or parents while he or she is under twenty-one years of age, or as the result of a naturalization obtained on his or her behalf while under 21 years of age by a parent, guardian, or authorized agent, unless the individual fails to enter the United States to establish a permanent residence prior to the 25th birthday. The treaty between the United States and the foreign nation determines whether the individual may maintain the dual citizenship if he or she elects to retain the U.S. citizenship, or may lose his or her foreign citizenship and remain only a U.S. citizen. DUCES TECUM [Latin, Bring with you.] Commonly called a subpoena duces tecum, a type of legal writ requiring one who has been summoned to appear in court to bring some specified item with him or her for use or examination by the court. A person served with a SUBPOENA DUCES TECUM might be required to present documents, such as business records or other pieces of physical evidence, for the inspection of the court. DUE Just; proper; regular; lawful; sufficient; reasonable, as in the phrases due care, due process of law, due notice. Owing; payable; justly owed. That which one contracts to pay or perform to another; that which law or justice requires to be paid or done. Owed, or owing, as distinguished from payable. A debt is often said to be due from a person where he or she is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived. The same thing is true of the phrase due and owing. The term due is essentially contextual in nature and has various legal applications, all of which involve the sufficiency or reasonableness of an action or obligation. Due care is the use of the requisite amount of caution needed in a particular set of circum- stances based upon what a reasonably prudent person would do under similar circumstances. Exercising due care while driving might mean obeying traffic regulations. Due consideration is the proper weight or significance given to a matter or a factor as circumstances mandate. It may also have app- lication in sufficiency of consideration in the law of contracts. DUE DATE The particular day on or before which something must be done to comply with law or contractual obligation. DUE NOTICE Information that must be given or made available to a particular person or to the public within a legally mandated period of time so that its recipient will have the opportunity to respond to a situation or to allegations that affect the individual’sor public’s legal rights or duties. Due notice is not a fixed period of time in every instance but varies from case to case, depending upon the facts and the applicable statutory requirements. In some situations, it might be a specified time; in others, it might be considered a REASONABLE TIME, thereby pre- senting a QUESTION OF FACT in a lawsuit to determine if timely notice has been given. DUE PROCESS OF LAW Due process of law is a fundamental, constitu- tional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. Also, a constitutional guaran- tee that a law shall not be unreasonable, arbitrary, or capricious. The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitu tion, prohi- bits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and pro- perty. The due process clause of the FIFTH AMENDMENT , ratified in 1791, asserts that no person shall “be deprived of life, liberty, or property, without due process of law.” This amendment restricts the powers of the federal government and applies only to actions by it. The due process clause of the FOURTEENTH AMENDMENT , ratified in 1868, declares, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (§ 1). This clause limits the powers of the states, rather than those of the federal government. The due process clause of the Fourteenth Amendment has also been interpreted by the U.S. Supreme Court in the twentieth century to incorporate protections of the BILL OF RIGHTS , GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 38 DUCES TECUM so that those protections apply to the states as well as to the federal government. Thus, the due process clause serves as the means whereby the Bill of Rights has become binding on state governments as well as on the federal government. The concept of due process originated in English COMMON LAW. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Carta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, “No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land” (ch. 39). The phrase law of the land was later renamed due process of law. By the seventeenth century, England’s North American colonies were using the phrase “due process of law” in their statutes. The application of constitutional due process is traditionally divided into the two cate gories of SUBSTANTIVE DUE PROCESS and procedural due process. These categories are derived from a distinction that is made between two types of law. SUBSTANTIVE LAW creates, defines, and regulates rights, whereas PROCEDURAL LAW enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as FREEDOM OF SPEECH and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney. Substantive Due Process The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Court for the first time used the substantive due process frame- work to strike down a state statute. Before that time, the Court generally had used the COMMERCE CLAUSE or the contracts clause of the Constitution to invalidate state legislation. The Allgeyer case concerned a Louisiana law that proscribed the entry into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged the right to enter into lawful contracts, as guaranteed by the due process clause of the Fourteenth Amendment. The next 40 years after Allgeyer were the heyday of what has been called the freedom-of- contract version of substantive due process. During those years, the Court often used the due process clause of the Fourteenth Amendment to void state regulation of private industry, parti- cularly regarding terms of employment such as maximum working hours or minimum wages. In one famous case from that era, Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Court struck down a New York law (N.Y. Laws 1897, chapter 415, article 8, section 110) that prohibited employers from allowing workers in bakeries to be on the job more than ten hours per day and 60 hours per week. The Court fo und that the law was not a valid exercise of the state’s POLICE POWER.It wrote that it could find no connection between the number of hours worked and the quality of the baked goods, thus finding that the law was arbitrary. In Allgeyer and Lochner and in other cases like them, the Court did not find that state legislatures had failed to enact their laws using the proper procedures, which would present an issue of procedural due process. Instead, it found that the laws themselves violated certain economic freedoms that inhered in the due process clause, specifically its protection of A crowd demonstrates before a federal courthouse in Seattle, Washington, prior to a hearing in which five detainees of the Immigration and Naturalization Service claimed that indefinite detention violates the constitutional guarantee of due process. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DUE PROCESS OF LAW 39 liberty and what the Court described as freedom or liberty of contract. This freedom meant that individuals had the right to purchase or to sell labor or products without unreasonable interference by the government. This interpretation of the due process clause put the Court in direct opposition to many of the reforms and regulations passed by state legisla- tures during the Progressive Era of the early twentieth century. Justices who were opposed to the Court’spositioninsuchcases,including Oliver Wendell Holmes Jr. and JOHN M. HARLAN, saw such rulings as unwarranted judicial activism in support of a particular free-market ideology. During the 1930s the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with then-president Franklin D. Roosevelt’s NEW DEAL.In1937Roosevelt proposed a court-packing scheme in which Roosevelt sought to overcome Court opposition to his programs by appointing additional justices. Although the plan was never adopted, the Court quickly changed its position on substantive due process and other issues and began to uphold New Deal legislation. At that time, a majority on the Court, including Chief Justice Charles E. Hughes and Justice BENJAMIN N. CARDOZO, abandoned the freedom-of-contract version of substantive due process. Even before the Court abandoned the freedom-of-contract approach to substantive due process, it began to explore using the due process clause of the Fourteenth Amendment to re-evaluate state laws and actions affecting civil freedo ms protected by the Bill of Rights. Since the 1833 case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Court had interpreted the Bill of Rights as applying only to the federal government. Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through the incorporation of those rights into the due process clause of the Fourteenth Amendment. In Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), the Court ruled that the liberty guaran- tee of the Fourteenth Amendment’s due process clause protects FIRST AMENDMENT free speech from STATE ACTION.InNear v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court found that FREEDOM OF THE PRESS was also protected from state action by the due process clause, and it ruled the same with regard to freedom of RELIGION in Cantwell v. Connec ti- cut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). Because incorporation has proc eeded grad- ually, with some elements of the Bill of Rights still unincorporated, it has also been called selective incorporation. Nevertheless, during the twentieth century, most of the provisions of the Bill of Rights were incorporated by the due process clause of the Fourteenth Amend- ment, thereby protecting individuals from arbitrary actions by state as well as federal governments. By the 1960s the Court had extended its interpretation of substantive due process to include rights and freedoms that are not spe- cifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights. These rights and freedoms include the freedoms of association and non- association, which have been inferred from the First Amendment’s freedom-of-speech provi- sion, and the right to privacy. The right to privacy, which has been derived from the First, Fourth, and Ninth Amendments, has been an especially controversial aspect of substantive due proces s. First established in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court later used it to protect a woman’s decision to have an ABORTION free from state interference, in the first trimester of pregnancy (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). In several recent decisions, the U.S. Supreme Court has considered the application of substantive due process in light of actions taken by law enforcement officers. It often has determined that police actions have not violated a defendant’s due process rights. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998), for example, the Court determ ined that high-speed chases by police officers did not violate the due process rights of the suspects whom the officers were chasing. In that case, two police officers had engaged in a pursuit of two young suspects at speeds of more than 100 miles per hour through a residential neighborhood. One of the young men died, while the other suffered serious injuries. A unanimous Court held that the officers’ decision to engage in the pursuit had not amounted to “governmental arbitrariness” that the due process clause protects due to the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 40 DUE PROCESS OF LAW nature of the judgment used by the officers in such a circumstance. Lower federal courts have applied an increas- ingly narrow interpretation of substantive due process rights, which they say include only fundamental rights, such as the rights to marry, to have children, to direct the education and upbringing of children, to marital privacy, to the use of contraception, to bodily integrity, and to abortion. These courts have been extre- mely reluctant to recognize any new due process rights not already recognized by the U.S. Supreme Court. For example, one federal court ruled that the right to enter a public park is not a right protected by the due process clause, and thus a city could lawfully exclude a former sex offender from visiting a municipal park after the former offender was observed using bino- culars to spy on other park patrons (Brown v. City of Michigan City, Indiana, 462 F.3d 720 [7th Cir. 2006]). Procedural Due Process A fundamental principle of procedural due process is that notice be given to persons when legal action is initiated against them so that they may have the opportunity to defend themselves in court. Procedural due process is a concept that applies in civil proceedings, criminal pro- ceedings, and any other proceeding in which a person may be deprived of life, liberty, or pro- perty. Procedural dueprocess limits the exercise of power by the state and federal governments by requiring that they follow certain procedures before taking adverse legal action against some- one. In cases where an individual has claimed a violation of due process rights, courts must determine whether the citizen is being deprived of “life, liberty, or property,” and what procedural protections are “due” to that individual. The Bill of Rights contains provisions that are central to procedural due process. These protections give a person a number of rights and freedoms in criminal proceedings, includ- ing freedom from unreasonable searches and seizures; freedom from DOUBLE JEOPARDY,or being tried more than once for the same crime; freedom from SELF-INCRIMINATION, or testifying against oneself; the right to a speedy and public trial by an impartial jury; the right to be told of the crime being charged; the right to cross- examine witnesses; the right to be represented by an attorney; freedom from CRUEL AND UNUSUAL PUNISHMENT ; and the right to demand that the state prove any charges BEYOND A REASONABLE DOUBT . In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. In one such case, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the due process clause of the Fourteenth Amendment incorporates the SIXTH AMENDMENT right to have an attorney in “all criminal prosecutions, ” including prosecu- tions by a state. The case proved to be a watershed in establishing indigents’ rights to legal counsel. The U.S. Supreme Court is more likely to find due process violations where the actions of a government official are clearly arbitrary. In City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999), for example, the Court struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds. The ordinance allowed police officers to break up any group of two or more perso ns whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member. The ordinance had led to more than 43,000 arrests. Because the ordinance did not draw the line between innocent and guilty behavior and failed to give guidance to police on the matter, the ordinance violated the due process rights of the subjects of these break-ups. The Court held that because the ordinan ce gave absolute discretion to the police officers to determine what actions violated the ordinance, it was an arbitrary restriction on personal liberty in violation of the due process clause. In 2002 the Court found that arbitrary actions by a trial judge in a MURDER case violated the due process rights of the DEFENDANT (Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 820 [2002]). In that case, the defendant was charged with first-degree murder for driving the getaway car for a man who had pleaded guilty to a murder charge in Kansas City, Missouri. The defendant claimed that he had been in California at the time of the murder, and four family members were to testify at trial that the defendant was not in Kansas City at the time of the murder. However, the family members left before they were expected to testify, and the defense could not locate them. The defense asked the court for a short continuance of one or two days, but the judge refused due to personal conflicts and a conflict with another GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DUE PROCESS OF LAW 41 trial. Without the testimony of the family mem- bers, the defendant was convicted of murder. The high court held that the judge’s arbitrary actions violated the defendant’s due process rights, and it vacated the defendant’s conviction. Procedural due process also protects indivi- duals from government actions in the civil, as opposed to criminal, sphere. The bedrock principle of procedural due process in civil cases is the concept of notice. Unlike criminal cases in which an individual’s liberty is at stake, plaintiffs in civil cases bring legal actions to recover money or property from another person, and the law guarantees that individuals be notified before this happens. Hand-delivered personal notice is the preferred method of providing notice of a pending legal proceeding, but oftentimes hand-delivery is not possible. Courts then wrestle with what type of notice will satisfy due process requirements. In Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006), the U.S. Supreme Court ruled that a state must do more than serve a tax forfeiture sale notice by certified mail when the certified letters are returned as unclaimed. The Court held that a state must take “additional reasonable steps” to provide homeowners with notice before taking their homes and selling them. These steps include posting notice on a homeowner’s door and addressing mailings to “occupant.” However, the Court cautioned that homeowners are not entitled to receive actual, hand-delivered notice, so long as reasonable steps have been taken to give notice. Lack of notice also played a key role in Philip Morris USA v. Williams, 549 U.S. 346, 127 S. Ct. 1057, 166 L. Ed. 2d 940 (2007), where the Supreme Court ruled that the due process clause prohibits juries from imposing PUNITIVE DAMAGES on a defendant for injuries that the defendant caused to persons who are not part of a plaintiff’s lawsuit, even if those persons were in fact in jured by the defendant and injured in a substantially similar way. In a 5–4 decision written by Justice STEPHEN BREYER, the Court said that due process does not permit a defendant to be punished for harm inflicted upon “strangers to the litigation,” because defendants would lack sufficient notice to defend themselves against claims not specifically raised by the pleadings, and this would intro- duce an unacceptable amount of uncertainty into civil litigatio n. Procedural due process protections have been extended to includ e not only land and PERSONAL PROPERTY, but also entitlements, includ- ing government-provided benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal government must hold hearings before terminating welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding procedural due process have exerted a great deal of influence over government proce- dures in prisons, schools, SOCIAL SECURITY, civil suits, and public employment. The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct. 1446, 149 L. Ed. 2d 391 (2000), held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division of Labor and Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor. The subcontractor, G&G Fires prinklers, sued the California agency, claiming that the agency had violated the company’s procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation. FURTHER READINGS Cassel, Douglass W., Jr. 2003. “Detention Without Due Process.” Chicago Daily Law Bulletin 149 (March 13). Gedicks, Frederick Mark. 2009 “An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment.” Emory Law Journal. 58. Israel, Jerold H. 2001. “Free-standing Due Process and Criminal Procedure: The Supreme Court’s Search for Interpretive Guidelines.” St. Louis University Law Journal 45 (spring). Pennock, J. Roland, and John W. Chapman. 1977. Due Process. New York: New York Univ. Press. Wells, Michael L. 2009 “State-Created Property and Due Process of Law: Filling the Void Left by Enguist v. Oregon Department of Agriculture.” Georgia Law Review (Fall). CROSS REFERENCES Criminal Procedure; Fifth Amendment; Incorporation Doctrine; Judicial Review; Labor Law; Right to Counsel; Substantive Due Process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 42 DUE PROCESS OF LAW DUELING The fighting of two persons, one against the other, at an appointed time and place, due to an earlier quarrel. If death results, the crime is murder. It differs from an affray in this, that the latter occurs on a sudden quarre l, while the former is always the result of design. In dueling, the use of guns, swords (rapiers), or other harmful weapons resolves quarrels through trial by combat. Duels used to occur commonly between opposing individuals seek- ing restitution or satisfaction outside the court system. In early U.S. history, some members of law enforc ement attempted to treat dueling as a crime, but the practice went mostly unpun- ished. However, with the results of one duel especially—between AARON BURR and Alexander Hamilton—the practice lost prestige in the northern states. Along with growing public sentiment against dueling, new laws in the mid- 1800s finally treated the form of confrontation as outright or attempted HOMICIDE. In states that have not incorporated dueling into their homi- cide statutes, dueling is now a crime punishable by a fine or imprisonment, or both. It is also an offense in some states merely to give or accept a challenge to engage in a duel. Around the time of the Revolutionary War, dueling occurred in every state of the nation— in some areas, regularly—for even relatively slight offenses, such as insults, or to resolve gambling disputes. Few laws prohibited this tradition inherited from the Old World, which continued to evolve, even in Europe. Although no binding set of rules governed the proceedings of a duel in the United States—largely, no doubt, because dueling was outside the law—U.S. citizens adopted the European rules from their ancestors. U.S. citizens based their dueling codes on the Code Duello of Ireland. This Irish code of 1777 contained twenty-six commandments covering all aspects of a duel. It included ways to avert a duel, such as the manner in which to apologize when one had committed a duel- provoking offense. If a duel could not be avoided, the scenario was a familiar one: usually, opponents would stand back-to-back, then pace a set number of steps away from each other, turn, and shoot. The Code Duello declared, “The aggressor must either beg pardon in expressed terms … or fire on until a severe hit is received by one party or the other.” In the United States, less strict variations of the Code Duello allowed the contest to end without bodily injury, providing for some form of public mockery for the contestant who sought to end the duel. Sometimes, U.S. politicians made dueling a sensational event. Critics, such as THOMAS JEFFERSON and THOMAS PAINE,wantedtomakethe practice punishable by law with the death penalty. But others insisted on resorting to duels in order to uphold their political reputation. Perhaps the most famous duel in U.S. history was fought in 1804 between the Federalist leader ALEXANDER HAMILTON and New England politician Aaron Burr. The two had confronted and spoken harshly to each other for several years, beginning in 1791. Hamilton became furious with Burr during Burr’s unsuccessful campaign for a New York senate seat in 1792. He claimed that Burr had use d dirty politics, and ridicule d Burr as “unprincipled and dangerous,” casting him as a power-hungry “embryo Caesar.” When Burr aspired to become president in the 1800 election, Hamilton voted for Thomas Jefferson—an opponent of his own Federalist party—just for the principle of voting against Burr. Burr settled for the vice presidency, and held a grudge for Hamilton’s disparaging treatment. After serving as vice president, Burr chal- lenged Hamilton to a duel. Hamilton knew that Burr was a much better sharpshooter than himself, but because of unwritten codes of honor that pressured him not to back out of A depiction of the duel between Alexander Hamilton and Aaron Burr on July 11, 1804. Hamilton intentionally missed Burr, but Burr’s shot wounded Hamilton, who died the next day. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DUELING 43 a duel, he accepted Burr’s challenge. On July 11, the two and their seconds (seconds who would take the place of their principal if he could not show) met at the predetermined site of Weehawken, New Jersey, overlooking the Hud- son River. (Though both men lived in New York, New Jersey had fewer legal restrictions on dueling than did New York.) Major Nathaniel Pendleton, one of Hamilton’s friends, recited the accepted rules of dueling before the firing of shots. After both parties said they were ready for the duel, by declaring themselves present, their final confrontation began. When Pendle- ton shouted, “Fire,” Burr pulled his trigger first. The bullet hit Hamilton in his side and pierced his liver. Burr was unharmed. About thirty-six hours later, Hamilton died from his wound. Even though Burr had killed an elder and respected political leader, neither New Jersey nor New York issued a warrant for his arrest. New York, ignoring the case of MURDER, pressed misdemeanor charges for breaking the state’s minor restrictions on duels. New Jersey charged Burr with murder, but the case n ever went to trial. The only punishment Burr received was a public outcry against him. Attempting to hide himself from Hamilton’s supporters, Burr spent the rest of his life in seclusion and poverty. Some, especially those in the North who were upset with the loss of Hamilton, began to cast the practice of dueling as barbaric and absurd. Drastic legislation in Pennsylvania and several New England states, including New York, followed. Farther west, the new state of Illinois, in 1819, hung a man for killing a neighbor in a rifle duel at the range of twenty-five paces. Most states, however, still did not have laws against dueling. Dueling continued, especially in the South, where notions of individual honor remained deep. In 1838, Governor John Lyde Wilson, of South Carolina, wrote the first official U.S. adaptation of the Irish Code Duello. As an innovation on the Irish code, Wilson’s Code Duello formalized the U.S. principle that required satisfaction to follow a confrontation: if a person challenged to a duel, or that person’s second, refused to raise arms, public insults would follow, such as postings on walls declaring the individual a coward, a poltroon, a puppy, or worse. Although Wilson did not proclaim enthusiastic support of duels, he did believe that in certain instances, they were necessary and proper; dueling, he felt, served as a logical recourse for any individual seeking satisfaction in a case where the law could not provide it. Wilson’s sixteen-page pamphlet remained pop- ular and was reprinted until 1858. After a fatal duel between two legislators, Jonathan Cilley and William J. Graves, Congress passed an anti-dueling law. HENRY CLAY,of Kentucky, an opponent of duels, made his support of the bill known by explaining, “When public opinion is renovated and chastened by reason, RELIGION and humanity, the practice of dueling will be discountenanced.” The bill banned dueling in the District of Columbia beginning on February 20, 1839. In t he next decades, various states followed Congress’s lead. Members of the clergy and concerned politi- cians continued to give impassioned speeches further criticizing the “peculiar practice.” Although dueling persisted into the early 1800s, and reached its height during that period, by the middle of the century it had largely disappeared. Historians attribute the decline to an increase in the number of laws banning it, and in the penalties for dueling. These laws reflected a change in attitude toward the practice, which came to be viewed as barbarous, rather than honorable. The Code Duello’s unyielding, Old World conception of honor was discredited by younger generations. Outlawed and outmoded, dueling remains an interesting chapter in the history of dispute resolution in the United States. FURTHER READINGS Baldick, Robert. 1970 The Duel: A History of Duelling. London: Chapman & Hall. Billacois, Francois. 1990. The Duel: Its Rise and Fall in Early Modern France. Trista Selous, trans. New Haven, Conn.: Yale Univ. Press. Burr, Samuel Engle, Jr. 1971. The Burr-Hamilton Duel and Related Matters. San Antonio: Naylor. Cochran, Hamilton. 1963. Noted American Duels and Hostile Encounters. Philadelphia and New York: Chilton Books. Hussey, Jeannette. 1980. The Code Duello in America. Washington, D.C.: Smithsonian Institution. Kiernan, V.G. 1989. The Duel in European History. New York: Oxford Univ. Press. McAleer, Kevin. 1994. Dueling. Princeton, N.J.: Princeton Univ. Press. Parker, David S. 2001. “Law, honor, and Impunity in Spanish America: The Debate Over Dueling, 1870– 1920.” Law and History Review 19 (summer). Rush, Philip. 1964. The Book of Duels. London: Harrp. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 DUELING Spierenburg, Pieter, ed. 1998. Men and Violence: Gender, Honor, and Rituals in Modern Europe and America. Columbus: Ohio State Univ. Press. Available at http:// www.ohiostatepress.org/index.htm?/books/book% 20pages/spierenburg%20men.htm; website home page: http://www.ohiostatepress.org (accessed July 20, 2009). Yarn, Douglas H. 2000. “The Attorney as Duelist’s Friend: Lessons from the Code Duello.” Case Western Reserve Law Review 51 (fall). Available online at http://www. law.case.edu/student_life/journals/law_review/51-1/ Yarn.htm; website home page: http://www.law.case.edu (accessed July 20, 2009). DUI See DWI. v DULLES, JOHN FOSTER John Foster Dulles served as U.S. secretary of state from 1953 to 1959. A prominent New York City attorney, Dulles participated in international affairs for much of his legal career. His term as secretary of state occurred during the height of the COLD WAR and was marked by his strong anti-Communist policies and rhetoric. Dulles was born in Washington, D.C., on February 25, 1888, at the home of his maternal grandfather, John W. Foster, secretary of state under President BENJAMIN HARRISON. Dulles was raised in Watertown, New York, where his father, the Reverend Allen M. Dulles, served as a Presbyterian minister. Known as Foster, the young Dulles was a precocious student, gra- duating from high school at age 15 and attending Princeton University at age 16. He graduated in 1908 and then entered GEORGE WASHINGTON University Law School. Again, he worked quickly, and graduated in two years. Through the efforts of his well-connected grandfather, Dulles joined the New York City law firm of Sullivan and Cromwell, which has been called the greatest corporate law firm of the early twentieth century. In 1919 family friend and international financier Bernard M. Baruch invited Dulles to be his aide at the Paris Peace Conference. This conference, which was convened to negotiate the terms of peace to end WORLD WAR I, stimulated Dulles’s interest in international politics and diplomacy. In the 1920s Dulles quickly moved ahead at Sullivan and Cromwell. In 1926, at the age of only 38, Dulles was made head of the firm. Representing many of the largest U.S. corporations, Dulles became a very wealthy man. As his stature rose, he became a prominent figure in the REPUBLICAN PARTY. A confidant of New York governor THOMAS E. DEWEY, Dulles was John Foster Dulles 1888–1959 ❖ ◆ 1888 Born, Washington, D.C. ◆◆ 1911 Joined Sullivan & Cromwell in New York City 1924 Served as special counsel to Dawes Plan, which renegotiated Germany's post-war finances and reparations payments 1939 War, Peace and Change published 1945–49 Served as U.S. member of U.N. General Assembly 1914–18 World War I 1959 Died, Washington, D.C. ◆ 1951 Helped arbitrate peace terms with Japan 1939–45 World War II 1952–59 Served as U.S. secretary of state under President Eisenhower 1950–53 Korean War 1961–73 Vietnam War ▼▼ ▼▼ 19001900 18751875 19251925 19501950 19751975 ◆ 1919 Served as counsel to U.S. representative at the Paris Peace Conference ❖ John F. Dulles. COURTESY OF JOHN FOSTER DULLES THE ABILITY TO GET TO THE VERGE OF WAR WITHOUT GETTING INTO THE WAR IS THE NECESSARY ART … IF YOU ARE SCARED TO GO TO THE BRINK , YOU ARE LOST. —JOHN DULLES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DULLES, JOHN FOSTER 45 promised the position of secretary of state if Dewey was elected president in 1948, but Dewey was unsuccessful and Dulles lost that opportunity. Dulles was an active participant in the effort to reshape foreign relations after WORLD WAR II .HehelpedformtheUNITED NATIONS and was a U.S. member to the General Assembly from 1945 to 1949. He performed the duties of U.S. ambassador-at-large and was the chief author of the 1951 Japanese peace treaty. He also negotiated the Australian, New Zealand, Philippine, and Japanese security treaties in 1950 and 1951. In 1949 he filled a vacancy in the Senate created by the death of Senator ROBERT WAGNER, of New York, but was unsuccessful in his attempt the same year to win election to a six- year term. Dulles’s political fortunes im proved when he aligned himself with the 1952 presi- dential candidacy of DWIGHT D. EISENHOWER.He helped Eisenhower defeat conservative senat or Robert Taft, of Ohio, at the nominating conven- tion and was rewarded with his long-desired appointment as head of the STATE DEPARTMENT. As secretary of state, Dulles exhibited a rigid opposition to COMMUNISM. He advocated going to the brink of war to achieve results—a position that led to the coinage of the term brinkmanship to describe his foreign policy. Dulles is also remembered for his doctrine of “massive retaliation,” which warned the Soviet Union that the United States would react instantaneously with NUCLEAR WEAPONS to even the smallest provocation. Dulles believed that such a policy would discourage aggressive acts, though many allies were concerned that it would turn small wars into much larger and much more destructive ones. Dulles died May 24, 1959, in Washington, D.C. FURTHER READINGS Halberstam, David. 1994. The Fifties. New York: Ballantine. Merry, Robert W. 1996. Taking on the World: Joseph and Stewart Alsop, Guardians of the American Century. New York: Viking. The Papers of John Foster Dulles.The Dwight D. Eisenhower Presidential Library and Museum. Abilene, Tex. Avaial- ble online at http://eisenhower.archives.gov/Research/ Finding_Aids/D.html; website home page: http://eisen- hower.archives.gov (accessed September 2, 2009). CROSS REFERENCE Cold War. DUMMY Sham; make-believe; pretended; imitation. Person who serves in place of another, or who serves until the proper person is named or available to take his place (e.g., dummy corporate directors; dummy owners of real estate). DURESS Unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily woul d not perform. Duress also encompasses the same harm, threats, or restraint exercised upon the affected individual’s spouse, child, or parent. Duress is distinguishable from UNDUE INFLU- ENCE , a concept employed in the law of wills, in that the latter term involves a wrongdoer w ho is a fiduciary, one who occupies a position of trust and confidence in regard to the testator, the creator of the will. Duress also exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition. As a defense to a CIVIL ACTION, the federal Rules of CIVIL PROCEDURE require that duress be pleaded affirmatively. Except with respect to HOMICIDE, a person who is compelled to commit a crime by an unlawful threat from another person to injure him, her, or a third person , will generally not be held respon sible for its commission. CROSS REFERENCE Threats. DURHAM RULE A principle of criminal law used to determine the validity of the insanity defense asserted by an accused, that he or she was insane at the time of committing a crime and therefore should not be held legally responsible for the action. The Durham rule was created in 1954 by Judge David L. Bazelon, of the U.S. Court of Appeals for the District of Columbia, in Durham v. United States, 214 F.2d 862. The rule, as stated in the court’s decision, held that “an accused is not criminally responsible if his unlawful act was the product of mental disease.” It required a jury’s determination that the accused was suffering from a mental disease and that there was a causal relationship between GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 46 DUMMY the disease and the act. Because of difficulties in its implementation, the Durham rule was rejected by the same court in the 1972 case United States v. Brawner, 471 F.2d 969 (en banc). The Durham rule replaced a nineteenth- century test of criminal responsibility called the M’Naghten rule. The M’Naghten rule, or “right- wrong” test, required the acquittal of defendants who could not distinguish right from wrong. This rule was supplemented by the “irresistible impulse” test, added in the District of Columbia in 1929, which allowed a jury to inquire as to whether the accused suffered from a “diseased mental condition” that did not allow him or her to resist an “insane impulse.” By the mid–twentieth century, these early legal tests of insanity came under increasing criticism. Critics of the M’Naghten rule, for example, charged that it was outdated and did not take into consideration the broad range of mental disorders that had been identified by modern science. Commentators also claimed that these earlier rules did not allow expert witnesses to communicate fully the findings of modern psychology and psychiatry to a jury. The Durham rule sought to overcome these problems. It attempted to create a simple and open-ended insanity test that would, Judge Bazelon later wrote, “open up the courtroom to all the information and analysis available to the scientific community about the wellsprings of human behavior.” Bazelon hoped that the new rule would allow experts to bring to the jury and the public new insights into “the physio- logical and cultural, as well as individual psychological, factors contributing to crim inal behavior.” Bazelon intended it to be not a precise test but rather a loose concept compa- rable to the legal definition of NEGLIGENCE. Thus, he compared the term fault in the negligence context to the term responsibility in the Durham context. The meaning of such terms, he argued, would have to be determined by a jury in light of the facts relevant to each case. Implementation of the Durham rule ran into serious difficulties. The rule did not elicit the detailed courtroom discussion of mental illness and criminal behavior that Judge Bazelon and others had hoped for. Instead, just as expert witnesses had before been asked the yes-or-no question, Was the accused capable of distin- guishing right from wrong? experts were now asked the simple yes-or-no question, Was the accused’s act a product of mental disease or defect? The Durham rule, therefore, perpetuated the dominant role of EXPERT TESTIMONY in determining criminal responsibility, a task that many critics felt was best left to a jury. As a result of such difficulties, the District of Columbia Circuit unanimously rejected the Durham rule in the 1972 Brawner case. The court replaced it with a standard developed by the American Law Institute: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law” ( MODEL PENAL CODE § 4.01[1]). This new test has been described as a more subtle and less restrictive version of the pre- Durham right-wrong and IRRESISTIBLE IMPULSE tests. In coming to its conclusion, however, the court in Brawner emphasized that no particular formulation of words provides an easy solution to the difficult problems involved in assessing the sanity of a person accused of committing a criminal act. Instead, the court asserted that criminal responsibility in such trials is best assessed by a properly informed jury that is not overly dominated by expert testimony. To help juries make such assessments, the court re- quired experts to explain the underlying reasons for their opinions rather than giving yes-or-no answers to simplistic questions. DUTY A legal obligation that entails mandatory conduct or performance. With respect to the laws relating to customs duties, a tax owed to the government for the import or export of goods. A fiduciary, such as an executor or trustee, who occupies a position of confidence in relation to a third person, owes such person a duty to render services, provide care, or perform certain acts on his or her behalf. In the context of NEGLIGENCE cases, a person has a duty to comport himself or herself in a particular manner with respect to another person. DUTY OF TONNAGE A fee that encompasses all taxes and customs duties, regardless of their name or form, imposed upon a vessel as an instrument of commerce for entering, remaining in, or exiting from a port. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DUTY OF TONNAGE 47 . short continuance of one or two days, but the judge refused due to personal conflicts and a conflict with another GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DUE PROCESS OF LAW 41 trial. Without. Labor Law; Right to Counsel; Substantive Due Process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 42 DUE PROCESS OF LAW DUELING The fighting of two persons, one against the other, at an appointed. Law and History Review 19 (summer). Rush, Philip. 19 64. The Book of Duels. London: Harrp. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 DUELING Spierenburg, Pieter, ed. 1998. Men and Violence: