Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P47 doc

DETRIMENT Any loss or harm to a person or property; relin- quishment of a legal right, benefit, or something of value. Detriment is most frequently applied to contract formation, since it is an essential element of consideration, which is a prerequi- site of a legally enforceable contract. To incur detriment means to cement a promise by either refraining from doing something that one has a LEGAL RIGHT to do or by doing something that one is not under any legal obligation to do. v DEVENS, CHARLES CHARLES DEVENS was born April 4, 1820, in Charlestown, Massachusetts. He graduated from Harvard University in 1838 and received a doctor of laws degree in 1877. He was admitted to the Massachusetts bar in 1840 and began a career that encompassed military and legal achievements. Devens participated in the Massachusetts Senate during 1848 and 1849, followed by service as U.S. MARSHAL from 1849 to 1853. He acted as solicitor for the city of Worcester, Massachusetts, from 1856 to 1858 and then left government service to pursue a military career in 1861. The Civil War provided Devens with many opportunities to display his military expertise. He fought for the Union in three major Virginia battles fought at Fredericksburg, Chancellorville, and Cold Harbor, earning the rank of major general. In 1867 he began his judicial career and served as judge of the Massachusetts Superior Court. In 1873 he was appointed to the bench of the Massachusetts Supreme Court. He began service to the federal government in 1877 as attorney general under President RUTHERFORD B. HAYES, a post he held until 1881. An army post, Camp Devens, in Ayer, Massachusetts, was named for Charles Devens in recognition of his military accomplishments. Devens died January 7, 1891, in Boston. DEVIANCE Conspicuous dissimilarity with, or variation from, customarily acc eptable behavior. Deviance implies a lack of compliance to societal norms, such as by engaging in activities that are frowned upon by society and frequently have legal sanctions as well, for example, the illegal use of drugs. DEVISE A testamentary disposition of land or realty; a gift of real property by the last will and testament of the donor. When used as a noun, it means a testamentary disposition of real or personal property, and when used as a verb, it means to dispose of real or personal property by will. To contrive; plan; scheme; invent; prepare. DEWEY DECIMAL SYSTEM A numerical classification system of books employed by libraries. The Dewey Decimal System, created by Melvil Dewey, is a reference system that classifies all subjects by number. The numbers in a particular grouping all refer to a designated general topic. For example, the numbers in the 340s concern topics of law. Each new number after the decimal point further subdivides the previous number and the subject it covers. Charles Devens 1820–1891 ❖ ❖ 1820 Born, Charlestown, Mass. ◆ 1861–65 U.S. Civil War 1840 Admitted to Mass. bar 1891 Died, Boston, Mass. 1856–58 Acted as solicitor for Worcester, Massachusetts 1848–49 Served in Mass. Senate ▼▼ ▼▼ 18001800 18501850 18751875 19001900 18251825 1877–81 Served as U.S. attorney general under President Hayes 1867–73 Sat on Massachusetts Superior Court 1873–77 Sat on Massachusetts Supreme Court 1849–53 Served as U.S. marshal 1861–65 Fought for the Union in the Civil War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 448 DETRIMENT v DEWEY, THOMAS EDMUND Thomas Edmund Dewey was born March 24, 1902, in Owosso, Michigan. He received a bachelor of arts degree in 1923 from the University of Michigan and a bachelor of laws degree from Columbia University in 1925. After his ADMISSION TO THE BAR in 1925, Dewey established his legal practice before becoming U.S. attorney for the Southern District of New York in 1933. During the next three years, Dewey achieved prominence for his campaign against crime in New York City, serving as special PROSECUTOR to probe the activities of ORGANIZED CRIME from 1935 to 1937 and as district attorney of New York county from 1937 to 1938. Dewey’s public service to the state of New York culminated in his election as governor in 1942; he remained in this post until 1954. Twice during his years as governor, Dewey unsuccess- fully sought election to the U.S. presidency. He was the Republican candidate in 1944 but was defeated by FRANKLIN DELANO ROOSEVELT; he ran again in 1948 but lost by a small percentage of votes to HARRY S. TRUMAN. As an author, Dewey is famous for several publications, including Journey to the Far Pacific (1952), which is a chronicle of his trip to the Far East. Dewey died March 16, 1971, in Bal Harbour, Florid a. v DICKINSON, JOHN John Dickinson was born November 8, 1732, in Talbot County, Maryland. He was educated at the College of New Jersey (today known as Princeton University), where he earned a doctor of laws degree in 1768. He also pursued legal studies at the Middle Temple, Inn of the Court, England. After his admission to the Philadelphia bar in 1757, Dickinson established a prestigious legal practice in that city and subsequently entered politic s on the state level. In 1760 Dickinson served in the Assembly of Lower Counties, Delaware, and performed the duties of speaker. Two years later, he participated in the Pennsylvania Legislature, representing Philadelphia until 1764, and again, from 1770 to 1776. In 1765 Dickinson wrote a pamphlet titled The Late Regu lations Respecting the British Colonies on the Con tinent of America Considered, which protested the passage of two unjust acts of TAXATION,theSTAMP ACT and the Sugar Act, by England. In the same year, he also served at the Stamp Act Congress and Thomas E. Dewey. LIBRARY OF CONGRESS Thomas Edmund Dewey 1902–1971 ❖ ❖ ◆ 1902 Born, Owosso, Mich. ◆ 1925 Earned LL. B. from Columbia University 1937–38 Served as district attorney of New York county 1914–18 World War I 1971 Died, Bal Harbour, Fla. 1935–37 Served as special prosecutor probing organized crime activities in New York 1933 Became U.S. attorney for the Southern District of New York 1961–73 Vietnam War 1939–45 World War II 1948 Ran as Republican candidate for president against Truman 1950–53 Korean War ▼▼ ▼▼ 19001900 19501950 19751975 19251925 1944 Ran as Republican candidate for president against Roosevelt 1942–54 Served as governor of New York ◆ ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DICKINSON, JOHN 449 drafted a series of reques ts to King George III. Although he opposed many of the policies enforced by England, Dickinson favored con- ciliatory action over violence. England passed the unpopular TOWNSHEND ACTS in 1767, which levied tariffs on colonial imports of certain items. Dickinson co mposed another publication in protest, known as “Letters from a Farmer in Pennsylvania”; these letters advocated nonimportation of the taxed materi- als, rather than a violent reaction to the passage of the act. Dickinson continued to serve in pre- Revolutionary War activities, including the Committee of Correspondence in 1774 and the CONTINENTAL CONGRESS from 1774 to 1776 and from 1779 to 1781. He still hoped for reconciliation with England and, as a result of this sentiment, opposed the DECLARATION OF INDEPENDENCE . However, with the outbreak of the Revolutionary War, Dickinson served a tour of military duty. From 1781 to 1785 Dickinson was a participant in state government activities, acting as administrator of the Supreme Council of Delaware in 1781 and performing the same duty for the Supreme Council of Pennsylvania from 1782 to 1785. Dickinson was instrumental in the formation of the ARTICLES OF CONFEDERATION, adopted in 1781, by serving as presiding officer of the committee appointed to compose the document and creating the outline that became the foundation of the articles. In 1787 he represented Delaware at the Constitutional Conven- tion and advocated the RATIFICATION of the Constitution through a series of letters pub- lished under the name of Fabius. In addition to his achievements as a states- man, Dickinson also contributed to the field of education as a founder of Dickinson College, located at Carlisle, Pennsylvania. Dickinson died February 14, 1808, in Wilmington, Delaware. DICTA Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and John Dickinson 1732–1808 ❖ ❖ 1732 Born, Talbot County, Md. 1765 Served at the Stamp Act Congress 1808 Died, Wilmington, Del. 1757 Admitted to Philadelphia bar ◆ ◆ 1774–76 Served in the Continental Congress 1770–76 Represented Philadelphia in Pa. legislature 1787 Represented Delaware at the Constitutional Convention 1779–81 Served in the Continental Congress 1775–83 American Revolution 1781 Articles of Confederation adopted; Dickinson wrote outline and draft 1781–85 Served as administrator of the Supreme Councils of Delaware and Pennsylvania ▼▼ ▼▼ 17751775 18001800 18251825 17251725 17501750 1762–64 Represented Philadelphia in the Pa. legislature 1760–62 Served in the Assembly of Lower Counties in Delaware 1767 England passed the Townshend Acts ◆ ◆ ◆ John Dickinson. LIBRARY OF CONGRESS IT IS INSEPARABLY ESSENTIAL TO THE FREEDOM OF A PEOPLE THAT NO TAXES BE IMPOSED ON THEM BUT WITH THEIR OWN CONSENT , GIVEN PERSONALLY OR BY THEIR REPRESENTATIVES . —JOHN DICKINSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 DICTA therefore are individ ual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum. DICTUM [Latin, A remark.] A statement, comment, or opinion. An abbreviated version of obiter dictum, “a remark by the way,” which is a collateral opinion stated by a judge in the decision of a case concerning legal matters that do not directly involve the facts or affect the outcome of the case, such as a legal principle that is introduced by way of illustration, argument, analogy, or suggestion. Dictum has no BINDING AUTHORITY and, therefore, cannot be cited as precedent in subsequent lawsuits. Dictum is the singular form of dicta. DIGEST A collection or compilation that embodies the chief matter of numerous books, articles, court decisions, and so on, disposed under proper heads or titles, and usually by an alphabetical arrangement, for facility in reference. An index to reported cases, providing brief statements of court holdings or facts of cases, which is arranged by subject and subdivided by jurisdiction and courts. As a legal term, digest is to be distinguished from abridgment. The latter is a summary of the contents of a single work, in which, as a rule, the original order or sequence of parts is pre- served, and in which the principal labor of the compiler is in the matter of consolidation. A digest is wider in its scope, is made up of quotations or paraphrased passages, and has its own system of classification and arrangement. An index merely points out the places where particular matters may be found, without pur- porting to give such matters in extenso. A trea- tise or commentary is not a compilation, but an original composition, though it may include quotations and excerpts. DILATORY Tending to cause a delay in judicial proceedings. Dilatory tactics are methods by which the rules of procedure are used by a party to a lawsuit in an ab usive manner to delay the progress of the proceedings. For example, when numerous motions brought before a court for postpone- ment are baseless, time is wasted because the court must stop the course of ongoing proceedings to examine whether there is any merit to the motions. The party in whose interes ts the motion is brought uses this tactic to gain time to enhance his or her position, or to postpone an action by a court as long as possible to minimize the impact of a decree rendered against him or her. A party found to engage in dilatory tactics may be held in contempt of court. DILATORY PLEA In common-law-pleading, any of several types of defenses that could be asserted against a plaintiff’s cause of action, delaying the time when the court would begin consideration of the actual facts in the case. Under COMMON LAW,aPLAINTIFF began the lawsuit and drew up a paper reciting the events that supported his or her claim to relief. The DEFENDANT was entitled to enter a plea responding to the plaintiff’s allegations. If the defendant’s plea required the court to decide some threshold question not related to the merits of the plaintiff’s case, it was called a dilatory plea. For example, a plea to the jurisdiction challenged the authority of the court to hear the kind of matters described by the plaintiff. A plea in suspension presented facts to justify a temporary halt to the proceedings, such as when a guardian was needed for one of the partie s. A PLEA IN ABATEMENT objected to the place, manner, or time of the lawsuit; it did not defeat the plaintiff’s claim entirely but, if successful, forced the plaintiff to renew the suit in another form, place, or time. Federal courts and states that follow the pattern of pleading permitted by the rules of federal CIVIL PROCEDURE no longer specifically allow dilatory pleas. Thesame assertions can be made by motion, but the motions may sometimes be called dilatory pleas by persons complaining that they unnecessarily delay proceedings. DILIGENCE Vigilant activity; attentiveness; or care, of which there are infinite shades, from the slightest momen- tary thought to the most vigilant anxiety. Attentive and persistent in doing a thing; steadily applied; active; sedulous; laborious; unremitting; untiring. The attention and care required of a person in a given situation; the opposite of negligence. There may be a high degree of diligence, a common degree of diligence, and a slight degree GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DILIGENCE 451 of diligence, with their corresponding degrees of NEGLIGENCE. Common or ordinary diligence is that degree of diligence which persons generally exercise in respect to their own concerns; high or great diligence is, of course, extraordinary diligence, or that which very prudent persons take of their own concerns; and low or slight diligence is that which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. Special diligence is the skill that a good businessperson exercises in his or her SPECIALTY. It is more highly regarded than ordinary diligence or the diligence of a nonspecialist in a given set of circumstances. DIMINISHED CAPACITY This doc trine recognizes that although, at the time the offense was committed, an accused was not suffering from a mental disease or defect sufficient to exonerate him or her from all criminal responsibility, the accused’s mental capacity may have been diminished by intoxication, trauma, or mental disease so that he or she did not possess the specific mental state or intent essential to the particular offense charged. DIMINUTION Taking away; reduction; lessening; incompleteness. The term diminution is used in law to signify that a record submitted by an INFERIOR COURT to a superior court for review is not complete or not fully certified. Diminution in market value is a rule of damages, within which the proper measure of damages for permanent injury to real property is the reduction of market value for any use to which the property might be appropriated. It is a rule providing for the before-and-after value of stolen or damaged property. DIPLOMATIC AGENTS Government representatives who are sent by one country to live and work in another, to serve as intermediaries between the two countries. The concept of diplomatic agents residing in another country dates to the fifteenth century, but the role of diplomats has evolved with the passage of time. Originally, agents were asked to help to work out specific negotiations between countries. Currently, their duties include cultivating a relationship between their native country and the host country; serving as intermediaries by relaying each country’s positions to the other; and trying to ensure the best possible treatment for their home countries. The Vienna Convention on Diplomatic Relations (Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95) contains the most widely accepted description of the INTERNATIONAL LAW on diplomacy. The convention splits the functions of diplomatic agents into six categories: representing the sending state; protecting the sending state’s nationals within the receiving state; negotiating with the receiving state; notifying the sending state of conditions and developments within the receiving state; promoting friendly relations between the two states; and developing economic, cultural, and scientific relations between the two states. Historically, the nomination of U.S. ambassadors to foreign countries is based on the recommendation of the president and is subject to approval by the Senate. It has also been a U.S. tradition that nominations are often given to acquaintances of the president or to those who have contributed heavily to political campaigns. The United States is the only major country that assigns ambassadorships as political rewards. Despite legislation passed by Congress in 1980 stating that “contributions to political campaigns should not be a factor in the appointment” of an ambassa dor (22 U.S.C.A. § 3944), this practice of political spoils con- tinues. Former president GEORGE H. W. BUSH nominated six Republicans as U.S. ambassadors in 1989. Each was a member of Bush’s Team 100, contributors who had given more than $100,000 to the GOP. The practice did not change when Democrat BILL CLINTON first won the presidency in 1992. According to an Associated Press review, by the end of Clinton’s first year in office he had nominated five $100,000-plus donors as foreign ambassadors. However, Clinton was able to deflect some of the criticism following these appointments by shifting the focus to the qualifications of his appointees. He stressed that his recommendations extended beyond campaign participation and that they required some real expertise that suited the demands of the appointments. For example, the Japanese regarded Clinton’s pick for ambassador to Japan, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 452 DIMINISHED CAPACITY Walter F. Mondale, as a well-qualified diplomat who would help to steady U.S Japanese part- nership. Investment banker Nicholas A. Rey was chosen as ambassador to Warsaw on the basis that he spoke fluent Polish and that he had previously led an effort to stimulate private investments in Poland. President GEORGE W. BUSH similarly rewarded contributors with ambassador positions, but he came under heavier criticism due to the number of contributors who had received these appointments. Bush set a fundraising record during the 2000 presidential election, receiving more than $100 million from individual donors. He later appointed 43 “elite” fundraisers—those who donated at least $100,000 to the campaign. Another topic involving diplomatic agents that has come under scrutiny in the 1990s involves a shift toward commercialism. Promot- ing exports and assisting U.S. businesses with their foreign dealings has become a top priority for the U.S. embassies. Since Deputy Secretary of State Lawrence Eagleburger took office in 1989, all new foreign service officers and ambassadors have studied commerce as part of their basic training. Eagleburger has empha- sized a necessity for diplomats to understand the needs of U.S. businesses and ways to help them to make the right connections abroad. This transition toward trade diplomacy is not new: Diplomats have always tried, in one way or another, to increase U.S. exports. The trend now is for diplomats to help specific companies to obtain specific contracts overseas and to help to find buyers for U.S. exports. U.S. ambassadors direct, supervise, and coordinate a body of representatives in the country to which they have been assigned. This body of representatives from the sending government is referred to as a diplomatic mission. Under the Vienna Convention, both the property and the employees of a diplomatic mission are considered inviolable. However, the conventio n leaves to the receiving state the decision of how to protect a resident diplomatic agent from assault. In the United States, specific legislation outlines the penalties that will be imposed if someone attacks a diplomatic officer residing in the United States. The penalties apply to anyone who “assaults, strikes, wounds, imprisons, or offers violence to a foreign official, official guest, or internationally protected person, his official premises, private accommodation, or means of transport or attempts to commit any of the foregoing” (Act of Oct. 24, 1972, Pub. L. No. 92-539, 18 U.S.C.A. § 112(a)). This statute criminalizes acts or attempts to “intimidate, coerce, threaten or harass a foreign official” (18 U.S.C.A. § 112). This section applies to any conduct outside the District of Columbia, which has somewhat different laws that penalize certain conduct directed at foreign embassies (see Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988) [striking down par t of the D.C. law as violating freedom of speech]). The United States is among a number of signatories to two separate conventions that are intended to protect visiting dignitaries. These include the Organization of American States Convention to Prevent and Punish the Acts of TERRORISM Taking the Form of Crimes against Persons and Related Extortion That Are of International Significance, and the UNITED NATIONS Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents. Both conventions require host countries to take measures to prevent terrorist acts, and to make efforts to arrest and to punish the offenders should an attack occur. The Vienna Convention grants special PRIVILEGES AND IMMUNITIES to diplomats, on the grounds that these are necessary to allow performance of official duties without outside interference or constraint. Some examples of privileges are exemption from customs on goods that diplomats import for their own or their family’s use, from property taxes on mission U.S. Ambassador to Iraq Christopher Hill presents his credentials to Iraqi Foreign Minister Hoshyar Zebari in Baghdad. ALI YUSSEF-POOL/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DIPLOMATIC AGENTS 453 property, from income taxes for pay received for their diplomatic duties, and from military obligations. Diplomatic agents and their families are also immune from civil or criminal prosecution. If a diplomat is accused of com- mitting a crime, the STATE DEPARTMENT takes specific steps, including notifying the diplomat’s home country and asking to have the diplomat’s immunity waived so that the case can advance to the U.S. judic ial system. Diplomatic agents are also exempt from serving as WITNESSES in civil or criminal proceedings, unless their country waives their immunity if the agents feel their testimony is esse ntial to the case. For example, in 1881 Venezuela asked its minister to the United States to testify in the trial of Charles J. Guiteau for the ASSASSINATION of U.S. president JAMES GARFIELD. CROSS REFERENCES Ambassadors and Consuls; Diplomatic Immunity. DIPLOMATIC IMMUNITY A principle of international law that provides foreign diplomats with protection from legal action in the country in which they work. Established in large part by the Vienna conventions, diplomatic immunity is granted to individuals depending on their rank and the amount of immunity they need to carry out their duties without legal harassment. Diplomatic immunity allows foreign representatives to work in host countries without fully understanding all the customs of that country. However, diplomats are still expected to respect and follow the laws and regulations of their host countries; immunity is not a license to commit crimes. In the United States, several levels of immunity are granted: The higher the rank, the greater the immunity. DIPLOMATIC AGENTS and their immediate families have the most protection and are immune from criminal prosecution and ci vil lawsuits. The lowest level of protection is granted to embassy and consular employees, who receive immunity only for acts that are part of their official duties—for example, they cannot be forced to testify in court about the actions of the people they work with. The Diplomatic Relations Act of 1978 [22 U.S.C.A. § 254a et seq.] follows the principles introduced by the Vienna conventions. The United States has had a tendency to be generous when granting diplomatic immunity to visiting diplomats because a large number of U.S. diplomats work in host countries less protective of individual rights. If the United States were to punish a visiting diplomat without sufficient grounds, U.S. representatives in other countries could receive harsher treatment. In the United States, if a person with immunity is alleged to have committed a crime or faces a civil lawsuit, the DEPARTMENT OF STATE alerts the government that the diplomat works for. The Department of State als o asks the home country to waive immunity of the alleged offender so that the complaint can be moved to the courts. If immunity is not waived, prosecution cannot be undertaken. However, the Department of State still has the discretion to ask the diplomat to withdraw from her or his duties in the United States. In addition, the diplomat’s visas are often canceled, and the diplomat and her or his family are barred from returning to the United States. Crimes committed by members of a diplomat’s family can also result in dismissal. Abuse of diplomatic immunity was made more visible by media coverage in the early 1990s. The abuse spans a variety of activities, ranging from parking violations to more serious criminal behavior such as domestic abuse and RAPE. In February 1995 Mayor Rudolph Giuliani of New York City forgave $800,000 in parking tickets accumulated by foreign diplomats. Al- though no clear reason was given, the action, which was perhaps meant as a show of goodwill, sent a message to visiting diplomats that the U.S. government may be willing to allow diplomats greater leniency than its own private citizens. This example serves as the best example of how some diplomatic debts have either been erased or not collected. However, outstanding debts may not be the worst illustration of how diplomatic immunity can be abused. Diplomats and their families have also been known to use diplomatic immunity to av oid prosecution for criminal behavior. For example, in a 1983 case the New York City Police Depart- ment suspected a diplomat’s son of 15 different rapes. The son was allowed to leave the United States without ever being taken to court because he claimed diplomatic immunity. If diplomatic immunity is used as a shield, the police cannot PROSECUTE, no matter how serious the crime may be. U.S. citizens and businesses are often at a disadvantage when filing civil claims against a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 DIPLOMATIC IMMUNITY diplomat, especially in cases of unpaid debts, such as rent, alimony, and CHILD SUPPORT. In the summer of 1994 U.S. diplomat Victor Marrero reportedly complained to the UNITED NATIONS secretariat that foreign diplomats’ debts in the United States were $5.3 millio n. The New Yorker later reported that a well-informed source had said the figure had risen “closer to $7 million.” The bulk of diplomatic debt lies in the rental of office space and living quarters. Individual debts can range from a few thousand dollars to $1 million in back rent. A group of diplomats and the office space in which they work are referred to as a mission. Creditors cannot sue missions individually to collect money they owe. Landlords and creditors have found that the only thing they can do is contact a city agency to see if they can try to get some money back. They cannot enter the offices or apartments of diplomats to evict them because the Foreign Sovereign Immunities Act says that “the property in the United States of a foreign state shall be immune from attachment, arrest and execution” (28 U.S.C.A. § 1609). This has led creditors who are owed money by diplomats to become more cautious about their renters and to change their rental or payment policies. For example, Milford Management, a New York-based company that rents deluxe apartments, is owed more than $20,000 in back rent from diplomats from five different countries. Milford and other creditors have created their own “insurance” policies by refusing to rent to foreign missions unless there is a way of guaranteeing payment, such as collecting money in advance. The issue of abusing diplomatic immunity in family relations, especially alimony and child support, has become enough of a widespread problem that it prompted discussion at the 1995 United Nations Fourth World Conference on Women, in Beijing. Historically, the United Nations has not gotten involved with family disputes and has refused to garnishee the wages of diplomats who owe money for child support, citing SOVEREIGN IMMUNITY. However, in September 1995 the INCUMBENT head of legal affairs for the United Nations acknowledged there was a moral and legal obligation to take at least a partial responsibility in family disputes. Deadbeat “diplodads” were increasing in numbers in the United Nations: Several men who had left their wives and children were still claiming U.N. dependency, travel, and education allowances for their families even though they are no longer supporting those families. One U.S. woman, Barbara Elzohairy, and her daughter were threatened with eviction from their New Jersey apartment because they did not pay their rent. Their reason: Elzohairy’shusband,aU.N. representative from Egypt, refused to pay her $16,000 in court-ordered support. The United Nations told diplomats they must meet their moral obligations, but there were no conse- quences if they did not. DIVORCE is difficult for the spouses of foreign diplomats, as illustrated in the case of Fernandez v. Fernandez, 208 Conn. 329, 545 A.2d 1036, 57 USLW 2115 (Conn., Jul 19, 1988) (NO. 13283). This case involved a U.S. citizen, Barbara Fernandez, who wanted a divorce from her husband, Antonio Diende Fernandez, a U.N. representative from the Republic of Mozam- bique. Along with the divorce, Fernandez wanted a monetary settlement and property rights to the home the couple owned in a New York suburb. Her husband asked that the courts dismiss her claim on the grounds that he had diplomatic immunity. Under the trial court’s interpretation of the Vienna Convention, a U.S. citizen who marries a foreign dip lomat is married until either the diplomat dies or the diplomat’s country grants permission for divorce proceedings. The Republic of Mozambique gave the court permission to grant the divorce but would not allow the court to make a decision on Fernandez’s property or monetary claims. The case went on to the Connecticut Supreme Court, which dissolved the marriage and allowed Fernandez to claim property rights under article 31 of the Vienna Convention. Article 31 gives diplomats immunity from all civil cases except for those that involve “private immovable property.” The Connecticut Supreme Court interpreted that exception to apply to Fernandez’s claim on the home, which wasvaluedatmorethan$8million.Article31of the Vienna Convention does not allow the “private residence of a diplomatic agent” to be included in a civil suit. However, the Connecti- cut Supreme Court declined to consider this article as a form of defense for Fernandez’s husband. The Vienna Convention specifically does not allow exceptions for spouses to seek monetary compensation in divorce proceedings, so Fernandez was not granted any money by the Connecticut court. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIPLOMATIC IMMUNITY 455 The Fernandez decision di d not sett le a ll the issues revolving around dissolution of diplomats’ marriages, such as whether U.S. courts can grant a divorcewithoutthepermissionofthediplomat’s country. Critics of Fernandez say it might cause foreign countries to think twice before granting permission to dissolve marriages because property claims can then also be brought against the diplomats. FURTHER READINGS Ashman, Chuck, and Pamela Trescott. 1987. Diplomatic Crime. Washington, D.C.: Acropolis. ———. 1986. Outrage: The Abuse of Diplomatic Immunity. London: W. H. Allen. Barker, J. Craig. 1998. “State Immunity, Diplomatic Immunity and Act of State: A Triple Protection against Legal Action?” International and Comparative Law Quarterly 47 (October). Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them. 1988. Washington, D.C.: U.S. Department of State. Denza, Eileen. 2008. Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations. 3d ed. New York: Oxford Univ. Press. Felice, Phil. 1998. “Diplomatic Immunity: Time for a Change?” Touro Law Review 15, no. 1 (fall). Opara, Victor Nnamdi. 2003. “Sovereign & Diplomatic Immu- nity as Customary International Law: Beyond R. v. Bow Street Stipendiary Magistrate & Others, Ex Parte Pinochet Ugarte.” Wisconsin Internationa l Law Journal 21 (spring). CROSS REFERENCE Ambassadors and Consuls. DIRECT As a verb, to point to; guide; order; command; instruct. To advise; suggest; request. As an adjective, immediate; proximate; by the shortestcourse; without circuity; operating by an immediate connection or relation, instead of operating through an intermedi- ary;theoppositeofindirect. In the usual or regular course or order, as distinguished from that which diverts, interrupts, or opposes. The opposite of cross, contrary, collateral, or remote. W ithout any inter- vening medium, agency, or influence; unconditional. DIRECT EVIDENCE Evidence in the for m of testimony from a witness who actually saw, heard, or touched the subject of questioning. Evidence that, if believed, proves existence of the fact in issue without inference or presumption. That means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and which is distinguished from CIRCUMSTANTIAL EVI- DENCE , often called indirect. Evidence that directly proves a fact, witho ut an inference or presumption, and which in itself, if true, conclusively establishes that fact. DIRECT EXAMINATION The primary questioning of a witness during a trial that is conducted by the side for which that person is acting as a witness. During the course of a direct examination, the attorney who is conducting the interrogation generally asks specific questions that provide the foundation of the case. After a witness is directly examined, the opposing side conducts a CROSS- EXAMINATION, the purpose of which is to IMPEACH or test the validity of the testimony. DIRECT TAX A charge levied by the government upon property, which is determined by its financial worth. A direct tax is usually a property tax or AD VALOREM tax, as opposed to an indirect tax imposed upon some right or privilege, such as a franchise tax. DIRECTED VERDICT A procedural device whereby the decision in a case is taken out of the hands of the jury by the judge. A VERDICT is generally directed in a jury trial where there is no other possible conclusion because thesidewiththe BURDEN OF PROOF has not offered sufficient evidence to establish a PRIMA FACIE case. A direct ed verdict is provided for by federal and state rules of CIVIL PROCEDURE .InaCRIMINAL ACTION, an acquittal may be directed in favor of a DEFENDANT,baseduponrulesofCRIMINAL PROCEDURE. DIRECTOR One who supervises, regulates, or controls. A director is the head of an organization, either elected or appointed, who generally has certain powers and duties relating to management or administration. A corporation’s board of directors is composed of a group of people who are elected by the shareholders to make important company policy decisions. Director has been used synonymously with manager. DIRECTORY A provision in a statute, rule of procedure, or the like, that is a mere direction or instruction of no obligatory force and involves no invalidating GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 456 DIRECT consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed. The general rule is that the prescriptions of a statute relating to the performance of a public duty are so far directory that, though neglect of them may be punishable, it does not affect the validity of the acts done under them, as in the case of a statute requiring an officer to prepare and deliver a document to another officer on or before a certain day. Generally, s tatutory provisions t hat do n ot relate to the essence of a thing to be done, and as to which compliance is a matter of c onvenience rather than of substance , a re directory , whil e p rovisions that relate to the essence of a thing to be done, that is, matters of substance, are mandatory. DISABILITY The lack of competent physical and mental faculties; the absence of legal capability to perform an act. The term disability usually signifies an inca- pacity to exercise all the legal rights ordinarily possessed by an average person. Convicts, minors, and incompetents are regarded to be under a disability. The term is also used in a more restricted sense when it indicates a hindrance to marriage or a deficiency in legal qualifications to hold office. The impairment of earning capacity; the loss of physical function resulting in diminished efficiency; the inability to work. In the context of workers’ compensation statutes, disability consists of an actual incapa- city to perform tasks within the COURSE OF EMPLOYMENT , with resulting wage loss, in addition to physical impairment that might, or might not, be incapacitating. Under federal law, the definition of a disability, for SOCIAL SECURITY benefits purposes, requires the existence of a medically ascertainable physical or mental impairment that can be expected to result in death or endures for a stated period, and an inability to engage in any substantial gainful activity due to the impairment. DISABILITY DISCRIMINATION According t o a U.S. Census Bureau report in 2008, approximately 54 million people in the United States are physically or mentally disabled. Like individuals of various races, religions, genders, and national origins, individuals with physical or mental limitat ions historically have faced discrimination in the forms of exclusion from mainst ream society; intentional and unintentiona l SEGREGATION ; unequal or inferior services, benefits, or activities; and screening criteria that do not correlate with actual ability. Legal commentators have noted tha t the discrimination against disabled persons differs from other forms of discrimination in that a rational basis for treating m embers of other excluded groups differently rarely exists, whereas aperson’s disability might hinder his or her abilities and might provide a rational basis for different treatment. Thus, the mere fact that an individual with a disability is treat ed differently is insufficient for a finding of illegal discrimination. Another frequently noted difference between discrimination based on disability and discrimination based on race, color, religion, gender, and national origin is the attitude behind the discrimination. For example, discrimination based on race tends to be rooted in hostility toward a different race. By contrast, discrimination based on disability is often caused by discomfort and pity or misguided compassion that materializes as paternalistic and patronizing behavior. Other times, discrimination against disabled persons is Directed Verdict After hearing a motion at the close of the evidence, I have determined that the plaintiff has failed to present the proof that the law requires to prevail on his/her claim [or: to prevail on some of the claims, namely, ___________________________________________________]. Since I have made this legal determination, I am directing you that the law requires that you render a verdict in favor of the defendant. [or: in favor of the defendant on counts ________ and ________]. The verdict form which you will use for this purpose is headed "Defendant's Verdict" [describe finding for defendant on particular counts on the verdict form]. You should elect a foreperson, who should sign this verdict form on behalf of the jury at the direction of the court. REVISED TO JANUARY 1, 2008 A sample judgment for the defendant on directed verdict. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISABILITY DISCRIMINATION 457 . required of a person in a given situation; the opposite of negligence. There may be a high degree of diligence, a common degree of diligence, and a slight degree GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. DICKINSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 450 DICTA therefore are individ ual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of. businesses are often at a disadvantage when filing civil claims against a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 454 DIPLOMATIC IMMUNITY diplomat, especially in cases of unpaid debts, such