Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P48 pot

increased the power of the Soviet Union, which
gained control of Eastern Europe and part of
Germany.
Underlying Causes
The circumstances that led to World War II
began shortly after the end of
WORLD WAR I in
1918. The
TREATY OF VERSAILLES, which ended
World War I placed blame on Germany and the
Austro-Hungarian Empire. The treaty caused
resentment in the German people towards the
allies from the first war. The treaty required
Germany to remain disarmed, which proved
impossible to enforce. Moreover, the treaty
required Germany to pay heavy rep arations for
the war, and Germany had to permanently
forfeit some of its land.
The United States had insisted on the
formation of the
LEAGUE OF NATIONS, but the
United States Senate refused to ratify the treaty
that would have made the United States a part
of the body. The League of Nations did not have
an armed force, and when nations focused on
self-interests as opposed to the interests of the
members collectively, the League failed.
The
GREAT DEPRESSION that affected the United
States also devastated Germany. The unemploy-
ment rate in Germany reached 33 percent.

Unemployment coupled with resentment to-
wards the Treaty of Versailles and other circum-
stances led to the rise in power of
ADOLF HITLER in
Germany. Hitler was the head of the National
Socialist, or Nazi party, which he established
during the early 1920s. The Nazi party grew in
popularity with the civil unrest during the 1930s
and Hitler became chancellor in 1933. Within
months of his appointment, the Nazi party
consolidated its power and Hitler assumed
dictatorial rule.
Japanese Empire
As the Nazi party rose to power in Germany,
Japanese militarism in the 1930s threatened
peace in the Pacific. The Japanese invasion of
Manchuria in 1931 signaled a new direction for
Japan. Its military leaders, who dominated the
government, sought to conquer large parts of
Asia. In 1936 and 1937 Japan signed treaties
with Germany and Italy (headed by dictator
BENITO MUSSOLINI), creating what was called the
Axis powers.
In 1937 Japan began an undeclared war
against China. When Japan occupied Indochina
in 1940, the United States stopped exporting
gasoline, iron, steel, and rubber to Japan and
froze all Japanese assets in the United States. In
the fall of 1941, the extremist Japanese general
Hideki To

̄
jo
̄
became leader of the cabinet. His
cabinet began planning a war with the United
States as Japan realized it could not attain its
imperial goals without defeating the United
States.
German Buildup and the
Start of the War
After taking power, Hitler broke the Versailles
Treaty and proceeded with a massive buildup of
the German armed forces. Hitler believed that
the German people were a master race that
needed more territory. His first aim was to
reunite all Germans living under foreign
governments. In 1936 he reclaimed the Rhine-
land from French control and in 1938 annexed
Austria to Germany. That same year he took
over the German areas of Czechoslovakia and in
1939 annexed all of that country.
Though France and Great Britain had
acquiesced to Germany’s actions, they soon
realized that Hitler had greater ambitions.
When Germany invaded Poland on September
1, 1939, Great Britain and France declared war
on Germany and World War II began. Poland
was quickly defeated, and for a period of time a
“phony war” ensued, with neither side making
any military moves. This situation changed in

the spring of 1940, when Germany invaded
Holland, Belgium, and France. Again, German
On December 7,
1941, the Japanese
launched an attack on
the U.S. naval base at
Pearl Harbor, killing
well over 2,000
Americans and
causing great damage
to many of the ships
anchored there,
including the sinking
of the battleship USS
Arizona (right).
NATIONAL ARCHIVES
AND RECORDS
ADMINISTRATION
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
458 WORLD WAR II
military forces overwhelmed their opponents,
leaving Great Britain the only outpost against
Germany.
United States Involvement
During the 1930s the United States government
had avoided involvement in European affairs.
This traditional policy of “isolationism” became
more problematic after the war began in 1939.
President

FRANKLIN D. ROOSEVELT moved away
from an isolationist foreign policy and sought to
assist Great Britain and France, while keeping
the United States a neutral party to the conflict.
This strategy led to the repeal of the
arms embargo in the Neutrality Act of 1939
(22 U.S.C.A. § 441), allowing the sale of military
equipment to Great Britain and France.
After the fall of France to Germany in 1940,
Roosevelt became even more determined to
assist Great Britain. He persuaded Congress to
pass the
LEND-LEASE ACT of 1941 (55 Stat. 31).
Lend-Lease provided munitions, food, machin-
ery, and services to Great Britain and other
Allies without immediate cost.
Pearl Harbor
On December 7, 1941, the Japanese launched an
attack on the U.S. naval base at Pearl Harbor,
Hawaii, killing over 2,000 Americans and
causing great damage to many of the ships
anchored there, including the sinking of the
battleship USS Arizona.
The devastating Japanese attack on the U.S.
naval base at Pearl Harbor resulted in a U.S.
declaration of war on Japan the following day.
Germany and Italy, as part of the Axis powers
alliance, then declared war on the United
States.
The attack on the United States led to

severe consequences for Japanese Americans.
On February 19, 1942, President Roosevelt
issued
EXECUTIVE ORDER No. 9,066, directing the
forced relocation of all 112,000 Japanes e
Americans living on the West Coast (70,000
of them U.S. citizens) to detention camps in
such places as Jerome, Arkansas, and Heart
Lake, Wyoming. Roosevelt issued the order
after military leaders, worried about a Japanese
invasion, argued that national security required
such drastic action.
The U.S. Supreme Court upheld the forced
relocation in
KOREMATSU V. UNITED STATES, 323
U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944).
Justice
HUGO L. BLACK noted that curtailing the
rights of a single racial group is constitutionally
suspect but that in this case military necessity
justified the exclusion of Japanese Americans
from the West Coast. In retrospect, historians
have characterized the removal and detention as
the most drastic invasion of individual
CIVIL
RIGHTS
by the government in U.S. history.
United States Enters the War
Even before its formal entry in the war, the
United States had begu n to mobilize for

protective reasons. Through a series of expen-
diture programs, the United States spent an
estimated $34 billion on military needs prior to
entry into the war. After the United States
formally declared war against Japan, Germany,
and Italy, the U.S. government immediately
stepped up its spending. In January 1942,
Roosevelt announced massive production goals,
including 60,000 airplanes in 1942 and 125,000
airplanes in 1943.
By the middle of 1941, the U.S. Army had
1.5 million solders organized into 34 divisions.
Through the implementation of the draft and
massive recruitment efforts, the United States
built its Army to a total of 5.4 million, including
700,000 African Americans.
U.S. Home Front
The United States had to address several
challenges during the war. Building and sup-
porting the military was costly, and the govern-
ment had to raise taxes to help support the war.
A wide range of products were rationed,
including food, fuel, rubber, and anything else
vital to the war effort. Many industries were
reconfigured to focus on war needs. With so
many young men needed in the war, women
entered the workforce in massive numbers. One
of the enduring images of World War II has
been “Rosie the Riveter,” representing women
working in factories.

European Front
The Allies determined that priority would be
given to defeating Germany and Italy. The Soviet
Union, under the leadership of
JOSEPH STALIN,had
signed a nonaggression pact with Germany in
1939, just days before Germany’sinvasionof
Poland. In June 1941 Hitler renounced the
agreement and invaded the Soviet Union.
The Russian front proved to be the bloodiest of
the war. The Soviet military suffered the greatest
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
WORLD WAR II 459
number of casualties among all of the participants
in the war, including 9 million dead and 18
million injured.
The Allies stemmed Axis advances in 1942.
On the Russian front, the Soviet troops won a
decisive victory at the Battle of Stalingrad.
Following this battle, Soviet forces began the
slow process of pushing the German army back
toward its border. The U.S. Army achieved
success in routing German forces from North
Africa in 1942, paving the way for the invasion
of Sicily and Italy in 1943.
D-Day and Its Aftermath
On June 6, 1944 (D-Day), the Allies mounted
an amphibious landing on France’s Normandy
coast. The D-Day invasion surprised the
German military commanders, who did not

expect an invasion at this location. In a short
time, U.S. and British forces were able to break
out of the coastal areas and move into France.
U.S. forces liberated Paris on August 25.
Germany could not succeed in fighting a
two-front war. By early 1945 it was clear that an
Allied victory was inevitable. On April 30, 1945,
with the Russian army entering Berlin, Hitler
committed
SUICIDE. On May 7, 1945, Germany
unconditionally surrendered.
War in the Pacific
The war in the Pacific was primarily a conflict
between Japanese and U.S. forces. The U.S. Navy
inflicted substantial damage to the Japanese fleet
at the Battle of Midway in June 1942. Following
Midway, the U.S. forces began invading
Japanese-held islands in the South Pacific. This
endeavor was a slow and costly process because
Japanese soldiers were taught to fight to the
death. However, the process proved successful.
From 1942 to 1945, U.S. forces invaded numer-
ous islands, the last being Okinawa, which is
close to the Japanese mainland. Despite fierce
resistance, U.S. forces prevailed.
In 1945 the U.S. military prepared for the
invasion of Japan. Though a Ja panese defeat
appeared inevitable, an invasion would result in
heavy U.S. casualties. President
HARRY S. TRUMAN,

who had become president in April 1945 after
the death of President Roosevelt, approved the
dropping of atomic bombs on two Japanese
cities. On August 6 the United States dropped
the atomic bomb on the city of Hiroshima,
destroying it and killing about 100,000 civilians
in the first ten seconds; three days later the
United States dropped a second atomic bomb
on the city of Nagasaki. Japan opened peace
negotiations on August 10 and surrendered on
September 2.
Wartime conferences among Roosevelt,
Stalin, and British prime minister Winston
Churchill led to the creation of the
UNITED
NATIONS
in 1945. At the Yalta Conference in
1945, the leaders agreed to divide Germany, as
well as the city of Berlin, into four zones of
occupation controlled by forces from the three
countries and France. Germany was to have its
industrial base rebuilt, but its armaments
industries were to be abolished or confiscated.
The leaders also approved the creation of an
international court to try German leaders as war
criminals, setting the stage for the
NUREMBERG
TRIALS
. The Soviet army’s occupation of Eastern
Europe soon gave way to the creation of

Communist governments under the influence
of the Soviet Union.
Casualties
An estimated 60 million people died in the war.
This includes 20 million soldiers and 40 million
civilians. An estimated 300,000 American sol-
diers died, and another 300,000 were injured.
German losses were far more severe, with 3.5
million soldiers killed and another 4.6 million
injured.
FURTHER READINGS
Ernst, Daniel R., and Victor Jew, eds. 2002. Total War and
the Law: The American Home Front in World War II.
Westport, CT: Praeger.
Hershey, John. 1966. Hiroshima. New York: Bantam.
Joseph, Jennifer. 2001. “POWs Left in the Cold: Compensa-
tion Eludes American WWII Slave Laborers for Private
Japanese Companies.” Pepperdine Law Review 29
(December).
Lord, Walter. 2001. Day of Infamy: The Classic Account of the
Bombing of Pearl Harbor. New York: Holt.
Lyons, Michael J. 2003. World War II: A Short History.
Paramus, NJ: Prentice Hall.
Park, Byoungwook. 2002. “Comfort Women during WWII:
Are U.S. Courts a Final Resort for Justice?” American
University International Law Review 17 (March-April).
Vandiver, Frank E. 2003. 1001 Things Everyone Should Know
about World War II. New York: Broadway Books.
CROSS REFERENCES
Communism; Eisenhower, Dwight David; Hirohito; Hitler,

Adolf; Japanese American Evacuation Cases; Korematsu v.
United States; Marshall Plan; Mussolini, Benito; Nuremberg
Trials; Roosevelt, Franklin Delano; Tokyo Trial; United
Nations; War Crimes; Yalta Agreement
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
460 WORLD WAR II
WORTHIER TITLE DOCTRINE
A COMMON LAW rule that provides that a
conveyance of real property by a grantor to
another person for life with a limitation to the
grantor’s heirs creates a reversion in the grantor by
which his or her heirs acquire the property only
upon the death of the grantor, not upon the death
of the person who has been granted the property
for life.
The worthier title doctrine comes from
English feudal real
PROPERTY LAW and is based
on the presumption that a title by descent (land
inherited by an heir) is worthier (better) than a
title by conveyance (purchase.) If a grantor or a
testator attempts to convey a future in terest in
land to the grantor’s heirs, the heirs would be
getting by conveyance what they would other-
wise take by descent, making the conveyance
void.
For example, A deeds Blackacre to B for life,
and then to the heirs of A. The effect of the
doctrine is that A has a reversion (a future
interest remaining with A in the property),

while B has a life estate. The words to the heirs of
A are words of limitation , which are required
under the worthier title doctrine. If the heirs
acquire the property at all, it is only after the
death of the owner. If the heirs had a remainder
interest in the property, they would acquire it
after the death of B, the grantee with the life
estate, regardless of whether A, the grantor, was
alive or dea d. The deed or will would have to
contain language such as “to B for life and to C,
D, E, (the heirs) in fee.”
The worthier title doctrine has been abol-
ished in many states by the
UNIFORM PROBATE
CODE
, § 2-710. Where the doctrine has been
abolished, language in a governing instrument
describing the beneficiaries of a disposition as
the transferor’s heirs, heirs at law, next of kin,
distributees, relatives,orfamily, or language of
similar import, does not create a reversionary
interest in the transferor. In effect, the reversion
interest is eliminated and the heirs rece ive their
unrestricted remainder interest in the property.
v
WRIGHT, JAMES SKELLY
James Skelly Wright served as a federal district
judge in Louisiana from 1949 to 1962 and as a
federal court of appeals judge in Washington,
D.C., from 1962 to 1986. From 1978 to 1981, he

was the chief judge of the D.C. Circuit Court.
Wright distinguished himself as a district judge
during the 1950s when he forced the desegrega-
tion of the New Orleans, Louisiana, public
schools and the city’s public transportation
system. Wrigh t continued this course on the
federal appeals court when he ordered sweeping
changes in the discriminatory policies of the
District of Columbia’s school system.
Wright was born on January 14, 1911, in
New Orleans. He graduated from Loyola
University in New Orleans in 1931 and earned
a law degree from Loyola Law School in 1934.
Unable to find legal work during the Great
Depression, Wright taught high school and
lectured in history at Loyola until 1937, when he
became an assistant U.S. attorney in New
Orleans. During
WORLD WAR II, he served in the
U.S. Coast Guard as the legal aide to an admiral
at the U.S. Embassy in London.
After the war, Wright briefly practiced law
in Washington, D.C., before moving back to
James Skelly Wright 1911–1988
❖
1911 Born,
New Orleans, La.
◆
1937 Appointed assistant U.S.
attorney in New Orleans

1948 Appointed U.S.
attorney for the
Eastern District of La.
1988 Died,
Washington, D.C.
1962–86 Sat on the
U.S. Court of
Appeals for the
District of Columbia
1949–62 Sat
on the U.S.
District Court
for the Eastern
District of La.
1914–18
World War I
1961–73
Vietnam War
1939–45
World War II
1950–53
Korean War
▼▼
▼▼
19001900
19501950
19751975
20002000
19251925
❖

1954 U.S. Supreme Court outlawed "separate but
equal" education in Brown v. Board of Education
1956 Ordered desegregation of New Orleans
public schools in Bush v. Orleans Parish School Bd.
◆
◆
◆
◆◆
1970 Ruled in favor of slum tenants in
Jarvins v. First National Realty Corp.
1967 Eliminated the
D.C. public schools'
"tracking system" in
Hobson v. Hansen
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
WRIGHT, JAMES SKELLY 461
New Orleans. In 1948 President HARRY S. TRUMAN
named him U.S. attorney in New Orleans and a
year later appointed him to the federal district
court in New Orleans.
Wright’s 13 years on the district bench were
controversial. In the wake of the U.S. Supreme
Court’sdecisionin
BROWN V. BOARD OF EDUCATION
OF TOPEKA
, KANSAS, 347 U.S. 483, 74 S. Ct. 686, 98
L. Ed. 873 (1954), which outlawed state-
sponsored racial
SEGREGATION of public schools,
Wright granted the NAACP’srequestto

desegregate the New Orleans public schools.
His decision in Bush v. Orleans Parish School
Bd., 138 F. Supp. 337 (1956), was met with
resistance by virtually every public official in
Louisiana. By the time Wright assumed the
appellate bench in 1962, he had issued 41 rulings
and had injunctions in force against the governor,
the attorney general, the superintendent of
education, the state police, the
NATIONAL GUARD,
all district attorneys, all sheriffs, all mayors, all
police chiefs, and the state legislature.
In 1962 President
JOHN F. KENNEDY wished to
appoint Wright to the U.S. Court of Appeals for
the Fifth Circuit, which is based in New
Orleans. Vehement opposition from Southern
senators dissuaded Kennedy from going for-
ward with the nomination. Instead, he
appointed Wright to the U.S. Court of Appeals
for the District of Columbia Circuit.
As an appellate judge, Wright continued his
career of judicial activism. He took major
steps toward eliminating discrimination against
poor African-Americans in the district’spublic
schools. To that end, he ordered sweeping
changes in the schools. In Hobson v. Hansen,
269 F. Supp. 401 (D.D.C. 1967), he eliminated
the “tracking” system, which attempted to place
schoolchildren according to mental ability in

hopes of stimulating bright children and helping
slower ones. However, that system often resulted
in placement along racial lines, with most
African-Americans being placed in lower tracks,
and whites being placed in upper tracks. In other
cases, Wright broadened the concept of illegal
discrimination to include “de facto” discrimina-
tion (where segregation exists mainly because of
social and economic patterns).
Wright also issued rulings that advanced
CONSUMER PROTECTION. He ruled in favor of the
rights of slum tenants to withhold rent for
dilapidated and rat-infested dwellings (Jarvins v.
First National Realty Corp., 428 F.2d 1071 [D.C.
Cir. 1970]), and provided remedies for poor
consumers w ho had signed “unconscionable”
contracts, which contained excessive rates of
interest and threatened them with repossession
of goods if they failed to make payments.
(Williams v. Walker-Thomas Furniture Co., 350
F.2d 445 [D.C. Cir. 1965]).
Throughout his years on the bench, Wright
espoused what he once described as a
JURISPRU-
DENCE
of “goodness,” which he said was inspired
by the work of U.S. Supreme Court Chief
Justice
EARL WARREN. In this jurisprudence, what
was “fair” was often more important than what

had been held in previous cases.
Wright assumed senior status in 1986 and
died on August 6, 1988, in Washington, D.C.
FURTHER READINGS
Brennan, William J., Jr., Abner J. Mikva, and Geoffrey R.
Stone. 1988. “Tributes to J. Skelly Wright.” Yale Law
Journal 98 (December).
Brown, John R., et al. 1989. “In Memoriam: Judge J. Skelly
Wright.” George Washington Law Review 57 (May).
Miller, Arthur S., and Jeffrey H. Bowman. 1983. “Judge J.
Skelly Wright and the Administrative Process: Activism
or Passivism—Or Both?” New England Law Review 18
(fall).
Monroe, Bill, et al. 1988. “In Memoriam: J. Skelly Wright.”
Harvard Law Review 102 (December).
Wright, Helen Patton. 1995. My Journey: Recollections of the
First Seventy Years. Chevy Chase, MD: Posterity Press.
CROSS REFERENCE
School Desegregation.
WRIT
An order issued by a court requiring that
something be done or giving authority to do a
specified act.
The development of English
COMMON LAW
relied on the courts to issue writs that allowed
persons to proceed with a legal action. Over time,
the courts also used writs to direct other courts,
sheriffs, and attorneys to perform certain actions.
In modern law, courts primarily use writs to

grant extraordinary relief, to grant the right of
appeal, or to grant the sheriff authority to seize
property. Most other common law writs were
discarded in U.S. law as the courts moved to
simpler and more general methods of starting
civil actions.
U.S. courts commonly use several extraor-
dinary writs, which are issued only when the
courts believe that usual remedies have failed.
THERE ARE SOCIAL
AND POLITICAL
PROBLEMS WHICH AT
TIMES SEEM TO DEFY
RESOLUTION
[IN THE
POLITICAL ARENA
]. IN
SUCH SITUATIONS
THE JUDICIARY
MUST BEAR A HAND
AND ACCEPT ITS
RESPONSIBILITY TO
ASSIST IN THE
SOLUTION WHERE
CONSTITUTIONAL
RIGHTS HANG IN THE
BALANCE
.
—J. SKELLY WRIGHT
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

462 WRIT
Writ of Habeas Corpus
The writ of HABEAS CORPUS, sometimes called the
“great writ,” is probably the best-known exam-
ple of a writ. A writ of habeas corpus is a legal
document ordering anyone who is officially
holding the petitioner (the person requesting
the writ) to bring him into court to determine
whether the detention is unlawful. A federal
court can hear an application for a writ of
habeas corpus by a state prisoner who is being
held in
CUSTODY, allegedly in violation of the
U.S. Constitution or the laws of the United
States.
Writ of Mandamus
The writ of MANDAMUS is an extraordinary writ
that directs a public official or government
department to take an action. It may be sent to
the
EXECUTIVE BRANCH, the legislative branch, or a
lower court. The famous case of
MARBURY V.
MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60
(1803), which established the right of
JUDICIAL
REVIEW
of congressional statutes, was an action
for a writ of mandamus. William Marbury asked
the court to issue the writ to

SECRETARY OF STATE
JAMES MADISON
, commanding him to deliver his
judicial commission. The Court, however, re-
fused to issue the writ of mandamus.
Writ of Prohibition
The writ of prohibition is another extraordinary
writ and is the opposite of a writ of mandamus,
because it commands a government official not
to take a specified action. The most common
use of the writ is by an
APPELLATE court to a
lower court, commanding the lower court to
refrain from a proposed action. For example, a
trial court might grant a request by the news
media to release information from a court file.
A
DEFENDANT who objects to the release could
petition for a writ of prohibition from the court
of appeals. If the appellate court issues the writ,
the trial court may not release the information.
Writ of Certiorari
The writ of CERTIORARI is an extraordinary writ,
issued by an appellate court, that is used when
that court has discretion on whether to hear an
appeal from a lower court. If the writ is denied,
the lower court’s decision remains unchanged.
The U.S.
SUPREME COURT has used the petition
and writ of certiorari to control its caseload

since 1925.
Writ of Quo Warranto
The extraordinary w rit of QUO WARRANTO starts a
proceeding in which the state challenges the
legality of the use of an office, franchise, charter,
or other right that can be held or used under
authority of the state. For example, a writ of quo
warranto would be used to remove a person
who illegally holds public office, or to nullify an
illegal amendment to a municipal charter.
Writ of Attachment
A writ of attachment is a court order used to
force obedience to another order or a judgment
of the court. It was originally used to order a
sheriff or law enforcement officer to take a
disobedient party into custody and to bring her
before the court to answer for the
CONTEMPT.In
modern law, a writ of attachment orders seizure
of the defendant’s property, rather than the
defendant’s person, to secure the satisfaction of
a judgment that has not yet been secured.
Modern law limits the scope and effect of
attachment procedures to safeguard the defen-
dant’s rights to liberty and
DUE PROCESS OF LAW.
Writ of Execution
A writ of execution may be issued after a
PLAINTIFF wins a judgment in a civil case and is
awarded damages. The writ directs the sheriff to

take the property of the defendant in satisfac-
tion of the court-imposed debt.
Writ of Entry
A writ of entry is an instrument used in an
action brought to recover land wrongfully
withheld from the true owner or tenant entitled
to possession and use of the land. It establishes
who is entitled to possessio n of a parcel of land
but does not settle the issue of who is the true
owner. The central inquiry concerns which of
the two individuals has the superior right of
possession and use of the land at the time of the
action.
To determine the priority of the rights of the
parties fighting over land, the court must
consider how and when each individual ac-
quired ownership or possession. In general,
modern laws permit the recovery of monetary
damages for rent or abuse of property, as well as
recovery of possession of the land. The
individual who has been in posse ssion of the
land may be compensated for any improve-
ments he or she has made in the property.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
WRIT 463
The writ of entry is used in only a few states
to recover the possession of land. It has been
replaced by the action to recover possession of
real property.
Writ of Error

A writ of error is an order issued from an
appellate court directed to the judge of a lower
court, mandating the judge to release the trial
record of an action in which the judge has entered
a final judgment. The appellate court issues the
writ so that it may review the case and either
reverse, correct, or affirm the lower court’s
decision. Most states have replaced the writ of
error with a simpler appellate document, usually
called the “notice of appeal.”
CROSS REFERENCES
Prohibition; Writ of; Writs of Assistance Case.
WRITS OF ASSISTANCE CASE
The Writs of Assistance case involved a legal
dispute during 1761 in which 63 Boston
merchants petitioned the Massachusetts Superior
Court to challenge the legality of a particular type
of
SEARCH WARRANT called a writ of assistance. Also
known as Paxton’sCase,theWrits of Assistance
case contributed to the Founding Fathers’ origi-
nal understanding of
SEARCH AND SEIZURE law,
planted the seeds of
JUDICIAL REVIEW in the United
States, and helped shape the U.S. concept of
NATURAL LAW.
Parliament created the writ of assistan ce
during the seventeenth century. Once issued,
the writ authorized government officials to look

for contraband in private homes and businesses.
Normally, the writ placed no limitations on the
time, place, or manner of a given search. In the
eighteenth century, customs officials in America
used the writ to investigate colonial merchants
who were suspected of
SMUGGLING goods into the
country. The writ generally commanded all
constables, peace officers, and nearby subjects
to help customs officials carry out a search.
The Writs of Assistance case arose when James
Paxton, a Massachusetts customs official, applied
to the superior court for a writ of assistance.
JAMES
OTIS JR
., advocate general for the colony of
Massachusetts, resigned his post to represent
the merchants who opposed the writ. Appearing
before Chief Justice Thomas Hutchinson, Otis
and his co-counsel, Oxenbridge Thacher, made
four arguments against the legality of the writ.
First, Thacher challenged the authority of
the Massachusetts Superior Court to issue the
writ. Thacher conceded that Parliament had
passed a law in 1662 granting the English Court
of Exchequer the power to issue the writ in
Great Britain and passed a second law in 1696
enabling customs officials to apply for the writ
in America. However, Thacher argued that
neither law specified which courts in America

could issue the writ. Thus, Thacher said that the
Massachusetts Superior Court was never ex-
pressly delegated authority to issue the writ.
Second, Otis challenged the procedure by
which the writs were issued. Otis argued that bare
suspicion should not be enough to support an
application for the writ. Otis maintained that no
writ should be issued unless the official making
the application is first placed under oath and
made to disclose the evidence on which the
application is based. Otis also suggested that every
writ application should be carefully reviewed by
an impartial third party and not the judges who
had been appointed to the Massachusetts Super-
ior Court. Those judges, Otis charged, were
predisposed in favor of granting the writ.
Third, Otis challenged the writ applications
for lack of specificity. A lawful writ application,
Otis asserted, must identify the person, place, or
thing to be searched. Under
ENGLISH LAW,customs
officials were authorized to search for contraband
in any house, shop, cellar, warehouse, room, or
other place where uncustomed goods might be
hidden. If colonial residents resisted, customs
officials were authorized to break open doors,
chests, trunks, and other packages that might lead
to incriminating evidence. Because the duration
of the writ was perpetual and could be executed at
any time of the day or night, Otis said, the law

failed to respect the sanctity of a person’s home
and private life.
Fourth, Otis challenged Parliament’s auto-
cratic authority. Parliament has no power to
pass legislation, Otis claimed, that is against
fundamental principles of law. When Parlia-
ment enacts legislation that contravenes funda-
mental principles of reason and
EQUITY, such
legislation must be struck down by the courts.
Otis contended that Parliament was not above
the law and that any parliamentary act against
the constitution was void.
In response to these arguments, la wyers for
the government asserted that the Massachusetts
Superior Court possessed no discretion to deny
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
464 WRITS OF ASSISTANCE CASE
Paxton’s application for the writ. Parliament
had granted the English Court of Exchequer the
power to issue the writ in Great Britain and
authorized customs officials to apply for the
writ in America. Parliament also gave the
Massachusetts Superior Court the same powers
as the English Court of Exchequer. Because the
Court of Exchequer had been lawfully issuing
the writ for years in Great Britain, lawyers for
the government argued, the Massachusetts
Superior Court enjoyed the same legal authority.
Chief Justice Hutchinson and his colleagues

agreed with the lawyers for the government. They
unanimously voted to grant Paxton’s application
in this particular case and affirmed the legality of
the writ across Massachusetts. Although Otis,
Thacher, and their clients lost the case, they
transformed the writ into a rallying cry of the
American Revolution. Colonial opposition to the
writ quickly evolved from civil disobedience to
armed resistance. By 1769 many colonial courts
had grown reluctant to issue the writ. This series
of events prompted
JOHN ADAMS to exclaim that
the Writs of Assistance case gave birth to the
“Child Independence!”
In addition to fueling the revolutionary
spirit in the colonies, the Writs of Assistance case
presented the first formidable challenge to
general search warrants in the colonies. Otis
thought that more restrictions should be placed
on the government’s authority to intrude upon
places ordinarily kept private by homeowners
and business proprietors. In America, Otis
argued, the law should require that all searches
be conducted pursuant to a lawful warrant that
is obtain ed by an official who is placed under
oath before a neutral third party and compelled
to disclose the precise nature of any incriminat-
ing evidence. Any warrant that might be issued
should fully describe the person or premises to
be searched. The

FOURTH AMENDMENT to the U.S.
Constitution established these principles as a
permanent part of U.S.
CRIMINAL PROCEDURE.
The Writs of Assistance case also planted the
seeds of judicial revi ew in the United States.
Judicial review is the power of the judiciary to
invalidate legislative acts that violate a constitu-
tional provision or principle. The English
system of government did not recognize judicial
review during the eighteenth century. Neither a
common-law court nor the crown possessed the
power to overturn a law duly enacted by
Parliament. In the United States, Otis suggested
in the Writs of Assistance case, legislative acts
that contravene the Constitution must be struck
down by co urts of law.
Finally, the Writs of Assistance case helped
shape the form of natural law in the United
States. Some people believe in natural law, a
body of unwritten principles derived from
religion, morality, and secular philosophy. In
certain instances natural law is said to transcend
the written rules and regulations that are
enacted by government. During the Writs of
Assistance case, Otis argued that the written laws
of Parliament are limited by unwritten princi-
ples of reason and equity. The “constitution” to
which Otis referred was itself an unwritten body
of English common-law principles. (The United

States Constitution was not ratified until 1787.)
FURTHER READINGS
Bailyn, Bernard. 1992. The Ideological Origins of the
American Revolution. Cambridge: Harvard Univ. Press.
Henretta, James A. and David Brody. 2009. America: A
Concise History. Boston, Mass.: Bed/St. Martin.
Klein, Irving J., et al. 1994. Principles of the Law of Arrest,
Search, Seizure, and Liability Issues. South Miami, Fla:
Coral Gables Publishing.
Levy, Leonard. 1988. Original Intent and the Framers’
Constitution. New York: Macmillan.
Smith, M. H. 1978. The Writs of Assistance Case. Berkeley:
Univ. of California Press.
Stoner, James. 1992. Common Law and Liberal Theory: Coke,
Hobbes, and the Origins of American Constitutionalism.
Lawrence: Univ. Press of Kansas.
CROSS REFERENCES
Contraband; Fourth Amendment; Judicial Review; Search
Warrant; Warrant.
WRONG
A violation, by one individual, of another
individual’s legal rights.
The idea of rights suggests the opposite idea
of wrongs, for every right is capable of being
violated. For example, a right to receive payment
for goods sold implies a wrong on the part of the
person who owes, but does not make payment. In
the most general point of view, the law is
intended to establish and maintain rights, yet in
its everyday application, the law must deal with

rights and wrongs. The law first fixes the
character and definition of rights, and then seeks
to secure these rights by defining wrongs and
devising the means to prevent these wrongs or
provide for their redress.
The
CRIMINAL LAW is charged with preventing
and punishing public wrongs. Public wrongs are
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
WRONG 465
violations of public rights and duties that affect
the whole community.
A private wrong, also called a civil wrong, is
a violation of public or private righ ts that
injures an individual and consequently is
subject to civil redress or compensation. A civil
wrong that is not based on breach of contract is
a
TORT. Torts include assault, BATTERY, LIBEL,
slander, intentional infliction of mental distress,
and damage to property. The same act or
omission that makes a tort may also be a breach
of contract, but it is the
NEGLIGENCE, not the
breaking of the contract, that is the tort. For
example, if a lawyer is negligent in representing
his client, the lawyer may be sued both for
MALPRACTICE, which is a tort, and for breach of
the attorney-client contract.
The word wrongful is attached to numerous

types of injurious condu ct. For example,
wrongful death is a type of lawsuit brought on
behalf of a deceased person’s beneficiaries that
alleges that the death was attributable to the
willful or negligent conduct of another. How-
ever, even in these special contexts, the words
wrong, wrongful, and wrongfully do not sharply
delineate the exact nature of the wrongness.
Their presence merely signifies that something
bad has occurred.
WRONGFUL BIRTH
A MEDICAL MALPRACTICE claim brought by the
parents of a child born with birth defects, alleging
that negligent treatment or advice deprived them
of the opportunity to avoid conception or termi-
nate the pregnancy.
A wrongful birth action is conceptually
similar to a
WRONGFUL LIFE action. In a wrongful
birth action, parents seek damages for a child
born with birth defects. The claim for damages
is based on the cost to parents of raising an
unexpectedly defective child. In a wrongful life
action, the child seeks damages for being born
with a birth defect rather than not being born .
A wrongful birth action was first recognized
in Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975).
The case involved an action by the parents of a
child born with defects caused by the mother
contracting rubella in her first month of

pregnancy. The claim was that the
DEFENDANT
was negligent in failing to diagnose the rubella in
the mother. The Texas Supreme Court allowed
damages, but only for expenses reasonably
necessary for the care and treatment of the child’s
impairment. The parents were not awarded any
noneconomic damages such as damages for pain
and suffering.
Most wrongful birth suits would have little
chance of succeeding if not for the decriminal-
ization of
ABORTION by the U.S. Supreme Court
in
ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L.
Ed. 2d 147 (1973), since the parents of a child
with birth defects could not argue that they
would have had an abortion had they known of
the defect. In addition, some courts were
reluctant to award damages, ruling that it was
impossible to weigh the economic and emo-
tional costs of raising an impaired child against
the intangible joys of parenthood.
Since the mid-1970s, however, more than
20 states have recognized wrongful birth actions
that enable parents to collect some or all of their
CHILD CARE expenses if they can prove NEGLI-
GENCE
. With improved genetic testing, medical
providers can routinely determine early in

pregnancy the presence of certain birth defects
in the fetus. This imposes on medical providers
the duty to order the correct tests and to
properly diagnose the results.
CROSS REFERENCES
Tort Law; Wrongful Pregnancy.
WRONGFUL DEATH
The taking of the life of an individual resulting
from the willful or negligent act of another person
or persons.
If a person is killed because of the wrongful
conduct of a person or persons, the decedent’s
heirs and other beneficiaries may file a wrongful
death action against those responsible for the
decedent’s death. This area of
TORT LAW is
governed by statute. Wrongful death statutes
vary from state to state, but in general they define
who may sue for wrongful death and what, if any,
limits may be applied to an award of damages.
Originally, wrongful death statutes were
created to provide financial support for widows
and orphans and to motivate people to exercise
care to prevent injuries. A wrongful death action
is separate and apart from criminal charges. This
means that a
DEFENDANT acquitted of MURDER may
be sued in a
CIVIL ACTION by the victim’sfamily
for wrongful death.

An action for wrongful death may be brought
for either an intentional or unintentional act that
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
466 WRONGFUL BIRTH
causes an injury that results in death. A blow to the
head during an altercation that later results in
death is an injury that is intentionally caused. The
driver of an automobile who unintentionally
causes the death of another in an accident may
be heldliable for
NEGLIGENCE.Anindividualwho,in
violation of local law, neglects to enclose a
swimming pool in his yard can be held liable for
_____________________________________________ [Date]
_____________________________________________________________________________________________________________
[Name and address of attorney or unrepresented party]
Re: ___________________________________________________ [Case name]
Dear __________________________________________________ [name of, e.g., attorney for defendant]:
This will confirm your recent telephone conversation with my associate in which you stated that the total insurance coverage applicable to
this case amounts to only $100,000.

On the basis of this statement, we have conferred with our clients and have obtained their authority to accept the sum of $100,000 in full
settlement of their claim against your insureds for the wrongful death of our clients' son, Jeff Smith. This offer is conditioned, however, on
your (1) providing this office with proof of the limits of the applicable insurance policy or policies and (2) payment of the policy limits within
15 days from the date of this letter.

As you know, this is an open-and-shut case of liability against your ins
ureds. Joe Jones negligently and recklessly drove his vehicle over
the center line of Highway 1 in Marin County, colliding head-on with the automobile driven by Jeff Smith. Joe Jones was cited by the
California Highway Patrol for violation of Vehicle Code section 21460(a) and was charged with vehicular manslaughter in the death of

Jeff Smith.

It is also obvious that this case is worth well over the stated policy limits of $100,000. At the time of his death, Jeff Smith was a healthy,
25-year-old serviceman stationed at Fort Honor, enjoyed an extremely close and loving relationship with his parents, and remained in
constant contact with them while he was in the army.

The tragic nature of this case is compounded by the fact that the Smiths lost another son in an accident shortly before Jeff's
death and by
the fact that Jeff's father, Jim, suffered a massive heart attack immediately after learning of Jeff's death. Jim is now permanently disabled
and totally dependent on his surviving children for support. Given the close bond between Jeff and his father, there is no question that Jeff
would have contributed substantially to his father's support for the balance of his life. Both parents have now been deprived of the support
as well as the love, care, comfort, affection, society, and protection that Jeff would have provided them had he survived.

The jury verdict potential in this case is further evident from a review of recent California verdicts involving the wrongful death of a child. As
a matter of fact, our office recently obtained a jury verdict of $800,000 in the case of Doe v Roe (Fresno County Superior Court) for the
wrongful death of a four-year-old child. Certainly the death of a 25-year-old son would yield a verdict far above that figure, particularly in
view of the factors discu
ssed above.

As previously mentioned, this offer to settle within the applicable policy limits will remain open for 15 days from the date of this letter. If it
has not been accepted by that time, this demand will be withdrawn, and we will proceed to trial.

If you do not fully comply with this demand, we will have to conclude that the insurance company is acting in bad faith and proceed
accordingly. After we receive a jury verdict over $100,000, we will seek an assignment from the insureds and proceed against the carrier
for its bad faith and outrageous conduct in the negotiations pertaining to this case. I need not remind you of the numerous decisions in
which an insurance company has been held liable for the full amount of the jury verdict when the company chose to subject its insureds to
personal liability instead of
settling the case for the limits of the insurance policy. See, e.g., Johansen v California State Auto. Ins. Inter-Ins.
Bureau (1975) 15 C3d 9; Gruenberg v Aetna Ins. Co. (1973) 9 C3d 666; Richardson v Employers Liab. & Ins. Co. (1972) 25 CA3d 333;
Fletcher v Western Nat'l Life Ins. Co. (1970) 10 CA3d 376; and Crisci v Security Ins. Co. (1967) 66 C2d 425.

Please feel free to call this office if you have any questions or need any additional information on this matter.

Thank you for your cooperation.

Very truly yours,
______________________________________________________ [Signature of, e.g., attorney for plaintiff]
______________________________________________________
[
T
yp
ed name
]
Demand Letter: Wrongful Death Case
A sample demand
letter in a case seeking
recovery for wrongful
death.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
WRONGFUL DEATH 467