Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P3 docx

landlord, who had ignored her requests for months, that she refused to pay the rent unless he fixed the stairs. A few days later, the landlord fixed their steps—and all the other broken steps on their road. Bell’s interpretation of the event? “Good things happen when you push.” Bell has also said that he carries his fathe r ’s “dignified suspicion” of whites in hard-time Pittsburgh and his mother’s homespun concep- tion of a rights-based economy of self-respecting agitation. The eldest of four children, Bell earned a bachelor of arts degree and an Air Force commission when he graduated from Duquesne University in 1952, and then he served in the KOREAN WAR. While in the Air Force, Bell made his first discreet push for racial equality: he complained to the commanding officer at a base in Louisiana about black soldiers having to sit in the back of the bus whenever they left base. After his military stint, he attended the University of Pittsburgh School of Law, lived at home, and kept the books for his father, Derrick Bell Sr., who ran a trash-collection business. Bell was elected as the associate editor-in-chief for the Pittsburgh LAW REVIEW , a prestigious position for a student to hold at any law school. He competed strenuously in law school and has admitted to being “alittle obnoxious” in his attempt to succeed in an otherwise all-white class: in the yearbook, under- neath his picture, the following description is given: “Knows everything and wants others to know he knows everything.” After graduating fourth in his class and being admitted to the District of Colum bia bar in 1957, Bell applied to a top local law firm, which had asked the law school to send over its best students. “When I walked in, there were all these gasps,” he said. “It was like a line of heart attacks down the hall.” Bell did not get the job, but he did go on to become one of only three black attorneys at the U.S. Department of Justice after being assigned to the Civil Rights Division. His first professional act of defiance came in 1959, when he quit his job at the JUSTICE DEPARTMENT in protest after being told to give up his membership in the National Association for the Advancement of Colored People ( NAACP), which the Justice Department considered a CONFLICT OF INTEREST. Bell returned to Pittsburgh and although he had passed the Pennsylvania bar, he accepted the position of executive secretary of the NAACP’s Pittsburgh branch. A year later he was recruited by its then-director, THURGOOD MARSHALL , to join the staff of the NAACP LEGAL DEFENSE AND EDUCATIONAL FUND to champion the cause of racial equality. After starting as the executive secretary for the Pittsburgh branch of the Defense Fund, Bell was promoted to first assistant counsel at the New York City branch, where he remained from 1960 to 1966. While working as a civil rights lawyer, he confronted many difficult people and situations—from judges predisposed to RULING against his black clients to segregated public buildings. During this time, Bell spent a night in jail in Mississippi for refusing to leave a train station’s “whites- only” waiting room. He oversaw 300 SCHOOL DESEGREGATION cases and played a central role in getting JAMES MEREDITH, a black student, admitted to the all-white University of Mississippi, despite the resistance of Governor Ross Barnett. “Down South, I learned a lot It just seems that unless something’s pushed, unless you litigate or protest, nothing happens,” Bell said. In 1966 Bell was admitted to the New York bar. From 1966 to 1968, he served as deputy director of the U.S. Department of Health, Education, and Welfare’s Office for Civil Rights. In 1968 he moved to California and became the executive director of the Western Center of Law and Poverty, at the University of Southern California (USC). He passed the California bar in 1969 and taught law as an adjunct professor at USC’s law center. After the 1968 ASSASSINATION of Dr. MARTIN LUTHER KING Jr. and inner-city riots, Bell received a number of offers to teach law, including one from Harvard. He accepted Harvard’s offer and lectured there from 1969 to 1971, after telling the school that he was willing to be the first black there but not the last. In 1971, after Bell challenged the school to vote on his tenure, he became the law school ’s first tenured African American faculty member, a position he kept until December 1980. During his tenure, he wrote several articles and the text, Race, Racism and American Law (1973; 4th ed. in 2000). Bell left Harvard in January 1981 to become a professor and the dean of the University of Oregon School of Law. He resigned from there in 1985, when the school refused to back his decision to offer a tenure-line position to an Asian American woman. The same year, he published the foreword in the Harvard Law CIVIL RIGHTS CAM- PAIGNS AIMED AT CHANGING THE RULES WITHOUT AFFECTING THE UNDERLYING STATUS QUO . —DERRICK BELL JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 8 BELL, DERRICK ALBERT, JR. Review, “The Civil Rights Chronicles.” In 1996 the Society of American Law Teachers named him Teacher of the Year. After leaving Oregon, Bell spent a semester the next year as a visiting professor at Stanford Law School, where, once again, he found himself mired in controversy—this time for his revisionist teaching of CONSTITUTIONAL LAW. Some Stanford law students, who disliked Bell’s interpretation of the Constitution, pressured the faculty into offering supplemental lectures from other professors. Shortly before the first of these additional lectures, Stanford’s Black Law Student Association staged a protest, and the administration made a formal apology to Bell. In the fall of 1986 Bell returned to Harvard to teach law. He soon was caught up—yet again—in racial discord. During commencement exercises in May of 1987, he staged a four-day round-the-clock sit-in inside his office to protest the denial of tenure to two members of the CRITICAL LEGAL STUDIES movement, a leftist movement that challenges the basic tenets of LEGAL EDUCATION and scholarship. Also in 1987, Bell’s alter ego, Geneva Crenshaw, who had first come to life in his Harvard Law School foreword, became the heroine in the pages of his book And We Are Not Saved. At the fulcrum of this collection of ten allegorical tales was the contention that racism is an immutable, permanent problem in U.S. society; Bell used Socratic dialogues between himself, as narrator, and Crenshaw, a black civil rights lawyer, to measure the “progress” of blacks since BROWN V. BOARD OF EDUCATION, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). Further, in 1987, Bell spoke out in support of Justice Thurgood Marshall, whose minority report that year had criticized the Constitution and blacks’“token presence” in the bicentennial celebrations: “We need more candor about why the Constitu- tion was written the way it was and what still needs to be done to insure individual rights,” said Bell. The following year, Bell wrote Civil Rights in Two Thousand Four: Where Will We Be? Also in 1988, he wrote a scathing indictment of Harvard Law’s AFFIRMATIVE ACTION performance; his article, published in 1989 by the Michigan Law Review, gave a fictional account of how Harvard came to hire more minorities only after the school’s black faculty and the university president were killed in a terrorist bomb ing. Bell was privately criticized for having dared to paint a grisly portrait of the president of Harvard being blown to pieces. Robert C. Clark, a professor at Harvard and a future dean of the school, objected to Bell’s many protests, saying, “This is a university, not a lunch co unter in the Deep South.”“In its own way, this law school is as much in need of reform as the lunch counters of the South, although in a far more subtle way,” said Bell. Clark later apologized and spoke of sharing Bell’s goal of building a diverse faculty. Bell’s dissension at Harvard came to a head in the spring of 1990, when Professor Regina Austin was denied tenure at the law school. In early April, students on 50 law campuses boycotted classes in a call for more minority teachers; later that month, Bell announced that he would step down—and forgo his $100,000 annual salary—until a black or other minority woman was considered for tenure. Of the school’s sixty-five full-time professors at the time, five were white women and five were black men. Bell’s position was that qualified persons of color were not getting through an obsolete and irrelevant tenure-granting process, despite their qualifications and the valuable perspective they could provide law students. He said the traditional checklist for tenure—Was the can- didate at the top of his or her law class? an editor on law review? someone with prestigious clerkships?—must be made more flexible when considering minority professors. “The tradi- tional way of doing legal scholarship doesn’t do justice to our experience,” said Bell. “But minorities who are trying to blaze new trails in legal academia are meeting opposition and silencing.” Comparing Bell to Rosa Parks—a black woman who refused to sit in the back of the bus in Montgomery, Alabama, in 1955—the Reverend JESSE JACKSON offered in May 1990 to mediate between the school and Bell. Harvard turned down the offer. Many observers marveled at the public attention attracted by Bell’s dramatic move at Harvard—among them, Richard H. Chused, professor of the Georgetown University Law Center, who in 1989 published an empirical study demonstrating the lack of diversity within law school faculties, and Nathaniel R. Jones, judge for the federal Ninth CIRCUIT COURT of Appeals and a part-time Harvard Law instructor. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BELL, DERRICK ALBERT, JR. 9 Not all of Bell’s colleagues agreed with this form of protest, however. Professor Charles Fried, of Harvard Law, called Bell “off his head,” and others termed him “counterproductive.” Dean Clark continued to assert that Harvard should make appointments based on merits and not because of protests. Bell’s struggle with Harvard may not have been entirely for naught: in September 1992, Dean Clark acknowledged bitter divisions within the school and created a working group of faculty, students, and staff to improve the level of civility and community and to foster discussion of issues that had shaken the institution. And in June 1993, Harvard granted tenure to its seventh black law professor, Charles Ogletree. In the early 2000s, Bell continued to be a prolific writer. In addition to publishing other books, such as Confronting Authority: Reflections of An Ardent Protestor (1994), Constitutional Conflicts (1997), Afrolantica Legacies (1998), and Ethical Ambition: Living a Life of Meaning and Worth (2002), he is also the author of a foreword in Critical Race Feminism: A Reader. Bell’s articles have appeared in The New York Times Magazine,theBoston Globe,theLos Angeles Times, and the Christian Science Monitor, as well as Essence and Mother Jones magazine. Since 1991 Bell has been a visiting professor at New York University Law School. He has written commentary for a number of legal journals including those of Harvard, Yale, Columbia, and the University of Michigan. Bell continues to lecture around the country and to comment on legal issues on radio and television programs. His book Silent Covenants: Brown V. Board of Education and the Unfulfilled Hopes for Racial Reform was published in 2004 by Oxford University Press. FURTHER READINGS “Action of Harvard’s Prof. Bell Focuses Attention on Diversity.” 1990. National Law Journal (May 7). Association of American Law Schools. 1993. Directory of Law Teachers. Association of American Law Schools. “Bell, Harvard Agree to Disagree on His Departure.” 1992. National Law Journal (July 20). “Bell Still Teaching.” 1990. National Law Journal (November 12). “Bell Wants Harvard.” 1992. National Law Journal (March 23). Carter, Stephen L. 1991. Reflections of an Affirmative Action Baby. New York: Basic Books. Delgado, Richard, and Jean Stefancic. 1999. Critical Race Theory: The Cutting Edge. Philadelphia: Temple Univ. Press. Essed, Philomena, and Davie Goldberg. 2001 ed. Race Critical Theories. New York: Blackwell. “In Move to NYU, Derrick Bell Cites Friendship with Its Dean.” 1991. National Law Journal (April 22). “Prof. Moves.” 1991. National Law Journal (April 15). CROSS REFEREN CES Civil Rig hts; Discrimination; Legal Education. v BELL, GRIFFIN BOYETTE Griffin Boyette Bell served as U.S. attorney general from 1977 to 1979 under President JIMMY CARTER and before that as a judge on the U.S. Court of Appeals for the Fifth Circuit from 1961 to 1976. He is also nationally recognized for his skills as a corporate lawyer. Bell was born October 31, 1918, in Americus, Georgia, only 12 miles from Plains, Georgia, the boyhood home of Carter. (In fact, Carter and Bell knew each other as children.) Bell served in the U.S. Army during WORLD WAR II. After the war, he studied at Mercer Univ ersity Law School, graduating cum laude in 1948. He gained admission to the Georgia bar in 1947. Bell practiced law in Savannah, Georgia, and Rome, Georgia, from 1947 to 1953, after which he moved to Atlanta to work in the prestigious firm of King and Spalding, where he eventually earned the position of managing partner. Bell also became involved in politics, serving from 1959 to 1961 as chief of staff to Governor S. Ernest Vandiver, of Georgia. SCHOOL DESEGREGATION was a heated issue at the time. Governor Vandiver vigorously op- posed desegregation, inventing the slogan “No, Not One” to symbolize his goal of keeping Georgia’s schools completely segregated. Bell acted as a moderating influence on Vandiver, working behind the scenes to ease tensions with African American leaders. Eventually, Vandiver and the Georgia legislature agreed to conditional desegregation. Bell served as cochairman of the Georgia election campaign in 196 0 for JOHN F. KENNEDY . His success at that task won him an appoint- ment as judge to the U.S. Court of Appeals for the Fifth Circuit in 1961, a position he held through 1976. During his 15 years on the bench, he took part in more than 3,000 cases, 141 of them involving school desegregation. Observers have categorized Bell’s judicial decisions as moderate to conservative. He gen- erally supported CIVIL RIGHTS advocates in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 10 BELL, GRIFFIN BOYETTE employment and voting rights cases, but he opposed busing as a means to achieve school desegregation. At times, his decisions could have been described as liberal, as when he supported attempts to place more Af rican Americans on juries and approved AFFIRMATIVE A C TION hiring fo r the Mississippi Highway Patrol. His most influen- tial work was the initiation of a reform scheme that improved the efficiency of the court system. Bell also served as cochairman of the Atlanta Commission on Crime and Delinquency from 1965 to 1966. He resigned from the appeals court in 1976, resumed private practice, and served as legal adviser to Carter during Carter’s presidential campaign that year. Once elected as president, Carter named Bell attorney general, a move that disappointed those who had hoped Carter would appoint an African American or a woman to the office. Bell’s nomination ran into trouble when it was revealed that he belonged to three clubs that were in effect racially segregat- ed. Bell agreed to quit the clubs and was nominated to the post of attorney general on January 25, 1977. Upon taking office, Bell defused some of the opposition to his appointment by naming African Americans to the posts of solicitor general and assistant attorney general. He also appointed women to other key positions in the department and to federal judgeships. Later, Bell proudly pointed out that 41 women were appointed and confirmed to the federal bench during the Carter administration, producing an eightfold increase in the number of federal judgeships occupied by women. As attorney general, Bell again championed court reform and also pushed for greater FEDERAL BUREAU OF INVESTIGATION involvement in pursuing white- collar, narcotics, and antitrust violations. Bell resigned as attorney general in 1979 and resumed his work in private practice as senior partner at King and Spalding. Bell has been called on frequently by Fortune 500 corpora- tions for advice on difficult legal issues. He led independent investigations of Exxon Corpora- tion’s actions following a 1989 oil spill in Prince William Sound, off the coast of Alaska, and, in ▼▼ ▼▼ Griffin Boyette Bell 1918–2009 ❖ ◆ ◆ 1914–18 World War I 1918 Born, Americus, Ga. 1941–45 Served in U.S. Army during World War II; rose to rank of major 1950–53 Korean War 1954 Brown v. Board of Education decision held racial segregation in public schools unconstitutional 1961–73 Vietnam War ◆ 1959 Became chief of staff to Governor Ernest Vandiver of Ga. 1965–66 Served as chair of the Atlanta Commission on Crime and Deliquency 1985–86 Served as president of the American College of Trial Lawyers ◆ 1979 Returned to private practice at King and Spalding ◆ 1977 Appointed U.S. attorney general by President Carter ◆◆ 1992 Served as personal attorney to President George H. W. Bush 2001 Named to President-elect George W. Bush’s transition advisory team ◆ 2000 Presidential election result uncertain due to disputed Florida vote count; recount halted by U.S. Supreme Court with 5-4 vote in Bush v. Gore ❖ 2009 Died, Atlanta, Ga. 1971 Public school busing to achieve integration began in several states ◆ 1961 Appointed to U.S. Court of Appeals for the Fifth Circuit by President Kennedy ◆ 1948 Earned LL.B. cum laude from Mercer University Law School ◆ 2008 Footnotes to History published 1910 1950 1975 2000 1925 Griffin Boyette Bell. AP IMAGES IF YOU BELIEVE IN EXALTING THE BILL OF RIGHTS YOU HAVE TO BE FOR THE INDIVIDUAL , EVEN IF IT MEANS BEING AGAINST THE GOVERNMENT . —GRIFFIN BELL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BELL, GRIFFIN BOYETTE 11 1992, Dow Corning Corporation’s handling of lawsuits resulting from its silicone breast implants. In the early 2000s Bell continued to focus on giving advice and counsel on matters relating to corporate crime. His organization of the firm’s Special Matters Group assembled lawyers with a wide variety of experience in representing corporations charged with civil or corporate wrongdoing. He served as an arbitra- tor on two internationa l ARBITRATION panels as well as an advisor on several major corporate litigation cases. Bell served as cochairman of the National Task Force on Violent Crime in 1981 and cochairman of the Committee on Federal Ethics in 1989. He also served as president of the American College of Trial Lawyers. Bell received an honorary doctor o f laws degree from Mercer University in 1967 and the ORDER OF THE COIF from Vanderbilt Law School. In 1982 he published Taking Care of the Law, which relates his experiences as attorney general and sets forth his recommendations for legal reform and the reduction of g overn- ment bureaucracy. After the SEPTEMBER 11TH ATTACKS of 2001, Bell wrote an editorial for the Wall Street Journal addressing the issue of the curtailment of civil liberties. In November 2001 he testified on the same issue before the SENATE JUDICIARY COMMITTEE . In February 2003 the Washington Post reported that the Pentagon, in response to complaints from some lawmakers and civil liberties groups, planned to create an oversight board and outside adviso ry committee to track the activity of a global data-surveillance research program known as the Total Information Aware- ness Project. Griffin Bell was named to the advisory committee that would advise the secre- tary of defense on the social and legal implications of the new surveillance technology. In 2004 Bell helped author a commissioned report on the internal disciplinary practices of the FBI’sOffice of Professional Responsibility, which he and his colleague found in need of reform. Bell died in January 2009 at the age of 90. FURTHER READINGS Baker, Nancy V. 1992. Conflicting Loyalties: Law and Politics in the Attorney General’s Office, 1789–1990. Lawrence: Univ. Press of Kansas. Bell, Griffin B. 1978. “The Attorney General: The Federal Government’s Chief Lawyer and Chief Litigator, or One among Many?” Fordham Law Review 46 (May). Bell, Griffin B., and John P. Cole, ed. 2008. Footnotes to History: A Primer on the American Political Character. Macon, Ga.: Mercer Univ. Press. Bell, Griffin B., with Ronald J. Ostrow. 1982. Taking Care of the Law. New York: Morrow. Reprint 1986. Macon, Ga.: Mercer Univ. Press. Blum, Andrew. 1993. “In Bell Probe for Dow, Bid Made for Implant Papers.” National Law Journal (February 1). ———. 1989. “Valdez Captain Takes Offensive.” National Law Journal (October 23). Dillard, Stephen Louis A. 2003. “Griffin Bell” in Great American Judges: An Encyclopedia. Edited by John R. Vile. Santa Barbara, Calif.: ABC-Clio. Reprinted online at <www.kslaw.com/library/pdf/griffinbell.pdf> (accessed August 27, 2003). Justice Department. 1991. 200th Anniversary of the Office of the Attorney General, 1789–1989. Washington, D.C.: Department of Justice, Office of Attorney General and Justice Management Division. Murphy, Reg. 1999. Uncommon Sense: The Achievement of Griffin Bell. Atlanta, Ga.: Longstreet. v BELL, JOHN John Bell was born February 15, 1797, near Nashville, Tennessee. He graduated from Cum- berland College in Nashville in 1817 and was admitted to the bar in the same year. He practiced law in Franklin and Nashville, Ten- nessee, before entering politics. From 1827 to 1841, Bell served as a congressman for Tennessee in the U.S. House of Representatives. He voiced strong opposition IT FOLLOWS THAT POPULARITY IS NOT ALWAYS THE BEST TEST OF MERIT , OR OF GENERAL PROPRIETY . —JOHN BELL John Bell 1797–1869 ◆◆◆ ◆ ❖ ❖ 1796 Tennessee became U.S. state 1797 Born, Nashville, Tenn. 1817 Graduated from Cumberland College 1827–41 Served in U.S. House of Representatives 1834 Elected speaker of the House 1847–59 Served in U.S. Senate 1860 Ran unsuccessfully for U.S. president 1861–65 U.S. Civil War 1869 Died, Stewart County, Tenn. ▼▼ ▼▼ 18001800 18701870 18501850 18251825 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 12 BELL, JOHN to Andrew Jackson’s program for the deposit of federal funds into state banks and to the elimination of the BANK OF THE UNITED STATES. Bell was secretary of war in 1841 and then U.S. sena tor for Tennessee for twelve years beginning in 1847. In 1860 Bell was the unsuccessful presiden- tial candidate of a small party known as the Constitutional Union Party. He favored a cautious policy concerning SLAVERY and opposed the South’s secession from the Union until the battle of Fort Sumter signaled the outbreak of the CIVIL WAR; he then encouraged Tennessee to join the Confederacy. Bell died September 10, 1869, in Stewart County, Tennessee. BELOW In an inferior, subordinate, or lower place in regard to any entity. A court below is a lower court through which a case has passed. A case is removed for review from the court below to the court above, or a higher court. The forum where a lawsuit is initially brought is called an INFERIOR COURT,or the court below. BENCH A forum of justice comprised of the judge or judges of a court. The seat of the court occupied by the judges. The bench is used to refer to a group of judges as a collective whole. It is a tribunal or place where justice is administered. To appear before the full bench means to appear before the entire group of judges of the court. BENCH TRIAL A trial conducted before a judge presiding without a jury. BENCH WARRANT A process that is initiated by the court pro se in order to attach or arrest a person. An order that a judge, or group of judges, issues directly to the police with the purpose of directing a person’sarrest. A bench warrant is used for attachment or arrest in a case of contempt, which is the willful disregard or disobedience of an authority such as the court. A bench warrant is also issued when an indictment, which is a written accusation of a person’s guilt for an act or omission, is handed down. A third instance where a bench warrant is issued is to obtain a witness who disobeys a SUBPOENA, which is a command to appear at a specified time and place to present testimony upon a certain matter. BENEFICIAL ASSOCIATION An incorporated or voluntary nonprofit organiza- tion that has been created primarily to protect and aid its members and their dependents. Beneficial association is an all-inclusive term that refers to an organization that exists for the mutual assistance of its members or its mem- bers’ families, relatives, or designated benefici- aries, during times of hardship, such as illness or financial need. The assistance provided by a beneficial association can take the form of life, accident, health, or burial insurance. Beneficial associations may also be called benevolent associations, fraternal societies, fraternal orders, or friendly associations or societies. History Early beneficial associations were similar to the English friendly societies, which first appeared in the 1500s. Working people organized these clubs to provide sickness and death benefits for John Bell. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BENEFICIAL ASSOCIATION 13 A sample bench warrant ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Bench Warrant STATE OF WISCONSIN, CIRCUIT COURT, COUNTY Case Caption: Bench Warrant Civil TO ANY LAW ENFORCEMENT OFFICER: Arrest and deliver to the sheriff the above named person because this person: failed to appear in court as required: Date of court appearance: Type of court appearance: failed to: Completing the attached Order for Financial Disclosure and Financial Disclosure Statement, SC-506. Agreeing to appear at a future supplementary examination at a time and place to be determined by the judgment creditor. Paying the amount owed on the judgment $ Paying the statutory sheriff’s fees. Paying other costs $ Performing the following conditions as authorized by the court: (All conditions under this section must be specifically authorized by the court.) Other: If the person posts the total amount due and is released, the law enforcement agency shall inform the court and district attorney of any GF-165, 08/07 Bench Warrant Civil §§54.62(8), 785.04 and 857.09, Wisconsin Statutes This form shall not be modified. It may be supplemented with additional material. new court date. For Official Use BY THE COURT: Geographic restriction: Statewide Within county of ORI Within adjacent counties of ORI Other: Circuit Court Judge/Court Commissioner Name Printed or Typed Date Case No. Name of Person Person’s Address Person’s Phone Number ( ) Person’s Date of Birth Sex Race Driver’s License Number Height Weight Eye Color Hair Color Other Identifying Characteristics . . . This person may be released upon completion of any all of the following conditions: . GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 14 BENCH WARRANT members. Several fraternal societies established branches in the United States and Canada in the early 1800s. The Ancient Order of United Workmen, founded in 1868, was the first beneficial association to pay substantial death benefits. Other groups that followed its model were soon created. These early associations and societies furnished life insurance to members whose income was so low they could not have otherwise obtained insurance benefits. In addi- tion, many of these associations provided companionship and social activities for their members. The National Fraternal Congress was formed in 1886 to provide state regulation and uniform legislation for beneficial associations. In 1901, a group of associations and societies formed the Associated Fraternities of America. In 1913 the two groups merged to form the National Fraternal Congress of America. Beneficial associations include the police Benevolent Association, Loyal Order of the Moose, Knights of Columbus, Independent Order of Odd Fellows, and Benevolent and PROTECTIVE ORDER of Elks. Many of these associations are secret lodges, with passwords, ceremonies, and initiation rites. Organization and Incorporation The common-law right of contract authorizes the formation of a beneficial association through the voluntary association of its mem- bers. Incorporation of a beneficial association may occur either by a specific legislative act or under general statutes that expressly authorize such incorporation. Some states codify laws pertaining to the formation and incorporation of beneficial associations in their nonprofit corporation law; they do so because beneficial associations may not be formed with the purpose of bringing a financial benefit to their founders. A beneficial association is organized through its charter, constitution, and bylaws. Charter The charter of a benevolent associa- tion is the basis of its legal existence and the source of its power to carry out the objects of its creation. A charter is analogous to ARTICLES OF INCORPORATION and becomes part of the contract of membership when one joins the beneficial association. For beneficial associations that elect to incorporate, the charter will be embodied in the articles of incorporation. Regardless of whether the association is incorporated, the charter incorporates by reference the general laws of the state in which the association is formed. Constitution and Bylaws The constitution of a benevolent association defines the fundamen- tal principles that will govern the duties of the association and its officers and the regulation of its membership. Unless the constitution is expressly embodied in the charter, it is regarded as a code of laws similar in effect to bylaws. A constitutional provision will prevail over a provision of a conflicting bylaw because it is viewed as a fundamental rule for the govern- ment of the association. Beneficial associations may adopt bylaws that will determine all questions of discipline, doctrine, and internal policy and will regulate the association’s general business activities. The enactment of a bylaw is governed by provisions contained in either the charter or the constitu- tion. Bylaws must be in accordance with the law and PUBLIC POLICY, must be reasonable, and must apply to all members uniformly. The constitu- tion and the bylaws form a binding contract between and upon all the organization’s mem- bers. Finally, bylaws also provide for the dissolution of a beneficial association. Rights, Powers, and Liabilities The authority and powers of beneficial associa- tions are subject to the statutes under which the associations are formed and organized. An incorporated association may not enlarge the powers granted to it by the statute under which it was created. Certain powers, such as the power to enter into contractual relations, may be implied when they are essential to the accomplishment of the association’s objectives. Contracts are binding upon the association when they have been executed by the appropri- ate officers of the association. Through its proper committees or officers, a beneficial association may enter in to a lease. Generally, a beneficial association has no power to borrow money. However, some states permit proper officers or committees to execute bonds and mortgages in order to secure bu ilding loans. Ordinarily, beneficial associations can transact business in places other than the state within which they have been organized. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BENEFICIAL ASSOCIATION 15 Because beneficial associations are founded on the principle of mutuality, in which each member shares all the benefits as well as all the burdens, they do not have CAPITAL STOCK, nor do all associations maintain a fund for paying benefits. If a fund is not maintained, each member promises to contribute an equal share with every other member as the association’s need for funds arises. Unless a statute makes a distinction, courts generally recognize a beneficial association certificate containing insurance features to be the same as any other similar insurance contract. If the certificate indemnifies a member in case of disability or death, the association will be regarded as a mutual insurance company. However, beneficial associations are not the same as insurance companies. First, beneficial associations do not have as a purpose the goal of indemnifying or securing against loss; rather, they create a trust fund with their members’ dues, from which they may provide relief to their members. Second, beneficial associations are not created for profit. Third, these associa- tions do not advertise for business but limit their clientele to their members. Finally, whereas an insurance company fixes a bene- ficiary’s rights with the terms of the insurance policy, a beneficial association me mber’s rights to receive benefits depend on both the certifi- cate and the constitution and bylaws of the association. Power to Acquire Funds and Property A beneficial association may acquire and dispose of property in a proper manner and for proper purposes, whether by sale, deed, lease, mortgage, or other document. A valid bequest of property for charitable purposes may be made to an association that has been incorporated and authorized by its charter to hold property for such purposes. The funds of a beneficial association should be spent according to the association’s purpose a s defined by its charter, articles of incorporation, constitution, or bylaws. Benefits A beneficial association’s bylaws and controlling statutes specifically designate which benefits are payable to its members, and the types of benefits provided are restricted to those specified. Beneficial associations may make payments in two ways. The first is based on the contractual agreement between the association and its members. As with an insurance policy, the members’ dues are a contribution to a fund from which specified benefits are paid upon a proper claim. Disputes arising from this con- tractual relationship may ultimately be resolved in a court of law. The second way a beneficial association confers payments is through an act of benevo- lence. The term benevolence means the doing of a kind or helpful action towards ano ther, under no obligation except possibly an ethical one. A beneficial association may appoint a board to review applications for benefits not based on the contractual relationship. This board could, for example, extend additional financial benefits to a disabled member who has exhausted the benefits specified in the bylaws. If such a benefit is given as a matter of benevolence, it may not be claimed as a right, and it is not enforceable in court. Likewise, a beneficial association could donate money to a civic activity as an act of benevolence. An association may set forth certain condi- tions precedent to the receipt of benefits by its members. Such conditions must be met before the right to receive benefits may be enforced. If a member of a beneficial association defaults on the payment of dues, the member might lose the right to receive benefits. In general, one claiming benefits from an associa- tion must exhaust all remedies within the organization before seeking judicial relief. Liabili tie s A beneficial association may not ordinarily be held liable in tort or contract for unauthorized acts of its members or agents. A voluntary unincorporated beneficial association is considered to be a joint enterprise, and no liability for tort exists between those engaged therein. An unincorporated association, may, however, be held responsible for damages resulting from the NEGLIGENCE of its employees in work of a noncharitable character. FURTHER READINGS “Fraternal Orders and Benefit Societies.” American Jurispru- dence 36, vol. 2. Owens, Bill. 1975. Our Kind of People: American Groups and Rituals. New York: Simon & Schuster. Whalen, William J. 1967. Handbook of Secret Organizations. Milwaukee, WI: Bruce. CROSS REFEREN CES Bylaws; Insurance. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 16 BENEFICIAL ASSOCIATION BENEFICIAL INTEREST Profits or advantages from property derived from the terms of a trust agreement. A beneficiary of a trust has a beneficial interest in the trust property, the LEGAL TITLE of which is held by the trustee. The beneficiary receives the advantages of ownership of the property which the trustee holds and distributes according to the terms of the trust agreement. BENEFICIAL USE A right to utilize real property, including light, air, and access to it, in any lawful manner to gain a profit, advantage, or enjoyment from it. A right to enjoy real or personal property held by a person who has equitable title to it while legal title is held by another. A beneficial use involves greater rights than a mere right to possession of land, because it extends to the light and air over the land and access to it, which can be infringed by the beneficial use of other property by another owner. If a dispute arises from the conflicting ways in which two ADJOINING LANDOWNERS exercise their respective beneficial uses of their property, a court, exercising its discretion, may adjudicate those rights. A beneficiary of a trust has beneficial use of the trust property, the LEGAL TITLE to which is held by the trustee. BENEFICIARY An organization or a person for whom a trust is created and who thereby receives the benefits of the trust. One who inherits under a will. A person entitled to a beneficial interest or a right to profi ts, benefit, or advantage from a contract. BENEFIT OF CLERGY In old England, the privilege of clergy that allowed them to avoid trial by all courts of the civil government. Originally members of the clergy were exempted from CAPITAL PUNISHMENT upon con- viction of particular crimes based on this privilege, but it did not encompass crimes of either high treason or misdemeanors. Benefit of clergy existed to alleviate the severity of criminal laws as applied to the clergy. It was, however, found to promote such exten- sive abuses that it was ultimately eliminated. Benefit of clergy does not exist in the United States today. The phrase “without the benefit of clergy” is used colloquially to describe a couple living together outside a legal MARRIAGE. v BENJAMIN, JUDAH PHILIP Judah Philip Benjamin was attorney general of the CONFEDERATE STATES OF AMERICA under Presi- dent Jefferson Davis. Though described by many as a brilliant, self-made man, he was also characterized as the “dark prince of the Confed- eracy” in Robert W. Service’s poem “John Brown’s Body.” Benjamin was born August 6, 1811, on St. Croix Island, in the British West Indies. His parents, Philip Benjamin and Rebecca de Mendes Benjamin, were Sephardic Jews who had immi- grated to the West Indies from Spain. Hearing that Jews were tolerated and allowed to prosper in the U.S. Carolinas, the family moved to the United States in 1813, settling in Charleston, South Carolina. Young Benjamin attended the Fayette- ville Academy, in Fayetteville, North Carolina, and entered Yale in 1825 at the age of fourteen. He was the top student in his class when he was expelled in 1827. He was charged with stealing from a fellow student, but the allegations were never proved. Though Benjamin was not an observant Jew, historians acknowledge that anti- Semitism was probably at the heart of the charges and his dismissal from school. Following his expulsion, Benjamin moved to New Orleans, where he clerked in a commercial house and studied law until he was admitted to the bar in 1832. (A commercial house of the early 1800s was usually involved in the financial trans- actions around the movement of goods, i.e., lending, bonding, insuring, fees for transport, rent for storage, and contracts of sales.) While studying, he supplemented his income by giving English lessons to the French Creole aristocracy. One of his pupils, Natalie St. Martin, became his wife in a Roman Catholic ceremony in 1833. Though his wife was extravagant and notoriously promiscuous, Benjamin indulged her. Many of his peers commented that Benjamin’s wealth could be attributed more to the demands of his wife than to his personal ambitions. For her, he acquired the Belle Chase sugar plantation and an elegant townhouse on Bourbon Street in New Orleans. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BENJAMIN, JUDAH PHILIP 17 . County, Tenn. ▼▼ ▼▼ 18001800 18701870 18501850 1 825 1 825 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 12 BELL, JOHN to Andrew Jackson’s program for the deposit of federal funds into state banks and to the elimination of the BANK OF THE. COURT of Appeals and a part-time Harvard Law instructor. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION BELL, DERRICK ALBERT, JR. 9 Not all of Bell’s colleagues agreed with this form of protest,. National Law Journal (May 7). Association of American Law Schools. 1993. Directory of Law Teachers. Association of American Law Schools. “Bell, Harvard Agree to Disagree on His Departure.” 19 92. National