Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P32 doc

4,393). In December 1995, President BILL
CLINTON
ordered the U.S. reserve armed forces
into active duty to augment the active armed
forces’ operations in and around the former
Yugoslavia (Bosnia) (Exec. Order No. 12,982,
60 Fed. Reg. 63,895).
Following the
SEPTEMBER 11TH TERRORIST
ATTACKS
on the United States, President GEORGE
W
. BUSH used his authority to issue a number of
executive orders. Following his declaration of a
national emergency on September 14, 2001, he
called members of the armed forces’ Ready
Reserve to active duty (Exec. Order No. 13,223,
66 Fed. Reg. 48201). Ten days later, he issued an
executive order that blocked the financing of
terrorist organizations (Exec. Order No 13,224,
66 Fed Reg. 49079). President Bush also created
the
HOMELAND SECURITY DEPARTMENT by executive
order, before Congress authorized this cabinet-
level department (Exec. Order No. 12,228, 66
Fed. Reg. 51812).
Several of Bush’s subsequent executive orders
were the subject of controversies. Bush issued
executive orders authorizing different types of
interrogation techniques used by the
CENTRAL

INTELLIGENCE AGENCY
. Based on these orders,
interrogators at a detention facility at Guanta-
namo Bay, Cuba, used such tactics as “water-
boarding” andsleep deprivation while questioning
terrorist suspects. Bush also issued directives
blocking funding for stem-cell research.
Supporters of President
BARACK OBAMA called
for Obama to overrule several of Bush’s orders.
On January 22, 2009, Obama signed an order to
close the Guantanamo Bay base. It was one of
Obama’s first acts as president.
FURTHER READINGS
Anderson, Leanna M. 2002. “Executive Orders, ‘the Very
Definition of Tyranny,’ and the Congressional Solution,
and the Separation of Powers Restoration Act.”
Hastings Constitutional Law Quarterly 29 (spring):
589-611.
Ostrow, Steven. 1987. “Enforcing Executive Orders: Judicial
Review of Agency Action under the Administrative
Procedure Act.” George Washington Law Review 55.
Raven-Hansen, Peter. 1983. “Making Agencies Follow
Orders: Judicial Review of Agency Violations of
Executive Order 12,291.” Duke Law Journal.
Rodrigues, Ricardo Jose Pereira. 2007. The Preeminence of
Politics: Executive Orders from Eisenhower to Clinton.
New York: LFB Scholarly Pub.
Sterling, John A. 2000. “Above the Law: Evolution of
Executive Orders.” University of West Los Angeles Law

Review 31 (annual).
Warber, Adam L. 2006. Executive Order and the Modern
Presidency: Legislating from the Oval Office. Boulder,
Colo.: Lynne Rienner Publishers.
CROSS REFERENCES
Administrative Acts; Administrative Agency; Administrative
Law and Procedu re; Constitution of the United States;
Federal Register; Japanese American Evacuation Cases;
Presidential Powers.
EXECUTIVE PRIVILEGE
Executive privilege is the right of the president of
the United States to withhold information from
Congress or the courts.
Historically, presi dents have claimed the
right of executive privilege when they have
information they want to keep confidential,
either because it would jeopardize national
security or because disclosure would be con-
trary to the interests of the executive branch.
The Constitution does not specifically enu-
merate the president’s right to executive privi-
lege; rather, the concept has evolved over the
years as presidents have claimed it. As the courts
have ruled on these claims, their decisions have
refined the notion of executive privilege and have
clarified the instances in which it can be invoked.
The courts have ruled that it is implicit in the
constitutional
SEPARATION OF POWERS, which
assigns discrete powers and rights to the legisla-

tive, executive, and judicial branches of govern-
ment. In reality, however, the three branches
enjoy not separate but shared powers and, thus,
are occasionally in conflict. When the president’s
wish to keep certain information confidential
causes such a conflict, the president might claim
the right of executive privilege.
The term executive privilege emerged in the
1950s, but presidents since
GEORGE WASHINGTON
have claimed the right to withhold information
from Congress and the courts. The issue first
arose in 1792, when a congressional committee
requested information from Washington regard-
ing a disastrous expedition of General Arthur St.
Clair against American Indian tribes along the
Ohio River, which resulted in the loss of an entire
division of the U.S. Army. Washington, con-
cerned about how to respond to this request and
about the legal precedent his actions would set,
called a cabinet meeting. Although no official
record was kept of the proceedings,
THOMAS
JEFFERSON
described the deliberations in his diary.
The participants, Jefferson wrote, concluded that
Congress had the right to request information
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EXECUTIVE PRIVILEGE 299
from the president and that the president “ought

to communicate such papers as the public good
would permit & ought to refuse those the
disclosure of which would injure the public.” In
the case at hand, they agreed that “there was not a
paper which might not be properly produced,” so
Washington provided all the documents that
Congress had requested. This event, though
notable as the first recorded deliberation con-
cerning executive privilege, did not carry pre-
cedential value until after 1957, when Jefferson’s
notes were discovered. In 1958, Attorney General
WILLIAM P. ROGERS cited Jefferson’s remarks as
precedent for an absolute presidential privilege.
Legal scholar Raoul Berger declaimed Rogers’s
arguments as “at best self-serving assertions by
one of the claimants in a constitutional boundary
dispute.” Instead, Berger argued, Washington’s
willingness to turn over the requested documents
shows his recognition of Congress’s right to such
materials.
In subsequent incidents, however, Washing-
ton and his successors did choose to withhold
requested information from Congress, citing
various reasons. In 1794, for example, the Senate
requested from Washington the corresponde nce
of Gouverneur Morris, the U.S. ambassador to
France, who was suspected of aiding the French
aristocrats against the revolutionaries despite the
official U.S. stance of neutrality. Washington
provided the letters, but he censored them first,

acting on the advice of officials such as Attorney
General
WILLIAM BRADFORD, who said that the
president should “communicate to the Senate
such parts of the said correspondence as upon
examination he shall deem safe and proper to
disclose: withholding all such, as any circum-
stances, may render improper to be communi-
cated.” The following year, Washington refused
to provide the House with information relating to
Ambassador John Jay’s negotiation of a treaty
with Great Britain, arguing that the House had no
constitutional right to participate in the treaty-
making process and so had no right to request
materials associated with it.
The judiciary, like Congress, can also
request information from the president. When
AARON BURR was indicted on charges of TREASON,
for example, both Congress and the judiciary
asked President Jefferson to provide correspon-
dence from General James Wilkinson, a Burr
confidant and aide. Jefferson argued that it was
wrong to ask him to provide private letters,
written to him, containing confidential infor-
mation. Chief Justice
JOHN MARSHALL, presiding
over the Burr trial, United States v. Burr, 25 Fed.
Cas. 187, 191 (C.C. Va. 1807), did not
ultimately force Jefferson to turn over each
requested document, but he did maintain the

right of the judiciary to request such informa-
tion from the president, writing that “the
PRESIDENT OF THE UNITED STATES may be …
required to produce any paper in his posses-
sion” and adding that “[t]he occasion for
demanding it ought, in such a case, [to] be very
strong, and to be fully shown to the court before
its production could be insisted on.”
President Richard
Nixon cited executive
privilege when he
refused to release
tapes of his
conversations in the
Oval Office to the
Senate committee
investigating the
Watergate burglary
and cover-up.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
300 EXECUTIVE PRIVILEGE
As the power of the president’s office grew
over the nineteenth and twentieth centuries,
presidents attempted more frequently to use
executive privilege to shield themselves and
their subordinate officials from investigation.
In 1836, for example, a House committee
requested personnel rosters and salary informa-

tion from President
ANDREW JACKSON. He de-
clined to fulfill the request, stating that he
would “repudiate all attempts to invade the just
rights of Executive Departments, and of the
individuals composing the same.” Similarly, in
1909, President
THEODORE ROOSEVELT took per-
sonal possession of
FEDERAL TRADE COMMISSION
documents requested by Congress, claiming
immunity for the materials since they were
under presidential control. In both cases,
Congress failed to pursue its investigations.
During the pre sidency of
DWIGHT D. EISEN-
HOWER
, executive privilege underwent three
major developments. First, in the area of
national security, the Supreme Court ruled in
United States v. Reynolds, 345 U.S. 1, 73 S. Ct.
528, 97 L. Ed. 727 (1953), that the military may
refuse to divulge requested information when
national security is at stake. While warning that
such requests could not be simply left to the
“caprice of executive officers,” the Court
maintained that there would be times when
“there is a reasonable danger that the compul-
sion of the evidence will expose military matters
which, in the interest of national security,

should not be divulged.”
The second development in the use of
executive privilege became known as the candid
interchange doctrine. In an attempt to shield the
executive branch from the bullying investigative
tactics of Senator
JOSEPH R. MCCARTHY, President
Eisenhower directed that executiv e privilege be
applied to all communications and conversa-
tions between executive branch employees;
without the assurance of confidentiality, he
claimed, the employees could not be completely
candid. This doctrine marked a tremendous
change in the scope of executive privilege,
extending it from the president and the
president’s top advisers to the myriad offices
and agencies that make up the executive branch.
The third development in executive privi-
lege resulted from Kaiser Aluminum & Chemical
Corp. v. United States, 157 F. Supp. 939, 141 Ct.
Cl. 38 (Cl. Ct. 1958). In this case, Kaiser sought
documents containing executive branch
employees’ opinions regarding the sale of
aluminum manufacturing plants. The court
ruled that it was ultimately up to the courts
“to determine executive privilege in litigation,”
adding that “the privilege for intradepartmental
advice would very rarely have the importance of
diplomacy or security.” The opinion in this case
contains the first recorded use of the phrase

executive privilege.
The use of executive privilege decreased
during the 1960s, but it became the crux of the
constitutional crisis created by a series of
scandals involving President
RICHARD M. NIXON
and his associates, known as WATERGATE. When
Congress sought to obtain White House tapes
containing Oval Office conversations, Nixon
refused to turn them over, claiming that the
tapes were subject to absolute executive privi-
lege and asserting that the judiciary had no
authority to order their production or inspec-
tion. Eventually the dispute reached the Su-
preme Court, where, in United States v. Nixon,
418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039
(1974), the Court ruled against Nixon. While
acknowledging the importance of the presi-
dent’s claims, the Court stated that “neither the
doctrine of separation of powers, nor the need
for confidentiality of high level communica-
tions, without more, can sustain an absolute,
unqualified presidential privilege of immunity
from judicial process under all circumstances.”
In its opinion, therefore, the Court explicitly
recognized the president’s authority to assert
executive privilege but ruled that the use of
executive privilege is limited, not absolute.
Furthermore, the Court maintained that the
judiciary, not the presiden t, has the power to

determine the applicability of executive privi-
lege. While the Court affirmed the use of
executive privilege, therefore, it determined that
in this case, the right of the U.S. people to full
disclosure outweighed the president’s right to
secrecy. This momentous decision soon led to
Nixon’s resignation from the office of president.
Executive branch of ficials under Presidents
WILLIAM JEFFERSON CLINTON and GEO RGE W. BUSH
have sought to limit dissemination of informa-
tion through executive privilege, though these
efforts were often unsuccessful. When Clinton
was investigated by
INDEPENDENT COUNSEL KEN-
NETH W
. STARR about whether Clinton lied in a
deposition regarding an affair with a former
White House intern, Starr subpoenaed
SECRET
SERVICE
agents to testify before a GRAND JURY
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EXECUTIVE PRIVILEGE 301
about Clinton’s actions. Several agents refused
to testify. This forced Starr to file a motion in
the U.S. district court for the District of
Columbia to compel their testimony. The
agents asserted they were protected by a
“protective function” privilege that allowed
them to conceal what they observe in the

protection of the president.
U.S. District Judge Norma Holloway Johnson
declined to recognize the privilege, holding that
there was no support for it in the U.S. Constitu-
tion, federal statute, orthe common law. Johnson
cited federal statutes that require the president to
accept Secret Service protection and require
executive branch personnel, which includes
Secret Service agents, to report criminal activity
that they observe. The absence of a protective
function privilege in those statutes suggested that
Congress did not intend to create one. She
rejected the argument that without the privilege,
presidents would push away their protectors.
Partly in response to what he perceived as
an increasing level of legislative and judicial
encroachment on the powers of the executive
branch, President George W. Bush sought to
restore to the executive office the co nstitutional
and inherent powers of the presidency as they
existed before Watergate scandal and the Nixon
administration. His first opportunity came in a
clash with the Government Accounting Office
(GAO), which sought release of transcripts of
meetings between Vice President Richard B.
Cheney and energy executives.
The comptroller general filed a lawsuit
seeking to compel disclosure of the transcripts.
But the U.S. District Court for the District of
Columbia dismissed the action, concluding that

the comptroller lacked standing. Walker v.
Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002). The
GAO decided not to attempt an appeal because
doing so would have required a significant
investment of time and resources and because
other private litigants were already pursuing the
same information through other lawsuits. In its
final report, the agency stated that the vice
president’s “unwillingness to provide NEPDG
records and other related information precluded
us from fully achieving our objectives in accor-
dance with generally accepted government audit-
ing standards and substantially limited our ability
to answer” Congress.
Emboldened by this victory, Cheney next
attempted to block a request for information
without formally invoking executive privilege.
Several public interest and environmental groups
sued the National Energy Policy Development
Group (NEPDG), an entity within the executive
branch, and its individual members, including
the vice president, cabinet members, and other
federal officials, requesting information from
NEPDG meetings on grounds that disclosure was
required by the requirements of the Federal
Advisory Committee Act (FACA). The U.S.
District Court for the District of Columbia
entered orders permitting wide-ranging discov-
ery against the vice president and other senior
officials in the executive branch. Judicial Watch,

Inc. v. National Energy Policy Development
Group,, 219 F. Supp. 2d 20 (2002). The vice
president then filed an interlocutory appeal,
petitioning for a writ of mandamus vacating the
district court’s discovery orders. The U.S. Court
of Appeals for the District of Columbia dismissed
the mandamus petition on grounds that the vice
president had failed to expressly invoke executive
privilege, which left the court with no legal basis
for denying the discovery request. In re Cheney,
334 F.3d 1096 (2003).
The Supreme Court disagreed and vacated
the D.C. Circuit’s opinion. Cheney v. U.S. Dist.
Court for Dist. of Columbia, 542 U.S. 367, 124 S.
Ct. 2576, 159 L. Ed. 2d 459 (2004). The Court
said that the parties must “give recognition to the
paramount necessity of protecting the executive
branch from
VEXATIOUS LITIGATION that might
distract it from the energetic performance of its
constitutional duties.” The constitution does not
leave the executive branch with the sole option of
invoking executive privilege as its only means of
objecting to an overbroad and burdensome
discovery request made by public interest groups,
another branch of the government, or members
of the public, especially when the request, the
Court stressed, “asks for everything under the
sky.” Most legal observers interpreted the Court’s
opinion as enlarging executive power by increas-

ing the level of deference courts must give to the
executive branch even when the executive branch
fails to formally invoke executive privilege.
Having won those two court battles, the Bush
administration continued to test the boundaries
of executive power and executive privilege during
the congressional investi gation into the firings of
at least nine U.S. attorneys by Attorney General
Alberto Gonzalez in 2006. Gonzalez initially
justified the firings simply by stating that all
U.S. attorneys “serve at the pleasure of the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
302 EXECUTIVE PRIVILEGE
president,” and the president decided it was time
to move in a different direction. A subsequent
report by the
DEPARTMENT OF JUSTICE (DOJ)
inspector general in October 2008, however,
found that the process used to fire the attorneys
was “arbitrary,”“fundamentally flawed,” and
“raised doubts about the integrity of Department
prosecution decisions.”
When the dismissals came to light amidst
allegations that they were politically motivated,
both the House and Senate Judiciary Commit-
tees, pursuant to their legislative and oversight
authority, opened investigations. During their
testimony before Congress, many of the dis-
missed attorneys testified that DOJ officials and
Republican lawmakers pressured and threat-

ened them regard ing corruption investigations
of Democratic politicians, actions that may have
constituted
OBSTRUCTION OF JUSTICE and unlawful
politically motivated retaliation. The controver-
sy ultimately led to the resignation of Attorney
General Gonzales. The White House main-
tained that President Bush was neither involved
in, nor aware of, the removal process.
During Congress’s investigations, both the
Senate and House Judiciary Committees issued
subpoenas directed at numerous White House
officials, including presidential counsel Harriet
Miers, White House Chief of Staff Joshua
Bolten, and Deputy White House Chief of Staff
Karl Rove. In response, the White House
asserted executive privilege to block the sub-
poenas, citing the president’s need to receive
candid advice from his staff without the chilling
effect that fear of public scrutiny could produce.
Relying on the claim of executive privilege,
Miers and Rove failed to appear as directed by
the subpoenas, and Bolten refused to turn over
subpoenaed documents. After months of legal
wrangling, the House of Representatives voted
223 to 32 to hold Miers and Bolten in contemp t
of Congress for failure to appear before the
House Judiciary Committee. The
SENATE JUDICIA-
RY COMMITTEE

likewise found Rove and Bolten in
contempt.
Upon passage of the House contempt
citations, House Speaker Nancy Pelosi referred
the citations to the DOJ in accordance with the
contempt of Congress statute and requested a
grand jury investigation. Newly appointed
Attorney General
MICHAEL MUKASEY declared that
the DOJ would not pursue a grand jury
investigation, as, in his opinion, the officials
had committed no crime. As a result, on March
10, 2008, the House Judiciary Committee filed a
civil suit in the U.S. District Court for the
District of Columbia, seeking an order that
Miers and Bolten comply with the subpoenas.
The district court granted the committee’s
motion for
SUMMARY JUDGMENT. Committee on
Judiciary, U.S. House of Representatives v. Miers,
558 F. Supp. 2d 53 (2008). But the U.S. Court of
Appeals for the District of Columbia Circuit
stayed the district court’s summary judgment
order, while the matter was being appealed.
Committee on Judiciary of U.S. House of
Representatives v. Miers, 542 F.3d 909 (2008).
No decision had been reached as of summer
2009 by the D.C. Circuit. However, in 2009, just
days before he left office, President Bush
ordered White House Counsel Fred Fielding

to instruct Rove, Miers, and Bolten to continue
ignoring the congressional subpoenas.
FURTHER READINGS
Aman, Alfred C., Jr., and William T. Mayton. 2001.
Administrative Law. 2d ed. St. Paul, MN: West.
Magid, Adam K. 2009. “Note: The Negative Executive
Privilege.” Stanford Law and Policy Review. 20.
Pierce, Richard J., Jr. 2002. Administrative Law Treatise,
4th ed. New York: Aspen Law & Business.
Sacharoff, Laurent. 2009. “Former Presidents and Executive
Privilege.” Texas Law Review. 88 (December).
CROSS REFERENCES
Separation of Powers; Watergate
EXECUTORS AND ADMINISTRATORS
Those who are designated by the terms of a will or
appointed by a court of probate to manage the
assets and liabilities of the estate of the deceased.
When a person dies leaving property, that
property, called an estate, is usually settled or
administered under the supervision of
SPECIAL
COURTS
. Depending on the state, such courts are
called probate, surrogate, or orphans’ courts.
They are typically county courts with jurisdic-
tion and powers defined by state laws.
States require court supervision for the
settlement of estates for a number of reasons.
Courts ensure that the assets of an estate will be
properly collected, preserved, and assessed; that

all relevant debts of the deceased and taxes will
be paid; and that remaining assets will be
distributed to the heirs according to the
provisions of the will or applicable laws.
The duty of settling and distributing the
estate of a decedent (one who has died) is
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EXECUTORS AND ADMINISTRATORS 303
assigned to personal representatives of the
decedent. A PERSONAL REPRESENTATIVE may be an
executor (male or female) or executrix (female),
or administrator (male or female) or adminis-
tratrix (female). An executor or executrix is the
person named in a will to administer the estate.
An administrator or administratrix is a person
appointed by the court to administer the estate
of someone who died without a will.
Executors and administrators act as
OFFICERS
OF THE COURT
because they derive their authority
from court appointments. They are also consid-
ered the fiduciaries, or trusted representatives,
of the deceased. As such, they have an absolute
duty to properly administer the estate solely for
its beneficiaries.
Probate is the process by which the court
establishes that a will is valid. The first step in
the probate process is to file the will in the
appropriate court with a petition to admit it to

probate and to grant
LETTERS TESTAMENTARY to the
person designated as executor of the will. Letters
testamentary are the formal instruments of
authority and appointment given to an executor
by the probate court, empowering that person
to act as an executor.
If an executor is unable or refuses to serve, if
there is no will, or if the will is deemed to be
inauthentic or invalid, the court appoints an
administrator. Letters of administration are the
formal court papers that authorize a person to
serve as an administrator of an estate that lacks
a valid will.
No administrator is needed if a person dies
without a will, possesses no assets, and owes no
debts. Where a person dies leaving an estate, but
there are no known living heirs, the state usually
receives the property under the doctrine of
escheat. In such cases, administration is not
required, unless debts must be paid from the
estate’s assets before the state takes its interest.
The administration of a decedent’sestateis
controlled by statute. The probate court is
authorized by statute to determine the fundamen-
tal facts essential to the administration of an estate.
As a general rule, the place of the decedent’s
last
LEGAL RESIDENCE determines which probate
court shall have jurisdiction over settlement of

the estate.
Executors
A person making a will—called a testator—
should find out whether his or her choice of
executor is willing to serve in that role. This
small but sensible courtesy can prevent the
spending of needless time and money in
administration of the estate. A person named
as an executor in a will is free to accept or reject
the position within a
REASONABLE TIME fo llowing
the testator’s death. If it is rejected, the court
then must appoint another representative,
causing a delay in the settlement of the estate
and its final distribution to the heirs, and
incurring greater legal fees for the estat e.
Many people choose their surviving spouse
as executor, since that person usually has the
greatest knowledge of their financial affairs as
well as the family situation. Some people name
several persons to serve as coexecutors, to
ensure that the estate will be handled fairly
and honestly. Frequently, those making a will
choose a professional such as an attorney or
trust company to act as a coexecutor and to
assist with complex issues of the estate.
It is also pruden t for a testator to name an
alternative executor to serve in the event the
designated executor is unable or refuses to
serve. A testator may change an executor as long

as the change is recorded properly in the will.
Anyone who is capable of making a will is
capable of becoming an executor. Courts can
disqualify as executors persons who are leg ally
incompetent or unsuitable. When this occurs,
the court appoints either an alternative execu-
tor, if the will has named one, or an
administrator. A person cannot be disqualified
as an executor merely because he or she might
inherit part of the estate.
Administrators
A court usually appoints an administrator when
a person dies without leaving a will. In most
jurisdictions, courts are required by statute to
name the spouse of the decedent as administra-
tor. Where no spouse is involved, administration
is usually assigned to the next of kin, such as
parents, brothers and sisters, nieces and
nephews, or cousins. Special laws, called statutes
of
DESCENT AND DISTRIBUTION, determine the next
of kin who are entitled to serve as administrators.
Terms of Office
As a general rule, executors and administrators
are required to take an oath as prescribed by
statute before beginning their dut ies. The taking
of the oath constitutes acceptance of the office.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
304 EXECUTORS AND ADMINISTRATORS
In some jurisdictions, statutes require the

executor or administrator of an estate to file a
bond to protect those interested in the estate. The
amount of an executor’s or administrator’s bond
will be fo rfeited if the representative is found to
have deliberately mismanaged the estate.
The authority of an execut or or administra-
tor terminates only when the estate has been
completely administered or the executor dies,
resigns, or is suspended or removed. An
executor can be removed from office for
grounds specified by law, such as mismanage-
ment, waste (abuse or destruction of the
property), disloyalty, improper administration,
NEGLIGENCE, or other misconduct in the admin-
istration of the estate. A representative can also
be removed for failure to file a proper
inventory, accounts, or tax returns w ithin the
required time; for failure to comply with a court
order requiring him or her to furnish a bond; or
for bankrupting the estate. The representative
should be removed where personal interests
conflict with official duties or where there is
such enmity between the personal representa-
tive and the beneficiaries that it might interfere
with proper management of the estate.
Liability Considerations for Executors
and Administrators
Y
B
our Aunt Lillian has ju st called to ask if you will

serve as executor for her e state after her
death. You are honored that she has considered you
for this important responsibility, but you also know
that there are risks associated with becoming an
executor or admin istrator.
The most potentially damaging risk is liability
for a ctions undertaken on behalf of the estate.
The estate’s beneficiaries, who are likely your
relatives, may sue you if any of the following
situations occur:
n
You fail to properly secure and insure the
assets of the estate, and it suffers a loss as a
result.
n
You diminish the estate through imprudent
investments or inadequate record keeping.
n
You fail to pay taxes on the estate, in which
case you may be personally liable for interest
and penalties.
n
You sell an asset of the estate without
authority to do so.
n
You delay settlement of the estate unnece-
ssarily or are tardy in executing important
transactions.
n
You engage in actions that constitute a

conflict of interest.
n
You improperly delegate decisions to others
who have no legal authority over the estate.
n
You approve a coexecutor’s or coadminis-
trator’s breach of duty.
Fortunately, you can usually avoid these pro-
blems by t aking a few simple steps:
n
Most important of all, stay in touch with the
estate’s beneficiaries. Keep them informed of
your actions and the general condition of the
estate.
n
Promptly meet all required deadlines.
n
Maintain accurate records of all estate
transactions and document all decisions
made. Keep receipts of distributions made
to beneficiaries.
n
Obtain the written consent of all beneficiaries
when changing estate investments.
n
Obtain a court order from the probate court
for significant estate transactions. Petition
the court if the will is unclear regarding
particular items.
n

Keep affairs of the estate confidential.
n
Avoid conflicts of interest. Do not put your
own interests ahead of the interests of the
estate’s beneficiaries, and do not use assets
oftheestateforyourowngainorprofit.
By using common sense and foll owing these
guidelines, you can effectively settle an estate and
avoid potential lawsuits.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
EXECUTORS AND ADMINISTRATORS 305
General Duties
The general and primary duties of the adminis-
trator or executor are to administer the estate in
an orderly and proper manner to the best
advantage of all concerned, and to settle and
distribute the assets of the estate as quickly and
reasonably as is practicable.
Executors must submit the will to probate
court, then dispose of the estate according to
the will. Both executors and administrators
must make an inventory and appraisal of the
estate, then file that information with the court.
Executors and administrators are held liable for
the debts and taxes of the estate, as well as any
losses resulting from unauthorized or improper
investments of estate funds.
Executors and admini strators are, as a rule,
allowed a reasonable compensation for the
services they perform in the administration of

a decedent’s estate. This right arises from and is
controlled by statute, unless the will specifically
provides the amount of an executor’s compen-
sation. Commissions are the most common
form of compensation to executors and admin-
istrators.
FURTHER READINGS
Plotnick, Charles K., and Stephan R. Leimberg. 2002. How to
Settle an Estate: A Manual for Executors and Trustees. 3d
ed. New York: Plume.
“So You’ve Agreed to Be an Executor.” 2001. Kiplinger’s
Retirement Report (September).
Wilson, Douglas D. 2001. Executor & Trustee Survival Guide.
Honolulu: Fiduciary.
EXECUTORY
That which is yet to be fully executed or performed;
that which remains to be carried into operation or
effect; incomplete; depending upon a future perfor-
mance or event. The opposite of executed.
EXEMPLIFICATION
An official copy of a document from public
records, made in a form to be used as evidence,
and authenticated or certified as a true copy.
Such a du plicate is also referred to as an
exemplified copy or a
CERTIFIED COPY.
EXERCISE
To put into action, practice, or force; to make use
of something, such as a right or option.
To exercise dominion over land is to openly

indicate absolute possession and control.
To exercise discretion is to choose between
doing and not doing something, the decision
being based on sound judgment.
EXHAUSTION OF REMEDIES
The exhaustion-of-remedies doctrine requires that
procedures established by statute, common law,
contract, or custom must be initiated and followed in
certain cases before an aggrieved party may seek relief
from the courts. After all other available remedies
have been exhausted, a lawsuit may be filed.
Most commonly, exhaustion of remedies
applies where an administrative agency has been
established by Congress to handle grievances
that occur under its purview. For example, if a
dispute arises over a provision in a labor
contract, the parties may be required to follow
specific grievance procedures administered by
the
NATIONAL LABOR RELATIONS BOARD (NLRB).
After the parties have satisfied each requirement
of the grievance process, and the NLRB has
reached its final decision, they may appeal the
decision to a higher tribunal.
The rationale behind requiring parties to
exhaust their administrative remedies is that the
agencies have the specialized personnel, experi-
ence, and expertise to sort and decide matters
that arise under their jurisdiction. Also, the
doctrine of

SEPARATION OF POWERS dictates that an
agency created by Congress should be allowed
to carry out its duties without undue interfer-
ence from the judiciary.
The exhaustion-of-remedies doctrine also
applies in certain classes of cases where state
remedies must be exhausted before a party may
pursue a case in federal court. In these
situations, exhaustion of remedies is a rule of
comity, or courtesy, by which federal courts
defer to state courts to make the initial
determination as to all claims, federal or state,
raised in a case. For example, petitions for
HABEAS CORPUS (release from unlawful imprison-
ment) by an inmate of a state prison are not
heard by a federal court until after all state
remedies are exhausted (see Darr v. Burford, 339
U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761 [1950]).
As with most legal doctrines, there are
exceptions to the exhaustion-of-remedies re-
quirement. A party bringing a
CIVIL RIGHTS action
under 42 U.S.C.A. § 1983 is not required to
exhaust state remedies before filing suit in
federal court. In Patsy v. Board of Regents, 457
U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172
(1982), the Supreme Court held that the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
306 EXECUTORY
plaintiff—who claimed she was denied employ-

ment by a state university because of her race
and her sex—was not required to exhaust her
state administrative remedies before filing her
suit in federal co urt, because such a require-
ment would be inconsistent with congressional
intent in passing civil rights legislation.
Similarly, a criminal defense exception has
been carved out by the Court. It allows a criminal
DEFENDANT to raise the defense of improper
administrative procedure even in cases where
the defendant failed to exhaust all available
administrative remedies. For example, in McKart
v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L.
Ed. 2d 194 (1969), the defendant—who was
charged with failure to report for induction into
the arm ed services—was allowed to claim that his
draft classification was invalid even though he
had failed to pursue administrative remedies.
Finally, courts may allow an exception to
the exhaustion-of-remedies doctrine wher e
administrative remedies are inadequate or
would cause irreparable harm. In a case
involving a claim of
WRONGFUL DISCHARGE from
employment, the Supreme Court held that the
plaintiff—who may have had to wait up to ten
years to be heard by the administrative
agency—was not required to exhaust available
administrative remedies before commencing a
court action (Walker v. Southern Ry., 385 U.S.

196, 87 S. Ct. 365, 17 L. Ed. 2d 294 [1966]).
FURTHER READINGS
Donnellan, Rebecca L. 2001. “The Exhaustion Doctrine
Should Not Be a Doctrine with Exceptions.” West
Virginia Law Review 103 (spring).
Funk, William. 2000. “Exhaustion of Administrative
Remedies—New Dimensions since Darby.” Pace Envi-
ronmental Law Review 18 (winter).
Rapp, Geoffrey Christopher. 2001. “Low Riding.” Yale Law
Journal (April 1) 110.
CROSS REFERENCE
Administrative Law and Procedure.
EXHIBIT
As a verb, to show or display; to offer or present for
inspection. To produce anything in public, so that
it may be taken into possession. To present;
to offer publicly or officially; to file of record. To
administer; to cause to be taken, as medicines. To
submit to a court or officer in the course of
proceedings.
As a noun, a paper or docum ent produced and
exhibited to a court during a trial or hearing, or to
a person taking depositions, or to auditors or
arbitrators as a voucher, or in proof of facts, or as
otherwise connected with the subject matter, and
which, on being accepted, is marked for i dentifi-
cation and annexed to the deposition, report, or
other principal document, or filed of record, or
otherwise made a part of the case.
A paper, document, char t, map, or the like,

referred to and made a part of an affidavit,
pleading, or brief. An item of physical, tangible
evidence that is to be or has been offered to the
court for inspection.
EXONERATION
The removal of a burden, charge, responsibility,
duty, or blame imposed by law. The right of a
party who is secondarily liable for a debt, such as a
surety, to be reimbursed by the party with primary
liability for payment of an obligation that should
have been paid by the first party.
EXPATRIATION
The voluntary act of abandoning or renouncing
one’s country and becoming the citizen or subject
of another.
EXPECTANCY
A mere hope, based upon no direct provision,
promise, or trust. An expectancy is the possibility
of receiving a thing, rather than having a vested
interest in it.
The term has been applied to situations
where an individual hopes and expects to
receive something, generally property or money,
This .22-caliber
revolver used by John
Hinckley in his
assassination attempt
against President
Ronald Reagan was
submitted as evidence

in Hinckley’s 1982
trial. An exhibit is
tangible evidence
submitted to a court
for inspection during
the course of trial
proceedings.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
EXPECTANCY 307
but has no founded assurance of possession. A
person named in a will as an heir has only an
expectancy to inherit under the will, since there
exists a possibility that the will may be altered so
as to disinherit him or her.
EXPERT TESTIMONY
Testimony about a scientific, technical, or profes-
sional issue given by a person qualified to testify
because of familiarity with the subject or special
training in the field.
Generally speaking, the law of evidence in
both civil and criminal cases confines the
testimony of witnesses to statements of concrete
facts within their own observation, knowledge,
and recollection. Testimony must normally
state facts perceived by the witnesses’ use of
their own senses, as distinguished from their
opinions, inferences, impressions, and conclu-
sions drawn from the facts. Opinion testimony

that is based on facts is usually considered
incompetent and inadmissible, if the factfinders
are as well qualified as the witness to draw
conclusions from the facts.
In certain instances, however, the law allows
witnesses to provide
OPINION EVIDENCE, and such
evidence is divided into two classes, lay opinion
and expert opinion. A lay witness may give his
or her opini on when that opinion is (1)
rationally based on the perception of the
witness; (2) helpful to a clear understanding of
the witness’ testimony or the determination of a
fact in issue; and (3) not based on scientific,
technical, or other specialized knowledge within
the scope of expert testimony discussed below.
Thus, lay witnesses who have had an opportu-
nity to observe a particular vehicle in motion
are normally permitted to testify that it was
traveling at a great rate of speed or was going
pretty fast. Lay witnesses are also normally
allowed to give their opinion as to the height,
weight, quantity, and dimensions of things,
even if their testimony is not precise. By
definition, a lay witness is any witness who is
not qualified to testify as an expert on a
particular subject.
Expert witnesses are persons who are
qualified, either by actual experience or by
careful study, to form definite opinions with

respect to a division of science, a branch of art,
or a department of trade. The law deems
persons having no such experience or training
to be incapable of forming accurate opinions or
drawing correct conclusions. Thus, if scientific,
technical, or other specialized knowledge will
assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may testify
in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or
data; (2) the testimony is the product of reliable
principles and methods; and (3) the witness has
applied the principles and methods reliably to
the facts of the case. In Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 149-152, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999), the U.S. Supreme
Court further observed that the reliability of a
scientific technique may turn on whether the
technique can be and has been tested; whether it
has been subjected to peer review and publica-
tion; and whether there is a high rate of error or
standards controlling its operation.
Courts do not apply a rigid rule in determin-
ing whether a particular witness is qualified to
testify as an expert. Instead, an expert’s qualifica-
tions are normally evaluated on a witness-by-
witness basis, according to the facts and issues of
each case. Several courts have stated that the true

criterion in determining the qualification of
expert witnesses is not whether they employ their
knowledge and skill professionally or commer-
cially, but whether the jury can receive appreci-
able help from them on the particular subject in
issue. Many courts also require the witness to
exhibit sufficient knowledge of the subject matter
before his or her opinion to go to the jury.
The qualifications of an expert witness must
be carefully scrutinized by courts to guard
against charlatans who may give erroneous
testimony without a sound foundation. Most
courts will more closely scrutinize the qualifica-
tions of witnesses seeking to testify as exper ts if
they have never been found qualified to give
expert testimony on a prior occasion. However,
primary reliance is not placed on the fact that it
may be the expert’s first time on the
WITNESS
STAND
. Conversely, the fact that a witness has
been previously qualified to give expert testi-
mony on the subject matter in question is
typically irrelevant to his or her qualifications
for giving such testimony in a subsequent case.
There are two general classes of matters as
to which expert testimony is admissible: (1)
matters as to which the conclusions to be drawn
by the jury depend on the existence of facts that
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

308 EXPERT TESTIMONY