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Epilogue: More Like a River than a Rock 3 page

-350-

20.

Maxwell Bloomfield, American Lawyers in a Changing Society, 1776-1876 ( 1976), pp. 338-39.

21.

As quoted in Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s ( 1983), p. 98.

22.

Gerard W. Gawalt, "The Impact of Industrialization on the Legal Profession in Massachusetts, 1870-1900," in Gawalt, ed., New High Priests, p. 108.

23.

Friedman, History of American Law, p. 616.

24.

Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development 1835-1875 ( 1982), p. 347.

25.

As quoted in John W. Johnson, "Retreat from the Common Law? The Grudging Reception of Legislative History by American Appellate Courts in the Early Twentieth Century,''" Detroit College of Law Review ( 1978):416.

26.

Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States ( 1886), p. 150.

27.

Budd v. New York, 143 U.S. 517 ( 1892).

28.

As quoted in William E. Nelson, The Roots of American Bureaucracy 1830-1900 ( 1982), p. 147.

29.

As quoted in Keller. Affairs of State, p. 346.

30.

Thomas K. McGraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, and Alfred E. Kahn ( 1984).

31.

John W. Johnson, American Legal Culture, 1908-1940 ( 1981), p. 30.

 

Chapter 12

1.

Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3(Fall 1985):311.

2.

Melvin Urofsky, "State Courts and Protective Legislation during the Progressive Era: A Reevaluation," The Journal of American History 72( June 1985):64. I have relied extensively on Urofsky's work here and elsewhere in this chapter.

3.

John W. Johnson, "Retreat from the Common Law? The Grudging Reception of Legislative History by American Appellate Courts in the Early Twentieth Century," Detroit College of Law Review ( 1978):413-414.

4.

Robert Silverman, Law and Urban Growth: Civil Litigation in the Boston Trial Courts, 1880-1900 ( 1981).

5.

Robert A. Kagan et al., "The Business of State Supreme Courts, 1870-1970," Stanford Law Review 30( November 1977): 133.

6.

Richard A. Posner, The Federal Courts: Crisis and Reform ( 1985), p. 59.

7.

Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History ( 1979).

8.

The statistics are from American Law Institute, A Study of the Business of the Federal Courts, 2 vols. ( 1934), vol. 1 (p. 107); vol. 2, p. 111; and Gerhard Casper and Richard A. Posner , The Workload of the Supreme Court ( 1976), p. 12.

9.

James Willard Hurst, The Growth of American Law: The Law Makers ( 1950), p. 119.

10.

William M. Wiecek, "The Reconstruction of Federal Judicial Power, 1863-1876," American Journal of Legal History 13( 1969):333-59.

11.

Freyer, Forums of Order, p. 130.

12.

Lawrence M. Friedman, A History of American Law, 2nd Ed. ( 1985), p. 355.

13.

Margaret V. Nelson, A Study of Judicial Review in Virginia, 1789-1928 ( 1947), p. 54.

14.

Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America ( 1977), p. 362.

-351-

15.

Kermit L. Hall, The Supreme Court and Judicial Review in American History ( 1985), p. 27.

16.

As quoted in Keller, Affairs of State, p. 366.

17.

William E. Nelson, The Roots of American Bureaucracy 1830-1900 ( 1982), p. 150.

18.

Wynehamer v. People, 13 N.Y. 378 ( 1856).

19.

People v. Gillson, 109 N.Y. 390 ( 1888).

20.

State v. Santee, 111 Iowa 1, 4-7 ( 1900).

21.

As quoted in Lawrence M. Friedman, "Freedom of Contract and Occupational Licensing 1890-1910: A Legal and Social Study," California Law Review 53( May 1965):513.

22.

Slaughterhouse Cases, 16 Wallace 36 ( 1873).

23.

Keller, Affairs of State, p. 176.

24.

Munn v. Illinois, 94 U.S. 113, 126, 130 ( 1877).

25.

ICC v. Alabama Midland Railway Co., 168 U.S. 144 ( 1897).

26.

Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota, 134 U.S. 458 ( 1890).

27.

James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States ( 1956), p. 44.

28.

Charles W. McCurdy, "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903," Business History Review 53(Autumn 1979):314.

29.

U.S. v. E.C. Knight, 156 U.S. 12 ( 1895).

30.

Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property of the United States, Considered from Both a Civil and Criminal Standpoint, 2 vols. ( 1900), vol. 1, p. 13.

31.

In Re Jacobs, 98 N.Y. 98 ( 1885), as quoted in Urofsky, "State Courts and Protective Legislation," p. 68.

32.

Urofsky, "State Courts and Protective Legislation," pp. 70-71.

33.

State v. Shorey, 48 Or. 398 ( 1906).

34.

Urofsky, "State Courts and Protective Legislation," p. 71.

35.

As quoted in Urofsky, "State Courts and Protective Legislation," p. 71.

36.

Ritchie v. People, 155 Ill. 111 ( 1893).

37.

People v. Williams, 189 N.Y. 134 ( 1907).

38.

Burcher v. People, 41 Colo. 495 ( 1907).

39.

Commonwealth v. Beatty, 15 Pa. 8 ( 1900).

40.

Urofsky, "State Courts and Protective Legislation," p. 74.

41.

People v. Orange County Road Construction Co., 175 N.Y. 84 ( 1903).

42.

Atkins v. Kansas, 191 U.S. 222-223 ( 1903).

43.

State of Utah, Constitution, as amended, originals, and amendments, comp. Utah State Archives ( 1959), p. 106.

44.

Urofsky, "State Courts and Protective Legislation," p. 78.

45.

As quoted in ibid., p. 79.

46.

Lochner v. New York, 198 U.S. 56 ( 1905).

47.

Ibid., p. 75.

48.

As quoted in Urofsky, "State Courts and Protective Legislation," p. 80.

49.

Godcharles & Co. v. Wigeman, 113 Pa. 437 ( 1886).

50.

State v. Fire Creek Coal & Coke Co., 33 W.V. 189 ( 1889).

51.

Urofsky, "State Courts and Protective Legislation," p. 83.

52.

Coppage v. Kansas, 236 U.S. 15 ( 1915).

53.

Felix Frankfurter and Nathan Green, The Labor Injuction ( 1930), p. 21.

54.

As quoted in Urofsky, "State Courts and Protection Legislation," p. 90.

55.

Bogni v. Perotti, 224 Mass. 156 ( 1916).

-352-

 

Chapter 13

1.

As quoted in James A. Henretta et al., America's History ( 1987), p. 730.

2.

See Alfred H. Kelly, Winfred A. Harbison, and Herman J. Belz, The American Constitution: Its Origins and Development, 6th Ed. ( 1983), p. 523 n.

3.

13 Stat. 370.

4.

22 Stat. 58.

5.

32 Stat. 1213.

6.

As quoted in David Burner et al., An American Portrait: A History of the United States, 2nd Ed., 2 vols, vol. 2 ( 1985), p. 534.

7.

As quoted in Kelly et al., American Constitution, p. 528.

8.

Carol S. Gruber, Mars and Minerva: World War I and the Uses of Higher Learning ( 1975), pp. 157-58.

9.

Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States ( 1979), pp. 102, 132.

10.

Joseph Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement ( 1963).

11.

Paul L. Murphy, The Constitution in Crisis Times 1918-1969 ( 1972), p. 217.

12.

As quoted in Peter Irons, Justice at War: The Story of the Japanese American Internment Cases ( 1983), p. 19.

13.

Ibid.

14.

Murphy, Constitution in Crisis Times, p. 233.

15.

Edward S. Corwin, Total War and the Constitution ( 1947), p. 91.

16.

Samuel Walker, Popular Justice: A History of American Criminal Justice ( 1980), pp. 161-83.

17.

Ibid., p. 165.

18.

Mark H. Haller, "Urban Crime and Criminal Justice: The Chicago Case," in Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives ( 1978), p. 305.

19.

Walker, Popular Justice, p. 181.

20.

Haller, "Urban Crime and Criminal Justice," p. 313.

21.

Walker, Popular Justice, p. 173.

22.

Sanford Ungar, FBI ( 1971), ch. 16.

23.

Walker, Popular Justice, p. 186.

24.

Ibid., p. 188.

25.

Ibid., p. 193.

26.

Jerold S. Auerbach, "Book Review," Harvard Law Review 87( 1974):1100.

27.

Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s ( 1983), p. 280.

28.

James Willard Hurst. The Growth of American Law: The Law Makers ( 1950), p. 280.

29.

Stevens, Law School, p. 113.

30.

As quoted in William H. Harbaugh, Lawyer's Lawyer: The Life of John W. Davis ( 1973), p. 118.

31.

Stevens, Law School, p. 101.

32.

Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America ( 1976), pp. 121 -22.

33.

Ibid., p. 66.

34.

Murphy, World War I and the Origin of Civil Liberties, p. 246.

35.

Auerbach, Unequal Justice, p. 139.

36.

As quoted in ibid., p. 140.

37.

Ibid., p. 198.

-353-

38.

Ibid, p. 215.

39.

Charles H. Martin, The Angelo Herndon Case and Southern Justice ( 1976), p. 12.

40.

Murphy, World War I and the Origin of Civil Liberties, p. 40.

41.

Schenck v. United States, 249 U.S. 47 ( 1919).

42.

Ibid., p. 52.

43.

Abrams v. United States, 250 U.S. 616 ( 1919).

44.

Ibid.

45.

U.S., Constitution, First Amendment.

46.

Gitlow v. New York, 268 U.S. 562 ( 1925).

47.

Stromberg v. California, 283 U.S. 359 ( 1931).

48.

Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel ( 1986), p. 216.

49.

William B. Hixson Jr., "Moorfield Storey and the Struggle for Equality," in Friedman and Scheiber, eds., American Law and the Constitutional Order, p. 337.

50.

As quoted in Irons, Justice at War, p. 366.

51.

Ibid.

 

Chapter 14

1.

John W. Johnson, American Legal Culture, 1908-1940 ( 1981), p. 59.

2.

As quoted in N. E. H. Hull, "The New Jurisconsults: The Intellectual and Social Origins of the American Law Institute," unpublished paper presented at the Annual Meeting of the American Society for Legal History( 1985), p. 3.

3.

Proceedings of the American Law Institute, I ( 1923), pp. 49-50.

4.

Laura Kalman, Legal Realism at Yale 1927-1960 ( 1986), p. 14.

5.

Wilfred E. Rumble Jr., American Legal Realism: Skepticism, Reform, and the Judicial Process ( 1968), p. 156.

6.

Kalman, Legal Realism at Yale, p. 17.

7.

G. Edward White, Patterns of American Legal Thought ( 1978), p. 117.

8.

As quoted in Grant Gilmore, The Ages of American Law ( 1977), p. 77.

9.

As quoted in White, Patterns of American Legal Thought, p. 123.

10.

As quoted in ibid., p. 128.

11.

As quoted in Kalman, Legal Realism, at Yale, p. 56.

12.

Edward A. Purcell Jr., "American Jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory," in Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional Order: Historical Perspectives ( 1978), p. 374.

13.

Gerald L. Fetner, Ordered Liberty: Legal Reform in the Twentieth Century ( 1983), p. 40.

14.

As quoted in James A. Henretta et al., America's History ( 1987), p. 746.

15.

48 Stat. 195 ( 1933).

16.

Ibid., p. 198.

17.

As quoted in Peter H. Irons, The New Deal Lawyers ( 1982), p. 10.

18.

Ibid.

19.

Donald Richberg, The Rainbow ( 1936), p. 177.

20.

Christopher Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement, 1880-1960 ( 1985), p. 147.

21.

Irons, New Deal Lawyers, p. 3.

22.

Felix Frankfurter and James M. Landis, The Business of the Supreme Court ( 1927), p. 283.

23.

Nebbia v. New York, 291 U.S. 556 ( 1934).

24.

Irons, New Deal Lawyers, pp. 55-56.

-354-

25.

Ibid., p. 56.

26.

As quoted in ibid., p. 87.

27.

295 U.S. 553 ( 1935).

28.

297 U.S. 68 ( 1936).

29.

As quoted in Irons, New Deal Lawyers, p. 275.

30.

Congressional Record, vol. 81, pt. 1 (75th Cong., 1st Sess.), pp. 877-78.

31.

As quoted in Alpheus T. Mason, Harland Fiske Stone: Pillar of the Law ( 1956), p. 444.

32.

301 U.S. 41-42 ( 1937).

33.

Alfred H. Kelly, Winfred A. Harbison, and Herman J. Belz, The American Constitution: Its Origins and Development, 6th Ed. ( 1983), p. 519.

34.

Irons, New Deal Lawyers, p. 295.

35.

Ibid.

 

Chapter 15

1.

As quoted in James A. Henretta et al., America's History ( 1987), p. 84.

2.

Allen J. Matusow, The Unraveling of America: A History of Liberalism in the 1960s ( 1984).

3.

Lawrence M. Friedman, Total Justice ( 1985), p. 42.

4.

U.S. News & World Report, December 4, 1978, p. 50.

5.

Marc Galanter, "Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society," UCLA Law Review 31( 1983):38.

6.

A lawyer is defined as any person licensed to practice law. See Barbara A. Curran, The Lawyer Statistical Report: A Statistical Profile of the U.S. Legal Profession in the 1980s ( 1985), p. 9.

7.

Statistical Abstract of the United States, 10th Ed. ( 1986), p. 402. The Census classifies a lawyer as any person saying that they are one even if not licensed to practice.

8.

Marion S. Goldman, A Portrait of the Black Attorney in Chicago ( 1972), p. 49.

9.

Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s ( 1983), p. 246.

10.

421 U.S. 773 ( 1975).

11.

Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America ( 1976).

12.

433 U.S. 350 ( 1977).

13.

Gerald L. Fetner, Ordered Liberty: Legal Reform in the Twentieth Century ( 1983), p. 95.

14.

John P. Heinz and Edward O. Laumann, Chicago Lawyers: The Professions of the Bar ( 1982), p. 111.

15.

Stevens, Law School, p. 207.

16.

Ibid., p. 210.

17.

Ibid., p. 277.

18.

G. Edward White, Tort Law in America ( 1980), p. 140.

19.

Laura Kalman, Legal Realism at Yale 1927-1960 ( 1986), p. 179.

20.

Stevens, Law School, p. 266.

21.

Ibid., p. 275.

22.

G. Edward White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," Southwestern Law Journal 40( June 1986):843.

23.

Charles A. Reich, "The New Property," Yale Law Journal 73( 1964):733-87.

24.

Seymour I. Toll, Zoned America ( 1969), p. 184.

25.

Ibid., p. 186.

-355-

26.

272 U.S. 388 ( 1926).

27.

As quoted in Richard F. Babcock, The Zoning Game: Municipal Practices and Policies ( 1966), p. 8.

28.

10 N.J. 182 ( 1952).

29.

Mary Ann Glendon, "The Transformation of American Landlord-Tenant Law," Boston College Law Review 23( May 1982):521.

30.

Javins v. First National Realty Corp., 428 F. 2d 1075 n. 13. Judge Wright and the court did not conclude, however, that leases were to be treated as contracts for all purposes.

31.

Edward J. Murphy and Richard E. Speidel, eds., Studies in Contract Law, 3rd Ed. ( 1984), p. 12.

32.

Grant Gilmore, The Death of Contract ( 1974), p. 101.

33.

350 F. 2d 445, (D.C. Cir. 1965).

34.

Ibid.

35.

White, Tort Law in America, p. 150.

36.

As quoted in Lawrence M. Friedman, A History of American Law, 2nd Ed. ( 1985), p. 684.

37.

Ibid.

38.

As quoted in White, Tort Law in America, p. 168.

39.

Ibid., p. 202.

40.

Restatement (Second) of Torts, sec. 402A(c) ( 1965).

41.

Friedman, Total Justice, p. 61.

42.

Carl N. Degler, At Odds: Women and the Family in America from the Revolution to the Present ( 1980), p. 454.

43.

Lawrence M. Friedman, "Rights of Passage: Divorce Law in Historical Perspective," Oregon Law Review 63( 1984):666.

44.

As quoted in Samuel Walker, Popular Justice: A History of American Criminal Justice ( 1980), p. 128.

45.

Ibid., p. 224.

46.

Ibid., p. 248.

47.

Ibid., p. 237.

48.

John W. Johnson, Insuring against Diseaster: The Nuclear Industry on Trial ( 1986), p. viii.

49.

Robert L. Rabin, "Federal Regulation in Historical Perspective," Stanford Law Review 38( May 1986): 1286.

50.

Reich, "The New Property," p. 783.

51.

Rabin, "Federal Regulation in Historical Perspective," p. 1305.

52.

463 U.S. 29 ( 1983).

53.

Warren Burger, "Isn't There a Better Way," American Bar Association Journal 68( 1982):275.

54.

Friedman, Total Justice, p. 43.

 

Chapter 16

1.

As quoted in Paul L. Murphy, The Constitution in Crisis Times, 1918-1969 ( 1972), p. 476n.

2.

G. Edward White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," Southwestern Law Journal 40( June 1986):827.

3.

Laura Kalman, Legal Realism at Yale 1927-1960 ( 1986), p. 222.

4.

Ibid., p. 223.

5.

Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," Harvard Law Review 73( 1959): 12.

-356-

6.

Eugene V. Rostow, "The Democratic Character of Judicial Review," Harvard Law Review 66( 1952):193.

7.

Baker v. Carr, 369 U.S. 186 ( 1962).

8.

Raoul Berger, "Paul Brest's Brief for an Imperial Judiciary," Maryland Law Review 40( 1981):38.

9.

"Speech of Attorney General Edwin Meese, III," July 9, 1985, Washington, D.C.

10.

Palko v. Connecticut, 302 U.S. 325 ( 1937).

11.

United States v. Carolene Products Co., 304 U.S. 153 n. 4 ( 1938).

12.

William Chafee, The Unfinished Journey: America since World War II ( 1987), p. 97.

13.

As quoted in ibid., p. 105.

14.

As quoted in Michal Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties ( 1977), p. 137.

15.

Dennis v. United States, 339 U.S. 509 ( 1950).

16.

As quoted in Murphy, Constitution in Crisis Times, p. 448.

17.

United States v. Robel, 389 U.S. 258 ( 1967).

18.

Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel ( 1986), p. 11.

19.

New York Times v. Sullivan, 376 U.S. 256 ( 1964).

20.

Ibid.

21.

Ibid.

22.

Roth v. United States, 354 U.S. 476 ( 1957).

23.

As quoted in Murphy, Constitution in Crisis Times, p. 396.

24.

As quoted in Steven Shiffrin, "Obscenity," in Leonard W. Levy and Kenneth L. Karst, eds., Encyclopedia of the American Constitution ( 1987), p. 1336.

25.

Miller v. California, 413 U.S. 24 ( 1973).

26.

Ibid.

27.

Shiffrin, "Obscenity," p. 1336.

28.

Engle v. Vitale, 370 U.S. 421 ( 1962).

29.

As quoted in Murphy, Constitution in Crisis Times, p. 392.

30.

Olmstead v. United States, 279 U.S. 849 ( 1925).

31.

Griswold v. Connecticut, 381 U.S. 479 ( 1965). See also Adamson v. California, 322 U.S. 46 ( 1948).

32.

Mapp v. Ohio, 367 U.S. 643 ( 1961).

33.

Brown v. Board of Education, 347 U.S. 493, 495 ( 1954).

34.

Brown v. Board of Education 349 U.S. 301 ( 1955).

35.

As quoted in Chafee, Unfinished Journey, p. 153.

36.

Ibid., p. 161.

37.

Civil Rights Act of 1964, Title II.

38.

Chafee, Unfinished Journey, p. 334.

39.

Hoyt v. Florida, 368 U.S. 62 ( 1961).

40.

Chafee, Unfinished Journey, p. 330.

41.

Plessy v. Ferguson, 163 U.S. 559 ( 1896).

42.

Fullilove v. Klutznick, 448 U.S. 448 ( 1980).

-357-

 

Glossary

The law is a technical subject and has its own professional language. I have attempted to keep the use of legal terms and phrases to a minimum, and when I have used them I have tried to explain briefly their meaning. This glossary provides some definitions that could not be readily fitted into the text. It is not intended to be comprehensive. A fuller explanation of the technical words, concepts, and phrases associated with the law can be found in Henry Campbell Black, Black's Law Dictionary, 5th Ed. ( 1979).

  Actus reus (Latin, "wrongful deed"). One of the essential elements of a completed crime (the other being mens rea), namely the human conduct which if done with mens rea is contrary to law. Commonly, actus reus is the commission of some act, e.g., assault, but it may also be an omission, e.g., failing to turn off a car's lights.
  Absolute liability. A concept in tort law that establishes liability without regard to fault or negligence. Also known as strict liability in products liability cases.
  Admiralty. The law of the sea, historically covering both civilian subjects (e.g., marine insurance, salvage, torts at sea) and military subjects (prize and capture). Juries are not used in admiralty courts.
  Amicus curiae (Latin, "friend of the court"). Courts sometimes permit parties not directly involved in the litigation but affected by it to participate in the argument. Typically, such parties have some special expertise that would be useful to the court.
  Assumption of risk. The doctrine which holds that plaintiffs cannot collect damages for injuries to which they voluntarily expose themselves.
  Bankruptcy. The condition in which persons are placed when they are unable to pay their debts when they become due.
  Bill of exchange. A form of commercial paper widely used by merchants in the eighteenth and nineteenth centuries. A orders B to pay a sum of money to C at a fixed future time. The bills circulated as a kind of paper money.
  Certiorari (Latin, "to be made more certain"). A discretionary writ that a superior court can choose to issue in order to examine the records of a lower court. Following the Judiciary Act of 1925 it became the principal means by which the Supreme Court of the United States structures its docket.

-358-

  Clear and present danger test. Doctrine first formulated in Schenck v. U.S. ( 1919), providing that governmental restrictions on freedom of speech and press will be upheld if necessary to prevent grave and immediate danger to interests which government may lawfully protect.
  Commercial paper. Various forms of legally enforceable orders between private parties, such as promissory notes, checks, or bank accounts, and other kinds of negotiable instruments.
  Common law. The system of law developed by judges and based on precedents. In theory, common law grows out of usage and custom. It contrasts with the civil law systems of Europe and Latin America, which are based on codes and derived from Roman law. America, like Great Britain, is a common-law jurisdiction. Common law is also contrasted with statutory (or positive) law, which is made by legislatures.
  Comparative negligence. Under this doctrine, negligence is apportioned on a percentage basis among those involved in an accident, and damages are diminished accordingly. It has replaced contributory negligence in many states.
  Consideration. The inducement (the impelling influence) offered to make a contract.
  Contributory negligence. Conduct by a plaintiff that contributes, along with that of the defendant, to an accident. In many states the defense of contributory negligence has been replaced by comparative negligence.
  Coverture. The condition or state into which a woman passes when she marries. Under coverture, wife and husband are united, but the husband is the dominant legal presence.
  Deed. A document used to convey real property from one person to another.
  Diversity jurisdiction. Jurisdiction conferred by Article III, section 2 of the Constitution on the federal courts. It covers suits between citizens of two different states, who are said to be in diversity to one another.
  Dower. The provision made through law for a widow, out of the husband's lands, for her support and that of her children. If the husband dies intestate (without a will), the widow can claim one third of the estate. Dower has been abolished in a majority of states and materially altered in most others.
  Durham Rule. A liberalization of the traditional insanity defense (the so-called right-wrong or McNaghten Rule) developed by Judge David J. Bazelon in Durham v. United States ( 1954). Also known as the irresistible impulse test of criminal responsibility. When there is some evidence that the accused suffered from a diseased or defective mental condition at the time of the unlawful act, he or she cannot be held responsible. Most jurisdictions have widely ignored the rule.
  Ejectment. The name of an action in common law used to recover the possession of lands and to claim damages for its wrongful holding by another.
  Entail. A means of limiting the succession of real property to certain heirs.
  Equity. A body of Anglo-American law that developed parallel to the common law. Its purpose is to provide equitable rather than legal solutions to conflicts, and it developed historically as a means of providing discretion in the application of common-law rules. In England a chancellor administers equity in separate courts, but in America, although the title "chancellor" is still used, most equity jurisdiction (since the nineteenth century) has been merged with common-law courts, meaning that often the same judges that administer equity also administer common law.
  Establishment clause. That provision of the First Amendment to the U.S. Constitution which provides that Congress shall make no law respecting an establishment of religion (or prohibiting the free exercise thereof). Because of this clause the state and federal governments are prohibited from setting up state religions or passing laws which aid religion or force belief in a religion.
  Ex parte (Latin, "on the side of"). A judicial proceeding or order that is undertaken on behalf

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