party to post a bond to
guarantee that costs will be paid if he or she is
unsuccessful. Three other alternatives provide
sufficient security: a signed statement by the
party that he or she will pay determined costs;
the deposit of sufficient funds with the court; or
the promise of a person who accepts the
obligation to pay in full if the party who would
normally be responsible fails to do so.
Denial of Costs
A court may deny costs, although they are
ordinarily awarded to the prevailing party.
Misconduct, such as the concealment of a
party’s actual financial circumstances, when
relevant to the action, justifies the denial of
costs. A court that incurs additional, unneces-
sary expenses as a result of inadequate prepara-
tion of the case by the counsel of the prevailing
party is entitled to reject a req uest for costs. In
such an instance, the court has the discretion
to order the attorney to pay a client’s costs,
particularly where his or her actions were
grossly negligent.
Criminal Proceedings

Costs in criminal proceedings are those
expenses specified by law that have been
necessarily incurred in a criminal prosecution.
The concept of costs was unknown at
COMMON
LAW
. The allowance of costs, therefore, is based
on the applicable statutory provisions.
COUNCIL
A legislative body of local government. A group of
persons who, whether elected or appointed, serve
as representatives of the public to establish state or
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
246 COUNCIL
municipal policies and to assist the chief executive
of the government unit in the performance of
duties.
COUNSEL
An attorney or lawyer. The rendition of advice
and guidance concerning a legal matter, contem-
plated form of argument, claim, or action.
The terms counsel and advise are frequently
employed as synonyms for the term
AID AND ABET
to describe a person who, while not actually
performing a criminal act, induced its perfor-
mance or contributed to it.
The term junior counsel refers to the
younger member of the team of attorneys
retained on the same side of a case, or the one

lower in the hierarchy of the firm, or one who is
assigned to the preparation or trial of less
significant aspects of the case.
The term
OF COUNSEL refers to the descrip-
tion given to an attorney who is not the
principal lawyer in charge of a case but who
merely contributes his advice on the way it
should be handled.
Where of counsel follows an attorney ’s name
on a letterhead or office sign, this designation
indicates that the person is em ployed by the
firm primarily as a consultant on specialized
matters, not as a full-time partner or associate.
COUNSELLOR
One engaged in the practice of law; lawyer;
advocate.
The term counsellor is commonly used
interchangeably with attorney, except in a few
states where the terms refer to lawyers of
different ranks. In such states, an attorney
may become a counsellor only after practicing
law for a certain designated period of time and
passing an additional examination.
Formerly, the
SUPREME COURT OF THE UNITED
STATES
made a distinction between a counsellor
and an attorney. A counsellor was a lawyer who
litigated on a party’s be half whereas an attorney

AT LAW did not do any trial work. This
distinction is no longer made by the Court.
COUNT
In common-law pleading or code pleading, the
initial statements made by a plaintiff that set forth
a cause of action to commence a civil lawsuit; the
different points of a plaintiff’s declaration, each of
which constitute a basis for relief. In criminal
procedure, one of several parts or charges of an
indictment, each accusing the defendant of a
different offense.
The term count has been replaced by the
word complaint in the Federal Rules of
CIVIL
PROCEDURE
and many state codes of civil
procedure. Sometimes count is used to denote
the numbered paragraphs of a complaint, each
of which sets out an essential element of the
claim.
Federal and state rules of
CRIMINAL PROCEDURE
govern the standards that a criminal count must
satisfy in federal and state criminal matters.
COUNTERCLAIM
A claim by a defendant opposing the claim of the
plaintiff and seeking some relief from the plaintiff
for the defendant.
A counterclaim contains assertions that the
DEFENDANT could have made by starting a lawsuit

if the PLAINTIFF had not already begun the action.
It is governed by many of the same rules that
regulate the claims made by a plaintiff except
that it is a part of the answer that the defendant
produces in response to the plaintiff’s com-
plaint. In general a counterclaim must contain
facts sufficient to support the gra nting of relief
to the defendant if the facts are proved to
be true. These facts may refer to the same event
that gave rise to the plaintiff’s
CAUSE OF ACTION
or they may refer to an entirely different claim
that the defendant has against the plaintiff.
Where there is more than one party on a side, a
counterclaim may be made by any defendant
against any plaintiff or plaintiffs.
According to the rules governing federal
CIVIL PROCEDURE, a defendant usually is required
to make a counterclaim in an answer if the
counterclaim arises from the same transaction
or occurrence on which the plaintiff is suing.
This is called a compulsory counterclaim
because the claim must be made in response
to the plaintiff’s complaint and cannot be made
later or in a separate lawsuit. There are also
permissive counterclaims that may be made in
the defendant’s answer at a later time. A claim
against the plaintiff that is based on an entirely
different event is one kind of
PERMISSIVE

COUNTERCLAIM
. For example, a man may sue a
woman for money damages because of a minor
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COUNTERCLAIM 247