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JUDICIAL PROCESS IN AMERICA
Eleventh Edition
To my partner for over thirty years, Benjamin Harris Wheatley.

—R. A. C.

In memory of my mother and father.

—K. L. M.

To my mother, Diane Holmes, and in memory of my father, Bernard

Holmes.

—L. M. H.

To my sons, Tony, Todd, and Sam and my daughter, Heather.

—R. S.
Sara Miller McCune founded SAGE Publishing in 1965 to support
the dissemination of usable knowledge and educate a global
community. SAGE publishes more than 1000 journals and over 800
new books each year, spanning a wide range of subject areas. Our
growing selection of library products includes archives, data, case
studies and video. SAGE remains majority owned by our founder
and after her lifetime will become owned by a charitable trust that
secures the company’s continued independence.

Los Angeles | London | New Delhi | Singapore | Washington DC |

Melbourne
JUDICIAL PROCESS IN
AMERICA

Eleventh Edition

Robert A. Carp

University of Houston

Kenneth L. Manning

University of Massachusetts Dartmouth

Lisa M. Holmes

University of Vermont

Ronald Stidham
Appalachian State University

Los Angeles

London

New Delhi

Singapore

Washington DC

Melbourne
 Copyright © 2020 by CQ Press, an Imprint of SAGE Publications,
Inc. CQ Press is a registered trademark of Congressional Quarterly,
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Library of Congress Cataloging-in-Publication Data

Names: Carp, Robert A., 1943- author. | Manning, Kenneth L. (Kenneth Luis),
author. | Holmes, Lisa M., 1969- author. | Stidham, Ronald, 1940- author.

Title: Judicial process in America / Robert A. Carp, University of Houston; Kenneth

L. Manning, University of Massachusetts Dartmouth; Lisa M. Holmes, University of
Vermont; Ronald Stidham, Appalachian State University.

Description: Eleventh edition. | Thousand Oaks, California : CQ Press, an Imprint

of SAGE Publications, Inc., [2019] | Includes bibliographical references and index.

Identifiers: LCCN 2018049102 | ISBN 978-1-5443-1669-7 (pbk. : alk. paper)

Subjects: LCSH: Justice, Administration of—United States. | Courts—United

States. | Judicial process—United States.

Classification: LCC KF8700 .C37 2019 | DDC 347.73—dc23 LC record available at

https://lccn.loc.gov/2018049102
 Printed in the United States of America

This book is printed on acid-free paper.

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CONTENTS
List of Tables and Figures
Preface
Acknowledgments
Publisher’s Acknowledgments
Chapter 1 Foundations of Law in the United States
Definition of Law
Sources of Law in the United States
Constitutions
Acts of Legislative Bodies
Decisions of Quasi-Legislative and Quasi-Judicial Bodies
Orders and Rulings of Political Executives
Judicial Decisions
Types of Law
Codified (or Code) Law
Statutory Law and Common Law
Civil Law and Criminal Law
Equity
Private Law
Public Law
State Law and Federal Law
Functions of Law
Providing Order and Predictability in Society
Resolving Disputes
Protecting Individuals and Property
Providing for the General Welfare
Protecting Individual Liberties
The United States and the Rule of Law
The Revolutionary War
John Brown at Harpers Ferry
The Civil Rights Movement
Examples of Civil Disobedience in the United States
Concluding Thoughts on the United States and the Rule of Law
A Litigious Society
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 2 The Federal Judicial System
The Historical Context
The Constitutional Convention and Article III
The Judiciary Act of 1789
The U.S. Supreme Court
The Impact of Chief Justice Marshall
The Supreme Court as a Policymaker
The Supreme Court as Final Arbiter
The Supreme Court at Work
The U.S. Courts of Appeals
The Review Function of the Courts of Appeals
The Courts of Appeals as Policymakers
The Courts of Appeals at Work
U.S. District Courts
Current Organization of the District Courts
The District Courts as Trial Courts
Norm Enforcement by the District Courts
Policymaking by the District Courts
Three-Judge District Courts
Constitutional Courts, Legislative Courts, and Courts of Specialized
Jurisdiction
Administrative and Staff Support in the Federal Judiciary
United States Magistrate Judges
Law Clerks
Administrative Office of the U.S. Courts
The Federal Judicial Center
Federal Court Workload
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 3 State Judicial Systems
Historical Development of State Courts
The Colonial Period
Early State Courts
 Modern State Courts
State Court Organization
Trial Courts of Limited Jurisdiction
Trial Courts of General Jurisdiction
Intermediate Appellate Courts
Courts of Last Resort
Juvenile Courts
Norm Enforcement in the State Courts
The Courtroom Work Group
Administrative Hearings in the States
Policymaking in the State Courts
Innovation in State Courts
Administrative and Staff Support in the State Judiciary
Magistrates
Law Clerks
Administrative Office of the Courts
Court Clerks and Court Administrators
State Court Workload
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 4 Jurisdiction and Policymaking Boundaries
Federal Courts
U.S. District Courts
U.S. Courts of Appeals
U.S. Supreme Court
Jurisdiction of State Courts
Jurisdiction and Legislative Politics
Judicial Self-Restraint
A Definite Controversy Must Exist
A Plea Must Be Specific
Beneficiaries May Not Sue
Appellate Courts Rule on Legal—Not Factual—Questions
The Supreme Court Is Not Bound (Technically) by Precedents
Other Remedies Must Be Exhausted
Courts Do Not Decide “Political Questions”
The Burden of Proof Is on the Petitioner
 Laws Are Overturned on the Narrowest Grounds Only
No Rulings Are Made on the “Wisdom” of Legislation
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 5 State Judges
The Selection Process for State Judges
Partisan and Nonpartisan Election of Judges
Merit Selection
Gubernatorial Appointment and Legislative Appointment
Selection of the Chief Justice: The Cautionary Tale of the
Wisconsin Supreme Court
The Retirement and Removal of State Judges
Judicial Independence and State Courts
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 6 Federal Judges
Background Characteristics of Federal Judges
District Court Judges
Court of Appeals Judges
Supreme Court Justices
An Appraisal of the Statistics
Formal and Informal Qualifications of Federal Judges
Formal Qualifications
Informal Requirements
The Federal Selection Process and Its Participants
The President
The Department of Justice
State and Local Party Leaders
Interest Groups
The American Bar Association
The Federalist Society
The Senate Judiciary Committee
The Senate
The Judicial Socialization Process
The Retirement and Removal of Judges
 Disciplinary Action Against Federal Judges
Disability of Federal Judges
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 7 Policy Links Among the Citizenry, the President, and the
Federal Judiciary
The President and the Composition of the Judiciary
Presidential Support for Ideologically Based Appointments
The Number of Vacancies to Be Filled
The President’s Political Clout
The Judicial Climate the New Judges Enter
Presidents’ Values and Their Appointees’ Decisions
President Barack Obama and the Federal Judiciary
President Donald Trump and the Federal Judiciary
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 8 Lawyers, Litigants, and Interest Groups in the Judicial
Process
Lawyers and the Legal Profession
Development of the Legal Profession
Law School Growth and the “Great Recession”
Stratification in the Legal Profession
Government Attorneys in the Judicial Process
Private Lawyers in the Judicial Process
Legal Services for the Poor
Litigants
Interest Groups in the Judicial Process
Test Cases
Amicus Curiae Briefs
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 9 Crime and Procedures Prior to a Criminal Trial
The Nature and Substance of Crime
Categories of Crime
 Conventional Crimes
Economic Crimes
Syndicated, or Organized, Crimes
Political Crimes
Consensual Crimes
Elements of a Crime
A Law Defining the Crime and the Punishment
The Actus Reus
The Mens Rea
An Injury or Result
A Causal Relationship Between the Action and the Resultant
Injury
Procedures Prior to a Criminal Trial
The Arrest
Appearance Before a Magistrate
The Grand Jury Process or the Preliminary Hearing
The Arraignment
The Possibility of a Plea Bargain
The Adversarial Process as Contrasted With the Inquisitorial
Method
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 10 The Criminal Trial and Its Aftermath
Procedures During a Criminal Trial
Basic Rights Guaranteed During the Trial Process
Selection of Jurors
Opening Statements
The Prosecution’s Case
The Case for the Defense
Role of the Judge During the Trial
Role of the Jury During the Trial
Instructions to the Jury
The Jury’s Decisions
Conviction Rates and the Likelihood of Being Sent to Prison
Procedures After a Criminal Trial
Sentencing
 An Appeal
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 11 The Civil Court Process
The Nature and Substance of Civil Law
The Main Categories of Civil Law
Contract Law
Tort Law
Property Law
The Law of Succession
Family Law
The Courts and Other Institutions Concerned With Civil Law
Deciding Whether to Go to Court
Alternative Dispute Resolution
Specialized Courts
Administrative Bodies
The Civil Trial Process
Filing a Civil Suit
Pretrial Activities
The Civil Trial
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 12 Decision Making by Trial Court Judges
The Legal Subculture
The Nature of Legal Reasoning
Adherence to Precedent
Constraints on Trial Judge Decision Making
The Impact of the Legal Subculture: An Example
Wellsprings of the Legal Subculture
The Limits of the Legal Subculture
The Democratic Subculture
The Influence of Political Party Affiliation
The Impact of Localism
The Impact of Public Opinion
The Influence of the Legislative and Executive Branches
The Subcultures as Predictors
When the Legal Evidence Is Contradictory
When a Case Concerns New Areas of the Law
The Judge’s Role Conception
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 13 Decision Making in Collegial Courts
Cue Theory
Small-Group Analysis
Persuasion on the Merits
Bargaining
Threat of Sanctions
The Special Role of the U.S. Chief Justice, the U.S. Chief
Judges, and State Supreme Court Chief Justices
Evidence of Small-Group Interaction
Attitude Theory
Rational Choice Theory
Practical Applications of These Four Approaches
Cue Theory
Small-Group Analysis
Attitudinal Model
Rational Choice
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 14 Implementation and Impact of Judicial Policies
The Impact of Higher Court Decisions on Lower Courts
Lower Court Discretion
Interpretation by Lower Courts
Strategies Used by Lower Courts
Influences on Lower Court Judges
Congressional Influences on the Implementation Process
Executive Branch Influences on the Implementation Process
Other Implementers
The Impact of Judicial Policies
Racial Equality
 Criminal Due Process
Concluding Comments on the Impact of Judicial Policies
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 15 Policymaking by American Judges: A Synthesis
The Nature of the Case or Issue
Jurisdiction
Judicial Self-Restraint
Norm Enforcement Versus Policymaking
Concluding Remarks About the Nature of the Case or Issue
The Values and Orientations of the Judges
Judges as a Socioeconomic Elite
Judges as Representatives of Their Political Parties
Judges as Manifestations of Localism
Judges’ Conceptions of Their Role
Concluding Remarks on the Values and Orientations of the
Judges
The Nature of the Judicial Decision-Making Process
The Impact of Extraneous Influences
Appendix: Annotated Constitution
Glossary
Case Index
Subject Index
About the Authors
LIST OF TABLES AND FIGURES
Tables

2.1 Cases Filed in U.S. District Courts During Recent, Selected

Twelve-Month Periods Ending September 30, 2009, through
September 30, 2017: by Case Type 47

2.2 Appeals Filed in U.S. Courts of Appeals During Recent,

Selected Twelve-Month Periods Ending September 30, 2009,
through September 30, 2017 47

2.3 Cases on the Docket, Argued, and Disposed of by Full Opinions

in the U.S. Supreme Court, October Terms 2011–2015 48

3.1 Total Number of Civil Cases Filed in State Trial Courts in 2012:
by Type of Court 72

3.2 Total Number of Criminal Cases Filed in State Trial Courts in

2012: by Type of Court 72

3.3 Total Incoming Caseload Composition in State Appellate Courts,

2012 72

5.1 Methods of Selecting Judges for Full Terms in State Trial Courts
of General Jurisdiction 108

5.2 Methods of Selecting Judges for Full Terms in State Courts of

Last Resort 109

6.1 Background Characteristics of Presidents’ District Court

Appointees, 1981–2016 135
6.2 Background Characteristics of Presidents’ Appeals Court
Appointees, 1981–2016 139

7.1 Percentage of Liberal Decisions in Three Categories of Cases

Rendered by District Court Appointees of Presidents Lyndon B.
Johnson Through Barack Obama 205

12.1 Liberal Decisions of Federal District Court Judges in Order of

Magnitude of Partisan Differences for Twenty-Eight Types of Cases,
1932–2016 369

12.2 Liberal and Conservative Decisions by Nonsouthern and

Southern Judges in Two Time Periods 380

Figures

2.1 District and Appellate Court Boundaries 36

3.1 Court System of California 59

3.2 Court System of New York 60

6.1 Number and Timing of District Court Nominations Made in the

President’s First Year, Clinton through Trump 153

6.2 Number and Timing of Court of Appeals Nominations Made in

the President’s First Year, Clinton through Trump 154

7.1 Percentage of Liberal Decisions Rendered by District Court

Appointees of Presidents Franklin D. Roosevelt Through Barack
Obama 200

11.1 Typical Dispute Pyramid for 1,000 Grievances 339

PREFACE
Since the publication of the tenth edition of Judicial Process in
America in 2017, many changes have taken place in the political
scene of the United States and its federal and state judicial systems.
The most profound of these has been the election of Donald Trump
as president of the United States. His surprising victory has set the
stage for moving the ideological direction of the Supreme Court and
of the lower federal judiciary in a distinctly more conservative
direction. In his own words, the President said two years after his
election victory: “We’re filling up the courts with really talented
people who understand and read the Constitution for what is says.
It’s already having a tremendous impact. These appointments are
going to be one of the most important things, if not the most
important thing, we do.”1 A second important change since the last
edition has been the unexpected death, in February of 2016, of the
highly conservative Supreme Court Justice Antonin Scalia. This was
followed by his replacement on the Court of the equally-conservative
Justice Neil Gorsuch in April of 2017. And while this did not
immediately change the ideological balance of the High Court, it
provided evidence for the values and attitudes that President Trump
wishes to foster in his future judicial appointments. Then, in June of
2018, Justice Anthony Kennedy tendered his resignation on the High
Court. Kennedy was known for being a pivotal, centrist justice,
frequently voting with the liberals on issues such as L.G.B.T. rights
and abortion but often voting with conservatives on more economic
issues such as whether non-union, public-sector employees should
be compelled to pay for union expenses in negotiating contracts with
management.2 On July 9, 2018, President Trump announced as
Kennedy’s replacement Circuit Court Judge Brett Kavanaugh, an
individual expected to push the High Court even more right of center.
And as an increasing number of the Trump appointees assume the
bench, it is safe to say that the judiciary as a whole is moving in a
distinctly more conservative direction. In Chapter 6, we discuss
President Trump’s early success with respect to judicial
appointments, and in Chapter 7, we shall have more to say about the
decisional patterns of the jurists appointed by recent American
presidents. The implications of President Trump’s election are also
seen in the changing priorities of the Department of Justice under
the leadership of former Attorney General Jeff Sessions, which we
will give some attention to in Chapter 8.

While the tragic events of September 11, 2001, are slowly moving to
the recesses of the nation’s mind, an assorted variety of new events
have come to the forefront of the country’s attention, many of which
involve the judiciary to greater and lesser degrees: the legality of
Congress’ feeble attempts to “repeal and replace” the Affordable
Care Act that affects millions of people; how to address the issues of
immigration and deportations, including what to do about so-called
DREAMers (children brought illegally to the United States by their
parents without the children’s knowledge and who have spent much
or all of their lives here); the status of abortion rights in America as
more and more conservative states have sought to further restrict a
woman’s right to such a procedure; the legal status of transgender
persons in the armed forces; the degree to which severely
gerrymandered legislative districts pass constitutional muster; and of
course, the great changes in the issue of same-sex marriage, both
among average Americans and within the state and federal court
systems (including all the ancillary issues such as whether same-sex
couples can adopt children and obtain government fringe benefits).
Many of these topics will be explored in greater detail in the chapters
that follow, particularly when they involve the American judicial
system.

The gender composition of the U.S. Supreme Court has not changed
since the publication of the previous edition. However, the presence
of three women on the Court is beginning to be studied. What has
their effect been on the decisional patterns of the Court, and to what
degree is there meaningful interaction among the three female
jurists? We shall examine those questions in subsequent chapters.
Finally, we note that during the past several years, the composition
of the lower courts has gone from a fairly even split between
Republicans and Democrats to the current mix, in which Republicans
are starting once again to hold a majority of seats on the bench. In
this vein, we discuss the impact that President Trump has had on the
partisan mix of the courts and on the subsequent ideological output
of these tribunals. We elaborate on this subject in much greater
detail in Chapters 6 and 7.

At the state level, the movement toward tort reform has shown no
signs of abatement, and legislatures continue to limit the size of
awards that plaintiffs may win. As discussed in previous editions, tort
reform continues in the face of civil damage awards that are at all-
time highs. Furthermore, state legislatures have removed more and
more policy disputes from the courts and have made them subject to
binding arbitration. Finally, state tribunals continue to play mounting
policymaking roles, as increased numbers of state programs and
policies come under the review of state jurists.

Also at the state level, polarized party politics has resulted in some
dramatic instances of state legislatures attempting to exert influence
over the state’s judiciary through altering how judges are selected or
retained. The most blatant recent examples of this in states like
North Carolina, have raised concerns over the independence of state
courts in divisive partisan times. Similarly, concerns over the role of
the public in selecting, retaining, and even removing state judges
persist, with judicial selection reformers arguing for merit selection of
judges, against the arguments expressed by scholars in the field,
who contend that merit selection of judges is neither free from
political manipulation nor a guarantee that merit selection will result
in more qualified judges.

In addition to comprehensive updating of such topics as the role of

the courts in the war on terrorism, affirmative action, gay, lesbian,
and transgender rights, and business regulation, the eleventh edition
of this book includes more data on the voting patterns of the U.S.
trial judges appointed by President Obama, as well as data
comparing President Trump to his immediate predecessors in terms
of the speed with which he has nominated U.S. district and circuit
judges. And we provide anecdotal data on some key decisions that
the Trump cohort are rendering. We have also expanded the number
of comparative references and examples. Although we make no
assertion that this is an exhaustive comparative judicial text, we
continue to highlight with some frequency those aspects of the U.S.
judicial system that are uniquely American and that may be
compared with the judicial practices of other nations. We have
included a wide variety of countries as the sources of our
comparisons—not just Canada and the United Kingdom, whose
judiciaries are most similar to the U.S. system. To the suggested
resources at the end of each chapter, we have added new websites
that should be useful to students who wish to pursue the subject
matter in greater depth. We have also made provisions for
instructors to obtain objective-style questions to be used for
examinations for students who are assigned this book as a
classroom text.

As an additional learning aid, we encourage students to visit the

Cornell University Law School Supreme Court website
(https://www.law.cornell.edu/supremecourt/text/home), from which
they can obtain, without cost, summaries of Supreme Court
decisions immediately after they are handed down by the justices.
For those interested in current developments in Supreme Court
jurisprudence, we also suggest the free, award-winning website
SCOTUSblog.com, sponsored by Bloomberg Law.
SCOTUSblog.com has become a go-to source for many Court
watchers.

As with all editions of this book, we have taken care to prepare a text
that is highly readable for both academic and general audiences.
The primary emphasis is on full coverage of the federal courts, state
judicial systems, the role of the lawyer in American society, the
nature of crime, and public policy concerns that color the entire
judicial fabric. The book is designed as a primary text for courses in
judicial process and behavior; it is also useful as a supplement in
political science classes in constitutional law, American government,
and law and society. Likewise, it may serve as interesting reading in
law-related courses in sociology, history, psychology, and
criminology.

We have endeavored to use minimal jargon and theoretical

vocabulary of political science and the law without being
condescending to the student. We believe it is possible to provide a
keen and fundamental understanding of the court systems and their
impact on Americans’ daily lives without assuming that all readers
are budding political scientists or lawyers. At times, it is necessary
and useful to employ technical terms and evoke theoretical
concepts. Still, we address the basic questions on a level that is
meaningful to an educated layperson. For students who may desire
more specialized explanations or who wish to explore further some
of the issues we discuss, the glossary, notes, and suggested
resources contain ample leads.

We have also avoided stressing any particular theoretical framework

for the study of courts and legal questions, such as a systems model
approach or a judicial realist perspective. Instructors partial to the
tenets of modern behavioralism will find much here to gladden their
hearts, but we have also included some of the insights that more
traditional scholarship has provided over the years. The book reflects
the contributions not only of political scientists and legal scholars but
also of historians, psychologists, court administrators, and
journalists.

Throughout the text we are constantly mindful of the interrelation of

the courts and public policy. We have worked from the premise that
significant portions of citizens’ lives—both as individuals and as part
of a nation—are affected by what federal and state judges choose to
do and what they refrain from doing. We reject the common
assumption that only liberals make public policy and only
conservatives practice restraint. We believe that to some degree all
judges engage in the inevitable activity of making policy. The
question, as we see it, is not whether American judges make policy
but which directions their policy decisions take. In the chapters that
follow, we explain why this has come to be, how it happens, and
what the consequences are for the United States today.

Setting the theoretical stage in Chapter 1, we note Americans’ great

respect for the law but also their traditional willingness to violate the
law when it is morally, economically, or politically expedient to do so.
We also examine sources of jurisprudence in the United States and
several of the major philosophies concerning the role and function of
law.

In Chapter 2, we examine the organizational structure and workloads

of the federal judicial system, and we have updated all the tables to
reflect new caseload statistics for all three levels of the federal
judiciary. In this eleventh edition, we provide a discussion of case
backlogs that have resulted from congressional resistance to the
creation of new courts and additional judges.

Chapter 3 focuses on the judicial systems in the various states.

There is also expanded coverage of courts of limited jurisdiction, of
the increasing use of administrative hearings (in place of litigation),
and of the expanding role of state supreme courts in important areas
of policymaking such as same-sex marriage and legislative
apportionment. The statistical tables in this chapter reflect the most
recent available data.

In Chapter 4, we outline the jurisdiction of the several levels of U.S.

courts and discuss the political and nonjusticiable realms of
American life into which judges in principle are not supposed to
enter. We believe that a full understanding of how judges affect
citizens’ lives requires knowledge of the many substantive areas into
which federal and state jurists may not roam. There is also a
discussion of the recently and highly significant Supreme Court
decisions upholding major portions of the Affordable Care Act and
the right of same-sex marriage.

Chapter 5 focuses on the role and work of state judges with an

emphasis on the selection, retention, and removal of state judges. It
contains new material on the successful effort to recall Judge Aaron
Persky in California after his sentencing of Brock Turner in the
“Stanford Rape Case.” In addition, we include a new emphasis on
judicial independence in this chapter, focusing on actions of state
legislatures to influence the composition of the state judiciary by
changing how judges are selected, retained, or removed from office,
with particular attention to the state of North Carolina.

Focusing on the federal courts in Chapter 6, we take a close look at

the men and women who wear the black robe in the United States.
What are their backgrounds and qualifications for office? How are
they chosen? How are they socialized into their judicial roles, and
under what circumstances can they be removed from office? We
also discuss the impact of the Obama administration on the
composition of the federal judiciary. In addition, we provide an
assessment of the contentious effort to prevent President Obama
from filling the seat vacated by the sudden death of Justice Antonin
Scalia in 2016, which was of course eventually filled by President
Trump’s appointment of Neil Gorsuch in 2017. We give some
attention to President Trump’s controversial nomination of Judge
Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the
Supreme Court in 2018, including some consideration of the sexual
assault allegations leveled at Kavanaugh. We also provide an early
assessment of President Trump’s approach to and success in filling
seats on the U.S. district and circuit courts, and we provide some
data on the speed with which President Trump has nominated
people to these courts, compared to his recent predecessors. Finally,
the section on “The Retirement and Removal of Judges” has been
updated to include some attention to the #MeToo movement and the
sudden retirement of Judge Alex Kozinski in the wake of multiple
allegations of misconduct.

Chapter 7 examines the work and decision-making patterns of

federal judges. We find a discernible link among the values of a
majority of the voters in a presidential election, those of the
appointing president, and the subsequent policy content of decisions
made by the judges nominated by the chief executive. We offer a
first impression of President Trump’s potential impact on the courts.
And through original research, using significant amounts of our own
data, we offer an in-depth assessment of recent presidents’ impact
on the ideological orientation of the federal judiciary.

Chapter 8 discusses the role of lawyers in American society—their

training, values, and attitudes—and the public policy goals of their
professional associations. There is an updated discussion of the
issues facing law students and law schools themselves in the wake
of the “Great Recession.” In this chapter, we also now give some
attention to the U.S. Department of Justice under the leadership of
former Attorney General Jeff Sessions. In the discussion of interest
groups in the legal process, we have added some information on the
rise of conservative groups, such as the Alliance Defending Freedom
(ADF), which has litigated many recent high-profile cases dealing
with the rights of Christian conservatives, including Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission.3

In Chapter 9, we focus on the nature of crime and on the various

procedures prior to a criminal trial: the arrest, the appearance before
a magistrate, the grand jury process, the arraignment, and the
possibility of a plea bargain. We also address the recent scrutiny of
grand juries in light of the reluctance of such tribunals to indict police
officers, who in the line of duty take the lives of minority citizens
(such as the killing of Michael Brown in Ferguson, Missouri, in 2015).
Here, we also discuss the impact of two recent Supreme Court
decisions that vastly expand lower court judges’ supervision of the
criminal justice system.4 We further discuss the adversarial process
as it exists in American courtrooms. We have updated the statistical
information in this chapter since the previous edition, and we have
also included a discussion of political crimes in light of the
revelations of massive illegal government surveillance activities as
divulged by Edward Snowden and in the possibility that Donald
Trump may have engaged in illegal collusion during the 2016
election.
Chapter 10 continues this theme by exploring the criminal trial and
its aftermath. We examine the procedural rights of the criminal
defendant, the process of selecting a jury, the roles of judge and jury
during the trial, the sentencing process, and the possibility of an
appeal. There is a new section on the role of Victim Impact
Statements in criminal sentencing, with particular attention to such
statements in the sentencing of Brock Turner in California in 2015–
2016, as well as in the 2018 sentencing hearing of Dr. Larry Nassar
for seven counts of first-degree criminal sexual assault, when more
than 150 women and girls provided statements detailing how they
had been affected by Nassar’s crimes.

Chapter 11 examines the civil court process, beginning with an

analysis of the various types of civil cases and the options available
to the complainant and the respondent. We then proceed through
the various methods of alternative dispute resolution, followed by a
discussion of pretrial hearings and jury selection. Finally, we discuss
the trial and judgment. We have updated our material on the topic of
binding arbitration, and we have made this information relevant to
students by documenting that such arbitration clauses often exist in
such matters as credit card disputes and disagreements over cell
phone contracts. We have incorporated more attention to recent
decisions by the U.S. Supreme Court on the issue of binding
arbitration, including the 2018 Epic Systems Corp. v. Lewis case.5

Chapter 12 is the first of two on judicial decision making. In this

chapter, we outline those aspects of the decision-making process
that are common to all judges, in the context of the legal subculture
(the traditional legal reasoning model for explaining judges’
decisions) and the democratic subculture (a number of extralegal
factors that appear to be associated with judges’ policy decisions).
This chapter contains updated statistics on the magnitude of partisan
differences for twenty-eight types of cases from 1932 through 2016.

In Chapter 13, we examine the special case of decision making in

collegial appellate courts. We explore the assumptions and
contributions of cue theory, small-group analysis, attitude theory, and
the rational choice model. These models are then used to explain
the high court’s decisions in several high-profile cases. We have also
provided a discussion of Chief Justice John G. Roberts Jr.’s
leadership on the Supreme Court and cite the most recent research
in this area.

In Chapter 14, we explore the policy impact of decisions made by

federal and state courts and analyze the process by which some
judicial rulings are implemented and some are not. We have updated
this chapter to include examples from the most recent terms of the
Supreme Court, including the high court’s rulings on the
constitutionality of the Affordable Care Act (NFIB v. Sebelius6 and
King v. Burwell)7 and on the subject of same-sex marriage
(Obergefell v. Hodges).8

Chapter 15 is a summary chapter with two general goals: to outline

the primary factors that impel judges to engage in policymaking and
to suggest the variables that determine the ideological direction of
such policymaking.

Acknowledgments
Many people contributed to the writing of this book, and to all of
them, we offer sincere thanks. John M. Aughenbaugh, Virginia
Commonwealth University; Jeffrey Budziak, Western Kentucky
University; Matthew S. Crow, University of West Florida; Kenneth K.
Frank, Brenau University; Mark S. Hurwitz, Western Michigan
University; Robert G. Sedding, Allegheny College; and Frederick
Wood, Coastal Carolina University, provided valuable feedback as
reviewers. At CQ Press, we would like to thank Monica Eckman,
Sam Rosenberg, and Rebecca Lee. We also would like to express
our gratitude to Ashley Horne for her excellent copyediting of the
final version of the text. We assume responsibility for any errors that
remain.
Robert A. Carp thanks his research assistant, Scott Hofer, who
helped code the decisions of the federal district judges that serve as
the basis for Tables 7.1, 12.1, and 12.2 and Figure 7.1.

Kenneth L. Manning wishes to thank his research assistants, Daina

Ricketts and Estelle Hatem, for their help in compiling the decision-
making data.

Lisa M. Holmes would like to thank her research assistant Mia

Monserrate (University of Vermont, Class of 2018) for her assistance
in collecting and analyzing data on President Trump’s judicial
nominees, as well as Dr. Todd Collins (Western Carolina University)
for sharing his expertise on North Carolina politics and the North
Carolina judiciary.

Robert A. Carp

Kenneth L. Manning

Lisa M. Holmes

Ronald Stidham

Publisher’s Acknowledgments
SAGE would also like to acknowledge the valuable contributions of
the following reviewers for the eleventh edition:

John Aughenbaugh, Virginia Commonwealth University

John Forren, Miami University–Hamilton

Diane Hartmus, Oakland University

Rebecca Keeler, East Tennessee State University

Alyx Mark, North Central College

Robert Norris, Appalachian State University

Luke Plotica, Virginia Polytechnic Institute and State University

Judithanne Scourfield McLauchlan, University of South Florida St

Petersburg

Kim Seckler, New Mexico State University

Maryam Stevenson, Troy University

Joseph Stewart, Clemson University

Justin Wedeking, University of Kentucky

Notes
1. Time, February 19, 2018, p. 26.

2. Janus v. American Federation of State, County and Municipal

Employees, No. 16-1466 (2018).

3. 584 U.S. _______ (2018).

4. Missouri v. Frey, No. 10-444 (2012) and Lafler v. Cooper, No. 10-
209 (2012).

5. 584 U.S. _______ (2018).

6. NFIB v. Sebelius, 367 U.S. 519 (2012).

7. Docket Number 14-114 (2015).

8. Docket Number 14-556 (2015).

CHAPTER 1 FOUNDATIONS OF
LAW IN THE UNITED STATES

Chapter Goals and Objectives

In this chapter, readers will learn that …

There are a variety of types of law in the United States,

and each one has a separate function for society.

Americans have historically had rather ambivalent

attitudes about whether the law should always be obeyed
and about whether there are legitimate reasons for
ignoring the commands of legal statutes.

The United States is a very litigious society and that there

are reasons why this might be a good thing.

On November 2, 2010, Mr. Andrew Cilek set out to do his civic duty
by going to his prescribed polling place and voting for the candidates
and issues of his choice. But no sooner than he had entered the
polling area than an election official told him that he would not be
allowed to vote because of the way he was attired. No, he was not
standing in the buff; no, he was not wearing an obscene photo on his
jacket; and no, he was not sporting a message calling for the violent
and unlawful overthrow of the government. Rather, Mr. Cilek was
sporting a T-shirt that bore several more sedate messages: the logo
of the Tea Party, the message “Don’t Tread on Me,” an image of the
old Gadsden flag (which dates back to the American Revolution and
which nowadays is associated with the Tea Party and libertarianism).
Finally, he wore a small button that read, “Please ID Me,” often
sported by those opposed to voter fraud. An election worker
informed Mr. Cilek that he would have to cover or remove his T-shirt
and button or he would not be allowed to vote. Cilek refused this
command and later made two more efforts to vote. On his third
attempt and accompanied by a lawyer, the election officials backed
down and allowed him to exercise his franchise, but they also took
down his name and address.

So what is all this about? Why the big fuss here? To answer this we
need to back up a bit to the history of American laws pertaining to
the protocol and decorum of the voting place. In all of the fifty states,
there are laws that provide for “speech-free zones” around polling
places. The idea is that as voters approach the ballot box, they
should do so in a tranquil environment that is free from the
distractions of electioneering that most of them have been subjected
to in the weeks and months prior to the election. So Minnesota
enacted a law over a century ago to “protect Minnesotans’ right to
vote in an orderly and controlled environment without confusion,
interference, or distraction.”1 Nine other states have similar laws,
and such laws have generally been upheld by the courts as
reasonable and just.2

Andrew Cilek savors his victory before the U.S.

Supreme Court on an issue dealing with his First
Amendment freedom of expression. He was
initially prevented from voting in Minnesota
because he was wearing a T-shirt that contained
expressions of his general political values, such
as, “Don’t Tread on Me,” and “Please I.D. Me.”
Voting officials determined that the expressions on
his T-shirt violated state law, which basically
forbade “electioneering” around a polling place.
However, on appeal, the Supreme Court
determined that the state law was too vague and
covered too much expression that was protected
under our Constitution.
AP Photo/Jacquelyn Martin

So what is Mr. Cilek’s beef? Cilek does not object to such laws in
principle, but he contends that the current Minnesota law goes too
far and that it is overly broad to pass constitutional muster. Here the
plaintiff argues that wearing clothing and other apparel containing
messages “is a time-honored and affordable way for the average
citizen to peaceably speak out about politics and other issues.”3 The
law allegedly prohibits any reference not only to political candidates
and political parties but also to political ideologies, political symbols,
and current issues. Thus, the Minnesota law would bar clothing and
apparel bearing the Peace and Freedom Party’s peace-dove symbol,
even though that party did not have any candidates on the ballot in
Minnesota in 2010.

Even worse, Cilek argues, election officials have almost total

unbridled discretion to determine whether a particular message is
“political” or not, and that raises the possibility that constitutionally
protected expression might be stifled. He provided two examples: “In
2008, a poll worker in Texas tried to bar someone who was wearing
a souvenir T-shirt bearing the word ‘Alaska’ from voting because the
worker thought it signalled support for then vice-presidential
candidate Sarah Palin, while voters in Colorado and Florida wearing
“MIT” shirts–as in Massachusetts Institute of Technology–were
concerned that the shirts showed support for 2012 Republican
presidential candidate Mitt Romney.”4

On June 14, 2018, the Supreme Court settled the matter. By a vote
of seven-to-two the Justices handed down a narrow ruling in favor of
Mr. Cilek. While totally reaffirming Minnesota’s right to keep
electioneering away from the immediate polling area, the Court
determined that the state law in this instance was too vague, thus
lending itself to arbitrary enforcement. The Court ruled that the use
of the term “political” in the law was too indeterminate, which in turn
gave polling officials too much discretion in enforcing the law
however they liked. The law’s vagueness in effect violated Mr. Cilek’s
First Amendment right to freedom of expression.5

This discussion reveals much about the United States and the rule of
law, and it suggests themes that we will articulate not only in this
chapter but throughout the book. What happens when there are
conflicts between two lawful and well-motivated propositions: the
desire to express one’s political values and the state’s desire to keep
certain designated places free from political expressions? Both
desires are legitimate, but sometimes, they come into conflict with
one another. And if distinctions are to be made in our society
between an individual’s wishes and the general demands of society
such as the one described here, which institutions should be
empowered to make these determinations: legislatures, courts, local
executives, or elections officials?

We begin our discussion of the foundations of law in the United

States with a look at the law itself. This is appropriate because
without law there would be no courts and no judges, no political or
judicial system through which disputes could be settled and
decisions rendered. In this chapter, we examine the sources of law in
the United States—that is, the institutions and traditions that
establish the rules of the legal game. We discuss the particular types
of law that are used and define some of the basic legal terms.
Likewise, we explore the functions of law for society—what it
enables citizens to avoid and accomplish as individuals and as a
people that would be impossible without the existence of some
commonly accepted rules. Finally, we examine America’s ambivalent
tradition vis-à-vis the law—that is, how a nation founded on an illegal
revolution and nurtured with a healthy tradition of civil disobedience
can pride itself on being a land where respect for the law is ideally
taught at every mother’s knee. We also take note of the degree to
which American society has become highly litigious and why this is
significant for the study of the American judicial system.

Definition of Law
A useful definition of American law postulates that “law is a social
norm the infraction of which is sanctioned in threat or in fact by the
application of physical force by a party possessing the socially
recognized privilege of so acting.”6 This definition suggests that law
comprises three basic elements—force, official authority, and
regularity—the combination of which differentiates law from mere
custom or morals in society.

In an ideal society, force would never have to be exercised; in an

imperfect world, the threat of its use is a foundation of any law-
abiding society. Although substitutes for physical force may be used,
such as confiscation of property or imposition of fines, the possibility
of physical punishment must nevertheless remain to deter a potential
lawbreaker. The right to apply this force constitutes the official
element of the definition of law. The party that exercises this right of
physical coercion represents a valid legal authority. Finally, the term
regularity, as used in the legal sense, can be likened to its use by
scientists. Although the term does not reflect absolute certainty, it
does suggest uniformity and consistency. The law calls for a degree
of predictability, of regularity, in the way individuals are expected to
behave or to be treated by the state. In American society, this
emphasis on regularity is manifested by adherence to prior court
decisions and precedents (the common law doctrine of stare
decisis) and also by the mandate of the Fourteenth Amendment to
the U.S. Constitution, which forbids the state to “deny to any person
within its jurisdiction the equal protection of the law” (emphasis
added).7

Sources of Law in the United States

Where does law come from in the United States? At first, the
question seems a bit simpleminded. A typical response might be,
“Law comes from legislatures; that’s what Congress and the state
legislatures do.” This answer is not wrong, but it is far from
adequate. Law comes from a large variety of sources.

Constitutions
The U.S. Constitution is the primary source of law in the United
States, as it claims to be in Article VI: “This Constitution … shall be
the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” Thus, none of the other types of law
may stand if they are in conflict with the Constitution. Similarly, each
state has its own separate constitution, and all local laws must yield
to its supremacy.

Acts of Legislative Bodies

Laws passed by Congress and by state legislatures constitute a
sizable bulk of law in the United States. Statutes requiring the
payment of income tax to Uncle Sam and state laws forbidding the
robbing of banks are both examples. But many other types of
legislative bodies also enact statutes and ordinances that regulate
the lives of U.S. residents. County commissioners (also known as
county judges or boards of selectmen), for example, act as
legislative bodies for the various counties within the states.

Likewise, city councils serve in a legislative capacity when they pass

ordinances, set property-tax rates, establish building codes, and so
on at the municipal level. Then there are almost 50,000 “special
districts” throughout the country, each of which is headed by an
elected or appointed body that acts in a legislative capacity.
Examples of these would be school districts, fire prevention districts,
water districts, and municipal utility districts.

Decisions of Quasi-Legislative and Quasi-

Judicial Bodies
Sprinkled vertically and horizontally throughout the U.S.
governmental structure are thousands of boards, agencies,
commissions, departments, and so on, whose primary function is not
to legislate or to adjudicate but that still may be called on to make
rules or to render decisions that are semi-legislative or semi-judicial
in character. The job of the U.S. Postal Service is to deliver the mail,
but sometimes it may have to act in a quasi-judicial capacity. For
example, a local postmaster may refuse to deliver a piece of mail
because he or she believes it to be pornographic. (Congress has
mandated that pornography may not be sent through the mail.) The
postmaster is acting in a semi- or quasi-judicial capacity in
determining that a particular item is pornographic and hence not
protected by the First Amendment.

The U.S. Securities and Exchange Commission (SEC) is not a

lawmaking body, either, but when it determines that a particular
company has run afoul of the securities laws or when it rules on a
firm’s qualification to be listed on the New York Stock Exchange, it
becomes a source of law in the United States. In effect, the SEC
makes rules and decisions that affect a person’s or a company’s
behavior and for which penalties are imposed for noncompliance.
Although decisions of such agencies may be appealed to or
reviewed by the courts, they are binding unless they are overturned
by a judicial entity.

A university’s board of regents may also be a source of law for the

students, faculty, and staff members covered by its jurisdiction.
These boards may set rules on matters such as which persons may
lawfully enter the campus grounds, procedures to be followed before
a staff member may be fired, or definitions of plagiarism. Violations
of these rules or procedures carry penalties backed by the full force
of the law.

Orders and Rulings of Political Executives

Civics classes teach that legislatures make the law and executives
enforce the law. That is essentially true, but political executives also
have some lawmaking capacity. This lawmaking occurs when
presidents, governors, mayors, or others fill in the details of
legislation passed by legislative bodies, and sometimes when they
promulgate orders purely in their executive capacity.

When Congress passes reciprocal trade agreement legislation, the

goal is to encourage other countries to lower trade and tariff barriers
to U.S.-produced goods, in exchange for which the United States will
do the same. But there are so many thousands of goods, almost two
hundred countries, and countless degrees of setting up or lowering
trade barriers. What to do? The customary practice is for Congress
not only to set basic guidelines for the reciprocal lowering of trade
barriers but also to allow the president to decide how much to
regulate a given tariff on any given commodity for a particular
country. These executive orders of the president are published
regularly in the Federal Register and carry the full force of law. In
fact, at the national level more than 70,000 pages of new rules are
churned out each year.8 At the present time, the Code of Federal
Regulations, dealing mainly with economic activity and published in
the Federal Registrar, now runs 178,000 pages.9

Another example of an executive order came in November 2014.

After attacking Congress for failing to enact legislation on
immigration, President Barack Obama issued a series of executive
orders that in effect spared five million illegal immigrants from
deportation:

Under Obama’s plan, undocumented parents of U.S. citizens

and legal permanent residents would qualify [for deportation
relief] only if they have lived in the country at least five years
—since Jan. 1, 2010. The administration said it will be ready
to begin taking applications in the spring, and that those who
qualify will be granted three years of deportation relief,
meaning that they would be protected through the first year of
Obama’s successor in 2017.10

However, on February 16, 2015, U.S. District Judge Andrew Hansen

held in a Brownsville, Texas, courtroom that “the administration’s
attempt to expand protections against deportation for certain
segments of the immigrant population would cause ‘dramatic and
irreparable injuries’ to the 26 states who joined together in a lawsuit
again the president’s action.”11 Then on May 26, 2015, by a vote of
two to one, the Fifth Circuit Court of Appeals in New Orleans
sustained Judge Hansen’s decision, saying that the Obama
administration is “unlikely to succeed on the merits of its appeal.”12

During President Trump’s first year in office, he used his executive

powers to undermine and terminate the Deferred Action for
Childhood Arrivals (DACA) program, but on February 27, 2018, a
federal judge in California issued a nationwide injunction that
ordered the Trump Administration to start the program back up
again. In his ruling, Judge William Alsup “asserted that the secretary
of the Department of Homeland Security has long had the authority
to grant the kind of temporary protections that formed the basis of
the program.”13

Likewise, at the state level, when a legislature delegates to the

governor the right to “fill in the details of legislation,” the state
executive uses his or her ordinance-making power, which also
is a type of lawmaking capacity. Political executives may promulgate
orders that, within certain narrow but important realms, constitute the
law of the land. For example, in the wake of the worst drought and
water shortage in modern California history, Gov. Jerry Brown on
April 1, 2015, “in an executive order directed the state Water
Resources Control Board to impose a 25 percent reduction on the
state’s 400 local water supply agencies, which serve 90 percent of
California residents, over the coming year.”14 Although limited and
usually temporary, such orders are law, and violations invoke
penalties.

Judicial Decisions
Civics classes also teach that judges interpret the law. So they do,
but judges make law as they interpret it. And judicial decisions
themselves constitute a body of law in the United States. All the
thousands of court decisions that have been handed down by federal
and state judges for the past two centuries are part of the corpus
juris—the body of law—of the United States.

Judicial decisions may be grounded in or surround a variety of

entities: any of the above-mentioned sources of law, past decisions
of other judges, or legal principles that have evolved over the
centuries. (For example, one cannot bring a lawsuit on behalf of
another person unless that person is one’s minor child or ward.)
Judicial decisions may also be grounded in the common law—that is,
those written (and sometimes unwritten) legal traditions and
principles that have served as the basis of court decisions and
accepted human behavior for many centuries. For instance, if a
couple lives together as husband and wife for a specified period of
years, the common law may be invoked to have their union
recognized as a legal marriage.

Types of Law
After examining the wellsprings of American law, it is appropriate to
take a brief look at the vessels wherein such laws are contained—
that is, to define or explain the formal types of categories of law.
(Note that types of law are not necessarily mutually exclusive.)

Codified (or Code) Law

Unlike the United States, most countries (including most of Europe
and Latin America) refer to themselves as code law countries. A
code is merely a body of laws, but it is one that consists of statutes
enacted by a national parliament. These laws address virtually all
aspects of the body politic; are often detailed; and are arranged in an
orderly, systematic, and comprehensive manner. The U.S. legal
system is often seen from abroad as a hodgepodge of legislative
acts, judicial decisions, unwritten legal traditions, and so on.

Statutory Law and Common Law

Statutory law is the type of law enacted by a legislative body

such as Congress, a state legislature, or a city council, although it
could also include the written orders of various quasi-legislative
bodies. The key is that the enactments be in written form and be
addressed to the needs of society as a whole. Examples of statutory
law would be a congressional act increasing Social Security
payments or a statute passed by a state legislature authorizing the
death penalty for first-degree murder. Statutory law is often
contrasted with the common law, which is a less orderly compilation
of traditions, principles, and legal practices that have been handed
down from one generation of lawyers and judges to the next.
Because much of the common law is not systematically codified and
delineated, as is statutory law, it is sometimes referred to as the
unwritten law. However, this is not entirely accurate. Much of the
common law exists in the form of court decisions and legal
precedents that are in written form. The common law is known for its
flexibility and capacity to change as it evolves in response to the
changing needs and values of society.

Civil Law and Criminal Law

Civil law deals with disagreements between individuals—for

example, a dispute over ownership of private property. It also
pertains to corporations, admiralty matters, and contracts. Criminal
law pertains to offenses against the state itself—actions that may
be directed against a person but that are deemed to be offensive to
society as a whole. Crimes such as drunken driving, armed
robbery, and so on are punishable by fines or imprisonment.

Equity

Equity is best understood when contrasted with law; the primary

difference between the two terms is in the remedy involved. In law,
the only remedy is financial compensation; in equity, a judge is free
to issue a remedy that will either prevent or cure the wrong that is
about to happen. Because in many circumstances monetary
settlements are inappropriate or inadequate, equity allows judges a
degree of flexibility that they would not otherwise have. For example,
say you were the owner of an old cabin located in the center of town
and that this structure was the first built in the community. You wish
to preserve it because of its historic value, but the city decides to
expand the adjacent street and thereby destroy the cabin. Your
remedy at law is to ask the city for monetary compensation, but to
you, this is inadequate. The cabin has little intrinsic value, although
as a historic object it is priceless. Thus, you may wish to ask a judge
to issue a writ in equity that might order the city to move the cabin to
another site or to reconsider its plan to widen the street.

Private Law

Private law deals with the rights and obligations that private
individuals and institutions have when they relate to one another.
Much civil law is in this category because it covers subjects such as
contracts between private persons and corporations and statutes
pertaining to marriage and divorce.

Public Law

Public law addresses the relationship that individuals and

institutions have with the state as a sovereign entity. The
government makes laws in its capacity as the primary political unit to
which all owe allegiance; in turn, the government is obliged to
preserve and protect the citizens who live within its jurisdiction.
Public law also deals with obligations that citizens have to the
government, such as paying taxes or serving in the armed forces, or
it may pertain to services or obligations that the state owes to its
citizenry, such as laws providing for unemployment compensation or
statutes protecting property rights. Criminal law also falls into this
broad category, as do laws that deal with such diverse subjects as
defense, welfare, and taxation. Two subheadings in this category are
administrative law and constitutional law.
Another random document with
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"In that case," Herndon said. "I consider myself in your employ. I'm
ready to leave tonight. As soon as the conditions I state have been
fulfilled to my complete satisfaction, I will submit my body to the
hands of your surgeon."

CHAPTER III
He bound himself over to the surgeon later that afternoon, after
money to the amount of ten thousand, nine hundred thirty golden
stellors had been deposited to his name in the Royal Borlaam Bank
in Galaxy Square, and after he had seen the neuronic mesh that was
embedded in the bodies of Benjin, Oversk, Dorgel, and Razumod.
Greater assurance of good faith than this he could not demand; he
would have to risk the rest.
The surgeon's quarters were farther along the Avenue of Bronze, in
a dilapidated old house that had no doubt been built in Third Empire
days. The surgeon himself was a wiry fellow with a puckered ray-
slash across one cheek and a foreshortened left leg. A retired pirate-
vessel medic, Herndon realized. No one else would perform such an
operation unquestioningly. He hoped the man had skill.
The operation itself took an hour, during which time Herndon was
under total anesthesia. He woke to find the copper operating-dome
lifting off him. He felt no different, even though he knew a network of
metal had been blasted into his body on the submolecular level.
"Well? Is it finished?"
"It is," the surgeon said.
Herndon glanced at Benjin. The little man held a glinting metal object
on his palm. "This is the control, Herndon. Let me demonstrate."
His hand closed, and instantaneously Herndon felt a bright bolt of
pain shiver through the calf of his leg. A twitch of Benjin's finger and
an arrow of red heat lanced Herndon's shoulder. Another twitch and
a clammy hand seemed to squeeze his heart.
"Enough!" Herndon shouted. He realized he had signed away his
liberty forever, if Benjin chose to exert control. But it did not matter to
him. He had actually signed away his liberty the day he had vowed
to watch the death of the Seigneur Krellig.
Benjin reached into his tunic-pocket and drew forth a little leather
portfolio. "Your passport and other travelling necessities," he
explained.
"I have my own passport," Herndon said.
Benjin shook his head. "This is a better one. It comes with a visa to
Vyapore." To the surgeon he said, "How soon can he travel?"
"Tonight, if necessary."
"Good. Herndon, you'll leave tonight."

The ship was the Lord Nathiir, a magnificent super-liner bound on a

thousand light-year cruise to the Rim stars. Benjin had arranged for
Herndon to travel outward on a luxury liner without cost, as part of
the entourage of Lord and Lady Moaris. Oversk had obtained the job
for him—second steward to the noble couple, who were vacationing
on the Rim pleasure-planet of Molleccogg. Herndon had not objected
when he learned that he was to travel in the company of Lord—and
especially Lady—Moaris.
The ship was the greatest of the Borlaam luxury fleet. Even on Deck
C, in his steward's quarters, Herndon rated a full-grav room with
synthik drapery and built-in chromichron; he had never lived so well
even at his parents' home, and they had been among the first people
of Zonnigog at one time.
His duties called for him to pay court upon the nobles each evening,
so that they might seem more resplendent in comparison with the
other aristocrats travelling aboard. The Moarises had brought the
largest entourage with them, over a hundred people including valets,
stewards, cooks, and paid sycophants.
Alone in his room during the hour of blastoff, Herndon studied his
papers. A visa to Vyapore. So that was where the starstones came
from—! Vyapore, the jungle planet of the Rim, where civilization
barely had a toehold. No wonder the starstone trade was so difficult
to control.
When the ship was safely aloft and the stasis generators had caused
the translation into nullspace, Herndon dressed in the formal black-
and-red court garments of Lord Moaris' entourage. Then, making his
way up the broad companionway, he headed for the Grand Ballroom,
where Lord Moaris and his lady were holding court for the first night
of the voyage outward.
The ballroom was festooned with ropes of living light. A dancing bear
from Albireo XII cavorted clumsily near the entrance as Herndon
entered. Borlaamese in uniforms identical to his own stood watch at
the door, and nodded to him when he identified himself as Second
Steward.
He stood for a moment alone at the threshold of the ballroom,
watching the glittering display. The Lord Nathiir was the playground
of the wealthy, and a goodly number of Borlaam's wealthiest were
here, vying with the ranking nobles, the Moarises, for splendor.
Herndon felt a twinge of bitterness. His people were from beyond the
sea, but by rank and preference he belonged in the bright lights of
the ballroom, not standing here in the garment of a steward. He
moved forward.
The noble couple sat on raised thrones at the far end, presiding over
a dancing-area in which the grav had been turned down; the couples
drifted gracefully, like figures out of fable, feet touching the ground
only at intervals.
Herndon recognized Lord Moaris from the auction. A dour, short,
thick-bodied individual he was, resplendent in his court robes, with a
fierce little beard stained bright red after the current fashion. He sat
stiffly upright on his throne, gripping the armrests of the carven chair
as if he were afraid of floating off toward the ceiling. In the air before
him shimmered the barely perceptible haze of a neutralizer field
designed to protect him from the shots of a possible assassin.
By his side sat his Lady, supremely self-possessed and lovely.
Herndon was astonished by her youth. No doubt the nobles had
means of restoring lost freshness to a woman's face, but there was
no way of recreating the youthful bloom so convincingly. The Lady
Moaris could not have been more than twenty-three or twenty-five.
Her husband was several decades older. It was small wonder that he
guarded her so jealously.
She smiled in sweet content at the scene before her. Herndon, too,
smiled—at her beauty, and at the use to which he hoped to put it.
Her skin was soft pink; a wench of the bath Herndon had met
belowdecks had told him she bathed in the cream of the ying-apple
twice daily. Her eyes were wide-set and clear, her nose finely made,
her lips two red arching curves. She wore a dress studded with
emeralds; it flowed from her like light. It was open at the throat,
revealing a firm bosom and strong shoulders. She clutched a
diamond-crusted scepter in one small hand.
Herndon looked around, found a lady of the court who was
unoccupied at the moment, and asked her to dance. They danced
silently, gliding in and out of the grav field; Herndon might have
found it a pleasant experience, but he was not primarily in search of
pleasant experiences now. He was concerned only with attracting
the attention of the Lady Moaris.
He was successful. It took time; but he was by far biggest and most
conspicuous man of the court assembled there, and it was
customary for Lord and Lady to leave their thrones, mingle with their
courtiers, even dance with them. Herndon danced with lady after
lady, until finally he found himself face to face with the Lady Moaris.
"Will you dance with me?" she asked. Her voice was like liquid
gossamer.
Herndon lowered himself in a courtly bow. "I would consider it the
greatest of honors, good Lady."
They danced. She was easy to hold; he sensed her warmness near
him, and he saw something in her eyes—a distant pinched look of
pain, perhaps—that told him all was not well between Lord and Lady.
She said, "I don't recognize you. What's your name?"
"Barr Herndon, milady. Of Zonnigog."
"Zonnigog, indeed! And why have you crossed ten thousand miles of
ocean to our city?"
Herndon smiled and gracefully dipped her through a whirling series
of pirouettes. "To seek fame and fortune, milady. Zonnigog is well
and good to live in, but the place to become known is the City of
Borlaam. For this reason I petitioned the Heitman Oversk to have me
added to the retinue of the Lord Moaris."
"You know Oversk, then? Well?"
"Not at all well. I served him a while; then I asked to move on."
"And so you go, climbing up and over your former masters, until you
scramble up the shoulders of the Lord Moaris to the feet of the
Seigneur. Is that the plan?"
She smiled disarmingly, drawing any possible malice from the words
she had uttered. Herndon nodded, saying in all sincerity, "I confess
this is my aim. Forgive me, though, for saying that there are reasons
that might cause me to remain in the service of the Lord Moaris
longer than I had originally intended."
A flush crossed her face. She understood. In a half-whisper she said.
"You are impertinent. I suppose it comes with good looks and a
strong body."
"Thank you, milady."
"I wasn't complimenting you," she said as the dance came to an end
and the musicians subsided. "I was criticizing. But what does it
matter? Thank you for the dance."
"May I have the pleasure of milady's company once again soon?"
Herndon asked.
"You may—but not too soon." She chuckled. "The Lord Moaris is
highly possessive. He resents it when I dance twice the same
evening with one member of the court."
Sadness darkened Herndon's face a moment. "Very well, then. But I
will go to Viewplate A and stare at the stars a while. If the Lady
seeks a companion, she will find one there."
She stared at him and flurried away without replying. But Herndon
felt a glow of inner satisfaction. The pieces were dropping into place.
The ladder was being constructed. Soon it would bring him to the
throneroom of the Seigneur Krellig. Beyond that he would need no
plans.

Viewplate A, on the uppermost deck of the vast liner, was reserved

for the first-class passengers and the members of their retinues. It
was an enormous room, shrouded at all times in darkness, at one
end of which a viewscreen opened out onto the glory of the heavens.
In nullspace, a hyperbolic section of space was visible at all times,
the stars in weird out-of-focus colors forming a breathtaking display.
Geometry went awry. A blazing panorama illuminated the room.
The first-class viewing-room was also known to be a trysting-place.
There, under cover of darkness, ladies might meet and make love to
cooks, lords to scullery-maids. An enterprising rogue with a nolight
camera might make a fortune taking a quick shot of such a room and
black-mailing his noble victims. But scanners at the door prevented
such devices from entering.
Herndon stood staring at the fiery gold and green of the closest stars
a while, his back to the door, until he heard a feminine voice whisper
to him.
"Barr Herndon?"
He turned. In the darkness it was difficult to tell who spoke; he saw a
girl about the height of the Lady Moaris, but in the dimness of the
illumination of the plate he could see it was not the Lady. This girl's
hair was dull red; the Lady's was golden. And he could see the pale
whiteness of this girl's breasts; the Lady's garment, while revealing,
had been somewhat more modest.
This was a lady of the court, then, perhaps enamoured of Herndon,
perhaps sent by the Lady Moaris as a test or as a messenger.
Herndon said, "I am he. What do you want?"
"I bring a message from—a noble lady," came the answering
whisper.
Smiling in the darkness Herndon said, "What does your mistress
have to say to me?"
"It cannot be spoken. Hold me in a close embrace as if we were
lovers, and I will give you what you need."
Shrugging, Herndon clasped the go-between in his arms with
feigned passion. Their lips met; their bodies pressed tight. Herndon
felt the girl's hand searching for his, and slipping something cool,
metallic into it. Her lips left his, travelled to his ear, and murmured:
"This is her key. Be there in half an hour."
They broke apart. Herndon nodded farewell to her and returned his
attention to the glories of the viewplate. He did not glance at the
object in his hand, but merely stored it in his pocket.
He counted out fifteen minutes in his mind, then left the viewing-
room and emerged on the main deck. The ball was still in progress,
but he learned from a guard on duty that the Lord and Lady Moaris
had already left for sleep, and that the festivities were soon to end.
Herndon slipped into a washroom and examined the key—for key it
was. It was a radionic opener, and imprinted on it were the numbers
1160.
His throat felt suddenly dry. The Lady Moaris was inviting him to her
room for the night—or was this a trap, and would Moaris and his
court be waiting for him, to gun him down and provide themselves
with some amusement? It was not beyond these nobles to arrange
such a thing.
But still—he remembered the clearness of her eyes, and the beauty
of her face. He could not believe she would be party to such a
scheme.
He waited out the remaining fifteen minutes. Then, moving
cautiously along the plush corridors, he found his way to Room 1160.
He listened a moment. Silence from within. His heart pounded
frantically, irking him; this was his first major test, possibly the
gateway to all his hopes, and it irritated him that he felt anxiety.
He touched the tip of the radionic opener to the door. The substance
of the door blurred as the energy barricade that composed it was
temporarily dissolved. Herndon stepped through quickly. Behind him,
the door returned to a state of solidity.
The light of the room was dim. The Lady Moaris awaited him,
wearing a gauzy dressing-gown. She smiled tensely at him; she
seemed ill-at-ease.
"Would I do otherwise?"
"I—wasn't sure. I'm not in the habit of doing things like this."
Herndon repressed a cynical smile. Such innocence was touching,
but highly improbable. He said nothing, and she went on: "I was
caught by your face—something harsh and terrible about it struck
me. I had to send for you, to know you better."
Ironically Herndon said, "I feel honored. I hadn't expected such an
invitation."
"You won't—think it's cheap of me, will you?" she said plaintively. It
was hardly the thing Herndon expected from the lips of the noble
Lady Moaris. But, as he stared at her slim body revealed beneath
the filmy robe, he understood that she might not be so noble after all
once the gaudy pretense was stripped away. He saw her as perhaps
she truly was: a young girl of great loveliness, married to a
domineering nobleman who valued her only for her use in public
display. It might explain this bedchamber summons to a Second
Steward.
He took her hand. "This is the height of my ambitions, milady.
Beyond this room, where can I go?"
But it was empty flattery he spoke. He darkened the room
illumination exultantly. With your conquest, Lady Moaris, he thought,
do I begin the conquest of the Seigneur Krellig!

CHAPTER IV

The voyage to Molleccogg lasted a week, absolute time aboard ship.

After their night together, Herndon had occasion to see the Lady
Moaris only twice more, and on both occasions she averted her eyes
from him, regarding him as if he were not there.
It was understandable. But Herndon held a promise from her that
she would see him again in three months' time, when she returned to
Borlaam; and she had further promised that she would use her
influence with her husband to have Herndon invited to the court of
the Seigneur.
The Lord Nathiir emerged from nullspace without difficulty and was
snared by the landing-field of Molleccogg Spacefield. Through the
viewing-screen on his own deck, Herndon saw the colorful splendor
of the pleasure-planet on which they were about to land, growing
larger now that they were in the final spiral.
But he did not intend to remain long on the world of Molleccogg.
He found the Chief Steward and applied for a leave of absence from
Lord Moaris' service, without pay.
"But you've just joined us," the Steward protested. "And now you
want to leave?"
"Only for a while," Herndon said. "I'll be back on Borlaam before any
of you are. I have business to attend to on another world in the Rim
area, and then I promise to return to Borlaam at my own expense to
rejoin the retinue of the Lord Moaris."
The Chief Steward grumbled and complained, but he could not find
anything particularly objectionable in Herndon's intentions, and so
finally he reluctantly granted the spacerogue permission to leave
Lord Moaris' service temporarily. Herndon packed his court costume
and clad himself in his old spacerogue garb; when the great liner
ultimately put down in Danzibool Harbor on Molleccogg, Herndon
was packed and ready, and he slipped off ship and into the thronged
confusion of the terminal.
Bollar Benjin and Heitman Oversk had instructed him most carefully
on what he was to do now. He pushed his way past a file of vile-
smelling lily-faced green Nnobonn and searched for a ticket-seller's
window. He found one, eventually, and produced the pre-paid travel
vouchers Benjin had given him.
"I want a one-way passage to Vyapore," he said to the flat-featured,
triple-eyed Guzmanno clerk who stared out from back of the wicker
screen.
"You need a visa to get to Vyapore," the clerk said. "These visas are
issued at infrequent intervals to certified personages. I don't see how
you—"
"I have a visa," Herndon snapped, and produced it. The clerk blinked
—one-two-three, in sequence—and his pale rose face flushed deep
cerise.
"So you do," he remarked at length. "It seems to be in order.
Passage will cost you eleven hundred sixty-five stellors of the
realm."
"I'll take a third-class ship," Herndon said. "I have a paid voucher for
such a voyage."
He handed it across. The clerk studied it for a long moment, then
said: "You have planned this very well. I accept the voucher. Here."
Herndon found himself holding one paid passage to Vyapore aboard
the freight-ship Zalasar.
The Zalasar turned out to be very little like the Lord Nathiir. It was an
old-fashioned unitube ship that rattled when it blasted off, shivered
when it translated to nullspace, and quivered all the week-long
journey from Molleccogg to Vyapore. It was indeed a third-class ship.
Its cargo was hardware: seventy-five thousand dry-strainers, eighty
thousand pressors, sixty thousand multiple fuse-screens, guarded by
a supercargo team of eight taciturn Ludvuri. Herndon was the only
human aboard. Humans did not often get visas to Vyapore.
They reached Vyapore seven days and a half after setting out from
Molleccogg. Ground temperature as they disembarked was well over
a hundred. Humidity was overpowering. Herndon knew about
Vyapore: it held perhaps five hundred humans, one spaceport,
infinite varieties of deadly local life, and several thousand non-
humans of all descriptions, some of them hiding, some of them doing
business, some of them searching for starstones.
Herndon had been well briefed. He knew who his contact was, and
he set about meeting him.

There was only one settled city on Vyapore, and because it was the
only one it was nameless. Herndon found a room in a cheap
boarding-house run by a swine-eared Dombruun, and washed the
sweat from his face with the unpleasantly acrid water of the tap.
Then he went downstairs into the bright noonday heat. The stench of
rotting vegetation drifted in from the surrounding jungle on a faint
breeze. Herndon said at the desk, "I'm looking for a Vonnimooro
named Mardlin. Is he around?"
"Over there," said the proprietor, pointing.
Mardlin the Vonnimooro was a small, weaselly-looking creature with
the protuberant snout, untrustworthy yellow eyes, and pebbly brown-
purple fur of his people. He looked up when Herndon approached.
When he spoke, it was in lingua spacia with a whistling, almost
obscene inflection.
"You looking for me?"
"It depends," Herndon said. "Are you Mardlin?"
The jackal-creature nodded. Herndon lowered himself to a nearby
seat and said in a quiet voice, "Bollar Benjin sent me to meet you.
Here are my credentials."
He tossed a milky-white clouded cube on the table between them.
Mardlin snatched it up hastily in his leathery claws and nudged the
activator. An image of Bollar Benjin appeared in the cloudy depths,
and a soft voice said, "Benjin speaking. The bearer of this cube is
known to me, and I trust him fully in all matters. You are to do the
same. He will accompany you to Borlaam with the consignment of
goods."
The voice died away and the image of Benjin vanished. The jackal
scowled. He muttered, "If Benjin sent a man to convey his goods,
why must I go?"
Herndon shrugged. "He wants both of us to make the trip, it seems.
What do you care? You're getting paid, aren't you?"
"And so are you," snapped Mardlin. "It isn't like Benjin to pay two
men to do the same job. And I don't like you, Rogue."
"Mutual," Herndon responded heartily. He stood up. "My orders say
I'm to take the freighter Dawnlight back to Borlaam tomorrow
evening. I'll meet you here one hour before to examine the
merchandise."

He made one other stop that day. It was a visit with Brennt, a
jewelmonger of Vyapore who served as the funnel between the
native starstone-miners and Benjin's courier, Mardlin.
Herndon gave his identifying cube to Brennt and said, once he had
satisfactorily proven himself, "I'd like to check your books on the last
consignment."
Brennt glanced up sharply. "We keep no books on starstones, idiot.
What do you want to know?"
Herndon frowned. "We suspect our courier of diverting some of our
stones to his own pocket. We have no way of checking up on him,
since we can't ask for vouchers of any kind in starstone traffic."
The Vyaporan shrugged. "All couriers steal."
"Starstones cost us eight thousand stellors apiece," Herndon said.
"We can't afford to lose any of them, at that price. Tell me how many
are being sent in the current shipment."
"I don't remember," Brennt said.
Scowling, Herndon said, "You and Mardlin are probably in league.
We have to take his word for what he brings us—but always, three or
four of the stones are defective. We believe he buys, say, forty
stones from you, pays the three hundred twenty thousand stellors
over to you from the account we provide, and then takes three or
four from the batch and replaces them with identical but defective
stones worth a hundred stellors or so apiece. The profit to him is
better than twenty thousand stellors a voyage.
"Or else," Herndon went on, "You deliberately sell him defective
stones at eight thousand stellors. But Mardlin's no fool, and neither
are we."
"What do you want to know?" the Vyaporan asked.
"How many functional starstones are included in the current
consignment?"
Sweat poured down Brennt's face. "Thirty-nine," he said after a long
pause.
"And did you also supply Mardlin with some blanks to substitute for
any of these thirty-nine?"
"N-no," Brennt said.
"Very good," said Herndon. He smiled. "I'm sorry to have seemed so
overbearing, but we had to find out this information. Will you accept
my apologies and shake?"
He held out his hand. Brennt eyed it uncertainly, then took it. With a
quick inward twitch Herndon jabbed a needle into the base of the
other's thumb. The quick-acting truth-drug took only seconds to
operate.
"Now," Herndon said, "the preliminaries are over. You understand the
details of our earlier conversation. Tell me, now: how many
starstones is Mardlin paying you for?"
Brennt's fleshless lips curled angrily, but he was defenseless against
the drug. "Thirty-nine," he said.
"At what total cost?"
"Three hundred twelve thousand stellors."
Herndon nodded. "How many of those thirty-nine are actually
functional starstones?"
"Thirty-five," Brennt said reluctantly.
"The other four are duds?"
"Yes."
"A sweet little racket. Did you supply Mardlin with the duds?"
"Yes. At two hundred stellors each."
"And what happens to the genuine stones that we pay for but that
never arrive on Borlaam?"
Brennt's eyes rolled despairingly. "Mardlin—Mardlin sells them to
someone else and pockets the money. I get five hundred stellors per
stone for keeping quiet."
"You've kept very quiet today," Herndon said. "Thanks very much for
the information, Brennt. I really should kill you—but you're much too
valuable to us for that. We'll let you live, but we're changing the
terms of our agreement. From now on we pay you only for actual
functioning starstones, not for an entire consignment. Do you like
that setup?"
"No," Brennt said.
"At least you speak truthfully now. But you're stuck with it. Mardlin is
no longer courier, by the way. We can't afford a man of his tastes in
our organization. I don't advise you try to make any deals with his
successor, whoever he is."
He turned and walked out of the shop.

Herndon knew that Brennt would probably notify Mardlin that the
game was up immediately, so the Vonnimooro could attempt to get
away. Herndon was not particularly worried about Mardlin escaping,
since he had a weapon that would work on the jackal-creature at any
distance whatever.
But he had sworn an oath to safeguard the combine's interests, and
Herndon was a man of his oath. Mardlin was in possession of thirty-
nine starstones for which the combine had paid. He did not want the
Vonnimooro to take those with him.
He legged it across town hurriedly to the house where the courier
lived while at the Vyapore end of his route. It took him fifteen minutes
from Brennt's to Mardlin's—more than enough time for a warning.
Mardlin's room was on the second story. Herndon drew his weapon
from his pocket and knocked.
"Mardlin?"
There was no answer. Herndon said, "I know you're in there, jackal.
The game's all over. You might as well open the door and let me in."
A needle came whistling through the door, embedded itself against
the opposite wall after missing Herndon's head by inches. Herndon
stepped out of range and glanced down at the object in his hand.
It was the master-control for the neuronic network installed in
Mardlin's body. It was quite carefully gradated; shifting the main
switch to six would leave the Vonnimooro in no condition to fire a
gun. Thoughtfully Herndon nudged the indicator up through the
degrees of pain to six and left it there.
He heard a thud within.
Putting his shoulder to the door, he cracked it open with one quick
heave. He stepped inside. Mardlin lay sprawled in the middle of the
floor, writhing in pain. Near him, but beyond his reach, lay the
needler he had dropped.
A suitcase sat open and half-filled on the bed. He had evidently
intended an immediate getaway.
"Shut ... that ... thing ... off ..." Mardlin muttered through pain-twisted
lips.
"First some information," Herndon said cheerfully. "I just had a talk
with Brennt. He says you've been doing some highly improper things
with our starstones. Is this true?"
Mardlin quivered on the floor but said nothing. Herndon raised the
control a quarter of a notch, intensifying the pain but not yet bringing
it to the killing range.
"Is this true?" he repeated.
"Yes—yes! Damn you, shut it off."
"At the time you had the network installed in your body, it was with
the understanding that you'd be loyal to the combine and so it would
never need to be used. But you took advantage of circumstances
and cheated us. Where's the current consignment of stones?"
"... suitcase lining," Mardlin muttered.
"Good," Herndon said. He scooped up the needler, pocketed it, and
shut off the master-control switch. The pain subsided in the
Vonnimooro's body, and he lay slumped, exhausted, too battered to
rise.
Efficiently Herndon ripped away the suitcase lining and found the
packet of starstones. He opened it. They were wrapped in shielding
tissue that protected any accidental viewer. He counted through
them; there were thirty-nine, as Brennt had said.
"Are any of these defective?" he asked.
Mardlin looked up from the floor with eyes yellow with pain and
hatred. "Look through them and see."
Instead of answering, Herndon shifted the control switch past six
again. Mardlin doubled up, clutching his head with clawlike hands.
"Yes! Yes! Six defectives!"
"Which means you sold six good ones for forty-eight thousand
stellors, less the three thousand you kicked back to Brennt to keep
quiet. So there should be forty-five thousand stellors here that you
owe us. Where are they?"
"Dresser drawer ... top...."
Herndon found the money, neatly stacked. A second time he shut off
the control device, and Mardlin relaxed.
"Okay," Herndon said. "I have the cash and I have the stones. But
there must be thousands of stellors that you've previously stolen
from us."
"You can have that too! Only don't turn that thing on again, please!"
Shrugging, Herndon said, "There isn't time for me to hunt down the
other money you stole from us. But we can ensure against your
doing it again."
He fulfilled the final part of Benjin's instructions by turning the control
switch to ten, the limit of sentient endurance. Every molecule of
Mardlin's wiry body felt unbearable pain; he screamed and danced
on the floor, but only for a moment. Nerve cells unable to handle the
overload of pain stimuli short-circuited. In seconds, his brain was
paralyzed. In less than a minute he was dead, though his tortured
limbs still quivered with convulsive post-mortuary jerks.
Herndon shut the device off. He had done his job. He felt neither
revulsion nor glee. All this was merely the preamble to what he
regarded as his ultimate destiny.
He gathered up jewels and money and walked out.
 CHAPTER V
A month later, he arrived on Borlaam via the freighter Dawnlight, as
scheduled, and passed through customs without difficulty despite the
fact that he was concealing more than three hundred thousand
stellors' worth of proscribed starstones on his person.
His first stop was the Avenue of Bronze, where he sought out Benjin
and the Heitman Oversk.
He explained crisply and briefly his activities since leaving Borlaam,
neglecting to mention the matter of the shipboard romance with the
Lady Moaris. While he spoke, both Benjin and Oversk stared eagerly
at him, and when he told of intimidating Brennt and killing the
treacherous Mardlin they beamed.
Herndon drew the packet of starstones from his cloak and laid them
on the wooden table. "There," he said. "The starstones. There were
some defectives, as you know, and I've brought back cash for them."
He added forty-five thousand stellors to the pile.
Benjin quickly caught up the money and the stones and said, "You've
done well, Herndon. Better than we expected. It was a lucky day
when you killed that proteus."
"Will you have more work for me?"
Oversk said, "Of course. You'll take Mardlin's place as the courier.
Didn't you realize that?"
Herndon had realized it, but it did not please him. He wanted to
remain on Borlaam, now that he had made himself known to the
Lady Moaris. He wanted to begin his climb toward Krellig. And if he
were to shuttle between Vyapore and Borlaam, the all-important
advantage he had attained would be lost.
But the Lady Moaris would not be back on Borlaam for nearly two
months. He could make one more round-trip for the combine without
seriously endangering his position. After that, he would have to find
some means of leaving their service. Of course, if they preferred to
keep him on they could compel him, but—
"When do I make the next trip?" he asked.
Benjin shrugged lazily. "Tomorrow, next week, next month—who
knows? We have plenty of stones on hand. There is no hurry for the
next trip. You can take a vacation now, while we sell these."
"No," Herndon said. "I want to leave immediately."
Oversk frowned at him. "Is there some reason for the urgency?"
"I don't want to stay on Borlaam just now," Herndon said. "There's no
need for me to explain further. It pleases me to make another trip to
Vyapore."
"He's eager," Benjin said. "It's a good sign."
"Mardlin was eager at first too," Oversk remarked balefully.
Herndon was out of his seat and at the nobleman's throat in an
instant. His needler grazed the skin of Oversk's adam's-apple.
"If you intend by that comparison to imply—"
Benjin tugged at Herndon's arm, "Sit down, rogue, and relax. The
Heitman is tired tonight, and the words slipped out. We trust you. Put
the needler away."
Reluctantly Herndon lowered the weapon. Oversk, white-faced
despite his tan, fingered his throat where Herndon's weapon had
touched it, but said nothing. Herndon regretted his hasty action, and
decided not to demand an apology. Oversk still could be useful to
him.
"A spacerogue's word is his bond," Herndon said. "I don't intend to
cheat you. When can I leave?"
"Tomorrow, if you wish," Benjin said. "We'll cable Brennt to have
another shipment ready for you."

This time he travelled to Vyapore aboard a transport freighter, since

there were no free tours with noblemen to be had at this season. He
reached the jungle world a little less than a month later. Brennt had
thirty-two jewels waiting for him. Thirty-two glittering little starstones,
each in its protective sheath, each longing to rob some man's mind
away with its beckoning dreams.
Herndon gathered them up and arranged a transfer of funds to the
amount of two hundred fifty-six thousand stellors. Brennt eyed him
bitterly throughout the whole transaction, but it was obvious that the
Vyaporan was in fear for his life, and would not dare attempt
duplicity. No word was said of Mardlin or his fate.
Bearing his precious burden, Herndon returned to Borlaam aboard a
second-class liner out of Diirhav, a neighboring world of some
considerable population. It was expensive, but he could not wait for
the next freight ship. By the time he returned to Borlaam the Lady
Moaris would have been back several weeks. He had promised the
Steward he would rejoin Moaris' service, and it was a promise he
intended to keep.
It had become winter when he reached Borlaam again with his
jewels. The daily sleet-rains sliced across the cities and the plains,
showering them with billions of icy knife-like particles. People
huddled together, waiting for the wintry cold to end.
Herndon made his way through streets clogged with snow that
glistened blue-white in the light of the glinting winter moon, and
delivered his gems to Oversk in the Avenue of Bronze. Benjin, he
learned, would be back shortly; he was engaged in an important
transaction.
Herndon warmed himself by the heat-wall and accepted cup after
cup of Oversk's costly Thrucian blue wine to ease his inner chill. The
commoner Dorgel entered after a while, followed by Marya and
Razumod, and together they examined the new shipment of
starstones Herndon had brought back, storing them with the rest of
their stock.
At length Benjin entered. The little man was almost numb with cold,
but his voice was warm as he said, "The deal is settled, Oversk! Oh
—Herndon—you're back, I see. Was it a good trip?"