An accidental, casual, secret, or permissive entry is ineffective. While the entry must be notorious, it must also be peaceable to prevent violence and warfare, which might otherwise result. The payment of REAL ESTATE taxes by the owner, while demonstrating that he or she has not abandoned land, is not considered to have any impact on continuous possession. The adverse claimant may destroy his or her continuous possession by abandoning the land or giving it to someone else, even the owner, before the time at which title to it would vest. It does not matter how long or brief the abandon- ment is as long as it was intentional. A temporary absence from the land is not the same as an abandonment and has no effect on the occupancy, provided it is for a reasonable period of time. Statutory Period The time period of the statute of limitations that must expire before title can be acquired by adverse possession varies from state to state. No statute will begin to run until the adverse claimant actually possesses the property in question under color of title or claim of right, where necessary. As of that time, the landowner is entitled to bring a lawsuit against the possessor to recover the property. The adverse possessor must occupy the property for the full statutory period. In jurisdic- tions that also require color of title, it must coexist with possession for the complete period. If the statute of limitations has been suspended—for example, because there is a lawsuit pending between the owner and the claimant or the owner is insane, an infant, or serving in the armed services—that amount of time will not be counted toward the time necessary for the acquisition of title. Acquired Title Once adverse possession is completed, the claimant has full legal title to the property. The expiration of the statutory period elim- inates any CAUSE OF ACTION or LIABILITY for ejectment or trespass regarding the new owner’s prior UNLAWFUL possession of the property. Once the time period is satisfied, the adverse posses- sor is considered the original owner of the land. He or she may use the land any way he or she sees fit provided it is lawful. Personal Property Ownership of PERSONAL PROPERTY may be ac- quired by adverse possession if the same requisites are met. The clai mant must possess the property actually, openly, notoriously, exclusively, hostilely, under claim of right, and uninterrupted for the statutory period. FURTHER READINGS Berger, Lawrence. 1999. “Unification of the Doctrines of Adverse Possession and Practical Location in the Establishment of Boundaries.” Nebraska Law Review 78 (winter). Bloch, David S., and James Parton III. 2001. “The Intent Theory of Extinguishment Under California Law.” Southwestern Univ. Law Review 30 (winter). Gonski, Dennis M. 2001. “Disrupting More Than a Half Century of Accepted Law.” New Jersey Law Journal (June 18). Latovick, Paula R. 1998. “Adverse Possession of Municipal Land: It’s Time to Protect This Valuable Asset.” Univ. of Michigan Journal of Law Reform 31 (winter). Spitler, William Hayden. 2000. “Over a Century of Doubt and Confusion: Adverse Possession in Arkansas, Intent to Hold Adversely and Recognition of Superior Title in Fulkerson v. Van Buren.” Arkansas Law Review 53 (spring). Stake, Jeffrey Evans. 2001. “The Uneasy Case for Adverse Possession.” Georgetown Law Journal 89 (August). CROSS REFERENCES Cause of Action; Color of Title; Easement; Real Property; Statute of Limitations; Title; Trespass. ADVICE AND CONSENT The authority given by the U.S. Constitution to the Senate to ratify treaties and confirm presi- dential cabinet, ambassadorial, and judicial appointments. Article II, Section 2, of the Constitution gives the president the right to negotiate foreign treaties and to nominate individuals to high- ranking government positions, including cabi- net members, ambassadors, and federal judges. However, these powers are conditioned upon the advice and consent of the Senate. Section 2 requires the Senate to approve treaties by a two- thirds majority, while presidential appointments require a simple majority. The advice and consent requirement is an example of one of the checks and balances built into the Constitu- tion. The provision seeks to limit presidential power. The Senate has used the treaty RATIFICATION authority to extract changes in negotiated treaties and, in some cases, to reject an international agreement. The most famous rejection involved President WOODROW WILSON’S desire to have the United States join the newly created LEAGUE OF NATIONS after WORLD WAR I. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 148 ADVICE AND CONSENT The Senate, hostile to the concept of interna- tional government, refused to ratify the treaty in 1919, which severely weakened the organiza- tion. In contrast, the Senate ratified the UNITED NATIONS Charter in 1945. The advice and consent power has drawn the most public attention when the Senate has rejected presidential nominations to the cabinet and to federal judgeships. The Senate voted down the 1987 Supreme Court nomination of Robert Bork by President RONALD REAGAN, leading to charges that the Senate had politi- cized the confirmation process. CLARENCE THOMAS was confirmed as Supreme Court justice in 1991, but only after a bruising confirmation struggle that was nationally televised. In 2002, the Senate rejected several judicial nominations by President GEORGE W. BUSH, again leading to charges of partisan politics. ADVISE To give an opinion or recommend a plan or course of action; to give notice; to encourage, inform, or acquaint. Advise does not mean the same as instruct or persuade. If a statute authorized a trial court to acquit, the court has no power to instruct the jury to acquit. The court can only counsel, and the jury is not bound by the advice. ADVISEMENT Deliberation; co nsultation. A court takes a case under advisement after it has heard the arguments made by the counsel of opposing sides in the lawsuit but before it renders its decision. ADVISORY JURY A jury that makes recommendations to a judge but does not render final judgment. Advisory juries are authorized by Rule 39(c) of the Federal Rules of CIVIL PROCEDURE (FRCP). This provision states that in all actions where the PLAINTIFF does not have the right to a jury trial, the court may authorize an advisory jury if a party requests it or the judge concludes independently that it is appropriate. The “verdict” the advisory jury renders is not binding on the judge. Advisory juries are typically used when the federal government is the sole DEFENDANT in a civil lawsuit and when the claims at issue are particularly sensitive. In addition, OBSCENITY trials sometimes employ an advisory jury to determine whether the material in question is OBSCENE based on community standards. Because the FRCP serves as the model for state rules of procedure, most states also authorize advisory juries. The advisory jury originated in English courts of equity, in which the chancellor (the name for an equity court judge) heard cases without a jury but had discretion to appoint a jury to advise him. In modern law a judge has great discretion in determining how much weight an advisory jury VERDICT will bea r on a final judgment. Some judges adopt advisory jury findings unless they are clearly erroneou s while other judges consider the findings an additional piece of evidence to be weighed in deciding the case. After the government siege of the Branch Davidian compound in Waco, Texas, in 1993, an advisory jury was used in a lawsuit against the federal government filed by the survivors of the fire that ended the siege, and relatives of those who died in the fire. The survivors’ WRONGFUL DEATH action asked for $675 million in damages. Under the FEDERAL TORT CLAIMS ACT the survivors did not have a right to a jury trial but the federal judge concluded that an advisory jury was needed. In July 2000, the jury ruled in favor of the federal government on all counts and the judge endors ed these findings in a final judgment. FURTHER READINGS Spielbauer, T. “Practice and Potential of the Advisory Jury.”1987. Harvard Law Review 100 (April). Wisenberg, Solomon. 2000. “What the Waco Advisory Jury Did Not Hear.” CNN.com: Law Center. Available online at http://edition.cnn.com/2000/LAW/07/columns/fl. wisenberg.waco.07.20; website home page: http:// edition.cnn.com (accessed July 3, 2009). ADVISORY OPINION An opinion by a court as to the legality of proposed legislation or conduct, given in response to a request by the government, legislature, or some other interested party. Advisory opinions are issued in the absence of a CASE OR CONTROVERSY. Although they are not binding and carry no precedential value, they are sometimes offered as persuasive evidence in cases where no PRECEDENT exists. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ADVISORY OPINION 149 Federal courts will not issue advisory opinions. This rule, based on the constitutional guarantee of SEPARATION OF POWERS, was estab- lished in 1793 when JOHN JAY, the first chief justice of the Supreme Court, refused to provide legal advice in response to requests by President GEORGE WASHINGTON and Treasury Secretary ALEXANDER HAMILTON. Washington asked the Court for advice relating to his Neutrality Proclamation in regard to the French Revolu- tion. Hamilton asked Jay for an opinion on the constitutionality of a RESOLUTION passed by the Virginia House of Representatives. In both instances, the Court diplomatically but firmly refused to supply an opinion. The Supreme Court has steadfastly resisted subsequent efforts to elicit advisory opinions, even when these efforts appear under the guise of an actual lawsuit. Thus, in Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911), the Court struck down an act of Congress that authorized the plaintiffs to sue the United States to determine the validity of certain laws. The Court found the lawsuits authorized by the act to be thinly ve iled attempts to obtain advisory opinions, since the constitutional requirements of justiciability and an actual case or controversy were not satisfied. Justice WILLIAM R. DAY, writing for the Court, predicted that if the justices rendered a judgment in the case, the result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitu- tion intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution. Echoing the convictions expressed in Musk- rat, Supreme Court Justice FELIX FRANKFURTER, writing on advisory opinions, stated, “Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to sterile conclusions unrelated to actualities.” Unlike their federal counterpart, a number of state constitutions authorize their courts to issue advisory opinions. However, even in those states, courts usually restrict advisory opinions to pending legislation and refuse requests for opinions on abstract or theoretical questions of law. In any event, the opinions are not BINDING AUTHORITY in future cases. Whereas courts are typically limited in issuing advisory opinions, the attorney general of the United States and state attorneys general frequently issue opinions that are advisory in nature. By statute, the president or head of an executive department may require from the U.S. attorney general an opinion on questions of law arising from the administration of that office or department (28 U.S.C.A. §§ 511-512 [1993]). Most states charge attorneys general with similar responsibilities. Although advisory opinions issued by attorneys general are not typically binding in nature, in some circum- stances the opinions may bind the authorities that request them. Advisory opinions have their greatest effect as guides to policy making for the executive and legislative branches of state government. They are most often sought in the areas of intergov- ernmental relatio ns, TAXATION, and finance. Advisory opinions contrast with declaratory judgments, which determine the rights of litigants in an actual controversy and involve specific individuals who are at least nominally adverse to each other. Declaratory judgments are al lowed by courts at both the federal and state levels. Although the line between advisory opinions and declaratory judgments is a fine one, the Supreme Court has consis- tently reiterated the necessity of keeping it intact. In Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936), the justices insisted that the Federal DECLARATORY JUDGMENT Act, which gives federal courts the power to issue declaratory judgments, “does not attempt to change the essential requisites for the exercise of judicial power.” An actual, not theoretical, case or controversy between specific parties must still be shown. In another case, the Court stated specifically that the Declaratory Judgment Act cannot be invoked to “ obtain an advisory decree upon a hypothetical state of facts” (Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936 [1938]). FURTHER READINGS Bonsignore, John J., et al. 2006. Before the Law: An Introduction to the Legal Process. 8th ed. Florence, KY: Cengage Learning. Schaper, Todd. 1998. “The Advisory Opinion Process: True Safe Harbors or More Rocky Coastlines?” New Jersey Law Journal 154 (December 14). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 150 ADVISORY OPINION CROSS REFERENCES Attorney General; Declaratory Judgment; Evidence; Hamil- ton, Alexander; Justiciable; Precedent; Separation of Powers; Washington, George. ADVOCACY The act of pleading or arguing a case or a position; forceful persuasion. ADVOCATE To support or defend by argument; to recommend publicly. An individual who presents or argues another’s case; one who gives legal advice and pleads the cause of an other before a court or tribunal; a counselor. A person admitted to the practice of law who advises clients of their legal rights and argues their cases in court. AERONAUTICS Aeronautics is the science and art of flight, encompassing the functioning and ownership of all aircraft vehicles from balloons to those that travel into space. Aviation is travel by means of an aircraft that is heavier than air. Aerospace is a term used in reference to the atmosphere and the area beyond. The aerospace industry is involved with the planning and building of vehicles operating in both air and space. Airspace is the region that extends above real property. Air transportation, as set forth by federal statute, refers to interstate and distant conveyance of people, cargo, and mail by U.S. and foreign aircraft vehicles. Airspace Rights The federal government has jurisdiction over airspace within its domain, and each state has authority over the space above the ground within its borders except in places within the domain of federal regulation. An aircraft is subject to the authority of the federal govern- ment and to the authority of a particular state while traveling over it. Landowners have air rights that extend upward beyond their proper- ty, the BOUNDARIES of which are delineated by local zoning ordinances. These air rights The Federal Aviation Administration has responsibility for air traffic control. Air traffic controllers have a duty to keep aircraft from colliding with each other by guiding their path. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION AERONAUTICS 151 ordinarily may be used to the extent that they are connected to the enjoyment of the property. Because the general public has the right to freedom of travel in the navigable airspace of the United States, an aircraft may have legal access to airspace above private property. A landowner might have a civil CAUSE OF ACTION for trespass or NUISANCE, however, where an aircraft enters the landowner’s airspace in such manner as to constitute an INFRINGEMENT on the land- owner’s right to the use and possession of the property. In some instances the landowner is entitled to an INJUNCTION to prohibit unlawful intrusion of his or her airspace. Air Transportation Regulation The FEDERAL AVIATION ADMINISTRATION (FAA) is the agency with the authority to govern air commerce. The intent of such regulation is to advance the growth and safety of air travel while satisfying national defense needs. The director of the FAA has the power to engage in, or monitor, work and testing that will bring about the production of advanced aircraft; to set forth prescribed rules and regulations for the plan- ning and servicing of airplanes; and to adminis- ter stringent sanctions if the regulations are not observed. The FAA is also responsible for air traffic control at airports. The NATIONAL TRANS- PORTATION SAFETY BOARD (NTSB) is charged with investigating the circumstances surrounding, and the causes of, accidents involving aircraft. Certificate Requirements An airplane must have a valid airworthiness certificate in order for it to be lawfully operated. The airworthiness of a plane is determined by an inspector authorized by the FAA. The inspector may neither delegate this duty to inspect the aircraft nor depart from procedures for inspection that have been prescribed by the administrator of the FAA. The FAA administrator is em powered to create minimum standards for the inspection, maintenance, and repair of air carrier equip- ment as well as for safe operation of the vehicle. Another important function of the administra- tor is to issue certificates to eligible aeronautical personnel, which includes pilots; navigators; and people who inspect, maintain, overhaul, and repair aircraft. The administrator specifies the particular function that each of these individuals is qualified to perform. Certain prerequisites exist for an airline PILOT rating, including a high degree of technical skill, medical fitness, care, judgment, and emotional stability. If public safety is endan- gered, the FAA administrator will either revoke or suspend a pilot’s license. A pilot is entitled to notice and a FAIR HEARING before the revocation or suspension of his or her certification, absent an emergency that warrants immediate action. The pilot may appeal the order of suspension or revocation to the NTSB, and subsequent appeals may be brought to the usual appellate channels of federal courts ordinarily beginning in a U.S. district court. Regulation on the State and Local Level A state or municipality has the authority to regulate the air traffic that affects it; this power, however, is limited by the condition that the regulation must not interfere or conflict with either interstate commerce or federal restraints. State or municipal regulations on noise precipi- tated by aircraft engines may not, for example, conflict with federal rules governing noise pollution. Airport Operation Most federal law affecting airports and air carriers can be found under 49 U.S.C. 401, et seq., and Titles 14 and 49 of the CODE OF FEDERAL ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. Active Pilot Certificates Held in 2008, by Type of Certificate SOURCE: Federal Aviation Administration, “U.S. Civil Airmen Statistics,” available online at http://www.faa .gov/data_research/aviation_data_statistics (accessed on Au g ust 11, 2009). Other 35,707 Private 222,596 Recreational and sport, 2,875 Airline transport 146,838 Student 80,989 Commercial 124,796 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 152 AERONAUTICS REGULATIONS (C.F.R.). The Airline Deregulation Act of 1978, P.L. 95-504 (as amended 49 U.S.C.A. 41713 [2007]) provides that states may not enact or enforce a law relating to pricing, routing, or service of an air carrier. However, the state can give a local legislature the power to regulate airports and their con- nected facilities. States may join together to form a regiona l airport authority to operate an airport. An airport may also be built and maintained by a private part y or a corporation, subject to the requirement that use and enjoyment of neigh- boring landowners’ property is not unreasonably disrupted. Airports that are not properly con- structed and operated might amount to nui- sances. A private homeowner can sue for damages in the event that an improperly run airport constitutes a nuisance and can attempt to have the court suspend its operation pursuant to the provisions of an injunction. Notice must be given to the mu nicipality before such a cause of action may be commenced against it. The creation and maintenance of airports are subject to zoning regulations. In certain jurisdictions a public agency is empowered by the state to adopt zoning laws that limit the use of adjacent property. Such ordinances are designed to reduce interference with the opera- tion of the airport. In considering the need for intervention concerning the building and operation of airports, courts examine the interests of the concerned parties in light of prevailing PUBLIC POLICY in favor of encouraging quiet use and enjoyment of one’s land compared to the interests of society in accessible and convenient air travel. For example, in Clark County, Nevada v. Vacation Village (497 F.3d 209 [9th Cir. 2007]), PLAINTIFF landowners fought local county ordi- nances imposing airspace restrictions that affected their property. (The ordinances created airport runway protection zones and imposed land-use limitations, including restrictions on the height of buildings on property located within those zones.) This adversely affected plaintiffs’ intended use of the property for vacation resort condominium development. The lawsuit alleged that the restrictions were tantamount to a taking of the property under state EMINENT DOMAIN law (inverse condemna- tion), which would require the county to pay compensation to the landowners. The Nevada Supreme Court found that the airport zoning and height-restrictions amounted to a taking of airspace under the Nev ada Constitution. It had already so concluded in a similar previous case, McCarran International Airport v. Sisolak (cert. denied by the U.S. Supreme Court, 06-658, February 2007), finding that a landowner had a property interest in the airspace above his land up to 500 feet. On appeal, the Ninth CIRCUIT COURT of Appeals, while disagreeing with the Nevada high court, found that it had no choice, in the absence of federal preemption, except to apply McCarran and find Clark County liable for a taking under the Nevada Constitution. In 2008, the U.S. Supreme Court denied review of the case (No. 07-373, June 2008). The owner of a public airport may arrange leases for its use, and a municipality that owns an airport may charge reasonable fees for the right to do business there. A public airport owner has the power to govern its ground transportation, to give qualified individuals and companies exclu- sive privileges to transport passengers to and from the airport, and to run an automobile rental company on airport grounds. Use and Ownership of Aircraft Vehicles The legality of the sale or conveyance of an aircraft is regulat ed by the statute of the jurisdiction where the document of conveyance or sale is transferred. Federal law mandates the registration of aircraft and the proper recording of any paper that affects its title, such as a mortgage. Such recording must take place at the administration and records branch of the FAA. In addition, documents creating security interests in the aircraft must be recorded to provide notice to prospective purchasers of prior claims to the vehicle. General principles of contract law govern aircraft rental, and parties to the agreement are ordinarily bound by its terms. The renter of a defective vehicle might, however, have the right to terminate the contract since the individual offering the aircraft for rent is obligated to provide a vehicle in satisfactory operating condition. Duties in Aircraft Operation An individual who is injured as a result of the operation of an aircraft usually has a legally enforceable right to damages for any injuries or losses sustained. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AERONAUTICS 153 Manufacturers A manufacturer must exercise reasonable care and proficiency in the design, production, and assembly of an aircraft vehicle. LIABILITY for a departure from this duty may be extended to the manufacturer regardless of whether that company was directly involved in the manufacture of the parts. The law will imply a warranty of proper design and manufacture of an aircraft. A manufacturer of parts will also be held responsible for damage caused by the product and must use a high degree of care in their production, although they need not be made accident-proof. A manufacturer is not relieved of a continuing obligation to improve the component parts of an air vehicle when there is continuing risk to safe travel. Pilots The pilot of a private aircraft is subject to ordinary NEGLIGENCE standards in the absence of a special law. The pilot is required to exercise ordinary, but not extreme, care and caution regarding its operation. Negligence rules, how- ever, impose a greater standard of care when applied to aviation, because of the severity and magnitude of potential harm posed by improper operation of an aircraft. Owners Generally ownership of an aircraft vehicle is insufficient to render a person liable for damage resulting from its unreasonable operation by another. In certain jurisdictions, however, an owner who lends a plane to an individual he or she knows to be reckless or in- competent will be held responsible. Similarly, t he federal or state government cannot evade liability for damage arising from the improper operation of its aircraft by government employees. Passengers Pa ssengers in a private aircraft have theobligationtoexercisereasonablecarefortheir own well-being. They must su bscribe to t he reasonable-person standard and refrain from going on a parti c ular fli ght that would b e a n obvious danger, such as a flight during a hurricane. Passengers on AIRLINES and other air com- mon carriers must observe safety precautions by obeying instructions of flight attendants, such as by fastening their seatbelts. Airport Operators An airport operator has the duty to exercise ordinary care in protecting aircraft on its premises and the people who use airport facilities. Neglecting to maintain the airport premises in a reasonably safe condition results in tort liability for resulting injuries to anyone present. Air Traffic Control The federal government has responsibility for air traffic control. Air traffic controllers have a duty to keep aircraft from colliding by guiding their paths. Liability can be extended to the federal govern- ment for the negligence of its air traffic controllers. Contributory negligence by the individual harmed might, however, prevent recovery against the United States for damage caused only partially by the negligence of controllers. The FAA has broad authority for the regula- tion of U.S . air space and air traffic control. In early 2008 it issued a final rule aimed at addressing the air traffic congestion at New York and New Jersey airports. The rule specifically limited the number of scheduled aircraft arrivals at JOHN F. KENNEDY International and LaGuardia airports in New York and Liberty International Airport in New Jersey during peak hours. In conjunction with that ruling, the FAA declared that the available space (called slots) created by the limitations was agency property, which the FAA then declared it would auction off on an annual basis. The Air Transport Association (ATA) then sued the FAA to invalidate the slot auction rules, challenging the preemption amendment of the Airline Deregulation Act (ATA v. FAA 08-1333, D.C. Cir.). In May 2009 the FAA proposed RESCISSION of those rules (Federal Register 74: 22714 and 22717). Airlines An airline has the duty to employ the greatest degree of care possible to protect its passengers. Liability might be imposed for harm to a pas- senger resulting from wrongful behavior of its employees. It must also take steps to guard pas - sengers against misconduct of fellow passengers. Companies that accept goods for air trans - port must exercise a high degree of care to properly handle and deliver such goods. Liabi lity for LOSS or damage may be restricted to a prearranged amount, which must be listed on the passenger ’s ticket in the case of baggage or on the BILL OF LADING regarding the goods shipped. Flying Schools A flying school that maintains facili ties that interfere with the customary use and enjoyment of property by neighboring landowners can be liable for nuisance or trespass. A student pilot flying with a flight instructor is considered legally to be a passenger, and, therefore, the school owes the same duty of care to the student as a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 154 AERONAUTICS commercial airline owes to its passenger. A trainee, however, assumes certain risks while being taught to fly, and the school can success- fully assert the defense of assumption of the risk in tort cases. A member of a flight club, as an owner of an airplane that belongs to the club, may be held personally liable for accidents that might occur while he or she is pilotin g the craft. Statutes that govern the liability of a flight club member explain liability issues. Following the September 11, 2001, terrorist attacks on the United States, Congress moved to tighten regulatio ns on flying schools. It was believed that terrorists who hijacked and crashed airplanes into the World Trade Center and the Pentagon had trained at flying schools in the United States. The goal of the post-September 11 reform is to make information about foreign flight school enrollees more readily accessible to law enforcement agencies (49 CFR 1552). Under the USA PATRIOT ACT OF 2001, flying schools are one of several types of educational institutions required to participate in the Student and Exchange Visitor Information System (SEVIS) implemented by the U.S. IMMIGRATION and Naturalization Service. Exempt from federal privacy restrictions, SEVIS is a database of information about foreign students, such as identification, visa status, and criminal data. Flying schools failing to participate in SEVIS may lose their ability to enroll international students. Under broadened powers granted by the PATRIOT Act, the U.S. attorney general may make use of such information to seize educational records, conduct surveillance, bypass certain SEARCH WARRANT requirements, and take into custody ALIENS whose visa status is in violation. Some parts of the PATRIOT Act had a sunset clause for December 31, 2005, but President GEORGE W. BUSH signed the act into law after much congressionaldebateinMarch2006.Aslateas 2009, many people in and outside government urged repeal of this act, arguing its intrusion in personal liberties. Others believed terrorist threats to the United States warranted keeping the PATRIOT Act. Air Piracy Aircraft piracy or an attempt to hijack an airplane is a federal offense, punishable by either life imprisonment or death. Airlines can deny an individual passage on an airplane if a magnetometer (an instrument used to measure magnetic intensity) indicates the presence of a metal object, such as a weapon, on that person and the person refuses to surrender to the appropriate officials any metal object that might have triggered the instrument. Aerospace The National Aeronautics and Space Adminis- tration (NASA) was established by Congress to organize, direct, and carry out research into difficulties attached to flight within and beyond the atmosphere of the Earth and to facilitate the development and functioning of aeronautical vehicles. FURTHER READINGS Banner, Stuart. 2008. Who Owns the Sky?: The Struggle to Control Airspace from the Wright Brothers On. Cam- bridge, Mass.: Harvard Univ. Press. Fixel, Rowland W. 1999. The Law of Aviation. Holmes Beach, Fla.: Gaunt. Hamilton, J. Scott. 2001. Practical Aviation Law. 3d ed. Ames: Iowa State Univ. Press. Institute of Air & Space Law. Available online at http://www. mcgill.ca/iasl/ (accessed September 26, 2009). Journal of Air Law and Commerce Overview. Available online at http://smu.edu/lra/Journals/JALC/Overview. asp (accessed September 26, 2009). Rollo, Vera A. Foster. 2000. Aviation Law: An Introduction. 5th ed. Lanham, Md.: Maryland Historical Press. Transportation Research Board, Airport Cooperative Research Program (ACRP). 2008. Legal Research Digest 1. January 2008. CROSS REFERENCES Airlines; Carriers; Eminent Domain; Federal Aviation Administration; Hijacking; National Transportation Safety Board; Pilot; Terrorism. AFFIDAVIT A written statement of facts voluntarily made by an affiant under an oath or affirma tion adminis- tered by a person authorized to do so by law. Distinctions An affidavit is voluntarily made without any CROSS-EXAMINATION of the affiant and, therefore, is not the same as a DEPOSITION, a record of an examination of a witness or a party made either voluntarily or pursuant to a SUBPOENA,asifthe party were testifying in court under cross- examination. A pleading—a request to a court to exercise its judicial power in favor of a party that contains allegations or conclusions of facts that are not necessarily ve rified—differs from an affidavit, which states facts under OATH. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFIDAVIT 155 Basis An affidavit is based upon either the personal knowledge of the affiant or his or her INFORMATION AND BELIEF . Personal knowledge is the recognition of particular facts by either direct observation or experience. Information and belief is what the affiant feels he or she can state as true, although not based on firsthand knowledge. The Affiant Any person having the intellectual capacity to take an oath or make an affirmation and who has knowledge of the facts that are in dispute may make an affidavit. There is no age requirement for an affiant. As long as a person is old enough to understand the facts and the significance of the oath or affirmation he or she makes, the affidavit is valid. A criminal conviction does not make a person incapable of mak ing an affidavit, but an adjudication of INCOMPETENCY does. Someone familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be clear. A guardian may make an affidavit for a minor or insane person incapable of doing so. An attorney may make an affidavit for a client if it is impossible for the client to do so. When necessary to the performance of duties, a PERSONAL REPRESENTATIVE, agent, or corporate officer or partner may execute an affidavit that indicates the capacity in which the affiant acts. A court cannot force a person to make an affidavit, because by definition, an affidavit is a voluntary statement. The Taker of the Affidavit Any public officer authorized by law to administer oaths and affirmations—such as city recorders, court clerks, notaries, county clerks, commis- sioners of deeds, and court commissioners—may take affidavits. Justices of the peace and magis- trates are sometimes authorized to take affidavits. Unless restricted by state law, judges may take affidavits involving controversies before them. An officer cannot take affidavits outside of the particular jurisdiction in which he or she exercises authority. The source of this authority must appear at the bottom of the affidavit. A notary, for example, would indicate the county in which he A sample affidavit ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Affidavit STATE OF __________________________________ COUNTY OF __________________________________ BEFORE ME, the undersigned authority, _____________________ [name and capacity of officer before whom affidavit is sworn], on this _____________________ [day of month] day of _____________________ [month], 20____, personally appeared _________________ [name of affiant], known to me to be a credible person and of lawful age, who being by me first duly sworn, on ________ [his or her] oath, deposes and says: _________________________________ [set forth statement of facts]. _____________________________ [signature of affiant] _____________________________ [typed name of affiant] _____________________________ [address of affiant] Subscribed and sworn to before me, this _________________ [day of month] day of _________________ [month], 20____. [Seal] _____________________________ [signature of officer] _____________________________ [typed name of officer] _____________________________ [title of officer] My commission expires: ______, 20____ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 156 AFFIDAVIT or she is commissioned and the expiration date of the commission. An official seal is not essential to the validity of the affidavit but may be placed on it by the proper official. The Oath or Affirmation Unless otherwise provided by statute, an oath is essential to an affidavit. The statement of the affiant does not become an affidavit unless the proper official administers the oath. When religious convictions prevent the affiant from taking an oath, he or she may affirm that the statements in the affidavit are true. Contents There is no standard form or language to be used in an affidavit as long as the facts contained within it are stated clearly and definitely. Unnecessary language or legal arguments should not appear. Clerical and grammatical errors, while to be avoided, are inconsequential. The affidavit usually must contain the address of the affiant and the date that the statement was made, in addition to the affiant’s signature or mark. Where the affidavit has been made is also noted. When an affidavit is based on the affiant’s information and belief, it must state the source of the affiant’s information and the grounds for the affiant’s belief in the accuracy of such infor- mation. This permits the court to draw its own conclusions about the information in the affidavit. An affiant is strictly responsible for the truth and accuracy of the contents of the affidavit. If false statements are made, the affiant can be prosecuted for PERJURY. Functions Affidavits are used in business and in judicial and administrative proceedings. Business Generally affidavits are used in busi- ness whenever an official statement that others might rely upon is needed. Statements of the financial stabi lity of a corporation, the pedigree of animals, and the financial conditions of a person applying for credit are examples of affidavits used in the commercial world. Judicial Proceed ings Affidavits serve as evi- dence in civil actions and criminal prosecutions in certain instances. They are considered a very weak type of evidence because they are not taken in court, and the affiant is not subject to cross- examination. Their use is usually restricted to times w hen no better e vidence can be offered. If a witness who has made an affidavit is not a vailable to TESTIFY at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his or her affidavit is INADMISSIBLE except when used to IMPEACH the witness’s TESTIMONY,ortohelpthe witness with past recollection of facts. Affidavits are also used as evidence in EX PARTE proceedings such as a hearing for the issuance of a TEMPORARY RESTRAINING ORDER or an order to SHOW CAUSE. The expeditious nature of such proceedings is considered to substantially outweigh the weak PROBATIVE value of the affidavits. In addition, there is normally a sub- sequent opportunity in the course of LITIGATION for the opposing party to refute the affidavits or cross-examine the affiants. An affidavit based on the knowledge of the affiant is accorded more weight than one based on information and belief. When admissible, affidavits are not conclu sive evidence of the facts stated therein. Administrative Proceedings Affidavits are fre- quently used in administrative and QUASI-JUDICIAL proceedings as evidence when no objection is made to their admission and there is an opportunity for cross-examination. AFFILIATION PROCEEDING A court hearing to determine whether a man against whom the action is brought is the father of an illegitimate child and thus legally bound to provide financial support for the child. Formerly referred to as bastardy actions or proceedings in many jurisdictions, as of 2003 these are called paternity or filiation proceedings. In several states, these proceedings are governed in part by the Uniform Parent age Act, first adopted by the Commissioners on Uniform Laws in 1973. The purpose of the act is to identify natural fathers through a paternity test so that a court may order child support obligations against them. CROSS REFERENCES Commissioners on Uniform Laws; DNA Evidence; Paternity; Paternity Suit. AFFINITY The relationship that a person has to the blood relatives of a spouse by virtue of the marriage. The doctrine of affinity developed from a maxim of CANON LAW that a HUSBAND AND WIFE were made one by their MARRIAGE. There are three types of affinity. Direct affinity exists between the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION AFFINITY 157 . Au g ust 11 , 2009). Other 35,707 Private 222,596 Recreational and sport, 2,875 Airline transport 14 6,838 Student 80,989 Commercial 12 4,796 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 15 2 AERONAUTICS REGULATIONS. [title of officer] My commission expires: ______, 20____ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 15 6 AFFIDAVIT or she is commissioned and the expiration date of the commission. An official. True Safe Harbors or More Rocky Coastlines?” New Jersey Law Journal 15 4 (December 14 ). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 15 0 ADVISORY OPINION CROSS REFERENCES Attorney General;