In February 2005 a state court judge signed an order that directed the removal of the feeding tube on March 18.. Small Business Administration "SBA" and SBIC Funding Corporation the "Fun
Trang 1but still breathing and circulating blood If a brain-dead person is maintained on artificial respiration until his or her heart fails, then these usable organs would perish Thus, the medical category of brain death makes it possible to accomplish another goal: saving lives with organ transplants
The Right to Die: Individual Autonomy and State Interests
The first significant legal case to deal with the issue of termination of life-sustaining medical care was IN RE QUINLAN (70 N.J 10, 355 A 2d 647) This 1976 case helped resolve the question
of whether a person could be held liable for withdrawing a life-support system even if the patient’s condition is irreversible In 1975 Karen Ann Quinlan became comatose for reasons that were not understood, and she was put on a mechanical respirator Her parents authorized physicians to use every possible means to revive her, but no treatment improved her condition
Although doctors agreed that the possibility of her recovering consciousness was remote, they would not pronounce her case hopeless
When her parents themselves lost all hope of Quinlan’s recovery, they presented the hospital with an authorization for the removal of the respirator and an exemption of the hospital and doctors from responsibility for the result
However, the attending doctor refused to turn off the respirator on the grounds that doing so would violate his professional OATH Quinlan’s parents then initiated a lawsuit asking the court
to keep the doctors and the hospital from interfering with their decision to remove Quinlan’s respirator
In a unanimous decision, the New Jersey Supreme Court ruled that Quinlan had a constitutional right of privacy that could be safeguarded by her legal guardian; that the private decision of Quinlan’s guardian and family should be honored; and that the hospital could
be exempted from criminal liability for turning off a respirator if a hospital ethics committee agreed that the chance for recovery is remote
Quinlan was removed from the respirator, and she continued to live in a coma for ten years, nourished through a nasal feeding tube
In cases following Quinlan, courts have ruled that life-sustaining procedures such as artificial feeding and hydration are the legal equivalent of mechanical respirators and may
be removed using the same standards (Gray v
Romeo, 697 F Supp 580 [D.R.I 1988]) Courts have also defined the right to die according to standards other than that of a constitutional right to privacy The patient’s LEGAL RIGHT to refuse medical treatment has been grounded
as well on the common-law right of bodily integrity, also called bodily self-determination, and on the liberty interest under the due process clause of the FOURTEENTH AMENDMENT These concepts are often collected under the term individual autonomy or patient autonomy Subsequent cases have also defined the limits of the right to die, particularly the state’s interest in those limits The state’s interests in cases concerning the termination of medical care are the preservation of life (including the prevention of suicide), the protection of depen-dent third parties such as children, and the protection of the standards of the medical profession The interests of the state may, in some cases, outweigh those of the patient
In 1990 the U.S Supreme Court issued its first decision on the right-to-die issue, Cruzan v Director of Missouri Department of Health (497 U.S 261, 110 S Ct 2841, 111 L Ed 2d 224) Cruzan illustrates the way in which individual and state interests are construed on this issue, but leaves many of the legal questions on the issue still unresolved Nancy Cruzan was in a persistent vegetative state as a result of severe brain injuries suffered in an automobile acci-dent in 1983 She had no chance of recovery, although with artificial nutrition and hydration could have lived another 30 years Her parents’ attempts to authorize removal of Cruzan’s medical support were first approved by a trial court and then denied by the Missouri Supreme Court Her parents then appealed the case to the U.S Supreme Court
The Court held that the guarantee of liberty contained in the Fourteenth Amendment to the Constitution does not prohibit Missouri from insisting that “evidence of the incompe-tent [patient’s] wishes as to the withdrawal of treatment be proved by clear and convincing evidence.” The Court left other states free to adopt this“clear-and-convincing evidence” stan-dard but did not compel them to do so Thus, existing state laws remained the same after the Cruzan decision Although the Court affirmed that a competent patient has a constitutionally protected freedom to refuse unwanted medical treatment, it emphasized that an incompetent
378 DEATH AND DYING
Trang 2person is unable to make an informed choice to
exercise that freedom
The Court explained that the state has an
interest in the preservation of human life and in
safeguarding against potential abuses by
surro-gates and is, therefore, not required to accept
the “substituted judgment” of the patient’s
family The Court agreed with the Missouri
Supreme Court ruling that statements made by
Cruzan to a housemate a year before her
accident did not amount to
clear-and-convinc-ing proof that she desired to have hydration and
nutrition withdrawn Cruzan had allegedly
made statements to the effect that she would
not want to live should she face life as a
“vegetable.” There was no testimony that she
had actually discussed withdrawal of medical
treatment, hydration, or nutrition
After the Court’s decision, Cruzan’s parents
went back to the Missouri PROBATE court with
new evidence regarding their daughter’s wishes
On December 14, 1990, a Missouri judge ruled
that clear evidence of Cruzan’s wishes existed
and permitted her parents to authorize
with-drawing artificial nutrition and hydration
Cruzan died on December 27, 12 days after
feeding tubes were removed
In the early 2000s, the case of Terri Schiavo
drew attention to the conflicts that occur when
the values of preservation of life and the right to
die are pitted against one another In 1990, Terri
Schiavo, age 27 at the time, suffered cardiac
arrest, which resulted in oxygen deprivation and
brain damage Doctors reported that whereas
her brain stem was undamaged, allowing her
body to function, her cognitive abilities had been
destroyed and there was no real hope of
recovery A Florida MEDICAL MALPRACTICE suit
resulting from a misdiagnosis of a chemical
imbalance that led to the cardiac arrest resulted
in a $1 million award to her husband, Michael
Schiavo, who used the award to pay for the
treatment for his wife In 1998 Michael Schiavo
filed a court petition asking to remove Terri’s
feeding tube, allowing her to die Though
Schiavo did not have a living will, her husband
claimed that she had told him that in a situation
such as this, she would not wish to continue
life-sustaining procedures and would want to be
allowed to die Schiavo’s parents objected,
claiming that this did not sound like their
daughter’s wishes They believed in her eventual
rehabilitation, which led them to file a lawsuit
that sought to block the removal of the feeding tube The case was battled out in the Florida state and federal courts for years In 2001 Michael Schiavo prevailed in having the feeding tube removed from Terri Schiavo, but the parents again intervened and obtained a court order that forced the reinsertion of the tube
By 2002 the parents had succeeded in gaining national publicity for their cause Pro-Life and disability rights groups made the preservation of Terri Schiavo’s life a top priority The parents claimed they had new evidence that proved their daughter was not in a vegetative state They showed a tape that supposedly showed Schiavo responding to vocal stimuli and tracking a moving object with her eyes They argued that her condition could be improved with further therapy Experts for Michael Schiavo countered that Schiavo’s responses were random and reflexive and, therefore, not indicative of con-sciousness The parents’ state lawsuit was dis-missed in 2003, and a similar lawsuit in federal district court was thrown out in that same year
On October 15, 2003, Schiavo’s feeding tube was again removed However, on October 20, the Florida legislature enacted an emergency bill that Governor Jeb Bush immediately signed into law, which allowed him to order the feeding tube restored and to appoint a new guardian for Schiavo The next day the feeding tube was reinserted into Schiavo Michael Schiavo then filed a lawsuit in Florida state court that challenged the constitutionality of the law, which had been written to apply only to Schiavo In May 2004 the court struck down the law Governor Bush appealed to the Florida Supreme Court in September 2004, which set the foundation for the final legal battle
In February 2005 a state court judge signed
an order that directed the removal of the feeding tube on March 18 State and congres-sional Republicans then moved to bring the matter to Congress On March 20 the Senate passed a bill that transferred jurisdiction of the case to the federal courts The House of Representatives enacted the bill on March 21, which led President GEORGE W.BUSHto fly back from his ranch in Texas to sign the bill that same day Despite these efforts, the federal courts quickly rejected the state’s lawsuit, leading again to the removal of Schiavo’s feeding tube She died on March 31, 2005 An
AUTOPSY revealed that Schiavo’s brain was half
DEATH AND DYING 379
Trang 3the normal size of a female brain and that nearly all of the regions were damaged
Advance Directives
A court must consider many factors and standards in right-to-die cases It must deter-mine, for example, whether a patient is compe-tent or incompecompe-tent A compecompe-tent patient is deemed by the court to be able to giveINFORMED CONSENT or refusal relative to the treatment under consideration, whereas an incompetent patient (e.g., a patient in a coma) lacks the decision-making capacity to do so According to the principle of individual autonomy, the court must honor the informed consent of competent patients regarding their medical care
For incompetent patients who cannot make informed decisions regarding their care, an advance directive may provide a means of decision making for the termination of life-supporting treatment An advance directive is a document, prepared in advance of incompe-tence, which gives patients some control over their health care after they have lost the ability to make decisions owing to a medical condition It may consist of detailed instructions about medical treatment, as in a living will, or the appointment of a proxy, or substitute, who will make the difficult choices regarding medical care with the patient’s earlier directions in mind
The appointment of a proxy is sometimes called
a proxy directive or durable power of attorney The patient names a proxy decision maker when he
or she is competent In other cases, the physician may appoint a proxy, or the court may appoint a legal guardian who acts on behalf of an incompetent person Usually, a relative such as
a spouse, adult child, or sibling is chosen as a proxy If an advance directive provides adequate evidence of a patient’s wishes, a decision about the termination of life support can often be made without involving a court of law
For an incompetent patient whose prefer-ences regarding medical care are known from prior oral statements, the patient’s proxy may make a substituted judgment, that is, a judgment consistent with what the patient would have chosen for himself If no preference regarding medical treatment is known, the standard for the proxy’s decision is the “best interests of the patient.” According to that standard, the proxy’s decision should approximate what most reasonable individuals in the same circumstances
as the patient would choose Individual states
have statutes governing the requirements for living wills and advance directives
FURTHER READINGS American Medical Association 2008 Code of Medical Ethics: Current Opinions with Annotations Chicago: American Medical Association Available online at http://www ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.shtml; website home page: http://www.ama-assn.org (accessed July 19, 2009) Callahan, Daniel 1990 “Current Trends in Biomedical Ethics in the United States ” In Bioethics: Issues and Perspectives Washington, D.C.: Pan American Health Organization.
Cohen-Almagor, Raphael 2001 The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law New Brunswick, N.J.: Rutgers Univ Press.
Ditto, Peter H., Joseph H Danks, William D Smucker, et al.
2001 “Advanced Directives as Acts of Communica-tion ” Archives of Internal Medicine 161.
Howarth, Glennys, and Oliver Leaman, eds 2001 Encyclo-pedia of Death and Dying New York: Routledge Humphry, Derek 1993 Lawful Exit: The Limits of Freedom for Help in Dying Junction City, Or.: Norris Lane Press.
——— 1991 Final Exit Eugene, Ore.: Hemlock Society Monagle, John F., and David C Thomasma 1994 Health Care Ethics: Critical Issues Gaithersburg, Md.: Aspen Schneider, Carl E., ed 2000 Law at the End of Life: The Supreme Court and Assisted Suicide Ann Arbor: Univ.
of Michigan Press.
Urofsky, Melvin 1994 Letting Go: Death, Dying, and the Law Norman: Univ of Oklahoma Press.
CROSS REFERENCES Euthanasia; Physicians and Surgeons; Power of Attorney.
DEATH PENALTY SeeCAPITAL PUNISHMENT
DEATH WARRANT
An order from the executive, the governor of a state, or the president directing the warden of a prison or a sheriff or other appropriate officer to carry into execution a sentence of death; an order commanding that a named person be put to death
in a specified manner at a specific time
CROSS REFERENCE Capital Punishment.
DEATHBED WILL SeeNUNCUPATIVE WILL
DEBENTURE [Latin, Are due.] A promissory note or bond offered
by a corporation to a creditor in exchange for a loan, the repayment of which is backed only by the general creditworthiness of the corporation and not
by a mortgage or a lien on any specific property
380 DEATH PENALTY
Trang 4I.D Control #
License #
DEBENTURE
$ (the "Original Principal Amount")
_ (the "Maturity Date")
_ (the "Company")
(Street) (City) (State) (Zip)
PART I – PERIOD SPECIFIC TERMS
A Applicable for the Scheduled Interim Period (and New Interim Periods, as applicable)
Interest rate per annum for the Scheduled Interim Period: _%
Annual Charge applicable to the Scheduled Interim Period: 1% per annum
Date of Issuance:
Scheduled Pooling Date:
Scheduled Interim Period: from and including the Date of Issuance to but excluding the Scheduled Pooling Date
The following italicized terms will apply if the Interim Period is extended by SBA:
New interest rate(s) per annum (a) % (b) % (c) %
New Annual Charge per annum (a) 1% (b) 1% (c) 1%
New Pooling Date(s): (a) (b) (c) New Interim Period(s): from and including: (a) (b) (c) to but excluding: (a) (b) (c) The Company, for value received, promises to pay to JPMorgan Chase Bank N.A., as Custodian (the "Custodian") for the U.S Small Business Administration ("SBA") and SBIC Funding Corporation (the "Funding Corporation"), pursuant to the Custody and Administration Agreement (the "Custody Agreement") dated as of April 27, 2009 among SBA, the Funding Corporation, the Federal Home Loan Bank of Chicago, as Interim Funding Provider (the "Interim Funding Provider"), and the Custodian: (i) interest on the Original Principal Amount listed above at the applicable rate per annum listed above, and (ii) an Annual Charge on the Original Principal Amount listed above at the applicable rate per annum listed above, each at such location on SBA, as guarantor of this Debenture, may direct and each at the related rate per annum identified for the Scheduled Interim Period (and each New Interim Period, if any) This Debenture will bear interest for, and the Annual Charge will apply to, the Scheduled interim Period (and each New Interim Period, if any) at the rate(s) and for the applicable period(s) indicated above, to be paid in arrears by 1:00 p.m (New York City time) on the Business Day prior to the Scheduled Pooling Date (and each New Pooling Date, if any) listed above As used throughout this Debenture, "Business Day" means any day other than: (i) a Saturday or Sunday; (ii) a legal holiday in Washington, D.C.; and (iii) a day on which banking institutions in New York City are authorized or obligated by law or executive order to be closed Interest on this Debenture and the Annual Charge for the Scheduled Interim Period (and each New Interim Period, if any) will each be computed on the basis of the actual number of days in the applicable Interest Period divided by 360 The Company may not prepay this Debenture, in whole or in part, during the Scheduled Interim Period or any New Interim Period. B This Section B is effective only after (i) the Scheduled Interim Period and any New Interim Period(s) expire and (ii) the Custodian receives this Debenture for pooling. The Company, for value received, promises to pay to the order of JPMorgan Chase Bank N.A., acting as Trustee (the "Trustee") under that certain Amended and Restated Trust Agreement dated as of February 1, 2008, as the same may be amended from time to time, by and among the Trustee, the SBA and SBIC Funding Corporation, and as the Holder hereof, interest semiannually on March 1st and September 1st (the "{Payment Dates") of each year, at such location as SBA, as guarantor of this Debenture, may direct at the rate of _% per annum (the "Stated Interest Rate"), and to pay a 1% per annum fee to SBA on each Payment Date, each calculated on the basis of a year of 365 days, for the actual number of days elapsed (including the first day but excluding the last day), on the principal sum from the last day of the Interim Period until payment of such principal sum has been made or duly provided for The Company shall deposit all payments with respect to this Debenture not later than 12:00 noon (New York City time) on the applicable Payment Date or the next Business Day if the Payment Date is not a Business Day, all as directed by SBA The Company may elect to prepay this Debenture, in whole and not in part, on any Payment Date, in the manner and at the price as next described The prepayment price (the "Prepayment Price") must be an amount equal to the outstanding principal balance of this Debenture, plus interest accrued and unpaid thereon to the Payment Date selected for prepayment, plus a prepayment premium (the "Prepayment Premium") The Prepayment Premium amount is calculated as a declining percentage (the "Applicable Percentage") multiplied by the Original Principal Amount of this Debenture in accordance with the following table: Consecutive Payment Dates Applicable Percentage 1st or 2nd 5%
3rd or 4th 4%
5th or 6th 3%
7th or 8th 2%
9th or (10th - If not also Maturity Date) 1%
[continued]
A sample debenture DEBENTURE 381
Trang 5A sample debenture
(continued).
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Debenture
No Prepayment Premium is required to repay this Debenture on its Maturity Date No Prepayment Premium is required when the prepayment occurs on a Payment Date that is on or after the 11th consecutive Payment Date of this Debenture, if this debenture has a 20 consecutive Payment Date term.
The amount of the Prepayment price must be sent to SBA or such agent as SBA may direct, by wire payment in immediately available funds, not less than three Business Days prior to the regular Payment Date Until the Company is notified otherwise in writing by SBA, any Prepayment Price must be paid to the account maintained by the Trustee, entitled the SBA Prepayment Subaccount and must include an identification of the Company by name and SBA-assigned license number, the loan number appearing on the face of this Debenture, and such other information as SBA or its agent may specify.
II –GENERAL TERMS
For value received, the Company promises to pay to the order of the Trustee the Original Principal Amount on the Maturity Date at such location as SBA, as guarantor of this Debenture, may direct.
This Debenture is issued by the Company and guaranteed by SBA, pursuant and subject to Section 303 of the Small Business Investment Act of 1958, as amended (the "Act") (15 U.S.C Section 683) This Debenture is subject to all of the regulations promulgated under the Act,
as amended from time to time, provided, however, that 13 C.F.R Sections 107.1810 and 107.1830 through 107.1850 as in effect on the date of this Debenture are incorporated in this Debenture as if fully set forth If this Debenture is accelerated, then the Company promises
to pay an amount equal to the outstanding principal balance of this Debenture, plus interest accrued and unpaid on such balance to but excluding the next Payment Date following such acceleration.
This Debenture is deemed issued in the District of Columbia as of the day, month, and year first stated above The terms and conditions of this Debenture must be construed in accordance with, and its validity and enforcement governed by, federal law.
The warranties, representations, or certification made to SBA on any SBA Form 1022 or any application letter of the Company for an SBA commitment related to this Debenture, and any documents submitted in connection with the issuance of this Debenture, are incorporated
in this Debenture as if fully set forth.
Should any provision of this Debenture or any of the documents incorporated by reference in this Debenture be declared illegal or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect and this Debenture must be construed as if such provisions were not contained in this Debenture.
All notices to the Company which are required or may be given under this Debenture shall be sufficient in all respects if sent to the above-noted address of the Company For the purposes of this Debenture, the Company may change this address only upon written approval of SBA.
COMPANY ORGANIZED AS CORPORATION
IN WITNESS WHEREOF, the Company has caused this debenture to be signed by its duly authorized officer and its corporate seal to be hereunto affixed and attested by its Secretary or Assistant Secretary as of the date of issuance stated above.
CORPORATE SEAL
_
(Name of Licensee) By: _ _
(Typed Name and Title)
ATTEST:
Secretary or Assistant Secretary (Strike One)
SBA FORM 444C
382 DEBENTURE
Trang 6Debentures are usually offered in issues under
anINDENTURE, a document that sets the terms of
the exchange A debenture is usually a BEARER
instrument When it is presented for payment,
the person in possession of it will be paid, even if
the person is not the original creditor Coupons
representing annual or semi-annual payments of
interest on the debt are attached, to be clipped
and presented for payment on their due dates
They may be deposited in, and collected by, the
banks of holders of the debentures, the creditors
of the corporation
A convertible debenture is one that can be
changed or converted, at the option of its holder,
into shares of stock, usuallyCOMMON STOCK, at a
fixed ratio as stated in the indenture The ratio
can be adjusted in light of stock dividends;
otherwise the value of converting the debt into
SECURITIESwould be worth less than retaining the
debenture until its date of maturity
A subordinate debenture is one that will be
repaid only after other corporate debts have been
satisfied A convertible subordinate debenture is
one that is subject or subordinate to the prior
repayment of other debts of the corporation but
which can be converted into another form of
security A sinking fund debenture is one whereby
repayment is secured by periodic payments by
the corporation into a sinking fund, an amount of
money made up of corporate assets and earnings
that are set aside for the repayment of designated
debentures and long-term debts
DEBIT
A sum charged as due or owing An entry made on
the asset side of a ledger or account The term is used
in bookkeeping to denote the left side of the ledger, or
the charging of a person or an account with all that
is supplied to or paid out for that person or for the
subject of the account Also, the balance of an
account where it is shown that something remains
due to the party keeping the account
As a noun, an entry on the left-hand side of an
account As a verb, to make an entry on the
left-hand side of an account A term used in accounting
or bookkeeping that results in an increase to an asset
and an expense account and a decrease to a liability,
revenue, or owner’s equity account
vDEBS, EUGENE V
Labor leader, presidential candidate, author,
and radical, social, and political agitator,
Eugene Debs employed a combination of self-determination, grit, defiance, and risk-taking to play a sometimes pivital role in American law from the late 1890s through the early twentieth century
The son of Alsatian immigrants, EUGENE VICTOR DEBS was born in Terre Haute, Indiana,
on November 5, 1855 As a young teenager growing up in Terre Haute, Debs took a job as a railway fireman, where he became active in the Brotherhood of Locomotive Firemen (BLF)
Although Debs left his job as a railway fireman four years later, he remained active in the BLF, undertaking increased leadership responsibili-ties Debs then was elected to serve two terms
as the city clerk for Terre Haute and one term
in the Indiana House of Representatives In winning all three elections, Debs leveraged his role as grand secretary and treasurer in the BLF
to garner votes from working class laborers
In 1893 Debs broke with the tradition
of limiting membership in craft unions to skilled artisans by helping found the American Railway Union, which organized both skilled and un-skilled workers Debs believed that labor’s great-est strength lay more in its sheer numbers and less
in the individual skills of its members
The following year Debs, now president of the American Railway Union, led a strike against the Pullman Palace Car Company, which was owned by George Pullman and located in Pullman, Illinois, a company town in which nearly all residents worked for Pullman Pull-man also provided housing units for his workers
to rent In 1894 Pullman began laying off workers, cutting wages, and withholding their paychecks as payment for unpaid rent
The Debs-led strike, known as the Pullman
BOYCOTT, turned violent when workers began pillaging, rioting, and burning railway cars
Railway strikes erupted across the Midwest, forcing much of the nation’s railroad system to shut down President Grover Cleveland deployed 12,000 troops to quell the strike in Pullman
After two workers were killed in clashes with the troops, President Cleveland declared the strike over Workers were allowed to return to work only if they promised not to unionize again
A few weeks before Cleveland deployed the troops, a federal court had issued an injunction ordering Debs and the other union leaders to cease and desist their concerted activities against Pullman Debs ignored the injunction, and was
WHILE THERE IS A LOWER CLASS, IAM
IN IT;WHILE THERE IS
A CRIMINAL ELEMENT,
IAM OF IT;AND WHILE THERE IS A SOUL IN PRISON, IAM NOT FREE
—E UGENE V D EBS
Trang 7eventually arrested and cited for CONTEMPT of court Tried before a judge without a jury and defended byCLARENCE DARROW, Debs lost and was sentenced to six months in jail Debs challenged his conviction on the ground that he had been denied theSIXTH AMENDMENTright to a jury trial
The U.S Supreme Court rejected Debs’s argument, finding that he and the other union leaders had formed an unlawful conspiracy in
RESTRAINT OF TRADE(In re Debs, 158 U.S 564, 15 S
Ct 900, 39 L.Ed 1092[U.S 1895]) The injunction obtained by the federal government was an
EQUITABLE REMEDY, the Supreme Court said, and the Sixth Amendment right to a jury trial does not apply in equitable proceedings To preserve their power in equitable proceedings, judges must have the authority to punish violations through the power of contempt, the Court concluded Debs was forced to serve out the full six months of his jail sentence
The Supreme Court’s decision in Debs served to legitimize Cleveland’s deployment of the strike-breaking troops, even though the Court did not expressly weigh in on that issue Almost 40 years would pass before industrial unions would receive increased recognition and protection from U.S law
Nonetheless, Debs continued advocating unions as the best means to advance labor’s interests The same year that Debs led thePULLMAN STRIKE, President Cleveland signed into law an act that declared the first Monday in September as a holiday to honor the American laborer Despite the concession from the White House, Debs forged his own brand of politics by organizing the SocialDEMOCRATIC PARTYof America in 1897 As its candidate for president in 1900, he received 96,116 votes Thereafter he spent most of his time as a lecturer and organizer in the socialist movement, although he purported to be less interested in the political underpinnings of the movement and instead, viewedSOCIALISMas a means to guarantee dignity and equality for the average worker He was the presidential candidate of the SOCIALIST PARTYin 1904, 1908, and 1912
In 1905 Debs’s politics moved further to the left when he helped form the INDUSTRIAL WORKERS OF THE WORLD (IWW), also known as
Eugene Debs 1855–1926
◆
◆
◆
1855 Born,
Terre Haute, Ind.
1880 Appointed Grand Secretary of Brotherhood of Locomotive Firemen
1884 Elected to serve as representative in Indiana General Assembly
1894 Leads Pullman strike
1897 Helps form the Socialist Party of America
1900 Makes first run for U.S Presidency
1908 Makes third of five unsuccessful runs for U.S Presidency
1905 Founds the Industrial Workers of the World (IWW)
1918 Convicted for giving anti-war speech
1920 Makes final unsuccessful bid for U.S Presidency from prison cell
1926 Died, Lindlahr Sanitarium outside Chicago, Ill.
1919 Prohibition Era begins when states ratify 18th Amendment
1914–18 World War I
1901 President William McKinley assassinated
1895 U.S Supreme Court affirms Debs conviction for contempt of federal injunction
Eugene V Debs.
LIBRARY OF CONGRESS
384 DEBS, EUGENE V.
Trang 8the Wobblies The IWW was an inclusive
organization that sought to create “One Big
Union,” by welcoming African Americans,
immigrants, and women The IWW promoted
a rigorous standard of racial equality, and
attempted to educate workers about the ways
in which capitalists used race to undermine
labor interests Debs marketed IWW to workers
as a radical alternative to the American
Federa-tion of Labor led bySAMUEL GOMPERS
In 1907 Debs was named associate editor for
the progressive magazine Appeal to Reason,
published in Girard, Kansas For the next five
years he received a salary of $100 per week The
weekly magazine achieved a circulation of
several hundred thousand due in part to the
powerful writing of Debs
In 1918, during WORLD WAR I, Debs was
convicted of violating theESPIONAGE ACT OF1917,
after he gave a speech in Canton, Ohio,
encouraging listeners to obstruct the draft The
Supreme Court upheld the conviction,
notwith-standing Debs’s argument that the federal law
violated his rights to free speech guaranteed by
the FIRST AMENDMENT to the U.S Constitution
(Debs v United States, 39 S.Ct 252, 249 U.S 211,
63 L.Ed 566[U.S 1919]) Debs served two years
in prison, from 1919 to 1921 While in prison he
again ran for president on the Socialist ticket in
1920 and received almost one million votes
Debs died on October 20, 1926, in Elmhurst,
Illinois He was survived by his wife of 41 years,
Kate Metzel They had no children In 1962
the Debs Foundation was established in Terre
Haute, as a memorial to Eugene Debs, and as an
archive and research center for the study of the
social sciences, and labor and political history Each
year the foundation bestows the EUGENE V DEBS
Award on an individual“who has contributed to
the advancement of the causes of industrial
unionism, social justice, or world peace.”
FURTHER READINGS
Debs, Eugene V “The Canton, Ohio, Anti-War Speech.”
Available online at http://www.marxists.org/archive/
debs/works/1918/canton.htm; website home page:
http://www.marxists.org (accessed July 19, 2009)
Eugene V Debs Foundation Available online at http://www.
eugenevdebs.com/index.htm; website homepage: http://
www.eugenevdebs.com (accessed July 19, 2009).
Ginger, Ray 2007 The Bending Cross: A Biography of Eugene
Debs Chicago: Haymarket.
Papke, David Ray 1999 The Pullman Case: The Clash of
Labor and Capital in Industrial America Lawrence:
Univ Press of Kansas.
DEBT
A sum of money that is owed or due to be paid because of an express agreement; a specified sum
of money that one person is obligated to pay and that another has the legal right to collect or receive
A fixed and certain obligation to pay money or some other valuable thing or things, either in the present or in the future In a still more general sense, that which is due from one person to another, whether money, goods, or services In a broad sense, any duty to respond to another in money, labor, or service; it may even mean a moral or honorary obligation, unenforceable by legal action Also, sometimes an aggregate of separate debts, or the total sum of the existing claims against a person or company Thus people speak of the “national debt,” the “bonded debt” of
a corporation, and so on
Federal Debt, 1940–2007
SOURCE: U.S Office of Management and Budget, Historical Tables, annual.
Year
0 2,000 4,000 6,000 8,000
⫺300
1940 1950 1960 1970 1980 1990 2000 2007
9,000
7,000
5,000
3,000
1,000
Total gross federal debta
a Gross federal debt includes money borrowed by the U.S Treasury and various federal agencies.
Surplus or deficit in given fiscal year
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
DEBT 385
Trang 9DEBT, ACTION OF One of the oldest common-law forms of action available to private litigants seeking to collect what
is owed to them because of a harm done to them
by another
Originally, the action was allowed for any
PLAINTIFF who claimed an obligation owed by another person, but the courts gradually began to recognize two FORMS OF ACTION: detinue, an action to collect a specific item
of property, and a debt for a sum of money
The distinction had become clear in England by the early thirteenth century In debt, as in detinue, aDEFENDANT who lost the case had the option of either paying a sum of money for the judgment or giving back the property that gave rise to the debt Later in the thirteenth century, courts began to permitREPLEVIN, an action for the return of goods wrongfully taken or withheld, and covenant, an action for damages from someone who broke an agreement Gradually, judges began to demand firm proof of the agreement, and finally they would accept nothing less than a contract made under seal
Later the action inASSUMPSITenlarged the rights
of a disappointed party to a contract by allowing monetary damages for any breach This action enjoyed growing popularity and supplanted the action of debt for a time because it permitted the defendant to prove his or her case by swearing in OPEN COURT and by bringing along eleven neighbors who would proclaim their belief in their neighbor’s truthfulness When this procedure, called the WAGER OF LAW, was abolished during the reign of King William IV (1830–1837), the action of debt again became important as an action to enforce a simple contract
As long as common-law forms of action were the required modes for pleading civil actions, the action of debt continued to be useful Relief was available only for those whose claims fit exactly into its form, however, and there was criticism of its rigidity and technicalities By the end of the nineteenth century most states had passed laws to replace the old forms of action with CODE PLEADING Today, the law of CIVIL PROCEDURE recognizes only one form for a lawsuit, thecivil action An individual can still sue to collect what is due on
a debt, but no longer is it necessary to draw the complaint in the form of the ancient action
of debt
DEBT POOLERS Individuals or organizations who receive and apply monthly funds from a person owing money
to several creditors and who make arrangements
to pay these creditors less than what is actually owed
Debt poolers, also known as debt adjusters
or consolidators, are helpful to consumers, particularly when they are nonprofit organiza-tions that provide their services free or for a reasonable fee In other cases, however, their usefulness to consumers is lessened when they charge fees that would make it less costly for consumers to make similar arrangements with creditors on their own
DEBTOR One who owes a debt or the performance of an obligation to another, who is called the creditor; one who may be compelled to pay a claim or demand; anyone liable on a claim, whether due or
to become due In bankruptcy law, a person who files a voluntary petition or person against whom
an involuntary petition is filed A person or municipality concerning which a bankruptcy case has been commenced
DECALOGUE SOCIETY OF LAWYERS Founded in 1934, the Decalogue Society of Lawyers is an association of attorneys of the Jewish faith who seek to advance and improve the law, the legal profession, and the adminis-tration of justice; to foster friendly relations among its members, and between its members and other members of the bar, the courts, and the public; to cooperate as lawyers and citizens
in worthy movements for the public welfare; to maintain vigilance against public practices that are antisocial or discriminatory; and to cooper-ate with other bar associations for the attain-ment of those objectives Activities include a forum on legal topics of general and Jewish interest, lectures and seminars on recent deci-sions and legislation, and the presentation of awards The society provides a placement service for members and maintains a welfare fund Meetings are held annually in June
The society has several active committees including those on arbitration, civic affairs,CIVIL RIGHTS, FAMILY LAW, lawyer counseling, LEGAL EDUCATION, legislation, and professional relations
386 DEBT, ACTION OF
Trang 10The society publishes The Decalogue
Jour-nal (quarterly) and a membership directory
(annually)
DECEDENT
An individual who has died The term literally
means “one who is dying,” but it is commonly used
in the law to denote one who has died, particularly
someone who has recently passed away
A decedent’s estate is the real andPERSONAL
PROPERTY that an individual owns upon his or
her death
DECEIT
A misrepresentation made with the express
inten-tion of defrauding someone, which subsequently
causes injury to that person
In order for a statement to be deceit, it must
be untrue, made with knowledge of its falsity,
or made in reckless disregard of the truth The
MISREPRESENTATION must be such that it causes
harm to another individual
DECENNIAL DIGESTÒ
One of the titles of the American Digest System
that classifies by topic the summaries of court
decisions that were reported chronologically in the
various units of the National Reporter System
Each of the more than 400 subject
classifi-cations corresponds to a general legal concept—
torts, for example—and all cases found under
a specific topic discuss similar points of law
The digest contains summaries of cases decided
during the period from 1897 to 1905 and for
every ten-year period until 1976, and every five
years thereafter
DECISION
A conclusion reached after an evaluation of facts
and law
As a generic term, decision refers to both
administrative and judicial determinations It
includes final judgments, rulings, and
INTERLOC-UTORYor provisional orders made by the court
pending the outcome of the case Frequently, a
decision is considered the initial step in a
rendition by a court of a judgment in an action
When referring to judicial matters, a
deci-sion is not the same as an opinion, although
the terms are sometimes used interchangeably
A decision is the pronouncement of the solution
of the court or judgment in a case, while an opinion is a statement of the reasons for its determination made by the court
DECISION ON THE MERITS
An ultimate determination rendered by a court in
an action that concludes the status of legal rights contested in a controversy and precludes a later lawsuit on the same cause of action by the parties
to the original lawsuit
A DECISION ON THE MERITS is made by the application of SUBSTANTIVE LAW to the essential facts of the case, not solely upon technical or procedural grounds
DECLARATION The first pleading in a lawsuit governed by the rule
of common-law pleading In the law of evidence, a statement or narration made not under oath but simply in the middle of things, as a part of what
is happening Also, a proclamation
A declaration is the plaintiff’s statement of
a claim against the DEFENDANT, formally and specifically setting out the facts and circum-stances that make up the case It generally is broken into several sections, which describe the different counts of the CAUSE OF ACTION The declaration should give the title of the action, the court and place of trial, the basis for the claim, and the relief demanded The defendant then answers with aPLEA.COMMON-LAW PLEADING
has been abolished in the United States, and modern systems of CODE PLEADING and rules based on federal CIVIL PROCEDURE now provide for a complaint to accomplish the same purpose
as did the declaration in former times
Under some circumstances, statements made out of court by one person may be repeated in court by someone else even though the hearsay rule ordinarily forbids secondhand testimony
For example, aDYING DECLARATIONis a statement
in which a HOMICIDE victim names his or her killer on his or her deathbed If the victim had known who had attacked him or her, had abandoned all hope of recovery, and had in fact died of the wounds, a person who heard the dying declaration can repeat it in court at the time the killer is brought to trial The theory is that a deceased person would not have lied just before dying
DECLARATION 387