Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P16 ppsx

L. Settlement Charges
700. Total Sales/Broker's Commission based on price $ @ % =
Division of Commission (line 700) as follows:
701. $ to
702. $ to
703. Commission paid at Settlement
704.
800. Items Payable In Connection With Loan
801. Loan Origination Fee %
802. Loan Discount %
803. Appraisal Fee to
804. Credit Report to
805. Lender's Inspection Fee
806. Mortgage Insurance Application Fee to
807. Assumption Fee
808.
809.
810.
811.
900. Items Required By Lender To Be Paid In Advance
901. Interest from to @$ /day
902. Mortgage Insurance Premium for months to
903. Hazard Insurance Premium for years to
904. years to
905.
1000. Reserves Deposited With Lender
1001. Hazard insurance months@$ per month
1002. Mortgage insurance months@$ per month
1003. City property taxes months@$ per month
1004. County property taxes months@$ per month
1005. Annual asse

ssments months@$ per month
1006. months@$ per month
1007. months@$ per month
1008. months@$ per month
1100. Title Charges
1101. Settlement or closing fee to
1102. Abstract or title search to
1103. Title examination to
1104. Title insurance binder to
1105. Document preparation to
1106. Notary fees to
1107. Attorney's fees to
(includes above items numbers: )
1108. Title insurance to
(includes above items numbers: )
1109. Lender's coverage $
1110. Owner's coverage $
1111.
1112.
1113.
1200. Government Recording and Transfer Charges
1201. Recording fees: Deed $ ; Mortgage $ ; Releases $
1202. City/county tax/stamps: Deed $ ; Mortgage $
1203. State tax/stamps: Deed $ ; Mortgage $
1204.
1205.
1300. Additional Settlement Charges
1301. Survey to
1302. Pest ins
pection to

1303.
1304.
1305.
1400. Total Settlement Charges (enter on lines 103, Section J and 502, Section K)
Settlement Statement
Previous editions are obsolete
Paid From
Borrowers
Funds at
Settlement
Paid From
Seller's
Funds at
Settlement
form HUD-1 (3/86)
ref Handbook 4305.2
A sample settlement statement (continued).
ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
138 SETTLEMENT STATEMENT
mobile home financing came under the regulation
of RESPA.
The expansion of RESPA brought complaints
from the finance industry about the burden of
excess regulation. Yet with the signing of the
Housing and Community Development Act by
the usually antiregulatory President
GEORGE H. W.
BUSH, Washington signaled its approval of the

benefits for consumers in regulating costs in real
estate transactions.
SETTLOR
One who establishes a trust—a right of property,
real or personal—held and administered by a
trustee—often chosen by the settlor—for the benefit
of another.
SEVEN BISHOPS’ TRIAL
A turning point in the history of ENGLISH LAW,
the Seven Bishops’ Trial, 12 Howell’s State
Trials 183 (1688), involved issues of church and
state, the authority of the monarchy, and the
power of the judiciary. In 1688 King James II
brought the proceeding against seven pro-
minent bishops of the Church of England.
For defying a controversial order of the king,
the prelates were accused of seditious libel, a
grave offense that constituted rebellion against
the Crown. Their successful defense against the
charge helped to encourage the opposition to
the king that culminated six months later in
the so-called Glorious Revolution of 1688. The
king fled, and subsequently England had a
new monarchy and a new
BILL OF RIGHTS. The
bishops’ challenge to authority and the subse-
quent expression of popular political will were
important precedents that helped to inspire
later revolutionaries among the American
colonists.

The trial took place against a backdrop of
anti-Catholicism. The English Parliament had
restricted the rights of Catholics to hold public
office and engage in other activities. James II
was a devout Catholic, however, and believed
that it was his duty to protect the rights of
English Catholics. Accordingly, on April 4,
1687, he issued the First Declaration of Indul-
gence, which suspended the restrictions and led
directly to Catholics holding public offices. A
year later, on April 27, 1688, James repeated his
first order and went furt her: to better inform
the citizenry, he commanded the Anglican clergy
to read his Second Declaration of Indulgence in
their churches.
The king’s order was universally unpopular.
Seven senior prelates took action. Led by William
Sancroft, the archbishop of Canterbury, they
sent the king a petition professing their loyalty
to him but also indicating their refusal to read
the declaration in church . The petition enraged
James, especially since the ostensibly private
statement was published throughout the king-
dom. Viewing the bishops’ petition as an act of
rebellion, he began the process of prosecuting
them for seditious
LIBEL. In such a case, the
accused were required to post a payment called
a recognizance or else await trial in prison. This
the bishops refused to do, claiming that as

members of the Hous e of Lords, they were
exempt from paying recognizances. The bishops’
claim may have been a bit audacious in that
the exemption probably did not extend to such
serious offenses. In any event James promptly
jailed the bishops in the Tower of London.
At trial both sides argued over the issue of
SEDITION. The Crown maintained that the
bishops should have taken their grievances to
the king’s courts or appealed to Parliament for
action. Their failure to do so amounted to an
attempt to incite popular hostility against the
king. Lawyers for the bishops argued that they
had simply exercised the same rights available to
all English subjects. Anyone, they asserted, was
free to petition the king when legal rights were
A depiction of the
June 1688 release of
the Seven Bishops
following their
acquittal on charges
of seditious libel
against King James II,
one of the first major
decisions against an
executive branch of
government.
BETTMANN/CORBIS.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION

SEVEN BISHOPS’ TRIAL 139
infringed. Four judges presided at the trial. In
giving their opinion on the law to the jury, they
divided equally over whether the bishops had
committed seditious libel . Boldly, the jury ruled
against the Crown.
The acquittal of the bishops had immediate
and lasting implications. The verdict of not
guilty was received with great popular acclaim
and contributed to exactly what the king had
feared—rebellion. During James’s dispute with
the bishops, his second wife had given birth to a
son. Hitherto James’s heir apparent had been
Mary, his Protestant daughter from his first
marriage, who was married to William of
Orange, the ruler of the Netherlands. Now the
birth of a son aroused fear that James would be
succeeded by a Catholic. Accordingly, a coali-
tion of nobles, encouraged by the popular
response to the bishops’ acquittal, invited the
Protestant William of Orange and Mary to
assume the throne. The so-called Glorious
Revolution of 1688 saw King James II flee to
France, while William and his wife Mary
became king and queen. Their appointment
by Parliament underscored that institution’s
supremacy as the maker of law in England; in a
short time, the nation had not only new
sovereigns but also a new Bill of Rights.
The significance of the Seven Bishops’ Trial

reached beyond England. Historically, it marked
one of the first major decisions against an
EXECUTIVE BRANCH of government. A jury had
nullified what it considered an unjust law. Thus,
historians see the case as marking the emanci-
pation of the judiciary from executive control.
This lesson was not lost on the American
colonists. They viewed the case as an exercise of
popular political will against a tyrannical
monarch; as such, it inspired early American
republicans (and ultimately revolutionaries)
who believed in the decentralization of power.
SEVENTEENTH AMENDMENT
The Seventeenth Amendment to the U.S. Cons-
titution reads:
The Senate of the United States shall be
composed of two Senators from each State,
elected by the people thereof for six years;
and each Senator shall have one vote. The
electors in each State shall have the qualifica-
tions requisite for electors of the most
numerous branch of the State legislatures.
When vacancies happen in the representa-
tion of any State in the Senate, the executive
authority of such State shall issue writs of
election to fill such vacancies: Provided, That
the legislature of any State may empower the
executive thereof to make temporary appoint-
ments until the people fill the vacancies by
election as the legislature may direct.

This amendment shall not be so con-
strued as to affect the election or term of any
Senator chosen before it becomes valid as
part of the Constitution.
The Seventeenth Amendment, which was rati-
fied in 1913, provided for the direct election of
U.S. senators by citizens. Until 1913 state
legislatures had elected U.S. senators. Ratification
of the amendment followed decades of insis-
tence that the power to elect senators should
be placed in the hands of ordinary voters. This
successful struggle marked a major victory for
progressivism—the early twentieth-century politi-
cal movement dedicated to pushing government
at all levels toward reform. In addition to serving
the longer-range goals of the reformers, the
campaign on behalf of the amendment sought to
end delays and what was widely perceived as
corruption in the election of senators by state
legislatures.
From 1787 until 1913, the U.S. Constitution
specified that state legislatures would elect U.S.
senators. Article 1, Section 3, reads:
The Senate of the United States shall be
composed of two Senators from each State,
chosen by the Legislature thereof, for six
Years; and each Senator shall have one Vote.
In giving the elective power to the states, the
framers of the Constitution hoped to protect state
independence. The framers were suspicious of

majority rule and sought to restrain what they
regarded as the potentially destructive forces of
democracy. Thus, while providing for direct
election to the House of Representatives, they
countered this expression of the people’swillby
allowing legislatures to select members of the
Senate. At the Constitutional Convention, the
proposal for state election of senators aroused no
controversy. Only one proposal for senatorial
election by popular vote was offered, and it was
soundly defeated. The states were receptive and did
not protest when the Constitution was sent to them
for ratification. Nor, over the n ext decades, did
the system incur more than occasional criticism.
By the late nineteenth century, however,
political opinion was changing in favor of a
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
140 SEVENTEENTH AMENDMENT
more fully participatory democracy. Starting in
the 1880s, the concentration of elective power in
the hands of state legislatures provoked criticism.
The critics complained that the legislatures were
dominated by party bosses who prevented citizen
participation and thwarted popular political
action. The critics also pointed to practical and
ethical problems: lengthy deadlocks, which
sometimes resulted when legislatures could not
agree upon a candidate, and alleged
BRIBERY.
Progressivism, the reform movement that sought

to address social inequities by broadening
government power, helped to bring about this
change in outlook. Under the pressure of the
Progressive movement and the popular belief
that citizens were capable of choosing their own
senators, the states began to bend. By the turn of
the century, several states were holding popular
elections that served as advisories to the legis-
latures in selecting senators.
Over the next decade, increasing calls for
change reached Congress, where the resistance
to change was considerable. Federal lawmakers
argued that direct election would strip states of
their independence and sovereignty. The pres-
sure continued to increase, however, until by
1910, 31 state legislatures had requested that
Congress hold a constitutional convention to
propose an amendment. The next year Con-
gress buckled and passed the amendment;
within two years, the amendment had been
ratified by the states. It read , in relevant part:
The Senate of the United States shall be
composed of two Senators from each State,
elected by the people thereof, for six years;
and each Senator shall have one vote.
Only ten states opposed ratification.
Ratification of the Seventeenth Amendment
introduced significant changes to Congress.
When states elected senators, they exercised
the power of instruction—they could direct their

senators to vote a certain way on important
matters. The Seventeenth Amendment formally
ended this power, for now senators were
beholden to the voters. Historians and legal
scholars continue to debate the other effects of
the amendment. Some view it as a grave
surrender of state sovereignty; others see it as
a benign or even positive outgrowth of popular
will. Direct election has seemingly contributed
to the decline in the power of party bosses, but
its impact upon the actual practice of Senate
business has been negligible.
FURTHER READINGS
Bybee, Jay S. 1997. “Ulysses at the Mast: Democracy,
Federalism, and the Sirens’ Song of the Seventeenth
Amendment.” Northwestern University Law Review 91
(winter).
Kochan, Donald J. 2003. “State Laws and the Independent
Judiciary: An Analysis of the Effects of the Seventeenth
Amendment on the Number of Supreme Court Cases
Holding State Laws Unconstitutional.” Albany Law
Review 66 (summer).
Rossum, Ralph A. 2001. Federalism, the Supreme Court, and
the Seventeenth Amendment: The Irony of Constitutional
Democracy. Lanham, Md.: Lexington Books.
Vile, John R. 2006. A Companion to the United States
Constitution and Its Amendments. 4th ed. Westport, CT:
Praeger Publishers.
Zywicki, Todd J. 1997. “Beyond the Shell and Husk of
History: The History of the Seventeenth Amendment

and its Implications for Current Reform Proposals.”
Cleveland State Law Review 45 (spring): 165–234.
Zywicki, Todd J. 1994. “Senators and Special Interests: A
Public Choice Analysis of the Seventeenth Amend-
ment.” Oregon Law Review 73 (winter).
CROSS REFERENCE
Congress of the United States.
SEVENTH AMENDMENT
The Seventh Amendment to the U.S. Constitu-
tion reads:
In suits at COMMON LAW, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise
re-examined in any court of the United
States, than according to the rules of the
common law.
The Seventh Amendment to the U.S. Con-
stitution guarantees the right to a jury trial in
most civil suits that are heard in federal court.
However, before the Seventh Amendment right
to a jury trial attaches, a lawsuit must satisfy
four threshold requirements. First, it must
assert a claim that would have triggered the
right to a jury trial under the English common
law of 1791, when the Seventh Amendment was
ratified. If a lawsuit asserts a claim that is
sufficiently analogous to an eighteenth-century
English common law claim, a litigant may still
invoke the Seventh Amendment right to a jury

trial even though the claim was not expressly
recognized in 1791 (Markman v. Westview Ins-
truments, 517 U.S.370, 116 S. Ct. 1384, 134 L.
Ed. 2d 577 [1996] ). Claims brought under a
federal statute that confer a right to trial by jury
also implicate the Seventh Amendment ( Chauf-
feurs, Teamsters and Helpers, Local No. 391 v.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
SEVENTH AMENDMENT 141
Terry, 494 U.S. 558, 110 S. Ct. 1339, 108 L. Ed.
2d 519 [1990]).
Second, a lawsuit must be brought in federal
court before a litigant may invoke the Seventh
Amendment right to a jury trial. This right is
one of the few libert ies enumerated in the
BILL
OF RIGHTS
that has not been made applicable to
the states through the doctrine of selective
incorporation (Minn eapolis & St. Louis Railroad
v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L.
Ed. 961 [1916]). The Seventh Amendment does
not apply in state court even when a litigant is
enforcing a right created by federal law.
However, most state constitutions similarly
afford the right to trial by jury in civil cases.
Third, a lawsuit must assert a claim for
more than $20. Because nearly all lawsuits are
filed to recover much larger sums, this provi-
sion of the Seventh Amendment is virtually

always met.
Fourth, a lawsuit must assert a claim that is
essentially legal in nature before the Seventh
Amendmentapplies.Thereisnorighttoajury
trial in civil actions involving claims that are
essentially equitable in nature (Tull v. United
States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d
365 [1987]). Lawsuits that seek injunctions,
SPECIFIC PERFORMANCE, and other types of non-
monetary remedies are traditionally treated as
equitable claims. Lawsuits that seek money
damages, conversely, are traditionally treated as
legal claims. However, these traditional categories
of law and equity are not always neatly separated.
If the monetary relief sought is only
“incidental” to an equitable claim for an
INJUNCTION, the right to a jury trial will be
denied (Stewart v. KHD Deutz of America, 75
F.3d 1522 [11th Cir. 1996]). Even if a lawsuit is
couched in terms of a legal claim for monetary
relief, a court will deny a litigant’s request for a
jury trial if an essentially equitable claim is being
asserted. Lawsuits seeking restitution, though
representing claims for monetary reimburse-
ment, have been treated as equitable claims for
the purposes of the Seventh Amendment
(Provident Life and Accident Insurance v. Wil-
liams, 858 F. Supp. 907 [W.D. Ark. 1994]). On
the other hand, an employee’s action for back
pay under Title VII of the

CIVIL RIGHTS Act of
1964 (42 U.S.C.A. §§ 2000e et seq.) represents a
legal claim despite the fact that the statute
characterizes the remedy as equitable (Local No.
391 v. Terry).
When a lawsuit involves mixed questions of
law and equity, litigants may present the legal
questions to a jury under the Seventh Amend-
ment, while leaving the equitable questions for
judicial resolution (Snider v. Consolidation Coal
Co., 973 F.2d 555 [7th Cir. 1992]). For example,
an action to recover
ATTORNEY’SFEESpursuant to a
written agreement normally would be decided by
a jury in accordance with the common law of
contracts. However, in a subsequent proceeding
to determine the amount of attorney’sfees
owed, equitable principles of accounting would
normally be applied by a judge alone (McGuire v.
Russell Miller, Inc., 1F.3d1306[2nd Cir. 1993]).
Any factual determinations made by the jury
in the first proceeding would be binding on
the judge during the second proceeding
(Lebow v. American Trans Air, 86 F.3d 661
[7th Cir. 1996]).
Some types of lawsuits present issues that
are neither wholly legal nor entirely equitable.
In many such cases, the Seventh Amendment
offers no protection. For example, there is no
right to trial by jury for lawsuits that involve

issues of maritime law or admiralty rights
(Parsons v. Bedford, 28 U.S. [3 Pet.] 433, 7 L.
Ed. 732 [1830]). Nor is the Seventh Amendment
implicated in proceedings that relate to the
NATURALIZATION (Luria v. United States, 231 U.S.
9, 34 S. Ct. 10, 58 L. Ed. 101 [1913])or
DEPORTATION (Gee Wah Lee v. United States, 25
F.2d 107 [5th Cir. 1928],of
ALIENS. Litigants also
have no Seventh Amendment right to trial by
jury in lawsuits brought against the federal
government (Lehman v. Nakshian, 453 U.S. 156,
101 S. Ct. 2698, 69 L. Ed. 2d 548 [1981]).
The underlying rationale of the Seventh
Amendment was to preserve the historic line
separating the province of the jury from that of
the judge in civil cases. Although the line
separating questions of law from questions of
fact is often blurred, the basic functions of
judges and juries are clear. Judges are charged
with the responsibility of resolving issues
concerning the admissibility of evidence and
instructing jurors regarding the pertinent laws
governing the case. Judges are also permitted to
comment on the evidence, highlight important
issues, and otherwise express their opinions in
OPEN COURT as long as each factual question is
ultimately submitted to the jury. However, a
judge may not interject her personal opinions or
observations to such an extent that they impair

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
142 SEVENTH AMENDMENT
a litigant’s right to a fair trial (Rivas v. Brattesani,
94 F.3d 802 [2nd Cir. 1996]).
Juries perform three main functions. First,
jurors are charged with the responsibility of
listening to the evidence, ascertaining the rele-
vant facts, and drawing reasonable inferences
that are necessary to reach a verdict. Second,
jurors are required to heed the instructions read
by the court and apply the governing legal
principles to the facts of the case. Third, jurors
are obliged to determine the legal consequences
of the litigants’ behavior through the process of
group deliberation and then publicly announce
their verdict.
The Seventh Amendment expressly forbids
federal judges to “re-examin[e]” any “fact tried
by a jury” except as allowed by the common
law. This provision has been interpreted to
mean that no court, trial or
APPELLATE, may
overturn a jury verdict that is reasonably
supported by the evidence (Taylor v. Curry, 17
F.3d 1434 [4th Cir. 1994]). A jury must be
allowed to hear a lawsuit from start to finish
unless it presents a legal claim that is completely
lacking an evidentiary basis (Gregory v. Missouri
Pacific Railroad, 32 F.3d 160 [5th Cir. 1994]).
Together with the Due Process Clause of the

FIFTH AMENDMENT, the Seventh Amendment
guarantees civil litigants the right to an impartial
jury (McCoy v. Goldston, 652 F.2d 654 [6th Cir.
1981]). A juror’simpartialitymaybecompro-
mised by communications with sources outside
the courtroom, such as friends, relatives, and
members of the media. The presence of even one
partial, biased, or prejudiced juror creates a
presumption that the Seventh Amendment has
been violated (Haley v. Blue Ridge Transfer Co.,
802 F.2d 1532 [4th Cir. 1986]). A litigant seeking
to overcome this presumption bears a heavy
burden to establish the harmlessness of an
unauthorized jury communication. In Haley,
for example, the
SUPREME COURT overturned a
verdict against the
DEFENDANT because jurors had
communicated with an outside source who
attempted to persuade them to side with the
PLAINTIFF.
Although every juror must be impartial,
there is no Seventh Amendment right to a jury
of 12 persons. In Colgrove v. Battin, 413 U.S.
149, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973), the
U.S. Supreme Court ruled that the quality of the
deliberation process is not impaired when the
size of a jury is reduced from 12 to six members.
The Court cited one study suggesting that
smaller juries promote more robust delibera-

tions. Regardless of a jury’s size, the Seventh
Amendment requires unanimity among jurors
who hear civil cases in federal court (Murray v.
Laborers Union Local No. 324, 55 F.3d 1445 [9th
Cir. 1995]). By contrast, the
SIXTH AMENDMENT to
the Constitution does not require juror una-
nimity in criminal trials, except in death penalty
cases.
FURTHER READINGS
Barron, Jerome, and Dienes, Thomas. 2006. First Amend-
ment Law in a Nutshell. 6th ed. St. Paul, Minn.:
Thomson West.
Dwyer, William L. 2002. In the Hands of the People: The Trial
Jury’s Origins, Triumphs, Troubles, and Future in
American Democracy. New York: Thomas Dunne
Books.
Kane, Mary Kay. 2003. Civil Procedure in a Nutshell. 5th ed.
St. Paul, Minn.: Thomson/West.
Oldham, James. 2006. Trial by Jury: The Seventh Amendment
and Anglo-American Special Juries. New York: NYU
Press.
CROSS REFERENCE
Incorporat ion Doctrine.
SEVERABLE
That which is capable of being separated from
other things to which it is joined and maintaining
nonetheless a complete and independent existen ce.
The term severable is used to describe a
contract that can be divided and apportioned

into two or more parts that are not necessarily
dependent upon each other. For example, a
seller accepted a buyer’s order for sixty dozen
hats and caps of different sizes and colors. He
shipped all but five dozen to the buyer, who
then refused to accept the order. The seller
brought an action against the buyer for breach
of contract. There was no evidence to show that
the contract called for delivery of the whole
order at on e time. The court held that the buyer
could not escape liability because the seller had
failed to ship five dozen hats and caps, since the
order calling for hats and caps of different
patterns, sizes, and colors constituted a “sever-
able contract.”
The term severable is also used in connec-
tion with statutes. A severable statute is one that
after an invalid portion of it has been stricken
remains self-sustaining and capable of separate
enforcement without regard to the stricken
provisions.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
SEVERABLE 143
SEVERAL
Separate; individual; independent.
In this sense, the word several is distin-
guished from joint. When applied to a number
of persons, the expression severally liable usually
implies that each person is liable alone.
CROSS REFERENCE

Joint and Several Liability.
SEVERALTY OWNERSHIP
Sole proprietorship of property; individual
dominion.
SEVERANCE
The act of dividing, or the state of being divided.
The term severance has unique meanings in
different branches of the law. Courts use the
term in both civil and criminal
LITIGATION in two
ways: first, when dividing a lawsuit into two or
more parts, and second, when deciding to try
multiple defendants’ cases separately. In addi-
tion, severance also describes several actions
relevant to property and
EMPLOYMENT LAW.
In civil suits, severance refers to the division
of a trial into two or more parts. Plaintiffs in
civil suits base their cases on a cause of action—
facts that give the
PLAINTIFF the right to sue. For
reasons of judicial economy, the court may
order the lawsuit divided into two or more
independent causes of action. This type of
severance occurs only when each distinct
CAUSE
OF ACTION
could be tried as if it were the only
claim in controversy. As a result of severance,
the court renders a separate, final, and enforce-

able judgment on each cause. A second type of
severance occurs in cases involving multiple
defendants. The court may sever one or more
defendants from the trial and try their cases
separately.
Severance works somewhat differently in
federal criminal trials. When these cases involve
the
INDICTMENT of more than one DEFENDANT,
usually only one trial is held. This process is
called
JOINDER. Rule 8 of the Federal Rules of
CRIMINAL PROCEDURE permits the joinder of the
indictments of two or more defendants if they
are alleged to have participated in the same act
or trans action. For policy reasons, courts prefer
using joinder to holding separate trials because
it saves time and money. However, joinder can
create potential prejudices against a defendant,
resulting in greater likelihood of conviction,
and thus a defense attorney will often ask the
court to sever his client’s case. Less often, the
prosecution requests severance because it
believes joinder will prejudice its case. Severance
results in a defendant being tried separately on
one or all of the pending charges.
Severance is not automatic. Federal Rule 14
allows judge s broad discretion in deciding
whether to grant severance. To be successful, a
defense motion for severance must show

that concerns for the defendant’s right to a fair
trial outweigh the goals of joinder. Concerns
for judicial economy and efficiency make trial
courts reluctant to grant severance, and rarely
do appellate courts overturn a lower court
decision to refuse severance. One of the most
successful grounds for seeking severance arises
when a defendant wishes not to testify on all
counts in a trial but chooses to claim her
FIFTH
AMENDMENT
privilege on one or more counts.
In property and employment law, severance
is used in several different contexts. First, it
applies to
JOINT TENANCY, a form of shared owner-
ship of real property. Joint tenancy requires each
tenant to share in the four unities of time, title,
interest, and possession. When any of these
unities no longer applies to any or all of the joint
tenants, the joint tenancy is said to be severed,
and the tenancy is terminated. Second, in regard
to real property, severance is the cutting and
removal of anything that is attached to the land,
such as standing timber or crops. Third, sever-
ance is used when the government exercises its
power to take private property for public use
through the right of
EMINENT DOMAIN. If only
part of the property is taken, and the value of

the remaining property depreciates because of
the government’s proposed use of the taken
share, the owner is entitled to compensation
called “severance damage.”
Finally, severance may refer to “severance
pay,” which is an amount of money paid to
employees upon the termination of their employ-
ment. Discharged employees often raise issues
concerning severance pay. There may be disputes
as to entitlement. The duty to pay severance pay
may arise from a written employment contract, a
COLLECTIVE BARGAINING AGREEMENT, an employee
handbook, a personnel manual, a policy state-
ment, a verbal promise, or a well-settled and well-
known custom or practice. Normally severance
pay involves a lump-sum payment based on years
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
144 SEVERAL
of service and a unit of salary (e.g., two weeks pay
for each year of service) payable at time of
termination or over a period of time. Some plans
award severance pay to any employee terminated
for any reason. Other plans only apply to
shutdowns for economic reasons. Some plans
exclude employees terminated for
JUST CAUSE or
willful misconduct. Severance pay plans are
enforceable as contracts. Courts are very liberal
in finding adequate consideration, such that
continued employment, without any further

duties, will suffice for the enforcement of a
severance pay agreement.
It is generally held that, once earned, the
right to severance pay is vested, cannot be
retroactively reduced or modified, and survives
the termination of the agreement. But employee
actions, including employee misconduct, may
disqualify them from severance pay. One major
purpose of severance pay is to assist terminated
employees in times of economic distress during
the period of post-termination unemployment.
Therefore, em ployers often have resisted paying
severance pay where there has been a merger or
buyout and the employees are rehired by the
new employer-purchaser-successor and do not
lose any income.
FURTHER READING
Hein, Kevin P. 1993. “Joinder and Severance.” American
Criminal Law Review 30 (spring).
SEX DISCRIMINATION
Sex discrimination refers to discrimination on the
basis of gender.
Women have historically been subjected to
legal
DISCRIMINATION based on their gender.
Some of this discrimination has been based on
cultural stereotypes that cast women primarily
in the roles of wives and mothers. In the
patriarchal (male-dominated) U.S. society,
women have been viewed as the so-called

weaker sex, who needed protection from the
rough world outside their homes. Such beliefs
were used as justifications for preventing women
from voting, holding public office, and working
outside the home. In any culture that portrays
wives as appendages of their husbands, women
are often invisible to the law.
The ability of women to use the law to fight
sex discrimination in employment, education,
domestic relations, and other spheres is a recent
development. With the passage of Title VII of
the
CIVIL RIGHTS Act of 1964 (42 U.S.C.A. §§
2000e et seq.), discrimination in employment
based on sex became illegal. In the 1970s and
1980s, the U.S.
SUPREME COURT began to wrestle
with the implications of sex discrimination in
many contexts, often with conflicting or ambig-
uous results. Employers and social institutions
have sought to justify discriminatory treatment
for women on the basis of long-held traditions.
In some cases, the Cour t has agreed, whereas
in others, the justifications have been dismissed
as cultural stereotypes that have no basis in fact.
Historical Background
To reshape gender roles, women have had to
overcome centuries of tradition, much of which
originated in medieval England. After the
Norman Conquest in 1066, the legal status of

a married woman was fixed by
COMMON LAW.
The identity of the wife was merged into that of
the husband; he was a legal person but she was
not. Upon marriage, he received all of her
PERSONAL PROPERTY and managed all property that
President Barack
Obama's first bill in
office was the Lilly
Ledbetter Fair Pay
Act of 2009, which
seeks to ensure equal
pay for equal work,
regardless of gender.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
SEX DISCRIMINATION 145
she owned. In return, the husband was obliged
to support his wife and children.
This legal definition of marriage persisted in
the United States until the middle of the
nineteenth century, when states enacted married
women’s property acts. These acts conferred legal
status upon wives and permitted them to own
and transfer property in their own right, to
sue and be sued, and to enter into contracts.
Although these acts were significant advances,
they dealt only with property a woman inherited.
The husband, by placing title in his name, could

control most of the assets acquired during
marriage, thereby forcing his wife to rely on his
bounty.
The passage of the married women’sproperty
acts resulted from the effortsoffeministreformers,
including
LUCY STONE, ELIZABETH CADY STANTON,and
SUSAN B. ANTHONY. The feminist political movement
began in the nineteenth century with the call for
female suffrage. At a convention in Seneca Falls,
New York, in 1848, a group of women and men
drafted and approved the Declaration of Senti-
ments. This declaration, which was modeled on
thelanguageandstructureofthe
DECLARATION OF
INDEPENDENCE
,wasaBILL OF RIGHTS for women,
including the right to vote. Ston e, Stanton, and
Anthony were persistent critics of male refusal to
grant women polit ical and social equality. Not until
the
NINETEENTH AMENDMENT to the U.S. Constitution
was r atified in 1920, however, did women h ave
voting rights in the United States.
The U.S. Supreme Court confronted the
issue of sex discrimination in Bradwell v. Illinois,
83 U.S. 130, 21 L. Ed. 442 (1872).
MYRA
BRADWELL
sought to practice law in Illinois, but

the Illinois Supreme Court refused to admit her
to the bar because she was a woman. Bradwell
appealed to the U.S. Supreme Court, arguing
that the refusal to grant her a license violated
the
PRIVILEGES AND IMMUNITIES clause of the FOUR-
TEENTH AMENDMENT
.Byan8–1 vote, the Court
rejected Bradwell’s argument. Though the
majority opinion was on the argument that
the privileges and immunities clause applied
only to matters involving U.S. citizenship and
not state citizenship, a concurring opinion
written by Justice
JOSEPH P. BRADLEY and signed
by two other justices revealed the cultural
stereotypes that lay behind the legal analysis.
Observing that there is “a wide difference in the
respective sphere and destinies of man and
woman,” Bradley went on to write that the
“natural and proper timidity and delicacy which
belongs to the female sex evidently unfits it for
many of the occupations of civil life.” For
Bradley, the “paramount destiny and mission of
woman are to fulfill the noble and benign
offices of wife and mother. This is the law of the
Creator.”
By the late nineteenth century, mass
IMMI-
GRATION

from Europe to the industrialized cities
of the United States had resulted in many
immigrant women seeking work in factories.
Though the Supreme Court was hostile to state
laws that sought to regulate working conditions,
the Court was more hospitable to laws aimed at
protecting women in the workplace. The idea
that women were the weaker sex and needed
special treatment constituted discrimination
based on sex, but the Court willingly embraced
the concept. The landmark case in this regard
was Muller v. Oregon , 208 U.S. 412, 28 S. Ct.
324, 52 L. Ed. 551 (1908). The Court upheld an
Oregon law that prohibited the employment of
women for more than ten hours a day, in large
part because of the brief submitted in support of
the law by
LOUIS D. BRANDEIS. The brief contained
information about the possible injurious effects
of long work hours on women’s health and
morals, as well as on the hea lth and welfare of
their childr en, including their unborn children.
Brandeis emphasized the differences between
women and men. The Court unanimously
agreed, noting that “ woman’s physical structure
and the performance of maternal functions
place her at a disadvantage in the struggle for
subsistence.”
WORLD WAR II played a decisive role in changing
the social status of women. Large numbers of

women left the home and entered the industrial
workplace when men joined the
ARMED SERVICES.
Many women performed jobs that were pre-
viously thought to be beyond their physical
and mental abilities. Though these women were
unceremoniously fired after the war to free up
jobs for returning servicemen, many traditional
social assumptions about women had been
shaken.
By the 1970s, women had begun to compete
with men for managerial and professional
positions. Nevertheless, sex discrimination in
employment and other areas of U.S. society
remained. Congress, state legislatures, and the
courts began to address the legality of this type
of discrimination.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
146 SEX DISCRIMINATION
Sex Discrimination Laws
The first significant piece of federal legislation
that dealt with sex discrimination was the Equal
Pay Act (EPA) of 1963 (29 U.S.C.A. § 206 [d ]),
which amende d the
FAIR LABOR STANDARDS ACT of
1938 (29 U.S.C.A. §§ 201–219) by prohibiting
discrimination in the form of different com-
pensation for jobs requiring equal skill, effort,
and responsibility.
The inclusion of a prohibition against gender-

based discrimination in Title VII of the Civil
Rights Act of 1964 was a landmark achievement,
though the provision was added by opponents
of the comprehensive act in a last-minute
attempt to prevent its passage. Title VII defines
sex discrimination in employment as including
failure or refusal to hire, discrimination in dis-
charge, classification of employees or applicants
so as to deprive individuals of employment oppor-
tunities, discrimination in apprenticeship and
on-the-job training programs, retaliation for
opposition to an unlawful employment practice,
and sexually stereotyped advertisements relating
to employment (42 U.S.C.A. §§ 2000e-2[a] & [d],
2000e-3[a] & [b]).
The Pregnancy Discrimination Act (PDA)
of 1978 (42 U.S.C.A. § 2000e[k]) was the
congressional response to the ruling of the
Supreme Court in General Electric Co. v. Gilbert,
429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343
(1976), that an employer’s refusal to grant
pregnancy disability benefits under an otherwise
all-inclusive short-term disability insurance
program did not violate Title VII. The PDA
prohibits discrimination against employees on
the basis of pregnancy and childbirth with
respect to employment and benefits.
In an interesting twist, men have found
themselves the victims of sex discrimination
when the issue of pregnancy and

CHILD CARE
arises. The case of Kevin Knussman provides a
cautionary tale for men and women who are
planning to become parents. Knussman, a
17-year veteran of the Maryland State Police,
Sex Discrimination and Title VII:
An Unusual Political Alliance
T
B
he legislative battle to pass the Civil Rights Act
of 1964 (42 U.S.C.A. § 2000e et s eq.) required the
leadership of President
LYNDON B. JOHNSON and
the bipartisan support of legislators from outside
the South. The original draft of title VII of the act,
which prohibits employment discrimination, limited its
scope to discrimination based on race, color, religion,
and national origin. Sex was not included as a
“protected class” because supporters of the bill feared
such a provision might kill the act itself.
In February 1964 Representative Howard W.
Smith, a powerful Democrat from Virginia, offered
an amendment to include sex as a protected
class. Supporters of the bill were suspi cious of
Smith's motives, as he had, for three decades,
consistently opposed civil rights laws prohibiting
racial discrimination. Many suspected that he
was including sex discrimination i n title VII in an
attempt to break the bipartisan consensus for the
entire bill.

Smith, however, claimed he had no ulterior
motive. Since the 1940s he ha d formed a loose
alliance wi th the N ational Woman's party (NWP), a
feminist organization headed by Alice Paul. Since
1945 Smith had been a sponsor of the Equal Rights
Amendment, which Paul had originally drafted in
1923. Smith said he had introduced the amendment
to title VII at the request of Paul and the NWP.
Sponsors of the bill urged that the amendment
be defeated, but female representatives, such as
Martha W. Griffiths of Michigan, led a bipartisan
effort to adopt th e amendment. The amendment was
passed by a vote of 164 to 133 , with most southern
Democrats voting for it. The Senate then adopted the
House language. If Smith and the other sou therners
thought the amendment would scuttle the bill, they
were mistaken. The law was enacted on July 2, 1964,
with Smith and other southern Democrats voting
against the entire bill. Nevertheless, Smith had
proved an unlikely hero for women's rights.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
SEX DISCRIMINATION 147