Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P40 pot

but still breathing and circulating blood. If a brain-dead person is maintained on artificial respiration until his or her heart fails, then these usable organs would perish. Thus, the medical category of brain death makes it possible to accomplish another goal: saving lives with organ transplants. The Right to Die: Individual Autonomy and State Interests The first significant legal case to deal with the issue of termination of life-sustaining medical care was IN RE QUINLAN (70 N.J. 10, 355 A. 2d 647). This 1976 case helped resolve the question of whether a person could be held liable for withdrawing a life-support system even if the patient’s condition is irreversible. In 1975 Karen Ann Quinlan became comatose for reasons that were not understood, and she was put on a mechanical respirator. Her parents authorized physicians to use every possible means to revive her, but no treatment improved her condition. Although doctors agreed that the possibility of her recovering consciousness was remote, they would not pronounce her case hopeless. When her parents themselves lost all hope of Quinlan’s recovery, they presented the hospital with an authorization for the removal of the respirator and an exemption of the hospita l and doctors from responsibility for the result. However, the attending doctor refused to turn off the respirator on the grounds that doing so would violate his professional OATH. Quinlan’s parents then initiated a lawsuit asking the court to keep the doctors and the hospital from interfering with their decision to remove Quinlan’s respirator. In a unanimous decision, the New Jersey Supreme Court ruled that Quinlan had a constitutional right of privacy that could be safeguarded by her legal guardian; that the private decision of Quinlan’s guardian and family should be honored; and that the hospital could be exempted from criminal liability for turning off a respirator if a hospital ethics committee agreed that the chance for recovery is remote. Quinlan was removed from the respirator, and she continued to live in a coma for ten years, nourished through a nasal feeding tube. In cases following Quinlan, courts have ruled that life-sustaining procedures such as artificial feeding and hydration are the legal equivalent of mechanical respirators and may be removed using the same standards (Gray v. Romeo, 697 F. Supp. 580 [D.R.I. 1988]). Courts have also defined the right to die according to standards other than that of a constitutional right to privacy. The patient’s LEGAL RIGHT to refuse medical treatment has been grounded as well on the common-law right of bodily integrity, also called bodily self-determination, and on the liberty interest under the due process clause of the FOURTEENTH AMENDMENT. These concepts are often collected under the term individual autonomy or patient autonomy. Subsequent cases have also defined the limits of the right to die, particularly the state’ s interest in those limits. The state’s interests in cases concerning the term ination of medical care are the preservation of life (including the prevention of suicide), the protection of depen- dent third parties such as children, and the protection of the standards of the medical profession. The interests of the state may, in some cases, outweigh those of the patient. In 1990 the U.S. Supreme Court issued its first decision on the right-to-die issue, Cruzan v. Director of Missouri Department of Health (497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224). Cruzan illustrates the way in which individual and state interes ts are construed on this issue, but leaves many of the legal questions on the issue still unresolved. Nancy Cruzan was in a persistent vegetative state as a result of severe brain injuries suffered in an automobile acci- dent in 1983. She had no chance of recovery, although with artificial nutrition and hydration could have lived another 30 years. Her parents’ attempts to authorize removal of Cruzan’s medical support were first approved by a trial court and then denied by the Missouri Supreme Court. Her parents then appealed the case to the U.S. Supreme Court. The Court held that the guarantee of liberty contained in the Fourteenth Amendment to the Constitution does not prohibit Missouri from insisting that “evidence of the incompe- tent [patient’s] wishes as to the withdrawal of treatment be proved by clear and convincing evidence.” The Court left other states free to adopt this “clear-and-convincing evidence” stan- dard but did not compel them to do so. Thus, existing state laws remained the same after the Cruzan decision. Although the Court affirmed that a competent patient has a constitutionally protected freedom to refuse unwanted medical treatment, it emphasized that an incompetent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 378 DEATH AND DYING person is unable to make an informed choice to exercise that freedom. The Court explained that the state has an interest in the preservation of human life and in safeguarding against potential abuses by surro- gates and is, therefore, not required to accept the “substituted judgment” of the patient’s family. The Court agreed with the Missouri Supreme Court ruling that statements made by Cruzan to a housemate a year before her accident did not amount to clear-and-convinc- ing proof that she desired to have hydration and nutrition withdrawn. Cruzan had allegedly made statements to the effect that she would not want to live should she face life as a “vegetable.” There was no testimony that she had actually discussed withdrawal of medical treatment, hydration, or nutrition. After the Court’s decision, Cruzan’s parents went bac k to the Missouri PROBATE court with new evidence regarding their daughter’s wishes. On December 14, 1990, a Missouri judge ruled that clear evidence of Cruzan’s wishes existed and permitted her parents to authorize with- drawing artificial nutrition and hydration. Cruzan died on December 27, 12 days after feeding tubes were removed. In the early 2000s, the case of Terri Schiavo drew attention to the conflicts that occur when the values of preservation of life and the right to die are pitted against one another. In 1990, Terri Schiavo, age 27 at the time, suffered card iac arrest, which resulted in oxygen deprivation and brain damage. Doctors reported that whereas her brain stem was undamaged, allowing her body to function, her cognitive abilities had been destroyed and there was no real hope of recovery. A Florida MEDICAL MALPRACTICE suit resulting from a misdiagnosis of a chemical imbalance that led to the cardiac arrest resulted in a $1 million award to her husband, Michael Schiavo, who used the award to pay for the treatment for his wife. In 1998 Michael Schiavo filed a court petition asking to remove Terri’s feeding tube, allowing her to die. Though Schiavo did not have a living will, her husband claimed that she had told him that in a situation such as this, she would not wish to continue life- sustaining procedures and would want to be allowed to die. Schiavo’s parents objected, claiming that this did not sound like their daughter’s wishes. They believe d in her eventual rehabilitation, which led them to file a lawsuit that sought to block the removal of the feeding tube. The case was battled out in the Florida state and federal courts for years. In 2001 Michael Schiavo prevailed in having the feeding tube removed from Terri Schiavo, but the parents again intervened and obtained a court order that forced the reinsertion of the tube. By 2002 the parents had succeeded in gaining national publicity for their cause. Pro-Life and disability rights groups made the preservation of Terri Schiavo’s life a top priority. The parents claimed they had new evidence that proved their daughter was not in a vegetative state. They showed a tape that supposedly showed Schiavo responding to vocal stimuli and tracking a moving object with her eyes. They argued that her condition could be improved with further therapy. Experts for Michael Schiavo countered that Schiavo’s responses were random and reflexive and, therefore, not indicative of con- sciousness. The parents’ state lawsuit was dis- missed in 2003, and a similar lawsuit in federal district court was thrown out in that same year. On October 15, 2003, Schiavo’s feeding tube was again removed. However, on October 20, the Florida legislature enacted an emergency bill that Governor Jeb Bush immediately signed into law, which allowed him to order the feeding tube restored and to appoint a new guardian for Schiavo. The next day the feeding tube was reinserted into Schiavo. Michael Schiavo then filed a lawsuit in Florida state court that challenged the constitutionality of the law, which had been written to apply only to Schiavo. In May 2004 the court struck down the law. Governor Bush appealed to the Florida Supreme Court in September 2004, which set the foundation for the final legal battle. In February 2005 a state court judge signed an order that directed the removal of the feeding tube on March 18. State and congres- sional Republicans then moved to bring the matter to Congress. On March 20 the Senate passed a bill that transferred jurisdiction of the case to the federal courts. The House of Representatives enacted the bill on March 21, which led President GEORGE W. BUSH to fly back from his ranch in Texas to sign the bill that same day. Despite these efforts, the federal courts quickly rejected the state’s lawsuit, leading again to the removal of Schiavo’s feeding tube. She died on March 31, 2005. An AUTOPSY revealed that Schiavo’s brain was half GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEATH AND DYING 379 the normal size of a female brain and that nearly all of the regions were damaged. Advance Directives A court must consider many factors and standards in right-to-die cases. It must deter- mine, for example, whether a patient is compe- tent or incompetent. A competent patient is deemed by the court to be able to give INFORMED CONSENT or refusal relative to the treatment under consideration, whereas an incompetent patient (e.g., a patient in a coma) lacks the decision-making capacity to do so. According to the principle of individual autonomy, the court must honor the informed consent of competent patients regarding their medical care. For incompete nt patients who cannot make informed decisions regarding their care, an advance directive may provide a means of decision making for the termination of life- supporting treatment. An advance directive is a document, prepared in advance of incompe- tence, which gives patients some control over their health care after they have lost the ability to make decisions owing to a medical condition. It may consist of detailed instructions about medical treatment, as in a living will, or the appointment of a proxy, or substitute, who will make the difficult choices regarding medical care with the patient’s earlier directions in mind. The appointment of a proxy is sometimes called a proxy directive or durable power of attorney. The patient names a proxy decision maker when he or she is competent. In other cases, the physician may appoint a proxy, or the court may appoint a legal guardian who acts on behalf of an incompetent person. Usually, a relative such as a spouse, adult child, or sibling is chosen as a proxy. If an advance directive provides adequate evidence of a patient’s wishes, a decision about the termination of life support can often be made without involving a court of law. For an incompetent patient whose prefer- ences regarding medical care are known from prior oral statements, the patient’sproxymay make a substituted judgment,thatis,ajudgment consistent with what the patient would have chosen for himself. If no preference regarding medical treatment is known, the standard for the proxy’s decision is the “best interests of the patient.” According to that standard, the proxy’s decision should approximate what most reasonable individuals in the same circumstances as the patient wo uld c hoose. Individual states have statutes governing the requirements for living wills and advance directives. FURTHER READINGS American Medical Association. 2008. Code of Medical Ethics: Current Opinions with Annotations. Chicago: American Medical Association. Available online at http://www. ama-assn.org/ama/pub/physician-resources/medical- ethics/code-medical-ethics.shtml; website home page: http://www.ama-assn.org (accessed July 19, 2009). Callahan, Daniel. 1990. “Current Trends in Biomedical Ethics in the United States.” In Bioethics: Issues and Perspectives. Washington, D.C.: Pan American Health Organization. Cohen-Almagor, Raphael. 2001. The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law. New Brunswick, N.J.: Rutgers Univ. Press. Ditto, Peter H., Joseph H. Danks, William D. Smucker, et al. 2001. “Advanced Directives as Acts of Communica- tion.” Archives of Internal Medicine 161. Howarth, Glennys, and Oliver Leaman, eds. 2001. Encyclo- pedia of Death and Dying. New York: Routledge. Humphry, Derek. 1993. Lawful Exit: The Limits of Freedom for Help in Dying. Junction City, Or.: Norris Lane Press. ———. 1991. Final Exit. Eugene, Ore.: Hemlock Society. Monagle, John F., and David C. Thomasma. 1994. Health Care Ethics: Critical Issues. Gaithersburg, Md.: Aspen. Schneider, Carl E., ed. 2000. Law at the End of Life: The Supreme Court and Assisted Suicide. Ann Arbor: Univ. of Michigan Press. Urofsky, Melvin. 1994. Letting Go: Death, Dying, and the Law. Norman: Univ. of Oklahoma Press. CROSS REFERENCES Euthanasia; Physicians and Surgeons; Power of Attorney. DEATH PENALTY See CAPITAL PUNISHMENT. DEATH WARRANT An order from the executive, the governor of a state, or the president directing the warden of a prison or a sheriff or other appropriate officer to carry into execution a sentence of death; an order commanding that a named person be put to death in a specified manner at a specific time. CROSS REFERENCE Capital Punishment. DEATHBED WILL See NUNCUPATIVE WILL. DEBENTURE [Latin, Are due.] A promissory note or bond offered by a corporation to a creditor in exchange for a loan, the repayment of which is backed only by the general creditworthiness of the corporation and not by a mortgage or a lien on any specific property. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 380 DEATH PENALTY Debenture I.D. Control # ________________________________________ License # ________________________________________ DEBENTURE $ __________________________________________________________________________________ (the "Original Principal Amount") ___________________________________________________________________________________ (the "Maturity Date") ___________________________________________________________________________________ (the "Company") ______________________________________________________________________________________________________________ (Street) (City) (State) (Zip) PART I – PERIOD SPECIFIC TERMS A. Applicable for the Scheduled Interim Period (and New Interim Periods, as applicable) Interest rate per annum for the Scheduled Interim Period: _________________% Annual Charge applicable to the Scheduled Interim Period: 1% per annum Date of Issuance: ________________________________________________ Scheduled Pooling Date: __________________________________________ Scheduled Interim Period: from and including the Date of Issuance to but excluding the Scheduled Pooling Date The following italicized terms will apply if the Interim Period is extended by SBA: New interest rate(s) per annum (a) % (b) % (c) % New Annual Charge per annum (a) 1% (b) 1% (c) 1% New Pooling Date(s): (a) ____________ (b) ____________ (c) ____________ New Interim Period(s): from and including: (a) ____________ (b) ____________ (c) ____________ to but excluding: (a) ____________ (b) ____________ (c) ____________ The Company, for value received, promises to pay to JPMorgan Chase Bank N.A., as Custodian (the "Custodian") for the U.S. Small Business Administration ("SBA") and SBIC Funding Corporation (the "Funding Corporation"), pursuant to the Custody and Administration Agreement (the "Custody Agreement") dated as of April 27, 2009 among SBA, the Funding Corporation, the Federal Home Loan Bank of Chicago, as Interim Funding Provider (the "Interim Funding Provider"), and the Custodian: (i) interest on the Original Principal Amount listed above at the applicable rate per annum listed above, and (ii) an Annual Charge on the Original Principal Amount listed above at the applicable rate per annum listed above, each at such location on SBA, as guarantor of this Debenture, may direct and each at the related rate per annum identified for the Scheduled Interim Period (and each New Interim Period, if any). This Debenture will bear interest for, and the Annual Charge will apply to, the Scheduled interim Period (and each New Interim Period, if any) at the rate(s) and for the applicable period(s) indicated above, to be paid in arrears by 1:00 p.m. (New York City time) on the Business Day prior to the Scheduled Pooling Date (and each New Pooling Date, if any) listed above. As used throughout this Debenture, "Business Day" means any day other than: (i) a Saturday or Sunday; (ii) a legal holiday in Washington, D.C.; and (iii) a day on which banking institutions in New York City are authorized or obligated by law or executive order to be closed. Interest on this Debenture and the Annual Charge for the Scheduled Interim Period (and each New Interim Period, if any) will each be computed on the basis of the actual number of days in the applicable Interest Period divided by 360. The Company may not prepay this Debenture, in whole or in part, during the Scheduled Interim Period or any New Interim Period. B. This Section B. is effective only after (i) the Scheduled Interim Period and any New Interim Period(s) expire and (ii) the Custodian receives this Debenture for pooling. The Company, for value received, promises to pay to the order of JPMorgan Chase Bank N.A., acting as Trustee (the "Trustee") under that certain Amended and Restated Trust Agreement dated as of February 1, 2008, as the same may be amended from time to time, by and among the Trustee, the SBA and SBIC Funding Corporation, and as the Holder hereof, interest semiannually on March 1st and September 1st (the "{Payment Dates") of each year, at such location as SBA, as guarantor of this Debenture, may direct at the rate of _____________% per annum (the "Stated Interest Rate"), and to pay a 1% per annum fee to SBA on each Payment Date, each calculated on the basis of a year of 365 days, for the actual number of days elapsed (including the first day but excluding the last day), on the principal sum from the last day of the Interim Period until payment of such principal sum has been made or duly provided for. The Company shall deposit all payments with respect to this Debenture not later than 12:00 noon (New York City time) on the applicable Payment Date or the next Business Day if the Payment Date is not a Business Day, all as directed by SBA. The Company may elect to prepay this Debenture, in whole and not in part, on any Payment Date, in the manner and at the price as next described. The prepayment price (the "Prepayment Price") must be an amount equal to the outstanding principal balance of this Debenture, plus interest accrued and unpaid thereon to the Payment Date selected for prepayment, plus a prepayment premium (the "Prepayment Premium"). The Prepayment Premium amount is calculated as a declining percentage (the "Applicable Percentage") multiplied by the Original Principal Amount of this Debenture in accordance with the following table: Consecutive Payment Dates Applicable Percentage 1st or 2nd 5% 3rd or 4th 4% 5th or 6th 3% 7th or 8th 2% 9th or (10th - If not also Maturity Date) 1% [continued] A sample debenture. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEBENTURE 381 A sample debenture (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Debenture No Prepayment Premium is required to repay this Debenture on its Maturity Date. No Prepayment Premium is required when the prepayment occurs on a Payment Date that is on or after the 11th consecutive Payment Date of this Debenture, if this debenture has a 20 consecutive Payment Date term. The amount of the Prepayment price must be sent to SBA or such agent as SBA may direct, by wire payment in immediately available funds, not less than three Business Days prior to the regular Payment Date. Until the Company is notified otherwise in writing by SBA, any Prepayment Price must be paid to the account maintained by the Trustee, entitled the SBA Prepayment Subaccount and must include an identification of the Company by name and SBA-assigned license number, the loan number appearing on the face of this Debenture, and such other information as SBA or its agent may specify. II. –GENERAL TERMS For value received, the Company promises to pay to the order of the Trustee the Original Principal Amount on the Maturity Date at such location as SBA, as guarantor of this Debenture, may direct. This Debenture is issued by the Company and guaranteed by SBA, pursuant and subject to Section 303 of the Small Business Investment Act of 1958, as amended (the "Act") (15 U.S.C. Section 683). This Debenture is subject to all of the regulations promulgated under the Act, as amended from time to time, provided, however, that 13 C.F.R. Sections 107.1810 and 107.1830 through 107.1850 as in effect on the date of this Debenture are incorporated in this Debenture as if fully set forth. If this Debenture is accelerated, then the Company promises to pay an amount equal to the outstanding principal balance of this Debenture, plus interest accrued and unpaid on such balance to but excluding the next Payment Date following such acceleration. This Debenture is deemed issued in the District of Columbia as of the day, month, and year first stated above. The terms and conditions of this Debenture must be construed in accordance with, and its validity and enforcement governed by, federal law. The warranties, representations, or certification made to SBA on any SBA Form 1022 or any application letter of the Company for an SBA commitment related to this Debenture, and any documents submitted in connection with the issuance of this Debenture, are incorporated in this Debenture as if fully set forth. Should any provision of this Debenture or any of the documents incorporated by reference in this Debenture be declared illegal or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect and this Debenture must be construed as if such provisions were not contained in this Debenture. All notices to the Company which are required or may be given under this Debenture shall be sufficient in all respects if sent to the above- noted address of the Company. For the purposes of this Debenture, the Company may change this address only upon written approval of SBA. COMPANY ORGANIZED AS CORPORATION IN WITNESS WHEREOF, the Company has caused this debenture to be signed by its duly authorized officer and its corporate seal to be hereunto affixed and attested by its Secretary or Assistant Secretary as of the date of issuance stated above. CORPORATE SEAL ___________________________________________________ (Name of Licensee) By: ___________________________________________________ ___________________________________________________ (Typed Name and Title) ATTEST: ________________________________________________ Secretary or Assistant Secretary (Strike One) SBA FORM 444C GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 382 DEBENTURE Debentures are usually offeredin issues under an INDENTURE, a document that sets the terms of the exchange. A debenture is usually a BEARER instrument. When it is presented for payment, the person in possession of it will be paid, even if the person is not the original creditor. Coupons representing annual or semi-annual payments of interest on the debt are attached, to be clipped and presented for payment on their due dates. They may be deposited in, and collected by, the banks of holders of the debentures, the creditors of the corporation. A convertible debenture is one that can be changed or converted, at the option of its holder, into shares of stock, usually COMMON STOCK,ata fixed ratio as stated in the indenture. The ratio can be adjusted in light of stock dividends; otherwise the value of converting the debt into SECURITIES would be worth less than retaining the debenture until its date of maturity. A subordinate debenture is one that will be repaid only after other corporate debts have been satisfied. A convertible subordinate debenture is one that is subject or subordinate to the prior repayment of other debts of the corporation but which can be converted into another form of security. A sinking fund debenture is one whereby repayment is secured by periodic payments by the corporation into a sinking fund, anamount of money made up of corporate assets and earnings that are set aside for the repayment of designated debentures and long-term debts. DEBIT A sum charged as due or owing. An entry made on the asset side of a ledger or account. The term is used in bookkeeping to denote the left side of the ledger, or the charging of a person or an account with all that is supplied to or paid out for that person or for the subject of the account. Also, the balance of an account where it is shown that something remains due to the party keeping the account. As a noun, an entry on the left-hand side of an account. As a verb, to make an entry on the left- hand side of an account. A term used in accounting or bookkeeping that results in an increase to an asset and an expense account and a decrease to a liability, revenue, or owner’s equity account. v DEBS, EUGENE V. Labor leader, presidential candidate, author, and rad ical, social, and political agitator, Eugene Debs employed a combination of self- determination , grit, defiance, and risk-taking to play a sometimes pivit al role in Ameri can law from the late 1890s through the early twentieth century. The son of Alsatian immigrants, EUGENE VICTOR DEBS was born in Terre Haute, In diana, on November 5, 1855. As a young teenager growing up in Terre Haute, Debs took a job as a rail way fireman, where he bec ame ac tive in the Brotherhood of Locomotive Firemen (BLF). Although Debs left his job as a railway fireman four years later, he remained active in the BLF, undertaking increased leadership responsibili- ties. Debs then was elected to serve two terms as the city clerk for Terre Haute and one term in the Indiana House of Representativ es. In winning all three elections , Debs leveraged his role as grand secretary and treasurer in the BLF to garner votes fr om wo rking class laborers. In 1893 Debs broke with the tradition of limiting membership in craft unions to skilled artisans by helping found the American Railway Union, which organized both skilled and un- skilled workers. Debs believed that labor’s great- est strength lay more inits sheer numbers and less in the individual skills of its members. The following year Debs, now president of the American Railway Union, led a strike against the Pullman Palace Car Company, which was owned by George Pullman and located in Pullman, Illinois, a company town in which nearly all residents worked fo r Pullman. Pull- man also provided housing units for his workers to rent. In 1894 Pullman began laying off workers, cutting wages, and withholding their paychecks as payment for unpaid rent. The Debs-led strike, known as the Pullman BOYCOTT, turned violent when workers began pillaging, rioting, and burning railway cars. Railway strikes erupted across the Midwest, forcing much of the nation’s railroad system to shut down. President Grover Cleveland deployed 12,000 troops to quell the strike in Pullman. After two workers were killed in clashes with the troops, President Cleveland declared the strike over. Workers were allowed to return to work only if they promised not to unionize again. A few weeks before Cleveland deployed the troops, a federal court had issued an injunction ordering Debs and the other union leaders to cease and desist their concerted activities against Pullman. Debs ignored the injunction, and was WHILE THERE IS A LOWER CLASS ,IAM IN IT ; WHILE THERE IS A CRIMINAL ELEMENT , I AM OF IT; AND WHILE THERE IS A SOUL IN PRISON ,IAM NOT FREE . —EUGENE V. DEBS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEBS, EUGENE V. 383 eventually arrested and cited for CONTEMPT of court. Tried before a judge without a jury and defended by CLARENCE DARROW, Debs lost and was sentenced to six months in jail. Debs challenged his conviction on the ground that he had been denied the SIXTH AMENDMENT right to a jury trial. The U.S. Supreme Court rejected Debs’s argument, finding that he and the other union leaders had formed an unlawful conspiracy in RESTRAINT OF TRADE (In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L.Ed. 1092 [U.S. 1895]). The injunction obtained by the federal government was an EQUITABLE REMEDY, the Supreme Court said, and the Sixth Amendment right to a jury trial does not apply in equitable proceedings. To preserve their power in equitable proceedings, judges must have the authority to punish violations through the power of contempt, the Court concluded. Debs was forced to serve out the full six months of his jail sentence. The Supreme Court’s decision in Debs served to legitimize Cleveland’s deployment of the strike-breaking troops, even though the Court did not expressly weigh in on that issue. Almost 40 years would pass before industrial unions would receive increased recognition and protection from U.S. law. Nonetheless, Debs continued advocating unions as the best means to advance labor’s interests. The same year that Debs led the PULLMAN STRIKE , President Cleveland signed into law an act that declared the first Monday in September as a holiday to honor the American laborer. Despite the concession from the White House, Debs forged his own brand of politics by organizing the Social DEMOCRATIC PARTY of America in 1897. As its candidate for presidentin 1900,he received 96,116 votes. Thereafter he spent most of his time as a lecturer and organizer in the socialist movement, although he purported to be less interested in the political underpinnings of the movement and instead, viewed SOCIALISM as a means to guarantee dignity and equality for the average worker. He was the presidential candidate of the SOCIALIST PARTY in 1904, 1908, and 1912. In 1905 Debs’s politics moved further to the left when he helped form the INDUSTRIAL WORKERS OF THE WORLD (IWW), also known as Eugene Debs 1855–1926 ▼▼ ▼▼ 18501850 19251925 19001900 18751875 ❖ ❖ ◆ ◆ ◆ ◆◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ 1855 Born, Terre Haute, Ind. 1880 Appointed Grand Secretary of Brotherhood of Locomotive Firemen 1884 Elected to serve as representative in Indiana General Assembly 1894 Leads Pullman strike 1897 Helps form the Socialist Party of America 1900 Makes first run for U.S. Presidency 1908 Makes third of five unsuccessful runs for U.S . Presidency 1905 Founds the Industrial Workers of the World (IWW) 1918 Convicted for giving anti-war speech 1920 Makes final unsuccessful bid for U.S. Presidency from prison cell 1926 Died, Lindlahr Sanitarium outside Chicago, Ill. 1919 Prohibition Era begins when states ratify 18th Amendment 1914–18 World War I 1901 President William McKinley assassinated 1895 U.S. Supreme Court affirms Debs conviction for contempt of federal injunction Eugene V. Debs. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 384 DEBS, EUGENE V. the Wobblies. The IWW was an inclusive organization that sought to create “One Big Union,” by welcoming African Americans, immigrants, and women. The IWW promoted a rigorous standard of racial equality, and attempted to educate workers about the ways in which capitalists used race to undermine labor interes ts. Debs marketed IWW to workers as a radical alternative to the American Fede ra- tion of Labor led by SAMUEL GOMPERS. In 1907 Debs was named associate editor for the progressive magazine Appeal to Reason, published in Girard, Kansas. For the next five years he received a salary of $100 per week. The weekly magazine achieved a circulation of several hundred thousand due in part to the powerful writing of Debs. In 1918, during WORLD WAR I, Debs was convicted of violating the ESPIONAGE ACT OF 1917, after he gave a speech in Canton, Ohio, encouraging listeners to obstruct the draft. The Supreme Court upheld the conviction, notwith- standing Debs’s argument that the federal law violated his rights to free speech guaranteed by the FIRST AMENDMENT to the U.S. Constitution (Debs v. United States, 39 S.Ct. 252, 249 U.S. 211, 63 L.Ed. 566 [U.S. 1919]). Debs served two years in prison, from 1919 to 1921. While in prison he again ran for president on the Socialist ticket in 1920 and received almost one million votes. Debs died on October 20, 1926, in Elmhurst, Illinois. He was survived by his wife of 41 years, Kate Metzel. They had n o children. In 1962 the Debs Foundation was established i n Terre Haute, as a memorial to Eugene Debs, and as an archive and research center for the study of the social sciences, and labor and political history. Each year the foundation bestows the EUGENE V . DEBS Award on an individual “who has contributed to the advancement of the causes of industria l unionism, social justice, or world peace.” FURTHER READINGS Debs, Eugene V. “The Canton, Ohio, Anti-War Speech.” Available online at http://www.marxists.org/archive/ debs/works/1918/canton.htm; website home page: http://www.marxists.org (accessed July 19, 2009) Eugene V. Debs Foundation. Available online at http://www. eugenevdebs.com/index.htm; website homepage: http:// www.eugenevdebs.com (accessed July 19, 2009). Ginger, Ray. 2007. The Bending Cross: A Biography of Eugene Debs. Chicago: Haymarket. Papke, David Ray. 1999. The Pullman Case: The Clash of Labor and Capital in Industrial America. Lawrence: Univ. Press of Kansas. DEBT A sum of money that is owed or due to be paid because of an express agreement; a specified sum of money that one person is obligated to pay and that another has the legal right to collect or receive. A fixed and certain obligation to pay money or some other valuable thing or things, either in the present or in the future. In a still more general sense, that which is due from one person to another, whether money, goods, or services. In a broad sense, any duty to respond to another in money, labor, or service; it may even mean a moral or honorary obligation, unenforceable by legal action. Also, sometimes an aggregate of separate debts, or the total sum of the existing claims against a person or company. Thus people speak of the “national debt,” the “bonded debt” of a corporation, and so on. Federal Debt, 1940–2007 SOURCE: U.S. Office of Mana g ement and Bud g et, Historical Tables, annual. Billions of dollars Year 0 2,000 4,000 6,000 8,000 Ϫ300 1940 1950 1960 1970 1980 1990 2000 2007 9,000 7,000 5,000 3,000 1,000 Total gross federal debt a a Gross federal debt includes money borrowed by the U.S. Treasury and various federal agencies. Surplus or deficit in given fiscal year ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEBT 385 DEBT, ACTION OF One of the oldest common-law forms of action available to private litigants seeking to collect what is owed to them because of a harm done to them by another. Originally, the action was allowed for any PLAINTIFF who claimed an obligation owed by another person, but the courts gradually began to recognize two FORMS OF ACTION: detinue, an action to collect a specific item of property, and a debt for a sum of money. The distinction had become clear in England by the early thirteenth century. In debt, as in detinue, a DEFENDANT who lost the case had the option of either paying a sum of money for the judgment or giving back the property that gave rise to the debt. Later in the thirteenth century, courts began to permit REPLEVIN,anactionforthe return of goods wrongfully taken or withheld, and covenant, an action for damages from someone who broke an agreement. Gradually, judges began to demand firm proof of the agreement, and finally they would accept nothing less than a contract made under seal. Later the action in ASSUMPSIT enlarged the rights of a disappointe d party to a contract by allowing monetary damages for any breach. This action enjoyed growing popularity and supplanted the action of debt for a time because it permitted the defendant to prove his or her case by swearing in OPEN COURT and by bringing along eleven neighbors who would proclaim their belief in their neighbor’s truthfulness. When this procedure, called the WAGER OF LAW, was abolished during the reign of King William IV (1830–1837), the action of debt again became important as an action to enforce a simple contract. As long as common-law forms of action were the required modes for pleading civil actions, the action of debt continued to be useful. Relief was available only for those whose claims fit exactly into its form, however, and there was criticism of its rigidity and technicalities. By the end of the nineteenth century most states had passed laws to replace the old forms of action with CODE PLEADING. Today, the law of CIVIL PROCEDURE recognizes only one form for a lawsuit, thecivil action. An individual can still sue to collect what is due on a debt, but no longer is it necessary to draw the complaint in the form of the ancient action of debt. DEBT POOLERS Individuals or organizations who receive and apply monthly funds from a person owing mon ey to several creditors and who make arrangements to pay these creditors less than what is actually owed. Debt poolers, also known as debt adjusters or consolidators, are helpful to consumers, particularly when they are nonprofit organiza- tions that provide their services free or for a reasonable fee. In other cases, however, their usefulness to consumers is lessened when they charge fees that would make it less costly for consumers to make similar arrangements with creditors on their own. DEBTOR One who owes a debt or the performance of an obligation to another, who is called the creditor; one who may be compelled to pay a claim or demand; anyone liable on a claim, whether due or to become due. In bankruptcy law, a person who files a voluntary petition or person against whom an involuntary petition is filed. A person or municipality concerning which a bankruptcy case has been commenced. DECALOGUE SOCIETY OF LAWYERS Founded in 1934, the Decalogue Society of Lawyers is an association of attorneys of the Jewish faith who seek to advance and improve the law, the legal profession, and the adminis- tration of justice; to foster friendly relations among its members, and between its members and other members of the bar, the courts, and the public; to cooperate as lawyers and citizens in worthy movements for the public welfare; to maintain vigilance against public practices that are antisocial or discriminatory; and to cooper- ate with other bar associations for the attain- ment of those objectives. Activities include a forum on legal topics of general and Jewish interest, lectures and seminars on recent deci- sions and legislation, and the presentation of awards. The society provides a placement service for members and maintains a w elfare fund. Meetings are held annually in June. The society has several active committees including those on arbitration, civic affairs, CIVIL RIGHTS , FAMILY LAW,lawyercounseling,LEGAL EDUCATION , legislation, and professional relations. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 386 DEBT, ACTION OF The s ociety pub lishe s The Decalogue Jour- nal (quarterly) and a membership directory (annually). DECEDENT An individual who has died. The term litera lly means “one who is dying,” but it is commonly used in the law to denote one who has died, particularly someone who has recently passed away. A decedent’s estate is the real and PERSONAL PROPERTY that an individual owns upon his or her death. DECEIT A misrepresentation made with the express inten- tion of defrauding someone, which subsequently causes injury to that person. In order for a statement to be deceit, it must be untrue, made with knowledge of its falsity, or made in reckless disregard of the truth. The MISREPRESENTATION must be such that it causes harm to another individual. DECENNIAL DIGEST Ò One of the titles of the American Digest System that classifies by topic the summaries of court decisions that were reported chronologically in the various units of the National Reporter System. Each of the more than 400 subject classifi- cations corresponds to a general legal concept— torts, for example—and all cases found under a specific topic discuss similar points of law. The digest contains summaries of cases decided during the period from 1897 to 1905 and for every ten-year period until 1976, and every five years thereafter. DECISION A conclusion reached after an evaluation of facts and law. As a generic term, decision refers to both administrative and judicial determinations. It includes final judgments, rulings, and INTERLOC- UTORY or provisional orders made by the court pending the outcome of the case. Frequently, a decision is considered the initial step in a rendition by a court of a judgment in an action. When referring to judicial matters, a deci- sion is not the same as an opinion, although the terms are sometimes used interchangeably. A decision is the pronouncement of the solution of the court or judgment in a case, while an opinion is a statement of the reasons for its determination made by the court. DECISION ON THE MERITS An ultimate determination rendered by a court in an action that concludes the status of legal rights contested in a controversy and precludes a later lawsuit on the same cause of action by the parties to the original lawsuit. A DECISION ON THE MERITS is made by the application of SUBSTANTIVE LAW to the essential facts of the case, not solely upon technical or procedural grounds. DECLARATION The first pleading in a lawsuit governed by the rule of common-law pleading. In the law of evidence, a statement or narratio n made not under oath but simply in the middle of things, as a part of what is happening. Also, a proclamation. A declaration is the plaintiff’s statement of a claim against the DEFENDANT, formally and specifically setting out the facts and circum- stances that make up the case. It generally is broken into several sections, which describe the different counts of the CAUSE OF ACTION. The declaration should give the title of the action, the court and place of trial, the basis for the claim, and the relief demanded. The defendant then answers with a PLEA. COMMON-LAW PLEADING has been abolished in the United States, and modern systems of CODE PLEADING and rules based on federal CIVIL PROCEDURE now provide for a complaint to accomplish the same purpose as did the declaration in former times. Under some circumstances, statements made out of court by one person may be repeated in court by someone else even though the hearsay rule ordinarily forbids secondhand testimony. For example, a DYING DECLARATION is a statement in which a HOMICIDE victim names his or her killer on his or her deathbed. If the victim had known who had attacked him or her, had abandoned all hope of recovery, and had in fact died of the wounds, a person who heard the dying declaration can repeat it in court at the time the killer is brought to trial. The theory is that a deceased person would not have lied just before dying. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DECLARATION 387 . RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEBT 38 5 DEBT, ACTION OF One of the oldest common -law forms of action available to. affairs, CIVIL RIGHTS , FAMILY LAW, lawyercounseling,LEGAL EDUCATION , legislation, and professional relations. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 38 6 DEBT, ACTION OF The s ociety pub lishe. debenture. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEBENTURE 38 1 A sample debenture (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Debenture No