Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P7 pps

but that the reduction in the number of industry
members will enhance tacit coordination of
behavior.
Vertical Mergers Vertical mergers take two
basic forms: forward integration, by which a
firm buys a customer, and backward integra-
tion, by which a firm acquires a supplier.
Replacing market exchanges with internal
transfers can offer at least two major benefits.
First, the vertical merger internalizes all trans-
actions between a manufacturer and its supplier
or dealer, thus converting a potentially adver-
sarial relationship into something more like a
partnership. Second, internalization can give
management more effective ways to monitor
and improve performance.
Vertical integration by merger does not
reduce the total number of economic entities
operating at one level of the market, but it might
change patterns of industry behavior. Whether a
forward or backward integration, the newly
acquired firm may decide to deal only with the
acquiring firm, thereby altering competition
among the acquiring firm’s suppliers, customers,
or competitors. Suppliers may lose a market for
their goods; retail outlets may be deprived of
supplies; or competitors may find that both
supplies and outlets are blocked. These possibili-
ties raise the concern that vertical integration will
foreclose competitors by limiting their access to
sources of supply or to customers. Vertical

mergers also may be anticompetitive because
their entrenched market power may impede new
businesses from entering the market.
Conglomerate Mergers Conglomerate t ransac-
tions take many forms, ranging from short-term
joint ventures to complete mergers. Whether a
conglomerate merger is pure, geographical, or a
product-line extension, it involves firms that
operate in separate markets. Therefore, a con-
glomerate transaction ordinarily has no direct
effect on competition. There is no reduction or
other change in the number of firms in either the
acquiring or acquired firm’smarket.
Conglomerate mergers can supply a market
or “demand” for firms, thus giving entrepre-
neurs liquidity at an open market price and with
a key inducement to form new enterprises. The
threat of takeover might force existing managers
to increase efficiency in competitive markets.
Conglomerate mergers also provide opportu-
nities for firms to reduce capital costs and
overhead and to achieve other efficiencies.
Conglomerate mergers, however, may lessen
future competition by eli minating the possibili-
ty that the acquiring firm would have entered
the acquired firm’s market independently.
A conglomerate merger also may convert a
large firm into a dominant one with a decisive
competitive advantage, or otherwise make it
difficult for other companies to enter the

market. This type of merger also may reduce
the number of smaller firms and may increase
the merged firm’s political power, thereby
impairing the social and political goals of
retaining independent decision-making centers,
guaranteeing small business opportunities, and
preserving democratic processes.
Federal Antitrust Regulation
Since the late nineteenth century, the federal
government has challenged business practices
and mergers that create, or may create, a
MONOPOLY in a particular market. Federal legisla-
tion has varied in effectiveness in preventing
anticompetitive mergers.
Sherman A nti-Trust Act of 1890 The
SHER-
MAN ANTI
-TRUST ACT (15 U.S.C.A. §§ 1 et seq.)
was the first federal antitrust statute. Its applica-
tion to mergers and acquisitions has varied,
depending on its interpretation by the U.S.
Supreme Court. In Northern Securities Co. v.
United States, 193U.S.197,24S.Ct.436,48L.
Ed. 679 (1904), the Court ruled that all mergers
between directly competing firms constituted a
combination in restraint of trade and that they
therefore violated Section 1 of the Sherman Act.
This decision hindered the creation of new
monopolies through horizontal mergers.
In Standard Oil Co. of New Jersey v. United

States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619
(1911), however, the Court adopted a less
stringent “rule of reason test” to evaluate
mergers. This rule meant that the courts must
examine whether the merger would yield
monopoly control to the merged entity. In
practice, this resulted in the approval of many
mergers that approached, but did not achieve,
monopoly power.
Clayton Anti-Trust Act of 1914 Congress
passed the
CLAYTON ACT (15 U.S.C.A. §§ 12
et seq.) in response to the Standard Oil Co.
of New Jersey decision, which it feared would
undermine the Sherman Act’s ban against
trade restraints and monopolization. Among
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
48 MERGERS AND ACQUISITIONS
the provisions of the Clayton Act was Section 7,
which barred anticompetitive stock acquisitions.
The original Section 7 was a weak antimerg-
er safeguard because it banned only purchases
of stock. Businesses soon realized that they
could evade this measure simply by buying the
target firm’s assets. The U.S. Supreme Court, in
Thatcher Manufacturing Co. v. Federal Trade
Commission, 272 U.S. 554, 47 S. Ct. 175, 71 L.
Ed. 405 (1926), further undermined Section 7
by allowing a firm to escape liability if it bought
a controlling interest in a rival firm’s stock and

used this control to transfer to itself the target’s
assets before the government filed a complaint.
Thus, a firm could circumvent Section 7 by
quickly converting a stock acquisition into a
purchase of assets.
By the 1930s Section 7 was eviscerated.
Between the passage of the Clayton Act in 1914
and 1950 only 15 mergers were overturned
under the
ANTITRUST LAWS, and ten of these
dissolutions were based on the Sherman Act. In
1950 Congress responded to post–World War II
concerns that a wave of corporate acquisitions
was threatening to undermine U.S. society, by
passing the Celler-Kefauver Antimerger Act,
which amended Section 7 of the Clayton Act to
close the assets loophole. Section 7 then
prohibited a business from purchasing the stock
or assets of another entity if “the effect of such
acquisition may be substantially to lessen
competition, or to tend to create a monopoly.”
Congress intended the amended section to
reach vertical and conglomerate mergers, as well
as horizontal mergers. The U.S. Supreme Court,
in Brown Shoe Co. v. United States, 370 U.S.
294, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962),
interpreted the amended law as a congressional
attempt to retain local control over industry and
to prote ct small business. The Court concluded
that it must look at the merger’s actual and

likely effect on competition. In general, howev-
er, it relied almost entirely on market share and
concentration figures in evaluating whether a
merger was like ly to be anticompetitive. Never-
theless, the general presumption was that
mergers were suspect.
In United States v. General Dynamics, 415
U.S. 486, 94 S. Ct. 1186, 39 L. Ed. 2d 530
(1974), the Court changed direction. It rejected
any antitrust analysis that focused exclusively on
market-share statistics, cautioning that although
statistical data can be of great significance, they
are “not conclusive indicators of anticompeti-
tive effects.” A merger must be viewed in the
context of its particular industry. Therefore, the
Court held that “only a further examination of
the particular market—its structure, history,
and probable future—can provide the appro-
priate setting for judging the probable anticom-
petitive effect of the merger.” This totality-of-
the-circumstances approach has remained the
standard for conducting an antitrust analysis of
a proposed merger.
Federal Trade Commission Act of 1975 Sec-
tion 5 of the
FEDERAL TRADE COMMISSION Act (15
U.S.C.A. § 45), prohibits “unfair method[s] of
competition” and gives the Federal Trade
Commission (FTC) independent jurisdiction
to enforce the antitrust laws. The law provides

no criminal penalties, and it limits the FTC to
issuing prospective decrees. The
JUSTICE DEPART-
MENT
and the FTC share enforcement of the
Clayton Act. Congress gave this authority to the
FTC because it thought that an administrative
body would be more responsive to congressio-
nal goals than would the courts.
Hart-Scott-Rodino Antitrust Improvements
Act of 197 6 The Hart-Scott-Rodino Antitrust
Improvements Act (HSR) (15 U.S.C.A. § 18a)
established a mandatory premerger notification
procedure for firms that are parties to certain
mergers. The HSR process requires the merging
parties to notify the FTC and the Department of
Justice before completing certain transactions.
In general, an HSR premerger filing is required
when (a) one of the parties to the transaction
has annual net sales (or revenues) or total assets
exceeding $100 million and the other party has
annual net sales (or revenues) or total assets
exceeding $10 million; and (b) the acquisition
price or value of the acquired assets or entity
exceeds $15 million. Failure to comply with
these requirements may result in the
RESCISSION
of completed transactions and may be punished
by a civil penalty of up to $10,000 per day.
HSR also established mandatory waiting

periods during which the parties may not
“close” the proposed transaction and begin
joint operations. In transactions other than cash
tender offers, the initial waiting period is 30
days after the merging parties have made the
requisite premerger notification filings with
the federal agencies. For cash tender offers, the
waiting period is 15 days after the premerger
filings. Before the initial waiting periods expire,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MERGERS AND ACQUISITIONS 49
the federal agency that is responsible for
reviewing the transaction may request the
parties to supply addi tional information relating
to the proposed merger. These “second requests”
often include extensive interrogatories (lists of
questions to be answered) and broad demands
for the production of documents. A request for
further information may be made once, and the
issuance of a second request extends the waiting
period for ten days for cash tender offers and 20
days for all other transactions. These extensions
of the waiting period do not begin until the
merging parties are in “substantial compliance”
with the government agency’s request for
additional information.
If the federal government decides not to
challenge a merger before the HSR waiting
period expires, a federal agency is highly unlikely
to sue at a late date to dissolve the transaction

under Section 7 of the Clayton Act. The federal
government is not legally barred from bringing
such a lawsuit, but the desire of the federal
agencies to increase predictability for business
planners has made the HSR process the critical
period for federal review. However, the decision
of a federal agency not to attack a merger during
the HSR waiting period does not preclude a
lawsuit by a state government or a private entity.
To facilitate analysis by the state attorneys
general, the National Association of Attorneys
General (NAAG) has issued a Voluntary Pre-
Merger Disclosure Compact under which the
merging parties can submit copies of their federal
HSR filings and the responses to second requests
with NAAG for circulation among states that
have adopted t he co mpact.
Merger Guidelines
In the vast majority of antitrust challenges to
mergers and acquisitions, the matters have
been resolved by consent order or decree. The
Department of Justice and the FTC have sought
to clarify they way they analyze mergers through
merger guidelines issued May 5, 1992 (4 Trade
Reg. Rep. [CCH] ¶ 13,104). These guidelines are
not “law” but enforcement-policy statements.
Nevertheless, the antitrust enforcement agencies
will use them to analyze proposed transactions.
The 1992 merger guidelines state that most
horizontal mergers and acquisitions aid compe-

tition and that they are beneficial to consumers.
The intent of issuing the guidelines is to
“avoid unnecessary interference with the larger
universe of mergers that are either competitively
beneficial or neutral.”
The guidelines prescribe five questions for
identifying hazards in proposed horizontal
mergers: Does the merger cause a significant
increase in concentration and produce a concen-
trated market? Does the merger appear likely to
cause adverse competitive effects? Would entry
sufficient to frustrate anticompetitive conduct be
timely and likely to occur? Will the merger
generate efficiencies that the parties could not
reasonably achieve through other means? Is
either party likely to fail, and will its assets leave
the market if the merger does not occur?
The guidelines essentially ask which pro-
ducts or firms are now available to buyers, and
where could buyers turn for supplies if relative
prices increased by five percent (the measure for
assessing a merger-generated price increase).
The guidelines redraw market boundaries to
cover more products and a greater area, which
tends to yield lower concentration increases
than U.S. Supreme Court merger decisions of
the 1960s.
Mergers in the Telecommunications
Industry
Beginning in 1980, with President Ronald

Reagan’s administration, the federal government
has adjusted its policies to allow more horizontal
mergers and acquisitions. The states have
responded by invoking their antitrust laws to
scrutinize these types of transactions. Neverthe-
less, mergers a nd acquisitions have increased
throughout the U.S. economy, and this has
been especially true in the
TELECOMMUNICATIONS
industry.
Beginning in the mid 1980s and extending
to the mid 1990s, each of the three major
television networks, ABC, CBS, and NBC, was
purchased by another corporation. In 1985
Capital Cities purchased ABC for $3.5 billion.
The same year, General Electric (G.E.) pur-
chased RCA, and G.E. purchased NBC.
Westinghouse purchased CBS in 1994 for $5.4
billion, and the Walt Disney Co. purchased
Capital Cities/ABC for $19 billion in 1995.
Other mergers also had a major impact on the
industry. In 1989 Time, Inc. merged with
Warner Corporation to form the largest media
conglomerate in the world, and in 1993,
Viacom, Inc. purchased Paramount Corpora-
tion in an $8.2 billion deal.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
50 MERGERS AND ACQUISITIONS
These mergers were major news at the time,
and they still have an impact on the industry.

Congress deregulated much of the industry with
the passage of the Telecommunications Act
of 1996, Pub. L. No. 104-104, 110 Stat. 56
(codified in scattered sections of 47 U.S.C.A.). It
was the most significant legislative change in the
industry since the passage of the Communica-
tions Act of 1934, 48 Stat. 1064. The act called
for more open competition among companies
within the industry, designed for the purpose of
improving services to consumers. The result of
the legislation was a wide number of mergers
among smaller and larger companies within the
industry.
Almost immediately after the passage of
the Telecommunications Act, four of the seven
Bell telephone regional holding companies
announced proposed mergers. More mergers
occurred among Bell companies and other local
carriers. At least 13 significant mergers in the
industry occurred in 1996 alone. Time Warner
merged with Turner Broadcasting in 1996 in a
$6.7 billion deal, creating the largest media
corporation in the world. Worldcom, Inc. pur-
chased MFS Communications for $12.4 billion to
become the first local and long-distance tele-
phone company since 1984. Westinghouse/CBS
purchased Infinitty Broadcasting for $4.9 billion,
allowing Westinghouse/CBS to become the
dominant power in the radio market.
These mergers continued throughout the

1990s and beyond. For instance, Time Warner
merged with America Online, Inc. in 2000 in a
$166 billion deal to form the largest conver-
gence of
INTERNET access and content in the
world. Although some companies and consum-
er groups complained that the formation of
these conglomerate companies could stifle
competition and control prices, these mergers
have become commonplace.
The Future of Mergers and Acquisitions
Although a number of factors influence mergers
and acquisitions, the market is the primary
force that drives them. The late 1990s saw an
unprecedented influx in mergers. In 1999
companies filed a record 4,700 Hart-Scott-
Rodino filings, about three times the number
received in 1995. The total dollar value of the
mergers announced in 1998—$11 trillion—was
ten times the amount since 1992. The rash of
mergers in the telecommunications industry
accounted for many of these mergers, but
companies in other industries were involved
as well.
Another factor in the rise in merger s during
the late 1990s was a booming economy, which
grew at unprecedented levels. As the country
faced recession in the following decade, many
companies were forced to downsize, and the
number of major mergers decreased according-

ly. Improvements in the economy, as well as
potential legislative changes, could very well
spark another wave of mergers.
FURTHER READINGS
Bainbridge, Stephen M. 2008. Mergers and Acquisitions.
Westbury, NY: Foundation.
Ginsburg, Martin D. and Jack S. Levin. 1995. Mergers,
Acquisitions and Leveraged Buyouts. Boston: Little,
Brown.
Marks, Mitchell Lee. 2002. Charging Back up the Hill:
Workplace Recovery after Mergers, Acquisitions, and
Downsizings. Indianapolis: Wiley.
CROSS REFERENCES
Antitrust Law; Bonds “Michael R. Milken: Genius, Villain, or
Scapegoat?” (Sidebar); Golden Parachute; Junk Bond;
Restraint of Trade; Scorched-Earth Plan; Unfair Competition.
MERIT SYSTEM
System used by federal and state governments for
hiring and promoting governmental employees to
civil service positions on the basis of competence.
The merit system uses educational and
occupational qualifications, testing, and job
performance as criteria for selecting, hiring, and
promoting civil servants. It began in the federal
government circa 1883. The merit system was
established to improve parts of the governmental
work force previously staffed by the political
patronage or spoils system, which allowed the
political party in power the opportunity to reward
party regulars with government positions. The

merit system has been adopted by state and local
governments as well.
MERIT SYSTEMS PROTECTION
BOARD
The Merit Systems Protection Board (MSPB)
ensures that federal civil servants are hired and
retained based on merit. In overseeing the
personnel practices of the federal government,
the board conducts special studies of the merit
systems; hears and decides charges of wrongdo-
ing and employment appeals of adverse agency
actions; and orders corrective disciplinary
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MERIT SYSTEMS PROTECTION BOARD 51
actions against an executive agency or employee
when appropriate. The board’s independent
special counsel investigates, among other things,
prohibited personnel practices and allegations
of activities proscribed by civil service laws,
rules, and regulations, and prosecutes officials
who violate civil service rules and regulations.
The MSPB is a successor agency to the U.S.
Civil Service Commission, which had been
established by act of Congress on January 16,
1883. The duties and authority of the board are
specified in 5 U.S.C.A. §§ 1201–1206 (1978).
The board has responsibility for hearing and
adjudicating appeals by federal employees of
adverse personnel actions, such as removals,
suspensions, and demotions. It also resolves

cases involving re-employment rights, the
denial of periodic step increases in pay, actions
against
ADMINISTRATIVE LAW judges, charges of
merit-system violations, and prohibited person-
nel practices, including charges in connection
with
WHISTLE-BLOWING (i.e., the reporting of
illegal acts). When President
BILL CLINTON
reauthorized the MSPB and the Office of Special
Counsel in 1994, he directed that federal
employee whistle-blowers and other victims of
prohibited personnel practices receive addition-
al prote ctions. Clinton instructed the agencies
to follow appropriate procedures to protect the
constitutional rights of such federal employees.
The board has the authority to enforce its
decisions and to order corrective and disciplinary
actions. An employee or applicant for employ-
ment who is involved in an appealable action that
also involves an allegation of discrimination may
ask the
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
to review a board decision. Final decisions and
orders of the board are appealable to the U.S.
Court of Appeals for the Federal Circuit.
The board reviews regulations issued by the
Office of Personnel Management (OPM) and
has the authority to require agencies to cease

compliance with any regulation that could
constitute a prohibited personnel practice. It
also conducts special studies on the civil service
and other
EXECUTIVE BRANCH merit systems and
reports to the president and the Congress on
whether the federal workforce is being ade-
quately protected against political abuses and
prohibited personnel practices.
The Office of the Special Coun sel is
responsible for investigating al legations and
other information concerning prohibited
personnel practices; prohibited political activi-
ties by federal and certain state and local
employees;
ARBITRARY or capricious withholding
of information in violation of the
FREEDOM OF
INFORMATION ACT
(5 U.S.C.A. § 552 et seq.)
(1986); prohibited discrimination when found
by appropriate authority; and other activities
that are prohibited by any civil service law, rule,
or regulation. The special counsel initiates
disciplinary and corrective actions before the
board when warranted.
The special counsel is also responsible for
receiving and referring to the appropriate agency
information that evidences a violation of any law,
rule, or regulation; mismanagement; gross waste

of funds; abuse of authority; or substantial and
specific danger to public health or safety.
Since the late 1990s the board has expanded
the amount of information on its web site.
Federal employees who wish to file an appeal
may download forms and rules. In addition, the
decisions of the board are now posted on its
web site, www.mspb.gov.
FURTHER READINGS
Broida, Peter. 2001. Guide to Merit Systems Protection Board
Law and Practice. New York: Dewey.
U.S. Government Manual Website. Available online at http://
www.gpoaccess.gov/gmanual/index (accessed July 21,
2009).
U.S. Merit Systems Protection Board Website. Available
online at (accessed August 13,
2009).
CROSS REFERENCES
Administrative Agency; Administrative Law and Procedure;
Bureaucracy; Merit System.
MERITS
The strict legal rights of the parties to a lawsuit.
The word merits refers to the substance of
a legal dispute and not the technicalities that
can affect a lawsuit. A judgment on the merits
is the final resolution of a particular dispute.
MESNE
Intermediate; intervening; the middle between two
extremes, especially of rank or time. In feudal law,
an intermediate lord; a lord who stood between a

tenant and the chief lord; a lord who was also a
tenant.
CROSS REFERENCE
Feudalism.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
52 MERITS
METES AND BOUNDS
The boundary lines of land, with their termi nal
points and angles. A way of describing land by
listing the compass directions and distances of the
boundaries. It is often used in connection with the
Government Survey System.
MEXICO AND THE UNITED STATES
Relations between the United States and Mexico
are among the most important and complex
that each nation maintains. They are shaped by
a mixture of mutual interests, shared problems,
and growing interdependence. The United
States is particularly concerned with illegal
immigration, narcotics trafficking, environmen-
tal pollution, and economic stability.
The scope of U.S Mexican relations goes
far beyond diplomatic and official contacts,
entailing extensive commercial, cultural, and
educational ties. More than one million legal
crossings are made from Mexico to the United
States every day. Along the 2,000-mile shared
border, state and local governments interact
closely. The two countries seek to resolve many
issues, ranging from combating narcotics traf-

ficking to improving and protecting the shared
environment.
The U.S. government has long recognized
that a stable and economically prosperous
Mexico is fundamental to U.S. interests. Since
1981, the United States-Mexico Binational Com-
mission, composed of numerous U.S. cabinet
members and their Mexican counterparts, has
met annually to discuss an array of topics,
including trade and investment opportunities,
financial cooperation, anti-narcotics cooperation,
and migration.
Mexico is a major trading partner with the
United States. Mexican exports to the U.S. in
2008 totaled $216 billion, whereas Mexico
imported $151 billion worth of American
goods. In January 1994, Mexico joined
CANADA
AND THE UNITED STATES
in the NORTH AMERICAN FREE
TRADE AGREEMENT
(NAFTA), w hich phases out all
tariffs among the nations over a 15-year period.
U.S. labor unions and some businesses were
concerned that the lower tariffs would induce
more U.S. companies to relocate factories to
Mexico because of lower labor costs there.
The United States played a major role in
stabilizing the Mexican economy in 1995. The
Mexican government, unable to meet its foreign

debt obligations, devalued its peso in December
1994. The resultin g financial crisis threatened
the stability of other emerging-market econo-
mies in Latin America. The United States led a
group of international lenders that made more
than $40 billion in international financial assis-
tance available to Mexico, including $20 billion
from the United States. Although Mexico suf-
fered a severe recession in 1995, the Mexican
government’s implementation of tough stabili-
zation measures averted an even more serious
collapse. The economy began to recover in
1996, and by 1997 Mexico was able to repay the
United States the $12.5 billion in loans that it
actually had used.
One major concern of the United States has
been illegal immigration from Mexico. The
desire of Mexicans to leave their country is
fueled by a large populati on (more than 111
million in 2009) and a shorta ge of well-paying
jobs. The U.S. Border Patrol has grown in
response to the large number of Mexicans
crossing the border illegally. The number of
Border Patrol agents more than doubled
from 9,000 in 2001 to a projected 20,000 by
September 2009. Parts of the 2,000-mile border
have become militarized zones. Steel fences run
through deserts and up over hillsides. Border
Patrol agents use high-technology surveillance
equipment to track the movement of illegal

ALIENS. In some sectors, the NATIONAL GUARD and
Army personnel assist the Border Patrol. In May
2009, the government announced that arrests of
illegal aliens by the Border Patrol had declined
by 27 percent, putting arrests at the lowest levels
since the early 1970s.
Concerns about the high level of illegal
immigration led Cong ress to enact the Secure
Fence Act of 2006 (Pub.L. 109-367), which
authorized the construction of more than 700
miles of double-reinforced fence to be built
along the border, from California to Texas in
areas that have experienced illegal drug traffick-
ing and illegal immigration. The law also
authorized the installation of more lighting,
vehicle barriers, and border checkpoints, along
with the use of advanced equipment including
sensors, cameras, satellites, and unmanned
aerial vehicles. By January 2009, almost 600
miles of the barrier had been constructed. The
Mexican government opposed the construction
of the fence, arguing that the two countries
should preserve open borders.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MEXICO AND THE UNITED STATES 53
The Mexican-U.S. border is also the leading
entry point into the United States for illegal
narcotics. It is estimated that drug traffickers
smuggle about $10 billion worth of narcotics into
the United States each year, making marijuana,

heroin, cocaine, and methamphetamine some of
Mexico’s most lucrative exports. U.S. and Mexi-
can officials offer differing explanations for the
trafficking. U.S. officials blame the alleged
corruption of Mexican law enforcement officials
for allowing large-scale traffickers to continue
their operations. Mexican officials argue that the
problem lies on the other side of the border,
where the appetite of U.S. drug users drives the
trafficking.
By 2009 Mexican drug cartels wielded
enormous power in many cities, including
Tijuana and Juarez, which border San Diego,
California, and El Paso, Texas, respectively. The
Mexican government has proved largely ineffec-
tive in suppressing these gangs, who have
murdered thousands of people. In addition, the
corruption of government officials has hurt
relations between the countries. The U.S. govern-
ment expressed alarm that cartel-associated
violence had begun to spread to U.S. cities near
the border. With some experts claiming that
Mexico is responsible for 70 percent of the illegal
drugs in the United States, the war on drugs
remains a source of friction between the two
countries.
The United States has steadily restricted the
Mexican drug trade through aggressive patrol of
the borders and searches at border checkpoints.
Nevertheless, NAFTA has increased legitimate

border traffic, overwhelming U.S. customs
officers at the checkpoints. It is estimated that
officers can only search about seven percent of
all vehicles crossing the border.
The United States and Mexico have sought to
resolve common environmental issues, particu-
larly in border areas where rapid population
growth, urbanization, and industrialization have
caused serious problems. In 1992 the United
States and Mexico developed the Integrated
Border Environment Plan, under which the two
countries have worked to construct wastewater-
treatment plants; strengthen cooperative plan-
ning and enforcement efforts; reduce pollution,
develop planning, training, and education;
and improve understanding of the border
environment.
The second phase of the 1992 border plan,
called Border XXI, will promote environmental
and sustainable development in the U.S Mexican
border region through increased public partici-
pation and improved coordination among local,
state, and federal agencies to maximize coopera-
tive and effective use of limited resources. In
addition, the plan will encompass environmental
health issues and natural-resource protection.
As part of NAFTA’s environmental agree-
ment, the United States, Mexico, and Canada
have created a North American Commission on
Environmental Cooperation. This commission

is charged with strengthening environmental
laws and addressing common environmental
concerns.
In 1993 the United States and Mexico
established two institutions to address the envi-
ronmental infrastructure needs of the border
region. The Border Environmental Cooperation
Commission (BECC) works with local commu-
nities to develop plans for better meeting their
need for environmental facilities, including
wastewater-treatment plants, drinking-water
systems, and solid-waste-disposal facilities. In
addition, the two countries created the North
American Development Bank to obtain private-
sector capital to finance the construction of
border environmental facilities certified by
the BECC.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Estimated U.S. Population of Unauthorized
Mexican Immigrants, 1990 to 2008
Population (in millions)
Year
SOURCE: U.S. Immigration and Naturalization Service,
Estimates of the Unauthorized Immigrant Population
Residing in the United States: 1990 to 2000, January

2003, and Estimates: Januar
y
2008, Februar
y
2009.
0
1
2
3
4
5
6
7
1990
2.0
1996
2.7
2000
4.8
2008
7.0
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
54 MEXICO AND THE UNITED STATES
The International Boundary Commission,
which was established as a permanent, joint
commission by treaty in 1889, is responsible for
solving U.S Mexican water and boundary pro-
blems. These issues include distribution between
thetwocountries of thewatersof the Coloradoand
Rio Grande Rivers, and joint operation of

international dams on the Rio Grande to control
floods, conserve water, and generate electricity.
Since the early 1980s, the commission has focused
on border sanitation problems and has studied
groundwater resources along the boundary.
When President
GEORGE W. BUSH took office in
2001, he immediately entered into discussions
with Mexican President Vicente Fox to improve
relations. One of the items on his agenda was the
creation of a guest-worker program, which would
allow thousands of Mexican nationals to work in
the United States as guests, mostly in agriculture.
A number of groups opposed the proposal. A
United States-Mexico Migration Panel, a bina-
tional group consisting of 30 members from both
nations, agreed that the two countries should
collaborate to meet several objectives, including
making visas more available to Mexican citizens,
improving cooperation between Mexican and
U.S. law enforcement to counter human smug-
gling, and improving Mexico’seconomy.The
negotiations were part of Fox’seffortstoward
economic development and social reform.
The
SEPTEMBER 11TH ATTACKS of 2001 put a
halt to these negotiations. The United States
immediately shifted its atten tion to protecting
its lands against terrorist attacks, including
enhancing and improving border patrol. In

2002, Congress abolished the Immigration and
Naturalization Service, creating from that agency
the Bureau of Citizenship and Immigration
Services and the Directorate of Border and
Transportation Security. Both agencies are part
of the
DEPARTMENT OF HOMELAND SECURITY. Anti-
immigration sentiments also derailed legislation
that sought to resolve the problem.
FURTHER READINGS
Payan, Tony. 2006. The Three U.S Mexico Border Wars:
Drugs, Immigration, and Homeland Security. Westport,
Conn.: Praeger.
Andreas, Peter. 2009. Border Games: Policing the U.S Mexico
Divide. 2d ed. Cornell, New York: Cornell Univ. Press.
CROSS REFERENCES
Aliens; Drugs and Narcotics; Environmental Law; Water
Rights.
v
MICHELMAN, KATE
From 1985 to 2004, Kate Michelman served as
the executive director of the National
ABORTION
and Reproductive Rights Action League
(NARAL) and became one of the most influential
feminists in the United States. As a vocal
proponent of a woman’srighttochoose,Michel-
man devoted much of her career to preventing
the courts from overturning the Supreme Court’s
decision in Roe v. Wade (410 U.S. 113, 93 S. Ct.

705, 35 L. Ed. 2d 147 [1973]). She testified against
the nominations of conservative Supreme Court
justices
CLARENCE THOMAS and SAMUEL ALITO.
Michelman was born in 1942 and grew up
in a Catholic family in New Jersey and Ohio.
Even during her childhood and teenage years,
she was an advocate; for instance, she fought to
desegregate her school so that children of local
Latino farm workers could integrate with other
school children. She took an early interest in
politics, listening to Senate hearings and other
news on a shortwave radio.
She married at the age of 20 and had three
daughters relatively soon thereafter. She has
Kate Michelman 1942–
▼▼
▼▼
1935
2000
1975
1950
❖
◆
◆
1966 Graduated from
University of Michigan
1939–45
World War II
1973 Roe v. Wade decision legalized

abortion in the United States
2003 Partial-Birth Abortion
Ban Act enacted
1980–85 Served as
executive director of
Planned Parenthood
of the Capitol Region
in Harrisburg, Penn.
1985–2004 Served as executive director
of the National Abortion and Reproductive
Rights Action League (NARAL)
◆
1991 Testified
against Clarence
Thomas’s Supreme
Court nomination
◆
1969 Learned of
fourth pregnancy;
petitioned for the
right to have an
abortion
◆
1942 Born,
New Jersey
2005 With Liberty
and Justice for
All published
1950–53
Korean War

1961–73
Vietnam War
◆
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MICHELMAN, KATE 55
openly discussed the fact that as a practicing
Catholic, s he did not use
BIRTH CONTROL.As
reported in the Washington Post, she wrote, “Like
many other Catholic wives, I practiced the
‘natural’ means of contraception—the rhythm
method—and believed the claim that breastfeed-
ing prevented pregnancy. I exploded every myth.”
Her life took a major change in direction in
1969 when her husband left her when her
children were between the ages of three and
five, and she was penniless with no career.
Weeks after her husband left her, Michelman
learned that she was pregnant again. She did not
believe that she could support a fourth child
while living on
WELFARE, and abortion at that
time was difficult to obtain. She petitioned for
the right to have an abortion, but to do so, she
had to appear before a panel of four male
doctors and prove to them that she had a valid
physical or psychological reason to terminate
the pregnancy. More over, she had to find her
estranged husband and obtain his signature
before the doctors would agree to abort her

pregnancy. The Court decided Roe about three
years after Michelman’s abortion.
In the years that followed her
DIVORCE,
Michelman made a life for herself. She earned
an undergraduate degree from the University of
Michigan and became a clinical assistant professor
at Pennsylvania State University. At Penn State,
where she worked from 1978 to 1980, she
counseled troubled children. She also served as
the executive director of the Adams County Early
Childhood Services in Gettysburg, Pennsylvania,
in 1978. In 1980, she t ook a job as t he e xecutive
director of Planned Pare nthood of the Capitol
Region in Harrisburg, Pennsylvania. She served in
that capacity until 1985, when she was hired as
president and executive director of NARAL.
Michelman emerged as one of the most
powerful advocates in Washington. She was
named one of the “100 Most Powerful Elites” in
the Nation’s Capitol Washingtonian, and she was
named a fellow at the Institute of Politics at the
JOHN F. KENNEDY School of Government at
Harvard University. She planned to speak against
the nomination of
ROBERT BORK in 1987, but she
and her organization decided that Bork’snomi-
nation would fail even without their opposition.
Four years later, Michelman challenged the
Thomas nomination, challenging Thomas’s claim

of being open-minded on the abortion issue.
Michelman served at NARAL until 2004 and
then began to work as a political consultant.
One year after stepping down from the NARAL
position, she also testified against
SAMUEL ALITO’S
nomination to the Court. In 2005, she wrote the
book With Liberty and Justice for All: A Life
Spent Protecting the Right to Choose, which
describes her personal experiences of going
through an abortion and chronicles her activi-
ties as an advocate.
Michelman is a frequent contributor to a
number of publications, including The Nation
and the Huffington Post.
FURTHER READINGS
Michelman, Kate. 2009. “A System from Hell.” The Nation,
April 27.
———. 2005. With Liberty and Justice for All: A Life Spent
Protecting the Right to Choose. New York: Hudson Street
Press.
Weeks, Linton. 2006. “Kate Michelman: The Public Face of a
Woman’s Right to Privacy,” Washington Post, January 12.
MICHIGAN V. TUCKER
Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357,
41 L. Ed. 2d 182, was a critical 1974 Supreme
Court decision that limited the constitutional
authority of the Miranda rights that the Court
had developed in the landmark decision in
MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966). In Michigan v. Tucker,
the Court concluded that the Miranda rights
were procedural safeguards and not rights
protected by the Constitution.
Kate Michelman
AP IMAGES
I DO NOT TELL MY
STORY BECAUSE IT IS
UNIQUE
;ISHARE IT
BECAUSE IT IS SO
COMMON
.MILLIONS
OF WOMEN IN
VARYING
CIRCUMSTANCES
HAVE SUFFERED THE
INDIGNITIES AND
DANGERS OF PRE
-
R
OE V.WADE
ABORTIONS
.
—KATE MICHELMAN
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
56 MICHIGAN V. TUCKER
The FIFTH AMENDMENT to the Constitution
contains the Self-Incrimination Clause, which
guarantees a person the right to refuse to answer

questions that might implicate the person in a
crime. The Court in Miranda announced a set
of warnings that law enforcement officers must
give a suspect before an interrogation. These
well-known warnings direct that a suspect be
advised of the right to remain silent, be warned
that any statement the suspect makes may be
used as evidence against the person, be told of
the right to have a lawyer present during
interrogation, and if the suspect cannot afford
an attorney, the right to have a lawyer appointed
to represent the suspect. The Court believed
that this set of warnings would create a uniform
policy for all law enforcement officers to follow.
The penalty for ignoring the Miranda warning
was the exclusion at trial of any statements or
confessions made by the defendant.
In Michigan v. Tucker, the Court was con-
fronted with a suspect in a brutal rape whose
interrogation had occurred prior to the Court’s
ruling in Miranda. Nevertheless, the police
officers who interrogated Thomas W. Tucker
advised him of his right to remain silent and his
right to an attorney. They did not advise him,
however, that he had a right to a free lawyer.
Tucker waived his rights and proceeded to name
a person who he claimed could provide an alibi.
That person, however, provided incriminating
evidence against Tucker. Tucker objected to the
admission of his statements and sought the

protection of the Miranda rights that the Court
had announced after his arrest but prior to his
trial. Tucker also asked that the alibi witness not
be allowed to testify because Tucker had provided
that information during his interrogation.
The trial judge excluded all of Tucker’s
statements but allowed the alibi witness to testify.
A jury convicted Tucker, and his appeals were
denied by the Michigan courts. He then filed a
HABEAS CORPUS action in federal court, alleging that
the admission of the alibi witness’s testimony was
tainted by the failure of the police to give him his
full Miranda rights. Both the federal district court
and the court of appeals agreed with Tucker,
reversing the conviction.
The U.S. Supreme Court disagreed with the
lower courts. Justice
WILLIAM H. REHNQUIST,writing
for the majority, articulated in general terms the
difference between a Miranda violation and a
constitutional violation of a defendant’sFifth
Amendment right against self-incrimination. The
Court found that there was a difference between
incriminating statements that are actually
“coerced” or “compelled” and those obtained
merely in violation of the Miranda warning. The
former are violations of the Fifth Amendment,
whereas the latter are violations of a set of
procedural safeguards. Violations of the proce-
dural safeguards, by themselves, will not result in

the suppression of the defendant’s statements. In
this case Tucker’s statements had not been
coerced; therefore, the testimony of the alibi
witness was permissible.
Rehnquist noted that Miranda:
recognized that these procedural safeguards
[the warnings] were not themselves rights
protected by the Constitution but were
instead measures to insure that the right
against compulsory self-incrimination was
protected . The suggested safeguards were
not intended to “create a constitutional
straitjacket,” but rather to provide practical
reinforcement for the right against compul-
sory self-incrimination.
This meant that the failure of police to
provide a complete set of warnings, by itself,
would not taint the interrogation and force the
suppression of the statements. A court had to
then look at the conduct of the police to
determine if the suspect had been coerced into
making incriminating statements.In this case
Rehnquist found that Tucker’sinterrogationdid
not bear “any resemblance to the historical
practices at which the right against compulsory
self-incrimination was aimed [H]is statements
could h ardly be termed involuntary as that term
has been defined in the decisions of this Court.”
Rehnquist emphasized that the Court’s determi-
nation that the case did no t i n volve co m pulsion

sufficient to breach the right of self-incrimination
did not mean that police could disregard the
Miranda warning. The question was “how
sweeping [were] the judicially imposed co n se-
quences of this disregard.” Absent evidence that a
defendant’s s tatement was coerced, the Court was
not willing to exclude evidence because the police
failed to follow the procedures set out in Miranda.
The distinction in Tucker between what
Rehnquist called “prophylactic rules” and consti-
tutional rights reappeared in New York v. Quarles,
467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550
(1984), and Oregon v. Elstad, 470 U.S. 298, 105 S.
Ct. 1285, 84 L. Ed. 2d 222 (1985). In Quarles the
Court recognized a “public safety” exception to
the requirement that the Miranda warning be
given, reasoning that “the need for answers to
questions in a situation posing a threat to the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MICHIGAN V. TUCKER 57