With Professor Catherine MacKinnon of the University of Michigan Law School, Dworkin has championed antipornography ordinances for several cities in the United States.. MacKinnon and Dwo
Trang 1Conceptually, a duty of tonnage is assessed for the privilege of transacting business in a port
vDUVALL, GABRIEL Gabriel Duvall was born December 6, 1752 He was admitted to the Maryland bar in 1778
Duvall served in the militia before beginning his government career in 1783, serving on the Maryland Governor’s Council from 1783 to
1784, and in the Maryland House of Delegates from 1787 to 1794
From 1794 to 1796, Duvall acted as a representative from Maryland to the U.S House
of Representatives He returned to Maryland as chief justice of the Maryland General Court in
1796 and remained on the bench until 1802
Duvall then returned to federal service, and from
1802 to 1811 served as first comptroller of the U.S Treasury under PresidentTHOMAS JEFFERSON
Duvall was appointed to the Supreme Court
by President JAMES MADISON to replace SAMUEL CHASE He served on the Court from 1811 to
1835, mainly writing minor opinions on
COMMERCIAL LAWand maritime law Though he tended to vote with chief justiceJOHN MARSHALL, Duvall was a strong opponent of SLAVERY He wrote a memorable dissent in Mima Queen and Child v Hepburn, 11 U.S 290 (1813), a case argued for the plaintiffs by Francis Scott Key The majority disallowed hearsay evidence to prove a purported slave was free Duvall opined that hearsay should be admitted to prove freedom whenever the facts are so old that living testimony cannot be procured
Duvall died on March 6, 1844
DWI
In many states, the criminal charge for drunk driving is driving while intoxicated (DWI) In genealogical tables, DWI is an abbreviation for died without issue
A showing of complete intoxication is not necessary for a charge of driving while intoxi-cated State laws indicate levels of blood-alcohol content at which an individual is deemed to be under the influence of alcohol
Laws against drunk driving vary slightly from state to state In the majority of states, a person’s first DWI charge (also referred to as Driving Under the Influence, or DUI, in some states) results in an automatic suspension of the violator’s license The length of the suspension
in the various states ranges from 45 days to one year Forty-three states require offenders to install ignition interlocks on their vehicles in order to drive These devices are capable of analyzing a driver’s breath, and the ignition is
1752 Born,
Prince George's
County, Md.
❖
1775–1783 American Revolution
1778 Admitted to Maryland bar
1787–94 Served in the Md House of Delegates 1783–84 Served on the Md Governor's Council
1794–96 Represented Md in the House of Representatives
1796–1802 Presided as chief justice of the Md General Court
1802–11 Served as first comptroller of the U.S Treasury
1811–35 Served on the U.S Supreme Court
1844 Died, Prince George's County, Md
1812–14 War of 1812
1823 Monroe Doctrine enunciated, opposed European intervention in the Americas
◆
Gabriel Duvall.
ENGRAVING BY HARRIS
AND EWING
COLLEC-TION OF THE SUPREME
COURT OF THE UNITED
STATES
UNIVERSALLY
ADMITTED THAT THE
RIGHT TO FREEDOM IS
MORE IMPORTANT
THAN THE RIGHT OF
—G ABRIEL D UVALL
48 DUVALL, GABRIEL
Trang 2DWI: Should Punishment Be Stricter for Repeat Offenders?
took the lives of 11,773 people across
the United States Statistics show that
nearly 60 percent of those fatal accidents
were caused by drivers with a history of
driving while intoxicated (DWI) There
is no shortage of horror stories in which
innocent people have been killed by a
drunk driver who later turns out to have
a prior record for DWI offenses The
question of whether repeat offenders
should be subject to stricter punishment
is hardly new, but it is a complex
question even though it seems to tackle
an issue that has no gray areas
Typical repeat DWI offenders will
have a blood alcohol level of up to three
times the legal limit by the time they get
behind the wheel Three-fourths of
repeat offenders can be classified as
alcohol abusers or alcohol dependent
Their consumption of alcohol is frequent
and chronic Perhaps most alarming,
however, is that most of these drivers
are neither remorseful for the damage
they inflict nor deterred by the threat of
arrest or loss of driving privileges Either
they believe they can escape getting
caught or they believe their punishment
will turn out to be minimal Not even the
threat to their own physical safety (many
drunk drivers end up as fatalities
them-selves) seems to inhibit them
In the past, repeat DWI offenders
might be given probation or minimal
license In some cases, the punishment
eliminate community service as a
punish-ment, in part because it keeps prosecutions
offenses more likely However, states have
retained community service as a sentencing
option
Treatment for alcohol abuse works
in some but not all cases It is certainly
worth trying, but in many cases repeat offenders are not interested in being helped They will go through a treatment program if it is required by law, but positive effects may be short-lived
Partly in response to the federal
partly in response to groups such as
state governments have worked to make DWI laws stricter and more than just an inconvenience for recidivists In Massa-chusetts, for example, a law allows judges
to consider DWI convictions that are more than ten years old when sentencing
a repeat offender Under the previous law they could not be considered, and a driver whose earlier conviction had been
be treated as a first-time offender The new law requires that anyone who receives a second conviction faces two years probation, a suspended license, and
14 days at an in-patient alcohol treat-ment program
Other measures include the use of technology Ignition interlock devices, which require the driver to pass a breath test before the car will start, have met with positive results A study in Mary-land showed that DWI repeat offenders who used ignition interlock devices had a recidivism rate one-third lower than those who did not Some municipalities have tried electronic monitoring In Los Angeles, electronic monitoring lowered the recidivism rate for DWI offenders and also cut jail costs significantly
Some states have pushed to be able
to charge repeat DWI offenders in fatal
municipalities, bartenders who serve people who are knowingly inebriated and allow them to drive have been subject to criminal charges Even strict measures are not 100 percent effective
Drunk Driving (NCADD) estimates that
up to 80 percent of DWI offenders will take the risk of driving with a suspended license
A driver who wishes to thwart the law can usually do so DWI offenders are often able, for example, to determine the exact locations of police roadblocks based on established patterns and avoid them by traveling an alternate route People who have ignition interlock devices in their cars can have a sober friend start the car for them The trick for law enforcement officials is to stay one step ahead of the criminals The police can easily vary their patterns and stop cars randomly on different roads As for technology, interlock devices can be equipped with a re-start option that requires the driver to take a breath test several times during a car trip, even if the car is still running This arrangement keeps the offender from drinking while driving Moreover, if those who serve liquor or who allow drunk drivers behind the wheel know that they can face criminal charges, it stands to reason that they will be more careful about letting a drunk person get behind the wheel of a car
Ultimately, the most effective way to deal with repeat DWI offenders may be a combination of these measures It may not be possible to keep DWI recidivists off the road completely, but making it increasingly difficult for them to remain
on the road can yield positive results
FURTHER READINGS Beck, Kenneth H., et al 1999 “Effects of Ignition Interlock License Restrictions on Drivers with Multiple Alcohol Offenses:
A Randomized Trial in Maryland ” American Journal of Public Health (November 1).
“Judges May Weigh Full Drinking Record.”
2002 Boston Globe (November 28) CROSS REFERENCES
Alcohol; Recidivism
Trang 3unlocked only if the driver has not been drinking In 29 states, violators may be required
to forfeit their vehicles that they have driven while impaired
States have made efforts to strengthen their drunk-driving laws since the 1980s They have imposed longer prison sentences, and many have turned DWI into a felony-level crime for repeat offenders However, the more controver-sial issue in this national debate has been the effort to reduce the blood-alcohol concentra-tion (BAC) that is needed to charge a person with DWI, from 10 percent to 08 percent
Proponents have argued that such a reduction is the most effective way to prevent drunk-driving deaths Opponents contend that the 08 percent standard is too low and that it will ensnare drivers who are not truly impaired Although many states had adopted the 08 percent standard, proponents sought a national solu-tion, winning a victory in October 2000, when Congress enacted, and President BILL CLINTON
signed, the Transportation Appropriation Bill
Included in the act was a provision that requires states to enact a 08 percent BAC as the legal limit or lose part of their federal highway funding Since 2002 all 50 states have adopted the 08 percent threshold
Evidence suggests a strong correlation bet-ween a BAC greater than 05 percent and risk of serious injury or death while operating a motor vehicle After a person’s BAC reaches 08 percent
or more, the probability of a crash climbs rapidly The National Highway Traffic Safety Administration (NHTSA) estimated that in
2006, alcohol played a part in 40 percent of all fatal crashes and 7 percent of all traffic accidents
NHTSA also predicted that three out of ten Americans will be involved in an alcohol-related crash at some time during their lives
Lowering the BAC percentage is not the only action that states have taken to curb drunk driving In many states, a refusal to submit to
a BAC test is admissible in court Most states permit police to establish sobriety checkpoints
in order to identify drunk drivers Moreover, in the vast majority of states, vehicular HOMICIDE
involving drunk driving is a felony
States have also adopted so-called ZERO TOLERANCE laws that apply to drivers under the age of 21 Under these zero tolerance laws, young drivers who have a BAC of greater than 01 or 02 percent can be charged with
drunk-driving offenses The majority of states have also adopted enhanced penalties for drunk drivers with high BAC levels These penalties usually elevate the DWI charge to a felony BAC levels that lead to enhanced penalties range from 15 to 20
FURTHER READINGS Bartell, Donald J., and Anne D ImObersteg 2007 Attacking and Defending Drunk Driving Tests Santa Anna, Calf.: James.
Taylor, Lawrence, and Steve Oberman 2006 Drunk Driving Defense New York, N.Y.: Aspen.
CROSS REFERENCES Criminal Procedure; Fourth Amendment
vDWORKIN, ANDREA Andrea Dworkin is a radical feminist writer and activist concerned with illuminating and clarifying sexual and social values, who seeks to create a world in which men have no dominion over women Famous for making pointed statements such as“I am a feminist … not the fun kind,” Dworkin is considered an extremist
by most people familiar with her work, includ-ing many of her fellow feminists She has zealously advocated the censorship of all PORNOGRAPHY, which, she says, degrades women, discriminates against them as a class, and incites men to sexual violence
With Professor Catherine MacKinnon of the University of Michigan Law School, Dworkin has championed antipornography ordinances for several cities in the United States The two also helped author the Violence against Women Act (S 11, 103d Cong., 1st Sess [1993]), a federal law signed by President BILL CLINTONas part of a larger crime bill in September 1994, which makes sex-based violence a CIVIL RIGHTS
violation and allows victims to sue for compen-satory and PUNITIVE DAMAGES and attorney’s fees (42 U.S.C.A § 13981 [Supp V 1993]) The Canadian Criminal Code adopted the MacKinnon-Dworkin definition of pornogra-phy Criminal Code R.S.C., ch C-34, § 159 (8) (1970) (Can.), and the Canadian Supreme Court unanimously affirmed the constitutionality of that definition, which was transferred to § 163
in 1985 Butler v The Queen (1 S.C.R 452)
in February 1992, making the shipment and sale of pornographic materials in Canada more difficult for that country’s booksellers MacKinnon and Dworkin define pornography
50 DWORKIN, ANDREA
Trang 4as any material whose“dominant characteristic
is the undue exploitation of sex or of sex and
any one or more of the following subjects,
namely crime, horror, cruelty and violence.”
Dworkin was born September 26, 1946, in
Camden, New Jersey, the daughter of Harry
Spiegel and Sylvia Spiegel She has devoted
much of her adult life to fighting what she sees
as the most visible signs of men’s need to
control and do violence to women:
pornogra-phy, PROSTITUTION, incest, DOMESTIC VIOLENCE,
SEXUAL HARASSMENT, stalking, and RAPE
Although much has been written about
Dworkin, little of the coverage has dealt with
her early life However, Dworkin’s admittedly
autobiographical novel Mercy (1991) may
pro-vide insight into some of the events that helped
to shape this controversial feminist crusader:
the book chronicles the sexual victimization—
including molestation and rape—faced by the
protagonist, Andrea, as a child, a rebellious
teenager, and a young woman
Dworkin was drawn toward the law after
graduating from high school in 1964, but she
did not pursue a legal career because she believed
law schools at the time were run by people who
didn’t think women should be there She joined
the embryonic anti–Vietnam War movement;
graduated from Bennington College, of Vermont;
and spent the late 1960s living overseas While
in Amsterdam, she married a political radical,
who beat her repeatedly
Having been a waitress, receptionist,
secre-tary, typist, salesperson, and factory worker,
Dworkin fully embarked on a career as a radical
feminist after her marriage ended and she
returned to the United States in 1972 In the 1970s she began speaking and writing about the politics of sexuality and her affinity for women Her early books include Woman Hat-ing: A Radical Look at Sexuality (1974) and a compilation of essays called Our Blood: Prophe-cies and Discourses on Sexual Politics (1976), which called for an abandonment of women’s quest for sexual equality in favor of more radical solutions necessary to achieve a complete social realignment of the sexes During the time she was publishing these works, Dworkin gained notoriety for her assertions that all sex is rape and all sexually explicit materials are evidence
of rape
After the 1991 Anita Hill–Clarence Thomas hearings, Dworkin wrote an introduction to a book called Sexual Harassment: Women Speak Out (Sumrall and Taylor, eds., 1993), in which
◆
◆
◆
◆
◆
◆
◆
1946 Born,
Camden, N.J.
1950–53
Korean War
1961–73 Vietnam War
1964–68 Participated in anti-war protests while at Bennington College
1968–72 Lived in Amsterdam, married and divorced
1972 Returned to United States
1974 Woman Hating: A Radical Look at Sexuality published
1978 Right
Wing Women:
The Politics of Domesticated Females
published
1983–84 Minneapolis adopted antipornography ordinance written
by Dworkin and MacKinnon, but mayor vetoed
it twice
1987
Intercourse
published
1994 Violence Against Women Act signed into law
2005 Died, Washington, D.C.
2002
Heartbreak: The Political Memoir of
a Feminist Militant
published
2000 Scapegoat:
The Jews, Israel, and Women's Liberation
published
1997 Life and Death: Unapologetic Writings on the Continuing War Aganist Women published
1989
Letters from a War Zone
published
1992 MacKinnon-Dworkin definition of pornography affirmed by Canadian Supreme Court in
Butler v The Queen
1985 Testified before the Attorney General's Commission on Pornography
Andrea Dworkin.
ª COLIN MCPHERSON/ COLIN MCPHERSON/ CORBIS.
Trang 5she shared some of her experiences with sexual harassment
Dworkin met MacKinnon, a graduate of Yale Law School and also an avid feminist, in
1977 They began giving speeches and lobbying together for antipornography ordinances In the fall of 1983, they attracted attention when they teamed up to teach a course on pornography at the University of Minnesota Law School, the first class of its kind As a result of the course, several members of the city council in Minnea-polis asked the pair to write an antipornography ordinance for the city In the resulting ordi-nance, Dworkin and MacKinnon defined por-nography as “the graphic sexually explicit subordination of women, whether in picture
or in words.” The law would have allowed female rape victims to sue producers and distributors of erotic materials for damages if their attacker claimed that pornography made him do it, even if no criminal charges were filed
Following two days of explosive public hearings on the issue, the city council adopted the ordinance in late 1983, only to have the mayor veto it In 1984 a new Minneapolis city council again adopted the same ordinance, and the mayor again vetoed it A Dworkin-MacKinnon supporter in Minneapolis doused herself with gasoline and set herself ablaze amidst the controversy
Dworkin and MacKinnon subsequently proposed the same type of ordinance in Indianapolis, but after booksellers and readers challenged its constitutionality, the U.S Court
of Appeals for the Seventh Circuit ruled that the ordinance discriminated on the grounds of free speech (American Booksellers Ass’n v Hudnut,
771 F.2d 323[1985]) In the late 1980s Dworkin again coauthored a similar ordinance, this time for Bellingham, Washington Although voters
in Bellingham endorsed the concept by ballot in November 1988, the AMERICAN CIVIL LIBERTIES UNION (ACLU) persuaded a federal judge to invalidate the ordinance in February 1989 on
FIRST AMENDMENT freedom-of-the-press grounds
In the early 1990s, Dworkin and MacKinnon introduced yet another similar initiative in Cambridge, Massachusetts, which was opposed
by the ACLU and ultimately struck down
In addition to leading antiporn legislative efforts in several states, Dworkin also looked for change at a national level In 1985 she testified before Attorney General EDWIN MEESE III’s
Commission on Pornography—established at President Ronald Reagan’s behest to assess pornography’s social effects—about the causal link between pornography and violence against women As part of her evidence that pornogra-phy provides a“blueprint for male domination over women,” she cited serial killer Ted Bundy’s admission, on the eve of his execution, that pornography had made him kill women The resulting bill, officially called the Pornography Victims’ Compensation Act (S 1521, 102d Cong., 2d Sess.)—but nicknamed the Bundy Bill—would have allowed victims of sex crimes to sue producers and distributors of sexual material if the victims could prove that the material incited the crimes The bill did not pass
in Congress Dworkin went on to consult with Senator Joseph R Biden Jr (D-Del.) who sponsored a related bill in 1990 (S 2754, 101st Cong., 1st Sess.) A version of this bill was ultimately incorporated into President Clinton’s crime bill and passed as the Violence Against Women Act (108 Stat 1902 to 1955)
In the 1990s and into the 2000s, Dworkin continued to advocate her controversial theories
of feminism She lectured at COLLEGES AND UNIVERSITIES and appeared at rallies throughout the United States and numerous foreign coun-tries She produced a number of works, includ-ing essays, books, and poetry, among them: Intercourse (1987), Life and Death: Unapologetic Writings on the Continuing War against Women (1997), Scapegoat: The Jews, Israel, and Women’s Liberation (2000), and Heartbreak: The Political Memoir of a Feminist Militant (2002)
In 2002 Dworkin donated her papers to the Schlesinger Library of the Radcliffe Institute for Advanced Study at Harvard University The collection includes traditional types of material, including personal and professional correspon-dence, drafts of writings and speeches, tran-scripts of interviews, reviews of her work, and newspaper clippings In addition, she donated teaching materials, photographs, and audio and videotapes from her public life
In failing health from weight-loss surgery and knee-replacement surgery, Dworkin died
at home in Washington, D.C in April 2005
of acute myocarditis Memorial services were held at the New School in New York City
on May 25, 2005, when she was eulogized by Robin Morgan, GLORIA STEINEM, and CATHARINE MACKINNON
HUMANITY IS
BECOMES SYMBOL OF
NEVER BECOMES
HERSELF BECAUSE IT
IS FORBIDDEN FOR
—A NDREA D WORKIN
52 DWORKIN, ANDREA
Trang 6FURTHER READINGS
“Anti-Porn Legal Theorists Gather in Chicago.” 1993.
National Law Journal (March 22).
Dworkin, Andrea 2002 Heartbreak: The Political Memoir of
a Feminist Militant New York: Basic Books.
MacKinnon, Catharine, and Andrea Dworkin, eds 1997 In
Harm’s Way: The Pornography Civil Rights Hearings.
Cambridge, Mass.: Harvard Univ Press.
CROSS REFERENCE
Women ’s Rights.
vDWORKIN, RONALD MYLES
Ronald Myles Dworkin is a leading
internation-al leginternation-al and morinternation-al theorist and advocate of
AFFIRMATIVE ACTION who has kindled fierce
political and judicial debate concerning his
views A law professor at New York University
(NYU) School of Law, Dworkin is also a Fellow
of the British Academy and a member of the
American Academy of Arts and Sciences He is
considered to be one of the leading
contem-porary experts on jurisprudence, the science
of law
Dworkin, who was born December 11,
1931, received a B.A from Harvard University
in 1953 and from Oxford University in 1955
He earned a master’s degree at Yale University
and received an LL.B from Harvard Law
School in 1957 He clerked for the eminent
Judge Learned Hand After his clerkship, he
became associated with the New York law firm
of Sullivan and Cromwell From 1962 to 1969
he was a law professor at Yale University Law
School In 1969 he was appointed to the Chair
of Jurisprudence at Oxford University and
later became a Fellow of University College
Dworking continues to split his time between
London and New York, holding a joint appointment at University College and at NYU where he is a professor in the Philosophy Department and the Frank Henry Sommer Professor of Law
A prolific writer, Dworkin has authored dozens of articles for philosophical and legal journals and has written on legal and political topics for the New York Review of Books His focus is on health care issues, equality, affirma-tive action, COMMON LAW, and constitutional interpretation Dworkin has also written numer-ous books, several of which have been translated
❖
1931 Born
◆
1939–45 World War II
1925
◆ ◆
1953 Graduated from Harvard University
1955 Graduated from Oxford University
1957 Earned law degree and master’s degree from Harvard and Yale, respectively
1962 Named law professor at Yale University Law School
2000 Published
Sovereign Virtue
1993 Published
Life’s Dominion
1986 Published
Law’s Empire
1977 Published Taking Rights Seriously
1969 Named Chair of Jurisprudence at Oxford University
1954 Montgomery, Ala., bus boycott to protest segregation
1929 Wall Street
crash; Great
Depression begins
2001 Terrorists attack Pentagon and World Trade Towers
2007 Named Holberg Laureate
by Norwegian government
Ronald Dworkin.
COURTESY OF UNIVERSITY OF VIRGINIA.
MORAL READING ENCOURAGES LAWYERS AND JUDGES TO READ AN ABSTRACT CONSTITUTION IN THE LIGHT OF WHAT THEY
THEY ANSWER THE MORAL QUESTIONS THAT ABSTRACT CONSTITUTION
—R ONALD D WORKIN
Trang 7into major European languages as well as Japanese and Chinese Among his best-known works are: Taking Rights Seriously (1977); Law’s Empire (1986); Life’s Dominion: An Argument About ABORTION, EUTHANASIA, and Individual Freedom (1993); and Sovereign Virtue: The Theory and Practice of Equality (2000) Unlike many of his contemporaries, Dworkin has ventured beyond the academic audience in many
of his writings For example, Life’s Dominion is
an earnest attempt to engage readers on all sides of the abortion debate
In Taking Rights Seriously, Dworkin lays the groundwork for his philosophy by criticizing two leading theories of law: the positivist theory (and its main proponent, H L A Hart), which holds that laws of a community are rules that have been established by the conventions of a community, and that there is no connection between morality and legality; and utilitarian-ism, the idea that laws are in place for the good
of the majority Instead, Dworkin espouses the view that the basic purpose of the law is to foster equality tempered by personal responsi-bility; the most important goal of the law is for judicial decisions and statutes to be internally consistent with and logically follow the best interpretation of society’s political and legal order, a concept Dworkin refers to as
“integrity.”
Dworkin expands on his philosophy in what some consider to be his legal epic, Law’s Empire He discounts the conventionalist notion that law is based strictly on tradition and established authority, arguing that judges must interpret past legal decisions rather than mechanically apply the law based on prece-dence Dworkin’s integrity-based approach to law has drawn strong support from liberals and those who espouse a judicial activist point of view while igniting a firestorm of reproach and criticism from conservatives and strict conven-tionalists, who contend that Dworkin’s theory would place too much discretion in the hands of judges, essentially changing law to partisan politics
Outside of his work as a legal philosopher, Dworkin is co-chair of the DEMOCRATIC PARTY
Abroad, a member of the Council of Writers and Scholars Educational Trust, and a HUMAN RIGHTS consultant to the Ford Foundation In
2007 Dworkin received the Holberg Interna-tional Memorial Prize, an award reserved for
scholars in the fields of law, social sciences, theology, and the arts and humanities
FURTHER READINGS Burley, Justine, ed 2004 Dworkin and His Critics: With Replies by Ronald Dworkin London: Blackwell Dworkin, R M 1996 Freedom’s Law: The Moral Reading of the American Constitution New York: Oxford Univ Press Guest, Stephen 1992 Ronald Dworkin Palo Alto, Calif.: Stanford Univ Press.
Hershovitz, Scott, ed 2006 Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin New York: Oxford Univ Press.
Hunt, Alan, ed 1992 Reading Dworkin Critically New York:
St Martin ’s Press.
CROSS REFERENCES Ethics, Legal; Legal Positivism.
DYER ACT The Dyer Act, also called the National Motor VehicleTHEFTAct (18 U.S.C.A § 2311 et seq.), was enacted in 1919 to impede the interstate trafficking of stolen vehicles by organized thieves There are three elements that must be established BEYOND A REASONABLE DOUBT if an accused is to be convicted of the offense: (1) a vehicle is stolen, (2) theDEFENDANT knows that the vehicle is stolen, and (3) the defendant transports the vehicle in interstate or foreign commerce A person who aids and abets in the commission of this offense is equally culpable as
a principal who has actually committed the crime
The punishment for conviction under the Dyer Act is an unspecified fine, imprisonment
of no longer than ten years, or both
DYING DECLARATION
A statement by a person who is conscious and knows that death is imminent concerning what he
or she believes to be the cause or circumstances of death that can be introduced into evidence during
a trial in certain cases
A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie As a result, it
is an exception to the hearsay rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness If the person who made the dying declaration had the slightest
54 DYER ACT
Trang 8hope of recovery, no matter how unreasonable,
the statement is not admissible into evidence
A person who makes a dying declaration must,
however, be competent at the time he or she
makes a statement, otherwise, it is inadmissible
A dying declaration is usually introduced
by the prosecution, but can be used on behalf
of the accused
As a general rule, courts refuse to admit
dying declarations in civil cases, even those for
WRONGFUL DEATH, or in criminal actions for
crimes other than theHOMICIDEof the decedent
State and FEDERAL RULES OF EVIDENCE govern the use of dying declarations in their respective proceedings
FURTHER READINGS Adelkoff, Sherri K 1998 “Dialing ‘M’ for Murder:
Analyzing the Admissibility of the Telephone Dying Declaration.” Duquesne Law Review 36 (spring).
Bernstein, Michelle A 1997 “Evidence—A Modern Appli-cation of Dying-Declaration Exception to Hearsay Rule — State v Scholl ” Suffolk Univ Law Review 30 (summer).
Jarreau, Jessica C 2006 “Dying Declarations in an Ever-changing World ” Defense Counnsel Journal 73 (October 1).
Trang 9EARL WARREN LEGAL TRAINING
PROGRAM
The Earl Warren Legal Training Program was
begun in 1972 for the purpose of increasing the
number of black attorneys in the United States
The program provides financial aid on the basis
of need to qualified law students for the three
full years of law school Emphasis is placed on
scholarships for applicants who wish to enroll in
law schools in the South The program seeks to
retain professional and personal relations with
minority lawyers and holds training institutes
for young and experienced minority lawyers
Begun as a special project of the NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, the program is
now a separate corporation (The Earl Warren
Training Program, Inc.)
The program was founded by JACK
GREEN-BERG, professor of law at Columbia Law School,
who served as director–counsel of the NAACP
Legal Defense and Education Fund at the time
(1961-1984) In 2001 Greenberg was the
recipient of the Annual Award for Leadership
in HUMAN RIGHTS, presented by the Columbia
Human Rights Law Review
CROSS REFERENCE
Warren, Earl.
EARNED INCOME
Sources of money derived from the labor,
professional service, or entrepreneurship of an
individual taxpayer as opposed to funds generated
by investments, dividends, and interest
Wages, salaries, and fees are types of earned income that, if below a statutorily determined amount, entitle a taxpayer to a reduction of
INCOME TAXliability
EARNEST MONEY
A sum of money paid by a buyer at the time of entering a contract to indicate the intention and ability of the buyer to carry out the contract Normally such earnest money is applied against the purchase price Often the contract provides for forfeiture of this sum if the buyer defaults A deposit of part payment of purchase price on sale
to be consummated in future
EASEMENT
A right of use over the property of another Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters The ease-ment was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross)
Easements frequently arise among owners of adjoining parcels of land Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor’s land to gain access to
E
Trang 10the road, as well as the right of a MUNICIPAL CORPORATIONto run a sewer line across a strip of
an owner’s land, which is frequently called a
RIGHT OF WAY Easements can be conveyed from one individual to another by will, deed, or contract, which must comply with theSTATUTE OF FRAUDS
and can be inherited pursuant to the laws of
DESCENT AND DISTRIBUTION
An easement is a nonpossessory interest in another’s land that entitles the holder only to the right to use such land in the specified manner It is distinguishable from a PROFIT A PRENDREthat is the right to enter another’s land and remove the soil itself or a product thereof, such as crops or timber
An easement appurtenant attaches to the land permanently and benefits its owner In order for it to exist, there must be two pieces
of land owned by different individuals One piece, the dominant estate or tenement, is the land that is benefited by the easement The other piece, known as the servient estate or tenement, is the land that has the burden of the easement An easement appurtenant is a cove-nantRUNNING WITH THE LANDsince it is incapable
of a separate and independent existence from the land to which it is annexed A common example would be where one landowner—A—
is the owner of land that is separated from a road by land owned by B If B sells A a right of way across his or her land, it is a right that is appurtenant to A’s land and can only be used in connection thereof
An easement in gross is not appurtenant to any estate in land It arises when a servient piece of land exists without a dominant piece being affected This type of easement is ordinarily personal to the holder and does not run with the land For example, if A has a number of trees on his or her property and B contracts with A to enter A’s land to remove timber, B has both an easement in gross and a profit At COMMON LAW, an easement in gross could not be assigned; however, most courts currently allow certain types of easements in gross to be transferred
Easements are categorized as being either affirmative or negative An affirmative easement entitles the holder to do something on another individual’s land, whereas a negative easement divests an owner of the right to do something
on the property For example, the owner of land
might enter into an agreement with the owner
of an adjoining piece of land not to build a high structure that would obstruct the light and air that go onto the adjoining owner’s land This easement of light and air deprives the property owner who gives it up from enjoying ownership rights in the land to the fullest possible extent and is labeled a negative easement
There are various ways in which ease-ments are created An express easement is clearly stated in a contract, deed, or will An easement by implication occurs when the owner of a piece of land divides such land into smaller pieces and sells a smaller piece to another person, retaining a right to enter such piece of land For example, a seller divides his
or her property and sells half to a purchaser The piece that the purchaser buys has a sewer pipe beneath it that serves both pieces of property The seller has an implied easement
to use the sewer pipe that runs under the purchaser’s land
An easement by prescription arises through an individual’s use of land as opposed to the po-ssession thereof An easement of this nature will
be recognized in these instances: (1) the easement
is adverse or contrary to the interests, and absent the permission, of the landowner; (2) it is open and notorious; (3) it is continuous and uninter-rupted; and (4) it exists for the period of time prescribed by state statute If for a period of time beyond the prescribed statutory period A creates and openly uses a right of way across B’s land without B’s permission then an easement by prescription is created
An easement can either be terminated through the expiration of its term as determined upon its creation or by one of several events occurring subsequent to creation Events that can extinguish an easement include these: (1) the same individual becoming the owner of the dominant as well as the servient estate when
an appurtenant easement existed; (2) the owner
of an easement in gross obtaining ownership
of the servient estate; (3) the owner of the dominant tenement executing a deed or will releasing the easement in favor of the owner of the servient tenement; and (4) the abandonment
of an easement
vEASTMAN, CRYSTAL Crystal Eastman was a leading American writer, labor lawyer, and activist for women’s rights