2d 266 [1972], the Supreme Court held that a public university may deny campus access to ACADEMIC FREEDOM 49... The Supreme Court ruled in Hazelwood School District v.. The Court also he
Trang 1S Ct 568, 50 L Ed 2d 471 [1977]) This precedent seemed to give school authorities ample means to elude LIABILITYfor unconstitu-tional terminations However, neither of the principles helped City University of New York (CUNY) when it was sued by the chair of its black studies department
Professor Leonard Jeffries specialized in black studies and the history of Africa, and his teaching style at CUNY was controversial Some students felt that Jeffries discouraged classroom debate, whereas others applauded him for verbalizing the frustrations of many African Americans Jeffries referred to Europeans as “ice people” and
as “egotistic, individualistic, and exploitative.”
Africans, by contrast, were“sun people” who had
“humanistic, spiritualistic value system[s].”
On July 20, 1991, Jeffries spoke at the Empire State Black Arts and Cultural Festival, in Albany, New York In his speech, he assailed perceived Jewish power, asserting that Jews controlled CUNY and Hollywood and had financed the American slave trade The speech attracted national attention and placed CUNY
on the horns of a dilemma: Either it could punish Jeffries and risk running afoul of the First Amendment and academic freedom prin-ciples, or it could do nothing and risk losing expected income from offended school bene-factors For several months, the university wrestled with the problem Then, in October, the board of trustees voted, without explana-tion, to limit Jeffries’s current appointment as chair to one year instead of the customary three
On March 23, 1992, the CUNY Board of Trustees appointed Professor Edmund Gordon
to the position of black studies chair Jeffries filed suit in federal court on June 5, 1992
Jeffries argued that the defendants violated his First Amendment free speech rights and his
FOURTEENTH AMENDMENTdue process rights when they denied him a full three-year term as chair
of black studies The jury agreed with Jeffries that a substantial motivating factor in his dismissal was his speech in Albany The jury did find, however, that CUNY had reasonably expected the speech to have a detrimental effect
on the school Despite this seemingly justifiable excuse for the school’s action, the jury finally found that CUNY had deprived Jeffries of property (the position of chair) without DUE PROCESS OF LAW The district court judge held that Jeffries’s First Amendment rights had been
violated, and in August 1993 reduced Jeffries’s recovery in damages by $40,000 but awarded him the black studies chair (Jeffries v Harleston,
828 F Supp 1066[S.D.N.Y., 1993])
remanded the case to the Second Circuit with instructions to consider the Court’s RULING in Waters v Churchill (511 U S 661 [1994]) The
CIRCUIT COURT reversed and remanded the case
to the district court The FINAL DECISION con-cluded that Jeffries’s occupation did not afford him“greater protection from state interference with his speech than did the nurse in Waters.”
By taking away Jeffries’s position as chair of the department, the university did not infringe on his ability to speak publicly or to teach in his own style, both of which could have been violations of his First Amendment rights (Jeffries
v Harleston, 52 F 3d 9 [2d Cir 1995]) The Supreme Court has decided several cases that identified more precisely how much control school authorities may exercise over education The Court held in Board of Ed., Island Trees Union Free School Dist No 26 v Pico (457 U.S 853, 102 S Ct 2799, 73 L Ed 2d
435 [1982]), that a school board can control curriculum and book selection, but it may not remove “objectionable” books from public school libraries solely in response to community pressure Among the books that the Island Trees Union Free School District No 26 in New York had banned in the mid-1970s were Slaughter-house Five, by Kurt Vonnegut Jr.; Black Boy,
by Richard Wright; Naked Ape, by Desmond Morris; and The Fixer, by Bernard Malamud School boards and state legislatures generally control public school curriculums, but their control is not complete For instance, a state statute will be struck down if it requires public schools to also teach creationism if they teach evolution and vice versa According to the Court
in Edwards v Aguillard (482 U.S 578, 107 S Ct
2573, 96 L Ed 2d 510[1987]), such a law un-dermines a comprehensive scientific education and impermissibly endorsesRELIGION by advanc-ing the religious belief that a supernatural power created human beings
State legislatures have accommodated court rulings by drafting legislative language intended
to create academic latitude without violating
CONSTITUTIONAL rights In July 2008 Louisiana governor Bobby Jindal signed into law the Louisiana Science Education Act, S.B 733,
48 ACADEMIC FREEDOM
Trang 2which (according to the act’s preamble)
pur-ported to “promote students’ critical thinking
skills and open discussion of scientific theories”
in Louisiana classrooms Section §285(B)(1) of
the act states:
The State Board of Elementary and
Second-ary Education, upon request of a city, parish,
or other local public school board, shall
allow and assist teachers, principals, and
other school administrators to create and
foster an environment within public
elemen-tary and secondary schools that promotes
critical thinking skills, logical analysis, and
open and objective discussion of scientific
theories being studied including, but not
limited to, evolution, the origins of life,
global warming, and human cloning
Section §285(C) provides that after teaching
the material contained in a standard textbook
supplied by the school system, a teacher may
use supplemental textbooks and other
instruc-tional materials “to help students understand,
analyze, critique, and review scientific theories
in an objective manner.”
Section §285(D) expressly states:“This
Sec-tion shall not be construed to promote any
religious doctrine, promote DISCRIMINATION for
or against a particular set of religious beliefs, or
promote discrimination for or against religion
or non-religion.”
The Louisiana Science Education Act was
one of several similar bills introduced in state
legislatures in 2008 and 2009, including those in
Alabama (HB 300), Florida, Iowa (HF 183),
Michigan, Missouri (HB 656), New Mexico (SB
433), Oklahoma (SB 320), South Carolina, and
Texas (HB 224) Only Louisiana’s was enacted
in 2008 (Oklahoma’s bill, the language of
which closely paralleled that of Louisiana, was
narrowly defeated by a 7-6 vote in the state’s
Senate Education Committee in early 2009.)
The question regarding whether the federal
government can deny grants or funds to
educational institutions which speak out against
federal policies was the issue before the courts
in Rumsfeld v F.A.I.R (Forum for Academic and
Institutional Rights, Inc.) (547 U.S 47, 126 S Ct
1297[2006]) Congress had passed theSOLOMON
requires the U.S.DEPARTMENT OF DEFENSE(DOD)
to deny federal funding to institutions of higher
education that prohibitACCESSto the institution
for military representatives and/or deny or
impede assistance for recruiting purposes
The conflict arose over military policies regarding homosexuality Since at least WORLD WAR I, the U.S military maintained a policy of excluding service members based on evidence of homosexual conduct or orientation (10 U.S.C
654) Unlike the military, many graduate schools (and law schools in particular) have, over the years, maintained formal policies expressly tolerant of expanded personal factors such as sexual orientation Of particular import
in this case was the prevalence of law school policies that withheld career services/career placement services from prospective employers who discriminated on the grounds of sexual orientation as well as the more traditional protected categories such as race, gender, religion
In F.A.I.R v Rumsfeld, No 03-4433 (3d Circuit Court of Appeals, 2004) the two conflicting policies over homosexuality faced-off in court, when a coalition of law schools and law faculty calling itself the Forum for Academic and Institutional Rights (F.A.I.R.) filed PETITION forPRELIMINARY INJUNCTION in the U.S District Court for the District of New Jersey
to enjoin enforcement of the Solomon Amend-ment The Third Circuit Court of Appeals granted injunction against enforcement of the Solomon Amendment, holding that the law violated schools’ First Amendment rights
of expressive association, and forcing them to engage in the expressive act of recruiting It reasoned that Congress could not require the
FORFEITURE of a constitutional right as the basis for receiving federal funds But the U.S Supreme Court unanimously reversed, holding that the government could deny funds to schools that did not permit recruitment; indeed, said the Court, through the U.S Constitution’s “raise and support Armies” clause (Article I, Section 8), Congress could go so far as to force schools
to allow recruiting without even threatening the withholding of funds The Court continued that the Solomon Amendment neither denied the institutions the right to speak nor required them to say anything
Though the concept of academic freedom has traditionally been applied only to teachers, it has affected lower-court opinions involving the rights of students Several Supreme Court cases are cited in support of such rights In Healy v
James (408 U.S 169, 92 S Ct 2338, 33 L Ed 2d
266 [1972]), the Supreme Court held that a public university may deny campus access to
ACADEMIC FREEDOM 49
Trang 3provably disruptive groups, but it may not deny access based on the views the students wish to express The Supreme Court ruled in Hazelwood School District v Kuhlmeier (484 U.S 260, 108
S Ct 562, 98 L Ed 2d 592[1988]) that a public school may censor the content of a student newspaper if the newspaper is not an entirely public forum and the reason for CENSURE is related to a legitimate educational concern In Board of Education of Westside Community Schools (Dist 66) v Mergens (496 U.S 226,
110 S Ct 2356, 110 L Ed 2d 191[1990]), the Court approved the establishment of a Christian student group in a public school The Court also held in Mergens that a school’s refusal to permit a religious student group to meet at school and use its facilities violates the federal Equal Access Act (Education for Economic Security Act § 802, 20 U.S.C.A § 4071 et seq
[1984]) if the school provides such access to other extracurricular student groups And in Morse v Frederick (551 U.S 393 [2007]), the Supreme Court held that a student’s free speech rights were not violated when he was suspended for displaying a “Bong Hits 4 Jesus” banner during a school authorized event The Court distinguished the constitutional rights of stu-dents in public schools from adults in other settings, finding that students’ rights could be delineated“in light of the special characteristics
of the school environment.”
FURTHER READINGS
“Act No 473 (Senate Bill No 733).” Text available online at http://www.legis.state.la.us/billdata/streamdocument.asp?
did=503483; website home page: http://www.legis.state.
la.us (accessed July 10, 2009).
DeGeorge, Richard T 1997 Academic Freedom and Tenure: Ethical Issues Lanham, Md.: Rowman &
Littlefield.
Finkin, Matthew W., and Robert C Post 2009 For the Common Good: Principles of American Academic Freedom New Haven, Conn.: Yale Univ Press.
Hamilton, Neil W 2002 Academic Ethics: Problems and Materials on Professional Conduct and Shared Gover-nance Westport, Conn.: Praeger.
Hiers, Richard H 2002 “Institutional Academic Freedom
vs Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy ” Journal of College and Univ Law 29 (October): 35-109.
Rahdert, Mark C July 2007 “The Roberts Court and Academic Freedom ” Chronicle of Higher Education 53.
CROSS REFERENCES Censorship; Douglas, William Orville; First Amendment;
Frankfurter, Felix; Freedom of Speech; Loyalty Oath;
Religion; Schools and School Districts; Tenure; Warren, Earl
ACADEMIC YEAR That period of time necessary to complete an actual course of study during a school year
SOCIAL SECURITYbenefits may terminate at the end of an ACADEMIC YEAR, or a deferment from compulsory military service may continue only during an academic year
ACADEMY OF CRIMINAL JUSTICE SCIENCES
The Academy of Criminal Justice Sciences (ACJS) was founded in 1963 to foster professionalism in the criminal justice system by advancing the quality of education and research programs in the field The academy seeks to enrich education and research programs in institutions of higher learning, criminal justice agencies, and agencies
in related fields by improving cooperation and communication, by serving as a clearinghouse for the collection and dissemination of information produced by the programs, and by promoting the highest ethical and personal standards in criminal justice research and education To that end, the ACJS created an ad hoc committee in 1995 to adopt minimum standards for the improvement
of quality in criminal justice higher education The standards, reprinted in 2001, have been widely utilized in the curricular development of associate, undergraduate and graduate degree programs The academy alsoPRESENTSnumerous awards for outstanding contributions by indivi-duals in the field The members of the academy are individual teachers, administrators, research-ers, students, and practitioners
The academy publishes the Journal of Crimi-nal Justice quarterly and a directory annually It holds annual meetings in March
FURTHER READINGS Academy of Criminal Justice Sciences Web site Available online at http://www.acjs.org (accessed July 2, 2009).
“J Journal: New Writing on Justice” New York: John Jay College of Criminal Justice Available online at http:// www.conference2004.jjay.cuny.edu/jjournal/index.asp; website home page: http://www.conference2004.jjay cuny.edu/ (accessed August 28, 2009).
ACCEDE
To consent or to agree, as to accede to another’s point of view To enter an office or to accept a position, as to accede to the presidency
ACCELERATION
A hastening; a shortening of the time until some event takes place
50 ACADEMIC YEAR
Trang 4A person who has the right to take
possession of property at some future time
may have that right accelerated if the present
holder loses his or her LEGAL RIGHT to the
property If aLIFE ESTATEfails for any reason, the
remainder is accelerated
The principle of acceleration can be applied
when it becomes clear that one party to a
contract is not going to perform his or her
obligations ANTICIPATORY REPUDIATION, or the
possibility of future breach, makes it possible
to move the right to remedies back to the time
of repudiation rather than to wait for the time
when performance would be due and an actual
breach would occur
ACCELERATION CLAUSE
The provision in a credit agreement, such as a
mortgage, note, bond, or deed of trust, that allows
the lender to require immediate payment of all
money due if certain conditions occur before the
time that payment would otherwise be due
The agreement may call for ACCELERATION
whenever there is a default of any important
obligation, such as nonpayment of principal or
interest, or the failure to pay insurance premiums
ACCEPTANCE
An express act or implication by conduct that
manifests assent to the terms of an offer in a manner
invited or required by the offer so that a binding
contract is formed The exercise of power conferred
by an offer by performance of some act The act of a
person to whom something is offered or tendered by
another, whereby the offeree demonstrates through
an act invited by the offer an intention of retaining
the subject of the offer
In the law of contracts, acceptance is one
person’s compliance with the terms of an offer
made by another Acceptance occurs in the law
of insurance when an insurer agrees to receive a
person’s application for insurance and to issue a
policy protecting the person against certain
risks, such as fire orTHEFT When a person who
is offered a gift by someone keeps the gift, this
indicates his or her acceptance of it
Acceptance also occurs when a bank pays a
check written by a customer who has a checking
account with that bank
In business dealings between merchants,
which is governed by the law of sales, a buyer
demonstrates his or her acceptance of goods that
are not exactly what he or she had ordered from
the seller by telling the seller that he or she will keep the goods even though they are not what was ordered; by failing to reject the goods; or by doing something to the goods inconsistent with the seller’s ownership of them, such as selling the goods to consumers of the buyer’s store
Types of Acceptance
An acceptance may be conditional, express, or implied
Conditional Acceptance A conditional accep-tance, sometimes called aQUALIFIED ACCEPTANCE, occurs when a person to whom an offer has been made tells the offeror that he or she is willing to agree to the offer provided that some changes are made in its terms or that some condition or event occurs This type of accep-tance operates as aCOUNTEROFFER A counteroffer must be accepted by the original offeror before a contract can be established between the parties
Another type of conditional acceptance occurs when a drawee promises to pay a draft upon the fulfillment of a condition, such as a shipment of goods reaching its destination on the date specified in the contract
Express Acceptance An express acceptance occurs when a person clearly and explicitly agrees to an offer or agrees to pay a draft that is presented for payment
Implied Acceptance An implied acceptance is one that is not directly stated but is demon-strated by any acts indicating a person’s assent
to the proposed bargain An implied acceptance occurs when a shopper selects an item in a supermarket and pays the cashier for it The shopper’s conduct indicates that he or she has agreed to the supermarket owner’s offer to sell the item for the price stated on it
FURTHER READINGS Chirelstein, Marvin A 2006 Concepts and Case Analysis in the Law of Contracts 5th ed Eagan, MN: West.
Perillo, Joseph M 2009 Calamari and Perillo’s Hornbook on Contracts 6th ed Eagan, MN: West.
“Silence as Acceptance in Contracts Lawyers.” 2009.
LegalMatch Website Available online at http://www.
legalmatch.com/law-library/article/silence-as-acceptance-in-contracts.html; website home page: http://www.
legalmatch.com (accessed August 28, 2009).
ACCESS Freedom of approach or communication; or the means, power, or opportunity of approaching,
ACCESS 51
Trang 5communicating, or passing to and from Sometimes importing the occurrence of sexual intercourse;
otherwise as importing opportunity of communica-tion for that purpose as betweenHUSBAND AND WIFE
In real property law, the term access denotes the right vested in the owner of the land that adjoins a road or other highway to go and return from his own land to the highway without
A sample acceleration
clause
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
FOR VALUE RECEIVED, WE, THE UNDERSIGNED, jointly and severally promise to pay, in lawful money of the United States of America,
to the order of at , ( ) Dollars in installments as follows:
_ on _ , and _ successive payments
of beginning on _ together with a delinquency charge on each installment in default for _ days in an amount equal to _ percent of such installment but not less than $ _
In the event of default in the payment of any of the said installments or said interest when due as herein provided, time being of the essence hereof, the holder of this note may, without notice or demand, declare the entire principal sum then unpaid immediately due and payable.
The holder of this note may, with or without notice to any of us, cause additional parties to be added hereto, or release any party hereto,
or revise, extend, or renew the note, or extend the time for making any installment provided for herein, or accept any installment in advance, all without affecting the liability of us, or any of us, hereon.
If suit be commenced on said note, the parties hereto jointly and severally agree to pay to the holder of said note a reasonable attorney fee.
The borrower agrees to pay a reasonable collection charge should collection be referred to a collection agency or to the payee`s collection facilities.
The parties hereto, jointly and severally, hereby waive presentment, demand, protest, notice of dishonor and/or protest and notice of nonpayment; the right, if any, to the benefit of, or to direct the application of, any security hypothecated to the holder until all indebtedness
of the borrower to the holder shall have been paid; the right to require the holder to proceed against the borrower, or to pursue any other remedy in the holder's power; and agree that the holder may proceed against us directly and independently of the borrower, and that the cessation of liability of the borrower for any reason, other than full payment, or any revision, renewal, extension, forebearance, change of rate of interest, or acceptance, release or substitution of security, or any impairment or suspension of the holder's remedies or rights against the borrower, shall not in anywise affect the liability of any of the parties hereto.
The parties hereto hereby authorize to date this note as of the day when the loan evidenced hereby is made and to complete this note in any other particular according to the terms of the said loan.
It is agreed that if the parties hereto, or any of them at any time fail in business or become insolvent, or commit an act of bankruptcy, or
if any deposit account or other property of the parties hereto, or any of them, be attempted to be obtained or held by writ of execution, garnishment, attachment, or other legal process, or if any assessment for taxes against the parties hereto, or any of them, other than taxes
on real property, is made by the federal or state government, or any department thereof, or if the parties hereto fail to notify you of any material change in their financial condition, then, and in such case all of the obligations of the parties hereto to you, or held by you, shall at your option immediately become due and payable without demand or notice.
Signatures Address _
Borrower
_
Co-Maker
Acceleration Clause
PROMISSORY NOTE INSTALLMENT - WITH ACCELERATION CLAUSE
[amount]
[payee]
[number]
[city, state, date]
52 ACCESS
Trang 6obstruction Access to property does not necessarily
carry with it possession
For purposes of establishing element of access
by defendant in COPYRIGHT infringement action,
access is ordinarily defined as opportunity to copy
Prisoners are entitled to have access to
court PRISONofficials cannot prevent prisoners
from filing papers or appearing in court even
if they honestly think that such prevention
would help them maintain discipline and good
order
Owners of real property are entitled to some
means of access to their property from a road or
highway They do not necessarily need to own a
corridor of land from their property to the nearest
road, but they may claim an easement of access
opportunity to have had sexual relations When
there is a question about who is the father of a
certain child, it is appropriate for a court to
determine which man had access to the mother
around the estimated time of conception A
man charged with being the father of an
illegitimate child may plead the defense of
multiple access—that the mother had several
lovers at the time of conception
ACCESSION
Coming into possession of a right or office;
increase; augmentation; addition
The right to all that one's own property
produces, whether that property be movable or
immovable; and the right to that which is united
to it by accession, either naturally or artificially
The right to own things that become a part of
something already owned
A principle derived from theCIVIL LAW, by which
the owner of property becomes entitled to all that it
produces, and to all that is added or united to it,
either naturally or artificially (that is, by the labor or
skill of another) even where such addition extends to
a change of form or materials; and by which, on the
other hand, the possessor of property becomes
entitled to it, as against the original owner, where
the addition made to it by skill and labor is of greater
value than the property itself, or where the change
effected in its form is so great as to render it
impossible to restore it to its original shape
Generally, accession signifies acquisition of
title toPERSONAL PROPERTYby bestowing labor on it
that converts it into an entirely different thing or
by incorporation of property into a union with other property
The commencement or inauguration of a sovereign’s reign
For example, a person who owns property along a river also takes ownership of any additional land that builds up along the riverbank
This right may extend to additions that result from the work or skill of another person The buyer of a car who fails to make scheduled payments cannot get back his new spark plugs after the car is repossessed because they have become a part of the whole car The principle of accession does not necessarily apply, however, where the addition has substantially improved the value and changed the character of the property,
as when by mistake someone else’s grapes were made into wine or someone else’s clay made into bricks In such cases, the original owner might recover only the value of the raw material rather than take ownership of the finished product
In the context of a treaty, accession may be gained in either of two ways: (1) the new member nation may be formally accepted by all the nations already parties to the treaty; or (2) the new nation may simply bind itself to the obligations already existing in the treaty Frequently, a treaty will expressly provide that certain nations or catego-ries of nations may ACCEDE In some cases, the parties to a treaty will invite one or more nations
to accede to the treaty
ACCESSORY Aiding or contributing in a secondary way
or assisting in or contributing to as a subordinate
InCRIMINAL LAW, contributing to or aiding in the commission of a crime One who, without being present at the commission of an offense, becomes guilty of such offense, not as a chief actor, but as a participant, as by command, advice, instigation, or concealment; either before or after the fact or commission
One who aids, abets, commands, or counsels another in the commission of a crime
In common law, an accessory could not be found guilty unless the actual PERPETRATOR was convicted In most U.S jurisdictions, however,
an accessory can be convicted even if the principal actor is not arrested or is acquitted
The prosecution must establish that the acces-sory in some way instigated, furthered, or concealed the crime Typically, PUNISHMENT for
ACCESSORY 53
Trang 7a convicted accessory is not as severe as that for the perpetrator
An accessory must knowingly promote or contribute to the crime In other words, she or he must aid or encourage the offense deliberately, not accidentally The accessory may withdraw from the crime by denouncing the plans, refusing to assist with the crime, contacting the police, or trying to stop the crime from occurring
An accessory before the fact is someone behind the scenes who orders a crime or helps another person commit it Many jurisdictions now refer to accessories before the fact as parties
to the crime or even accomplices This substi-tution of terms can be confusing because accessories are fundamentally different from accomplices Strictly speaking, whereas an
ACCOMPLICE may be present at the crime scene,
an accessory may not Also, an accomplice generally is considered to be as guilty of the crime as the perpetrator, whereas an accessory has traditionally received a lighter punishment
An accessory after the fact is someone who knows that a crime has occurred but nonethe-less helps to conceal it In the early twenty-first century, this action is often termed obstructing justice or harboring a fugitive
An infamous accessory after the fact was
Dr Samuel A Mudd, the physician and Confederate sympathizer who set John Wilkes Booth’s leg after it was broken when the assassin jumped from President Abraham Lincoln’s box
at Ford Theater Despite Mudd’s protestation of innocence, he was tried and convicted as an accessory after the fact in Lincoln’sMURDER He was sentenced to life IMPRISONMENT at Fort
Jefferson in the Dry Tortugas off Key West, Florida President ANDREW JOHNSON pardoned Mudd in 1869, and the U.S Congress gave him
an officialPARDONin 1979
FURTHER READINGS Berg, Alan 1996 “Accessory Liability for Breach of Trust.” Modern Law Review 59 (May).
Blakey, Robert G., and Kevin P Roddy 1996 “Reflections on Reves v Ernst & Young: Its Meaning and Impact
on Substantive, Accessory, Aiding Abetting and Conspiracy Liability under RICO ” American Criminal Law Review 33 Huett, Lisa 2001 “Could You Be an Accessory? Uncertainty and Risk For Lawyers ” Law Institute Journal 75 (March).
ACCIDENT The word accident is derived from the Latin verb accidere, signifying “fall upon, befall, happen, chance.” In its most commonly accepted meaning,
or in its ordinary or popular sense, the word may be defined as meaning: some sudden and unexpected event taking place without expectation, upon the instant, rather than something that continues, progresses or develops; something happening by chance; something unforeseen, unexpected, unusual, extraordinary, or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence The word may be employed as denoting
a calamity, casualty, catastrophe, disaster, an undesirable or unfortunate happening; any unex-pected personal injury resulting from any unlooked for mishap or occurrence; any unpleasant or unfortunate occurrence that causes injury, loss, suffering, or death; some untoward occurrence aside from the usual course of events An event that takes place without one’s foresight or expectation; an undesigned, sudden, and unexpected event Accident is not always a precise legal term It may be used generally in reference to various types of mishaps, or it may be given a technical meaning that applies when used in a certain statute or kind of case Where it is used in a general sense, no particular significance can be attached to it Where it is precisely defined, as in
a statute, that definition strictly controls any decision about whether a certain event covered
by that statute was in fact an accident
In its most limited sense, the word accident
is used only for events that occur without the intervention of a human being This kind of accident also may be called anACT OF GOD It is
an event that no person caused or could have
Emergency workers
attend to a woman
involved in a
single-car accident Crashes
such as this one are
considered accidents
unless a driver
intentionally causes
the crash.
AP IMAGES
54 ACCIDENT
Trang 8prevented—such as a tornado, a tidal wave, or
an ice storm An accident insurance policy can
by its terms be limited to coverage only for this
type of accident Damage by hail to a field of
wheat may be considered such an accident
A policy of insurance, by its very nature,
covers only accidents and not intentionally
caused injuries That principle explains why courts
will read some exceptions into any insurance
policy, whether or not they are expressly stated
For example, life insurance generally will not
compensate for aSUICIDE, and ordinary automobile
insurance will not cover damages sustained when
the owner is drag racing
Accident insurance policies frequently insure
not only against an act of God but also for
accidents caused by a person’s carelessness An
insured homeowner will expect coverage, for
example, if someone drowns in his or her pool,
even though the accident might have occurred
because someone in the family left the gate open
Not every unintended event is an accident
for which insurance benefits can be paid; all the
circumstances in a particular case must first be
considered For example, a policeman who
waded into a surging crowd of forty or fifty
fighting teenagers and then experienced a heart
attack was found to have suffered from an
accident In another case, a man who was shot
when he was found in bed with another man’s
wife was also found to have died in an accident
because death is not the usual or expected result
of ADULTERY However, the family of another
man was not allowed to collect insurance
benefits when he was shot after starting a fight
with a knife In that case, the court ruled that
DEADLY FORCE was a predictable response to a
life-threatening attack, whether the instigator
actually anticipated it or not
Different states apply different standards
when determining if an accident justifies
payment of benefits under workers’
compensa-tion Some states strictly limit benefits to events
that clearly are accidents They will permit
payment when a sudden and unexpected strain
causes an immediate injury during the course of
work but they will not permit payment when an
injury gradually results from prolonged assaults
on the body Under this approach, a worker
who is asphyxiated by a lethal dose of carbon
monoxide when he goes into a blast furnace
to make repairs would be deemed to have
suffered in an accident However, a worker who
contracts lung cancer after years of exposure
to irritating dust in a factory could notCLAIMto have been injured in an accident Because of the remedial purpose of workers’ compensation schemes, many states are liberal in allowing compensation In one state, a woman whose existing arthritic condition was aggravated when she took a job stuffing giblets into partially frozen chickens on a conveyor belt was allowed
to collect workers’ compensation benefits
Insurance policies may set limits to the amount of benefits recoverable for one accident
A certain automobile insurance policy allowed a maximum of only $200 to compensate for damaged clothing or luggage in the event of an accident When luggage was stolen from the insured automobile, however, a court ruled that the event was not an accident and the maximum did not apply The owner was allowed to recover the full value of the lost property
Sometimes the duration of an accident must
be determined For example, if a drunken driver hit one car and then continued driving until he
or she collided with a truck, a court might have to determine whether the two victims will share the maximum amount of money payable under the driver’s LIABILITYinsurance policy or
Septicemia 1.4%
Nephritis, nephrotic syndrome, and nephrosis 1.9%
Alzheimer's 3.0%
Diabetes 3.0%
Influenza and pneumonia 2.3%
Accidents 5.0%
Chronic lower respiratory diseases 5.1%
Heart disease 26.0%
Cancer 23.1%
Cerebrovascular diseases/stroke 5.7%
Ten Leading Causes of Death in the United States in 2006
Total number of deaths: 2,426,264 Number of deaths not accounted for in top ten: 570,654 Percentage of deaths not in top ten: 23.6%
SOURCE: Centers for Disease Control and Prevention, National Center for Health
Statistics, National Vital Statistics Report, vol 57, no 14, April 2009.
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A PART OF CENGAGE LEARNING.
ACCIDENT 55
Trang 9whether each will collect the full maximum as a result of a separate accident
CROSS REFERENCES Automobiles “No-Fault Automobile Insurance” (In Focus);
Automobiles “What to Do If You Are in an Auto Accident”
(Sidebar); Insurance.
ACCIDENTAL DEATH BENEFIT
A provision of a life insurance policy stating that if the insured—the person whose life has been insured—
dies in an accident, the beneficiary of the policy—the person to whom its proceeds are payable—will receive twice the face value of the policy
The insurance company that is liable for the payment of such a benefit will conduct a thorough investigation into the cause of death
of the insured person before paying theCLAIM Another name for an ACCIDENTAL DEATH BENEFITis aDOUBLE INDEMNITYclause
ACCIDENTAL KILLING
A death caused by a lawful act done under the reasonable belief that no harm was likely to result
Accidental killing is different from INVOLUN-TARY MANSLAUGHTER, which causes death by an
unlawful way
two types of accidental killings: (1) accidental killings resulting from unlawful acts of violence not directed at the victim were punishable as
MANSLAUGHTER (killings resulting from unlawful acts directed at the victim were punishable as
MURDER); and (2) accidental killings resulting from lawful acts of violence were excusable as
HOMICIDEby misadventure
For example, suppose that the DEFENDANT
killed an innocent bystander while carrying out
an ASSAULT, BATTERY, or other violent crime against the intended victim The defendant told police that he intended to injure the victim by hitting him with a club but instead struck the bystander on the skull and killed him The defendant could be prosecuted for manslaugh-ter under the common law of crimes
Now suppose that the defendant was lawfully defending himself or his property from attack, and in the process killed an innocent bystander The defendant told police that lethal force was necessary to thwart an attack upon his person, and he tried to shoot the attacker but
instead killed a nearby pedestrian, who had nothing to do with the attack The common law would have treated the bystander’s death as an excusable accidental killing, so long as reason-able grounds existed for the defendant’s belief that lethal force was necessary for self-defense Although most states have abolished the common law of crimes, some of the concepts underlying the common law distinctions be-tween manslaughter and accidental killings continue to appear in statutory classifications
of manslaughter
Most states recognize at least two classes of manslaughter, voluntary and involuntary In these states voluntary manslaughter is defined as act of murder reduced to manslaughter because
ofEXTENUATING CIRCUMSTANCES such as adequate
in the heat of passion) or DIMINISHED CAPACITY Involuntary manslaughter is defined in these states as a homicide that is committed with
CRIMINAL NEGLIGENCE or during the commission
of a crime that is not included within the
FELONY-MURDER RULEbut for which the prosecu-tion has no proof that the defendant intended to kill the victim or do grievous bodily harm Accidental killings that do not result from the defendant’s criminalNEGLIGENCEand do not occur during the commission of a crime are not criminal offenses in these jurisdictions Some jurisdictions expressly classify accidental killings
as excusable or justifiable homicides, such as the state of California, which provides that
“[h]omicide is excusable [w]hen committed
by ACCIDENT and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent” (CA PENAL § 195) Other states simply omit this class of homicide from their statutes defining prosecutable offenses
CROSS REFERENCES Common Law; Diminished Capacity; Homicide; Involun-tary Manslaughter; Murder.
ACCIDENTAL VEIN
An imprecise term that refers generally to a continuous body of a mineral or mineralized rock filling a seam other than the principal vein that led
to the discovery of the mining claim or location CROSS REFERENCES
Mine and Mineral Law.
56 ACCIDENTAL DEATH BENEFIT
Trang 10ACCIDENTS OF NAVIGATION
Mishaps that are peculiar to travel by sea or
to normal navigation; accidents caused at sea by the
action of the elements, rather than by a failure to
exercise good handling, working, or navigating of
a ship Such accidents could not have been avoided
by the exercise of nautical skill or prudence
CROSS REFERENCES
Admiralty and Maritime Law; Navigable Rivers.
ACCOMMODATION ENDORSEMENT
The act of a third person—the accommodation
party—in writing his or her name on the back of a
commercial paper without any consideration, but
merely to benefit the person to whom the paper is
payable or to enable the person who made the
document—the maker—to obtain money or credit
on it
An accommodation endorsement is a loan
of the endorser’s credit up to the face amount of
the paper
ACCOMMODATION PAPER
A type of commercial paper (such as a bill or note
promising that money will be paid to someone)
that is signed by another person—the
accommodation party—as a favor to the promi-sor—the accommodated party—so that credit may be extended to him or her on the basis of the paper
An accommodation paper guarantees that the money lent will be repaid by the
fails to repay it A lender often uses an accommodation paper when the person who
is seeking a loan is considered a poor credit risk, such as a person who has a history of being delinquent in the payment of installment loans
By having a person who is a good credit risk cosign the PROMISSORY NOTE, the lender’s finan-cial interests are protected
An accommodation bill and an accommo-dation note are two types of commercial papers
ACCOMMODATION PARTY One who signs a commercial paper for the purpose of lending his or her name and credit to another party to the document—the accommo-dated party—to help that party obtain a loan or
an extension of credit
A person wanting to obtain a car loan, for example, may offer a finance company a
PROMISSORY NOTEfor the amount of the requested
Accommodation Note
Agreement of an Accommodation Party to Modifications in an Accommodation Note
This agreement is made between _ [name of the holder of the note] ("holder")
and [name of the accommodation party] ("accommodation party").
On [date of execution], _ [name of maker] ("maker"), of
_ [address of maker] executed and issued a promissory note ("note") to the holder as payee,
by which the maker promised to pay to the order of the holder [amount] [include any other specific
payment terms, including days after the date of execution].
On [date], the accommodation party signed the note as co-maker in order to accommodate the maker at the request of the maker.
The accommodation party and the holder agree that the holder may modify the terms of the note without notice to or the consent of
the accommodation party.
[Signature of holder], holder
[Signature of Accommodation Party], accommodation party
A sample accomodation note
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ACCOMMODATION PARTY 57