The independent counsel sections were the only provision of the Ethics in Government Act that had to be reauthorized.. The response of many professions to the challenging and demanding p
Trang 1Legal Estoppel
Legal estoppel consists of estoppel by deed and
estoppel by record Under the doctrine of estoppel
by deed, a party to a property deed is precluded
from asserting, as against another party to the
deed, any right or title in derogation of the deed,
or from denying the truth of any material fact
asserted in the deed For example, suppose a
father conveys a plot of land to his son by deed
Unbeknownst to the son, the father actually does
not own the plot of land at the time of the
conveyance; the father acquires title to the
property only after the conveyance Technically,
the son is not the legal owner of the property
because his father did not own and did not have
the right to transfer the real estate at the time of
the conveyance But under the doctrine of
estoppel by deed, the court may “make good”
the imperfection of the poorly timed conveyance
by finding the son to be the rightful owner of the
plot of land (Zayka v Giambro, 32 Mass App
Ct 748, 594 N.E.2d 894[1992])
The doctrine of estoppel by record
pre-cludes a party from denying the issues
adjudi-cated by a court of competent jurisdiction
(collateral estoppel) or any matter spelled out in
a judicial record (judicial estoppel)
Collateral estoppel, sometimes known as
estoppel by judgment, prevents the re-argument
of a factual or legal issue that has already been
determined by a valid judgment in a prior case
involving the same parties For example,
suppose Ms Jones, who owns a business next
to Mr Smith’s, sues Mr Smith for damage to
her property caused by the digging of a hole
Mr Smith defends by arguing that the hole is on
his land After considering all the evidence, the
court determines that Mr Smith owns the land
Later that year, after a late night at work, Mr
Smith cuts across the back lot, falls into the
hole, and is injured He then sues Ms Jones for
negligent maintenance of her property In this
situation, the court will apply collateral
estop-pel, preventing Mr Smith from re-litigating an
issue that was already decided between the same
parties in the prior proceeding
The related doctrine of judicial estoppel
binds a party to his or her judicial declarations,
such as allegations contained in a lawsuit
complaint or testimony given under oath at a
previous trial Judicial estoppel protects courts
from litigants’ using opposing theories in the
attempt to prevail twice For instance, a tenant
trying to avoid liability to a property owner may not, in the tenant’sBANKRUPTCYcase, successfully represent to a court that the property agreement
is a lease and then later, when the property owner sues for nonpayment of rent, declare that the agreement is a mortgage rather than a lease (Port Authority v Harstad, 531 N.W.2d 496 [Minn Ct App 1995])
Estoppel by record is frequently confused with the related doctrine of res judicata (a matter adjudged), which bars re-litigation of the same CAUSE OF ACTIONbetween the same parties once there has been a judgment For example, if
Mr Chen sues Ms Lopez for breach of contract and the court returns a decision, Ms Lopez cannot later sue Mr Chen for breach of the same contract Ms Lopez has the right to appeal the first decision, but she cannot bring a new lawsuit that raises the same claim
FURTHER READINGS Coale, David S 1999 “A New Framework for Judicial Estoppel ” Univ of Texas School of Law Review of Litigation 18 (winter).
Cooke, Elizabeth 2000 The Modern Law of Estoppal New York: Oxford Univ Press.
Doing: The Evolution of the Criminal Estoppel Defense ” William Mitchell Law Review 23 (winter).
Shapiro, David L 2001 Civil Procedure: Preclusion in Civil Actions New York: Foundation.
ET AL
An abbreviated form of et alia, Latin for “and others.” When affixed after the name of a person,
et al indicates that additional persons are acting
in the same manner, such as several plaintiffs or grantors
When et al is used in a judgment against defendants, it means that the quoted words are applicable to all the defendants
CROSS REFERENCE Court Opinion.
ET SEQ
An abbreviation for the Latin et sequentes or et sequentia, meaning “and the following.”
The phrase et seq is used in references made
to particular pages or sections of cases, articles, regulations, or statutes to indicate that the desired information is continued on the pages
or in the sections following a designated page or section, as“p 238 et seq.” or “section 43 et seq.”
ET SEQ 249
Trang 2The abbreviation et seq is sometimes used to denote a reference to more than one following page or section
CROSS REFERENCE Court Opinion.
ETHICS IN GOVERNMENT ACT OF 1978
Passed in 1978 in the shadow of theWATERGATE scandal, the Ethics in Government Act affects many different aspects of federal government employment Its most famous provision was the INDEPENDENT COUNSEL Law, which gave impetus
to very public investigations of officials in three presidential administrations and resulted in the IMPEACHMENT trial of President BILL CLINTON in
1999 That provision has since been allowed to lapse, but many other provisions of the act remained valid through 2003
Conflict of Interest Provisions CONFLICT OF INTERESTwas one of the chief areas dealt with by the Ethics in Government Act The act sets forth financial disclosure requirements for federal personnel (5 USCA Appx 4 § 101 et seq) The applicable provisions detail which persons are required to file financial reports, the informa-tion which must be provided in the reports, the requirements for filing the reports, and custody
of, and public access to, the reports.CIVIL ACTION and civil liability provisions allow actions to be brought for the failure to file the reports required or for the filing of false reports
When Congress first debated the Ethics and Government Act in the late 1970s, it seemed as if the nation had been through a long nightmare of ethics scandals, with Watergate being only the most prominent and devastating The purpose
of the act was to increase public confidence in the level of integrity of federal government officials, to deter conflicts of interest from arising, and to stop unethical person from entering public service Generally, the act made provisions for the authority and functions of the Office of Government Ethics, and set up administrative provisions, rules and regulations, and appropriations to enforce federal govern-ment ethics It became law in 1978
The act also sets up the Office of Govern-ment Ethics with a directory appointed by the president, with consent of the Senate for a term
of five years (5 U.S.C.A App 4 § 401) The director provides, in consultation with the
Office of Personnel Management, the overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency Upon the request of the director, each executive agency is obliged to make its services, personnel, and facilities available to the director to the greatest practicable extent for the performance
of functions under this act; and except when prohibited by law, furnish to the director all information and records in its possession which the director may determine to be necessary for the performance of his duties
The act also sets government-wide limita-tions on outside earned income and employ-ment (5 U.S.C.A app 4 § 501) It sets specific income limits based on the government offi-cial’s level of pay It also prohibits honoraria, but that prohibition was called into question by the U.S Supreme Court in U.S v National Treasury Employees Union, 513 U.S 454, 115 S
Ct 1003, 130 L.Ed.2d 964 (U.S.Dist.Col.,1995)
In that case, the High Court determined that the honoraria prohibition imposed a significant burden on expressive activity and was the kind
of burden that abridges speech under theFIRST AMENDMENT; and that the government’s interest in assuring that federal officers not misuse or appear
to misuse power by accepting compensation for their unofficial and nonpolitical writing and speaking activities was not served by the prohibi-tion However, the Court also limited relief to parties before the Court, i.e., lower level executive branch employees, and said the ruling would not
be extended to senior executive branch employees The Court reasoned senior employees received salary increases to offset an honoraria ban disincentive to speak and write, and, furthermore, government might advance a different justifica-tion for an honoraria ban limited to senior executives Thus, the honoraria ban still applies
to senior executive branch employees
Finally in regards to conflict of interest provisions of the act, it sets up an office of Senate Legal Counsel (2 U.S.C.A § 288) Among other duties, the Senate Legal Counsel
is charged with defending the Senate as a whole,
or a committee, subcommittee, member, offi-cer, or employee of the Senate, in a court of law
or against any action taken against them The counsel also enforces SenateSUBPOENAor orders and serves in an advisory role on variousLEGAL PROCEEDINGS
Trang 3Many state statutes have been passed that
follow the Ethics in Government Act in regard
to disclosure by government officials New York
and California have particularly strict laws
States such as Florida, Alabama, Hawaii and
Pennsylvania have also enacted ethics in
gov-ernment laws The state laws generally have
similar provisions to the federal government
laws, though some are stricter in their
require-ments and penalties
Independent Counsel Provisions Perhaps the
most controversial section of the Ethics in
Government Act was the provisions for
inde-pendent counsel (28 U.S.C.A § 591) This
provided in certain limited circumstances for a
panel of judges to appoint an independent
counsel to investigate and, if necessary,
prose-cute high-ranking federal officials It was done
to prevent another“Saturday Night Massacre,”
the name for what took place in 1973 when
PresidentRICHARD NIXONfired Special Prosecutor
ARCHIBALD COX to try to stifle his Watergate
investigations
The independent counsel sections were the
only provision of the Ethics in Government Act
that had to be reauthorized A sunset clause
provided that the entire chapter of the U.S code
dealing with the Independent Counsel expired
within a certain time frame Thus the act was
reauthorized in 1983 and again in 1987, with
slight changes made to its provisions each time
The chief criticism made of the independent
counsel statute was that because the president
could not directly fire the independent counsel,
the attorney general could only remove the
counsel for GOOD CAUSE, physical or mental
disability, or any other condition that
sub-stantially impaired the performance of the
independent counsel’s duties The independent
counsel had too much power and resources for
investigating the target, thus leading to long and
involved inquiries which were expensive for the
target of the investigation even if no
wrongdo-ing was found
Nonetheless, the Supreme Court upheld the
independent counsel provision in Morrison v
Olson, 487 U.S 654, 108 S.Ct 2597, 101 L.Ed.2d
569 (U.S.Dist.Col 1988) In 1992, following
strong Republican criticism over the
investiga-tion of the Iran-Contra scandal by independent
counsel Lawrence Walsh, the independent
counsel provision was allowed to lapse
However, it was revived in 1994 by a Demo-cratic controlled Congress
This decision led to the most controversial independent counsel investigation of them all:
independent counsel Ken Starr’s inquiry into President Bill Clinton’s involvement in the WHITEWATERreal estate scandal Starr’s investiga-tion led to the unsuccessful impeachment trial
of Clinton and became the longest and most expensive independent counsel investigation in history The results of the Clinton case were divisive to both Republicans and Democrats and led to much criticism of Starr and his methods
Perhaps because of this episode, the inde-pendent counsel provision of the Ethics and Government Act was allowed to expire in 1999
The duties of the independent counsel were taken over by the JUSTICE DEPARTMENT As of
2003, no attempt to revive the provision had been made
FURTHER READINGS Cox, Archibald Winter, 1991 –92 “Ethics in Government:
The Cornerstone of Public Trust ” West Virginia Law Review 94.
with Bureaucratic Ethics ” Journal of Law and Politics 11.
Mears, Walter “Independent Counsel Law’s Quiet Death.”
Los Angeles Times (June 20, 1999) Available online at http://articles.latimes.com/1999/jun/20/news/mn-48324;
website home page: http://articles.latimes.com (accessed July 22, 2009).
Em-ployees ” In American Jurisprudence 2d ed Eagan, MN: West.
CROSS REFERENCES Watergate; Whitewater.
ETHICS, LEGAL The branch of philosophy that defines what is good for the individual and for society and establishes the nature of obligations, or duties, that people owe themselves and one another In modern society, ethics define how individuals, professionals, and corporations choose to interact with one another
The word ethics is derived from the Greek word ethos, which means “character,” and from the Latin word mores, which means “customs.”
ARISTOTLEwas one of the first great philosophers
to study ethics To him, ethics was more than a moral, religious, or legal concept He believed
ETHICS, LEGAL 251
Trang 4that the most important element in ethical behavior is knowledge that actions are accom-plished for the betterment of the common good He asked whether actions performed by individuals or groups are good both for an individual or a group and for society To determine what is ethically good for the individual and for society, Aristotle said, it is necessary to possess three virtues of practical wisdom: temperance, courage, and justice
The need to control, regulate, and legislate ethical conduct at the individual, corporate, and government levels has ancient roots For example, one of the earliest law codes devel-oped, the Code of Hammurabi, made bribery a crime in Babylon during the eighteenth century
B.C Most societies share certain features in their ethical codes, such as forbiddingMURDER, bodily injury, and attacks on personal honor and reputation In modern societies, the systems of law and public justice are closely related to ethics in that they determine and enforce definite rights and duties They also attempt to repress and punish deviations from these standards
Laws can be neutral on ethical issues, or they can be used to endorse ethics The prologue to the U.S Constitution states that ensuring domestic tranquility is an objective of government, which is an ethically neutral statement.CIVIL RIGHTSlaws, on the other hand, promote an ethical as well as legal commitment
Often laws and the courts are required to resolve strong ethical dilemmas in society, as in the controversial issues of ABORTION (ROE V WADE, 410 U.S 113, 93 S Ct 705, 35 L Ed
2d 147), AFFIRMATIVE ACTION (University of California v Bakke, 438 U.S 265, 98 S Ct
2733, 57 L Ed 2d 750), and SEGREGATION (BROWN V BOARD OF EDUCATION, 347 U.S 483,
74 S Ct 686, 98 L Ed 873)
Laws also permit many actions that will not bear ethical scrutiny In other words, what the law permits or requires is not necessarily what is ethically right For instance, laws allow
disloyal-ty toward friends, the breaking of promises that
do not have the stature of legal contracts, and a variety of deceptions Laws sometimes require gross immoralities, as did theFUGITIVE SLAVE ACT
OF 1850, which required citizens to return runaway slaves to their masters, and the U.S Supreme Court’s Dred Scott decision, which
in 1857 declared that slaves were not citizens but property (60 U.S 393, 19 How 393, 15 L
Ed 691)
Local, state, and federal regulatory acts influence the conduct of some professions Business executives are faced with two types of ethical issues in conducting their day-to-day affairs, and the law holds them accountable for their actions in these areas Micromanagement issues include conflicts of interest, employee rights, fair performance appraisals, SEXUAL HARASSMENT, proprietary information, discrimi-nation, and accepting or offering gifts Macro-management issues include corporate social responsibility, PRODUCT LIABILITY, environmental ethics, COMPARABLE WORTH, layoffs and down-sizings, employee screening tests, employee rights to privacy in the workplace, and corpo-rate accountability
Although the law does influence the con-duct of some professions, many ethical issues cannot be settled by the courts The ethics of a particular act is many times determined inde-pendently of the legality of the conduct In fact, decisive answers cannot always be given for many ethical issues because there are no enforceable standards or reliable theories for resolving ethical conflicts
The response of many professions to the challenging and demanding problem of institu-tionalizing business ethics is to implement codes of ethics, develop statements of corporate goals, sponsor training and educational pro-grams in ethics, install internal judiciary bodies that hear cases of improprieties, and create telephone hot lines through which employees can anonymously report possible ethical
Medical professionals
must adhere to a high
standard of ethics.
The American
Medical Association
has an enforceable,
written code.
AP IMAGES
Trang 5violations A code of ethics provides members
of a profession with standards of behavior and
principles to be observed regarding their moral
and professional obligations toward one
an-other, their clients, and society in general The
primary function of a code of ethics is to
provide guidance to employers and employees
in ethical dilemmas, especially those that are
particularly ambiguous
A code of ethics is often developed by a
professional society within a particular
profes-sion The higher the degree of professionalism
required of society members, the stronger and,
therefore, more enforceable the code For
instance, in medicine, the behavior required is
more specific and the consequences are more
stringent in the code of ethics for physicians
than in the code of ethics for nurses In
addition, professions that require licensure
from a state-authorized board, which
guaran-tees both the competency and the moral efficacy
of its members, place a duty on the licensed
professional to help prevent UNAUTHORIZED
PRACTICEby unlicensed providers as a means of
protecting the public
Decisions in ethical situations can be made
more easily if the code is specific, gives detailed
directions on what actions should or should not
be taken, and spells out explicit penalties for
unethical behavior Therefore, some large and
influential professional associations have
devel-oped highly detailed and enforceable codes for
their membership The American Medical
Association’s (AMA’s) Principles of Medical
Ethics has seven provisions, supplemented by
numerous interpretive opinions of a judicial
council The Model Rules of Professional
Con-duct of the AMERICAN BAR ASSOCIATION (ABA)
contains eight sections, construed according to
138 ethical considerations and implemented by a
comparable number of parallelDISCIPLINARY RULES
The Rules of Conduct of the American Institute
of Certified Public Accountants has six major
principles, each with numerous specifications
The American Psychological Association’s Ethical
Principles of Psychologists and Code of Conduct
contains six principles, with several provisions
under each
Other professions with codes of
responsibil-ity include dentistry, social work, education,
government service, engineering, journalism,
real estate, advertising, architecture, banking,
insurance, and human resources management
However, because some of these professions are not licensed, anyone can claim their title and perform their function—thus making it difficult to find legal recourse to claims of UNETHICAL CONDUCT
All professional codes can be considered quasi-public because of the effect they may have
on legal judgments during litigation Many states adopt accrediting associations’ codes of ethics, thereby establishing those standards as public codifications Failure to comply with a code can, in some professions, result in expulsion from the profession The AMA’s Principles of Medical Ethics, for example, are not laws per se, but the maximum penalty for violation of the principles is expulsion from the AMA In addition, the ABA’s Model Rules of Professional Conduct provide evidence of professional stan-dards of loyalty and care, and they become directly enforceablePUBLIC LAWwhen they or their variants are adopted as binding upon lawyers admitted to practice within a state
The most common violations of ethics codes that are brought before state professional associations and the legal system are breach of contract, including that resulting from incom-petent behavior or decisions or from failure
to exercise GOOD FAITH; fraud, or an intent to deceive; and professional malpractice, or NEGLI-GENCE, which include incompetence and the performance of unnecessary services
Because the legal profession is more self-regulating (i.e., regulated by attorneys and judges themselves rather than by government or outside agencies) than most professions, every state supreme court or legislature has a committee authorized to enforce the state rules of profes-sional legal conduct The state conduct commit-tees make factual determinations on whether to privately reprimand a lawyer, publicly censure him or her, suspend the attorney’s license to practice, or permanently revoke the license (i.e., disbar the attorney, or permanently disqualify the attorney from practicing law in the state)
Specific procedures on discipline in the legal profession vary from state to state, but every state allows for court review of the conduct committee’s recommendations If a license is revoked, the lawyer may petition the committee for readmission to the bar after a period of time specified by the state rules Not every violation results in disbarment This drastic measure is
ETHICS, LEGAL 253
Trang 6most commonly reserved forTHEFTor misuse of client funds
Besides laws based on professional bar association codes of ethics, separate federal and state laws define ATTORNEY MISCONDUCTand empower judges to discipline unethical conduct
by attorneys For example, rule 11 of the Federal Rules ofCIVIL PROCEDURE (28 U.S.C.A.) requires sanctions for lawyers and clients who file frivolous or abusive claims in court
Courts may restrict lawyers in some cases from making public statements that would otherwise be protected by the FIRST AMENDMENT
A U.S court of appeals held in the case In re Morrissey, 168 F.3d 134 (4th Cir 1999) that lawyers, under certain circumstances, may be constitutionally prohibited from making pre-trial statements to the press in criminal cases if there is
a “reasonable likelihood” that those statements would interfere with a fair trial The appeals court continued a line of cases holding that similar restrictions upon a lawyer’s speech are constitu-tional in the appropriate circumstances
The attorney in Morrissey was convicted of criminal contempt for his out-of-court public statement, which violated a local court rule prohibiting certain statements during potential
or imminent criminal litigation Other circuit courts of appeals and the U.S Supreme Court have reached similar results when reviewing similar restrictions, but some, such as the Seventh Circuit in Chicago Council of Lawyers v Bauer,
522 F.2d 242 (7th Cir 1975), have reached opposite results Accordingly, the permissible bounds for the restriction of a lawyer’s speech remain somewhat vague
Although every state has adopted either the ABA’s Model Rules or one of its predecessors, the interpretation of each state’s law regarding lawyer conduct is left to the courts and ethics commissions of the various states Like other areas of laws, these interpretations vary from state to state In 1999 the American Law Institute (ALI) approved the RESTATEMENT OF LAWGoverning Lawyers, which was designed as
a codification of the rules derived from decisions of state courts, ethics commissions, and similar agencies The Restatement is not binding upon any court, but like other Restate-ments, such as those governing contracts and property, it is a highly persuasive body of work
The Restatement includes provisions re-garding the regulation of the legal profession,
the relationship between lawyer and client, civil liability of lawyers, treatment of confiden-tial client information, representation of cli-ents, and conflicts of interest Development of the Restatement’s provisions took several years, and the ALI considered a number of drafts before approving the final draft in 1999 State courts have already begun to interpret its provisions
For example, in Levine v Bayne, Snell & Krause, Ltd., 40 S.W.2d 92 (Tex 2001), the Texas Supreme Court looked to the Restate-ment to determine whether an attorney’s fee under a contract that provided for aCONTINGENT FEEarrangement should be offset by a counter-claim against the client The Restatement resolved the dispute, and the Texas Supreme Court held that the law firm in the case should only recover a percentage of the amount recovered by the client after the counterclaim Similarly, other state courts have applied the Restatement to resolve disputes regarding, for instance,ATTORNEY-CLIENT PRIVILEGE
Judges must comply with theCODE OF JUDICIAL CONDUCT, which was formulated by the ABA in
1972 This code is not considered law; however, federal and state governments have adopted it, and its violations are used as the basis for punitive action against judges Any person may lodge a complaint of misconduct against a judge with the appropriate JUDICIAL REVIEW council Punitive actions include public or private reprimand and suspension from office
New fields of ethics, such as bioethics, engineering ethics, and environmental ethics, have arisen with the rapid social change and technological developments of modern society New areas of concern have also opened up, not just for the professions involved but for society
as well For instance, physicians, who have taken the Hippocratic Oath to save life, cure disease, and alleviate suffering, are now faced with whether to use medical devices that can prolong life at the cost of increasing suffering or
to follow patients’ requests to be allowed to die without extraordinary lifesaving precautions or
to be provided with medications or devices that will end life As such professions grapple with expanding their codes of responsibility to keep
up with technological advances and societal pressures for stricter business ethics, changes in laws governing business ethics are bound to change too Since societal ethics has evolved
Trang 7through the law, it mirrors the ethical norms
agreed on by the majority
FURTHER READINGS
Callahan, Joan C., ed 2009 Ethical Issues in Professional Life.
2d ed New York: Oxford Univ Press.
Gorlin, Rena A., ed 1999 Codes of Professional
Respon-sibility 4th ed Washington, D.C.: Bureau of National
Affairs.
Kaufman, Andrew L., and David B Wilkins 2009 Problems
in Professional Responsibility for a Changing Profession.
4th ed Durham, NC: Carolina Academic.
Madsen, Peter, and Jay M Shafritz 1990 Essentials of
Business Ethics New York: Meridian.
McDowell, Banks 1991 Ethical Conduct and the
Profes-sional’s Dilemma: Choosing between Service and Success.
New York: Quorum.
Morgan, Thomas D., and Ronald D Rotunda 2008 Morgan
and Rotunda’s Professional Responsibility, Problems and
Materials 10th ed St Paul, MN: Foundation.
Salbu, Steven 1994 “True Codes versus Voluntary Codes of
Ethics in International Markets: Towards the
Preserva-tion of Colloquy in Emerging Global Communities ”
Univ of Pennsylvania Journal of International Business
Law 15 (fall).
CROSS REFERENCES
Death and Dying.
Paula Louise Ettelbrick is a longtime public
advocate for the rights of lesbian, gay, bisexual,
and transgender (LGBT) people As a lawyer,
law professor, writer, and speaker, Ettelbrick
has fought for social justice and public service
for nearly 30 years Until the spring of 2009,
Ettelbrick was the executive director of the
International Gay and Lesbian HUMAN RIGHTS
Commission She is a known speaker and
commentator on trends related to LGBT legal and human rights, and consults with nonprofit organizations and businesses on policy develop-ment and impledevelop-mentation regarding the rights
of LGBT people
Ettelbrick was born October 2, 1955, on a U.S Army base in Stuttgart, Germany Growing
up in a devoutly Catholic family, she was taught
by her parents that each person has an obligation to society and to the greater world,
Paula Ettelbrick COURTESY OF THE INTERNATIONAL GAY AND LESBIAN HUMAN RIGHTS COMMISSION
Paula Louise Ettelbrick 1955–
◆
❖
◆
◆
2003 Appointed executive director
of International Gay and Lesbian Human Rights Commission (IGLHRC)
2002 Appointed adjunct professor
at NYU Law School
1999–2001 Served as family policy director for the Policy Institute of the National Gay and Lesbian Task Force 1993–94 Hired as director of public policy at
the National Center of Lesbian Rights
1993–95 Bottoms
v Bottoms case
1988–93 Appointed Lambda’s legal director;
opened office in L.A.
and created network of cooperating attorneys all over U.S.
1984 Graduated from Wayne State Law School
1981 AIDS epidemic first identified
1990 Began teaching
at NYU Law School
1998 Drafted NYC’s domestic partnership law
◆
2009 Resigned as executive director of IGLHRC
1978 Graduated from Northern Illinois University
1973 Lambda Legal Defense and Education Fund founded
1955 Born,
Stuttgart,
Germany
1950–53
Korean War
1961–73 Vietnam War
WE’RE TALKING ABOUT OVERHAULING
A WHOLE SYSTEM THAT WAS BASED ON THE1930S FAMILY CONSISTING OF A MALE WAGE-EARNER,
A NONWORKING WIFE,
AND SOME KIDS
—P AULA E TTELBRICK
Trang 8and that all people should be treated equally.
Ettelbrick’s convictions led her to social work, and after she graduated from Northern Illinois University in 1978 with a bachelor of arts degree
in history, she held several social services positions, working primarily as a social worker for the women’s shelter at Boston’s Harbor Light Center Through her work, in which she sought public benefits, housing, and employ-ment for low- and no-income women, Ettel-brick came to recognize the lack of support available for the underrepresented—in this case, poor women
Ettelbrick’s interest in women’s labor and EMPLOYMENT LAWled her to enroll in law school
at Wayne State University in Detroit, Michigan, where she was on the Wayne Law Review and clerked for several legal employers, including the United Auto Workers (UAW) Union
Working for the UAW, Ettelbrick was exposed
to a variety of labor law andPUBLIC POLICYissues, and she helped draft a statement from the union’s vice president to Congress on why the EQUAL RIGHTS AMENDMENT should be reintro-duced In 1984 she graduated cum laude and took an associate position doing commercial litigation at one of Detroit’s premiere law firms, Miller, Canfield, Paddock, and Stone
In keeping with her original desire to devote her career to public interest work, Ettelbrick left the law firm to take the position that would identify her as a leading LGBT rights advocate
She joined Lambda Legal, a test-case litigation organization founded in New York City in 1973,
to advocate for gay, lesbian, bisexual, and trans-gender CIVIL RIGHTS When she accepted the position in 1986, the number of lawyers
dedicat-ed to the rights of LGBT people was extremely small Ettelbrick was the first staff attorney hired in-house by Lambda and was charged with developing a national-impact litigation docket
Two years later, she was appointed legal director,
a position she held until 1993
Hoping to challenge legal and social bias against gay and lesbian people, Ettelbrick litigated a variety of constitutional and CIVIL RIGHTS CASES, many related to the heightening legal crisis accompanying HIV/AIDS Within
a year, Lambda hired a second staff attorney
to handle the AIDS work, freeing Ettelbrick to develop what Lambda called its Sexual Orien-tation Docket, working with cases involving LGBT families, employment, and the military
Ettelbrick advocated for legal recognition
of domestic partners, unmarried couples,
same-sex co-parents, and family caregivers She was the first Lambda lawyer to testify before theSENATE JUDICIARY COMMITTEEregarding
a U.S Supreme Court nominee Under Ettel-brick’s leadership, Lambda opened its first regional office in Los Angeles in 1990, its legal staff multiplied, and the network of cooperating attorneys willing to work with Lambda grew to more than 400
After seven years with Lambda, Ettelbrick was ready for a change, and in March 1993, she left the organization to join the National Center for Lesbian Rights as its first director of public policy In that position, Ettelbrick concentrated
on promoting social policy and legislative reform in the areas of employment rights, lesbian health policy, and lesbian and gayFAMILY LAW Her work contributed to a substantial redrafting of the federal civil rights bill banning sexual orientation discrimination and met notable success with the Clinton Administration
in addressing the health issues of lesbians Ettelbrick continued to litigate on behalf of lesbians, and in 1993 and 1994 she was involved
in the high-profile custody case Bottoms v Bottoms, 18 Va App 481, 444 S.E 2d 276 (Va App Jun 21, 1994) The case involved a lesbian, Sharon Lynne Bottoms, whose mother, Pamela Kay Bottoms, had petitioned for custody of Sharon’s child owing to Sharon’s admitted homosexuality After Sharon lost custody of the child at the trial court level, she and Ettelbrick appealed and won custody in the Court of Appeals of Virginia The appeals court held that the mere fact that Sharon was a lesbian and had a live-in female companion did not render her an unfit parent In a SPLIT DECISION, the Supreme Court of Virginia reversed the court of appeals, reinstating custody in the child’s grandmother (457 S.E.2d 102 [1995]) This growing hostility to the rights of lesbian and gay parents prompted Ettelbrick to leave the National Center for Lesbian Rights and devote herself to advocating for LGBT rights at the state level As the first legislative counsel for the Empire State Pride Agenda, New York’s statewide LGBT political group, Ettel-brick created model legislation for use by advocates around the country, founded the Federation of LGBT Statewide Political Organi-zations, and continued to write and promote local domestic partnership laws Most notably, Ettelbrick drafted and helped pass New York
Trang 9City’s full DOMESTIC PARTNERSHIP LAW, signed by
then-Mayor Rudolph Giuliani
In 1999 Ettelbrick was recruited by the
Policy Institute of theNATIONAL GAY AND LESBIAN
TASK FORCE to fill a new position as its family
policy director In addition to continuing her
work with state legislative groups to halt passage
of anti-LGBT adoption and foster care laws,
Ettelbrick spearheaded the first major public
information campaign encouraging same-sex
couples to complete the 2000 Census forms, so
as to help researchers identify same-sex couples
throughout the United States
In 2003 Ettelbrick became the executive
director of the International Gay and Lesbian
Human Rights Commission (IGLHRC), a New
York-based group that advocates internationally
against torture, discrimination, and
mistreat-ment of LGBT people around the world Under
Ettelbrick’s leadership, the IGLHRC grew from a
U.S.-only organization to an international leader
in advocacy, with staff on four continents and
increased representation in the UNITED NATIONS
and other international human rights bodies
Ettelbrick began her 20-year tenure as an
adjunct law professor in 1990 with a course on
Sexuality and the Law at New York Law School,
which was, at the time, one of barely a dozen law
schools offering a course devoted to the issues of
sexual orientation and gender identity She also
teaches at Barnard College and regularly speaks
at universities, conferences, academic symposia,
workplace venues, and other public forums
Ettelbrick’s “marriage debate” with former
Lambda Legal colleague Tom Stoddard has
become a classic within LGBT studies and was
recently the focus of a 20-year retrospective
symposium of the Rutgers Law Review
Ettelbrick’s professional successes are many,
as a teacher, a litigator, and an advocate for
a segment of the population that has been
historically marginalized and denied rights taken
for granted by the rest of society
FURTHER READINGS
Berry, Dawn Bradley 1996 The 50 Most Influential Women
in American Law Los Angeles: Contemporary Books.
Coles, Matt (panelist), et al 1999 “Roundtable Discussion:
Where Do We Go from Here? Lesbian, Gay, Bisexual
and Transgendered Civil Rights into the Next
Millen-nium ” Fordham Urban Law Journal (December).
“Domestic Relations Law: Visitation Rights of Lesbian
Companion ” 1991 New York Law Journal (May 7).
Eskridge, William N 2001 Equality Practice: Civil Unions
and the Future of Gay Rights New York: Routledge.
Ettelbrick, Paula Forthcoming “From Criminals and Psychopaths to the Family Next Door: The Amazing Struggle for Lesbian and Gay Inclusion ” Race, Class, and Gender Edited by P Rothenberg New York:
Worth Publishers.
——— 2001 “Domestic Partnership, Civil Unions, or Marriage: One Size Does Not Fit All.” Albany Law Review 64 (March).
——— 1994 Custody/Visitation Issues (Legal Issues Facing the Non-Traditional Family) Practising Law Institute Tax Law and Estate Planning Course Handbook series (April-May).
——— 1993 “Who Is a Parent?: The Need to Develop a Lesbian Conscious Family Law ” New York Law School Journal of Human Rights 10 (spring).
“Litigating for Lesbian and Gay Rights: A Legal History.”
1993 Virginia Law Review 79 (October).
“On the Prudence of Discussing Affirmative Action for Lesbians and Gay Men ” 1993 Stanford Law & Policy Review 5 (fall).
“Same-Sex Marriage and the Right of Privacy.” 1994 Yale Law Journal 103 (April).
“Symposium: Updating the LGBT Intracommunity Debate Over Same-Sex Marriage ” 2009 Rutgers Law Review 61 (spring).
CROSS REFERENCES Acquired Immune Deficiency Syndrome; Gay and Lesbian Rights.
EUTHANASIA Euthanasia comes from a Greek word, meaning good death The term normally implies an intentional termination of life by another at the explicit request of the person who wishes to die
Euthanasia is generally defined as the act of killing
an incurably ill person out of concern and compassion for that person and in an effort to limit that person’s suffering It is sometimes called mercy killing, but many advocates of euthanasia define mercy killing more precisely as the ending of another person’s life without his or her request
Euthanasia, by contrast, is usually separated into two categories: passive euthanasia and active euthanasia In many jurisdictions, active eutha-nasia can be considered murder or manslaughter, whereas passive euthanasia is accepted by profes-sional medical societies and by the law under certain circumstances
Passive Euthanasia
Hastening the death of a person by altering some form of support and letting nature take its course is known as passive euthanasia Examples include such actions as turning off respirators, halting medications, discontinuing food and water (so as to allow a person to dehydrate or starve to death), and choosing not to resuscitate
EUTHANASIA 257
Trang 10Passive euthanasia also includes giving a patient large doses of morphine to control pain,
in spite of the likelihood that the painkiller will suppress respiration and cause death earlier than
it otherwise would have happened Such doses of painkillers have a dual effect of relieving pain and hastening death Administering such medication
is regarded as ethical in most political jurisdic-tions and by most medical societies
These procedures are performed on termi-nally ill, suffering persons so that natural death will occur sooner They are also commonly performed on persons in a persistent vegetative state; for example, individuals with massive brain damage or in a coma from which they likely will not regain consciousness
Active Euthanasia
Far more controversial, active euthanasia involves causing the death of a person through a direct action, in response to a request from that person
A well-known example of active euthanasia is the death of a terminally ill Michigan patient on September 17, 1998 On that date, Dr JACK KEVORKIAN videotaped himself administering a lethal medication to Thomas Youk, a 52-year-old Michigan man with amyotrophic lateral sclerosis
CBS broadcast the videotape on 60 Minutes less than a week later Authorities subsequently charged Kevorkian with first-degree
premeditat-ed MURDER, criminal assistance in aSUICIDE, and delivery of a controlled substance for administer-ing lethal medication to a terminally ill man
There was no dispute that the dose was admini-stered at the request of Mr Youk nor any dispute that Mr Youk was terminally ill A jury found Kevorkian guilty of second-degree murder in
1999 He was sent to prison Upon his release in
2007, Kevorkian promised to stop assisting with suicides, although he would continue to work for passage of legislation that would legalize physician-assisted suicide
Physician-Assisted Suicide
Something of a hybrid of passive and active euthanasia is physician-assisted suicide (PAS), also known as voluntary passive euthanasia In this case, a physician supplies information and/
or the means of committing suicide (e.g., a prescription for lethal dose of sleeping pills or a supply of carbon monoxide gas) to a person, so that that individual can successfully terminate his or her own life
Physician-assisted suicide received greater public attention after Dr Kevorkian, a retired pathologist from Michigan, participated in his first such procedure in 1990 Kevorkian set up a machine that allowed a 54-year-old woman suffering from Alzheimer’s disease (a degenera-tive neurological condition) to press a button that delivered a lethal poison into her veins Kevor-kian went on to assist in the suicides of dozens of individuals suffering from terminal, debilitating,
or chronic illnesses In 1992 Michigan passed an assisted-suicide bill (Mich Comp Laws
§ 752.1021) that was specifically designed to stop Kevorkian’s activities, but technicalities and questions as to its constitutionality delayed its implementation, thus allowing Kevorkian to continue assisting suicides—often in direct opposition to court injunctions
Kevorkian was charged with murder several times but was not initially found guilty When murder charges were brought against him for his first three assisted suicides, for example, they were dismissed because Michigan, at that time, had no law against ASSISTED SUICIDE In 1994 Kevorkian was tried and found not guilty of assisting in the August 1993 suicide of Thomas
W Hyde Jr In December 1994, however, the Michigan Supreme Court ruled in People v Kevorkian (447 Mich 436, 527 N.W 2d 714), that there is no constitutional right to commit suicide, with or without assistance, and upheld the Michigan statute that made assisted suicide
a crime The following year, the U.S Supreme Court refused to hear Kevorkian’s appeal from the state supreme court’s ruling
Observers disagree about the humanity of Kevorkian’s activities Some see him as a hero who sought to give suffering people greater choice and dignity in dying Others point to his lack of procedural precautions and fear that the widespread practice of assisted suicide will lead
to the unnecessary death of people who could have been helped by other means, including treatment for depression Many opponents of assisted suicide find the same faults in the practice that they see in other forms of euthanasia They envision its leading to a devaluation of human life and even to a genocidal killing of vulnerable or so-called undesirable individuals
The U.S Supreme Court has made two important rulings on assisted suicide In Washington v Glucksberg (521 U.S 702, 117 S