Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P7 pdf

Conceptually, a duty of tonnage is assessed for the privilege of transacting business in a port. v DUVALL, GABRIEL Gabriel Duvall was born December 6, 1752. He was admitted to the Maryland bar in 1778. Duvall served in the militia before beginning his government career in 1783, serving on the Maryland Governor’s Council from 1783 to 1784, and in the Maryland House of Delegates from 1787 to 1794. From 1794 to 1796, Duvall acted as a representative from Maryland to the U.S. House of Representatives. He returned to Maryland as chief justice of the Maryland General Court in 1796 and remained on the bench until 1802. Duvall then returned to federal service, and from 1802 to 1811 served as first comptroller of the U.S. Treasury under President THOMAS JEFFERSON. Duvall was appointed to the Supreme Court by President JAMES MADISON to replace SAMUEL CHASE . He served on the Court from 1811 to 1835, mainly writing minor opinions on COMMERCIAL LAW and maritime law. Though he tended to vote with chief justice JOHN MARSHALL, Duvall was a strong opponent of SLAVERY.He wrote a memorable dissent in Mima Queen and Child v. Hepburn, 11 U.S. 290 (1813), a case argued for the plaintiffs by Francis Scott Key. The majority disallowed hearsay evidence to prove a purported slave was free. Duvall opined that hearsay should be admitted to prove freedom whenever the facts are so old that living testimony cannot be procured. Duvall died on March 6, 1844. DWI In many states, the criminal charge for drunk driving is driving while intoxicated (DWI). In genealogical tables, DWI is an abbreviation for died without issue. A showing of complete intoxication is not necessary for a charge of driving while intoxi- cated. State laws indicate levels of blood-alcohol content at which an individual is deemed to be under the influence of alcohol. Laws against drunk driving vary slightly from state to state. In the majority of states, a person’s first DWI charge (also referred to as Driving Under the Influence, or DUI, in some states) results in an automatic suspension of the violator’s license. The length of the suspension in the various states ranges from 45 days to one year. Forty-three states req uire offenders to install ignition interlocks on their vehicles in order to drive. These devices are capable of analyzing a driver’s breath, and the ignition is Gabriel Duvall 1752–1844 ▼▼ ▼▼ 17501750 18001800 18251825 18501850 17751775 ❖ ◆ 1752 Born, Prince George's County, Md. ❖ 1775–1783 American Revolution 1778 Admitted to Maryland bar 1787–94 Served in the Md. House of Delegates 1783–84 Served on the Md. Governor's Council 1794–96 Represented Md. in the House of Representatives 1796–1802 Presided as chief justice of the Md. General Court 1802–11 Served as first comptroller of the U.S. Treasury 1811–35 Served on the U.S. Supreme Court 1844 Died, Prince George's County, Md. 1812–14 War of 1812 1823 Monroe Doctrine enunciated, opposed European intervention in the Americas ◆ Gabriel Duvall. ENGRAVING BY HARRIS AND EWING. COLLEC- TION OF THE SUPREME COURT OF THE UNITED STATES IT WILL BE UNIVERSALLY ADMITTED THAT THE RIGHT TO FREEDOM IS MORE IMPORTANT THAN THE RIGHT OF PROPERTY . —GABRIEL DUVALL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 DUVALL, GABRIEL DWI: Should Punishment Be Stricter for Repeat Offenders? I n 2008 alcohol-related auto accidents took the lives of 11,773 people across the United States. Statistics show that nearly 60 percent of those fatal accidents were caused by drivers with a history of driving while intoxicated (DWI). There is no shortage of horror stories in which innocent people have been killed by a drunk driver who later turns out to have a prior record for DWI offenses. The question of whether repeat offenders should be subject to stricter punishment is hardly new, but it is a complex question even though it seems to tackle an issue that has no gray areas. Typical repeat DWI offenders will have a blood alcohol level of up to three times the legal limit by the time they get behind the wheel. Three-fourths of repeat offenders can be classified as alcohol abusers or alcohol dependent. Their consumption of alcohol is frequent and chronic. Perhaps most alarming, however, is that most of these drivers are neither remorseful for the damage they inflict nor deterred by the threat of arrest or loss of driving privileges. Either they believe they can escape getting caught or they believe their punishment will turn out to be minimal. Not even the threat to their own physical safety (many drunk drivers end up as fatalities them- selves) seems to inhibit them. In the past, repeat DWI offenders might be given probation or minimal time in jail, along with a suspended driver’s license. In some cases, the punishment might be a specified period of COMMUNITY SERVICE .TheNATIONAL TRANSPORTATI ON SAFETY BOARD (NTSB) has called for states to eliminate community service as a punish- ment, in part because it keeps p rosecutions off offenders’ records a nd makes repeat offenses more likely. However, s tates have retained community s ervice a s a sentencing option. Treatment for alcohol abuse works in some but not all cases. It is certainly worth trying, but in many cases repeat offenders are not interested in being helped. They will go through a treatment program if it is required by law, but positive effects may be short-lived. Partly in response to the federal government’s call for tougher laws and partly in response to groups such as MOTHERS AGAINST DRUNK DRIVING (MADD), state governments have worked to make DWI laws stricter and more than just an inconvenience for recidivists. In Massa- chusetts, for example, a law allows judges to consider DWI convictions that are more than ten years old when sentencing a repeat offender. Under the previous law they could not be considered, and a driver whose earlier conviction had been classified a “youthful indiscretion” could be treated as a first-time offender. The new law requires that anyone who receives a second conviction faces two years probation, a suspended license, and 14 days at an in-patient alcohol treat- ment program. Other measures include the use of technology. Ignition interlock devices, which require the driver to pass a breath test before the car will start, have met with positive results. A study in Mary- land showed that DWI repeat offenders who used ignition interlock devices had a recidivism rate one-third lower than those who did not. Some municipalities have tried electronic monitoring. In Los Angeles, electronic monitoring lowered the recidivism rate for DWI offenders and also cut jail costs significantly. Some states have pushed to be able to charge repeat DWI offenders in fatal crashes with felony MURDER. In some municipalities, bartenders who serve people who are knowingly inebriated and allow them to drive have been subject to criminal charges. Even strict measures are not 100 percent effective. The National Commission Against Drunk Driving (NCADD) estimates that up to 80 percent of DWI offenders will take the risk of driving with a suspended license. A driver who wishes to thwart the law can usually do so. DWI offenders are often able, for example, to determine the exact locations of police roadblocks based on established patterns and avoid them by traveling an alternate route. People who have ignition interlock devices in their cars can have a sober friend start the car for them. The trick for law enforcement officials is to stay one step ahead of the criminals. The police can easily vary their patterns and stop cars randomly on different roads. As for technology, interlock devices can be equipped with a re-start option that requires the driver to take a breath test several times during a car trip, even if the car is still running. This arrangement keeps the offender from drinking while driving. Moreover, if those who serve liquor or who allow drunk drivers behind the wheel know that they can face criminal charges, it stands to reason that they will be more careful about letting a drunk person get behind the wheel of a car. Ultimately, the most effective way to deal with repeat DWI offenders may be a combination of these measures. It may not be possible to keep DWI recidivists off the road completely, but making it increasingly difficult for them to remain on the road can yield positive results. FURTHER READINGS Beck, Kenneth H., et al. 1999. “Effects of Ignition Interlock License Restrictions on Drivers with Multiple Alcohol Offenses: A Randomized Trial in Maryland.” American Journal of Public Health (November 1). “Judges May Weigh Full Drinking Record.” 2002. Boston Globe (November 28). CROSS REFERENCES Alcohol; Recidivism GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DWI 49 unlocked only if the driver has not been drinking. In 29 states, violators may be required to forfeit their vehicles that they have driven while impaired. States have made efforts to strengthen their drunk-driving laws since the 1980s. They have imposed longer prison sentences, and many have turned DWI into a felony-level crime for repeat offenders. However, the more controver- sial issue in this national debate has been the effort to reduce the blood-alcohol concentra- tion (BAC) that is needed to charge a person with DWI, from .10 percent to .08 percent. Proponents have argued that such a reduction is the most effective way to prevent drunk-driving deaths. Opponents contend that the .08 percent standard is too low and that it will ensnare drivers who are not truly impaired. Although many states had adopted the .08 percent standard, proponents sought a national solu- tion, winning a victory in October 2000, when Congress enacted, and President BILL CLINTON signed, the Transportation Appropriation Bill. Included in the act was a provision that requires states to enact a .08 percent BAC as the legal limit or lose part of their federal highway funding. Since 2002 all 50 state s have adopted the .08 percent threshold. Evidence suggests a strong correlation bet- ween a BAC greater than .05 percent and risk of serious injury or death while operating a motor vehicle. After a person’s BAC reaches .08 percent or more, the probability of a crash climbs rapidly. The National Highway Traffic Safety Administration (NHTSA) estimated that in 2006, alcohol played a part in 40 percent of all fatal crashes and 7 percent of all traffic accidents. NHTSA also predicted that three out of ten Americans will be involved in an alcohol-related crash at some time during their lives. Lowering the BAC percentage is not the only action that states have taken to curb drunk driving. In many states, a refusal to submit to a BAC test is admissible in court. Most states permit police to establish sobriety checkpoints in order to identify drunk drivers. Moreover, in the vast majority of states, vehicular HOMICIDE involving drunk driving is a felony. States have also adopted so-called ZERO TOLERANCE laws that apply to drivers under the age of 21. Under these zero tolerance laws, young drivers who have a BAC of greater than .01 or .02 percent can be charged with drunk-driving offenses. The majority of states have also adopted enhanced penalties for drunk drivers with high BAC levels. These penalties usually elevate the DWI charge to a felony. BAC levels that lead to enhanced penalties range from .15 to .20. FURTHER READINGS Bartell, Donald J., and Anne D. ImObersteg. 2007. Attacking and Defending Drunk Driving Tests. Santa Anna, Calf.: James. Taylor, Lawrence, and Steve Oberman. 2006. Drunk Driving Defense. New York, N.Y.: Aspen. CROSS REFERENCES Criminal Procedure; Fourth Ame ndment v DWORKIN, ANDREA Andrea Dworkin is a radical feminist writer and activist concerned with illuminating and clarifying sexual and social values, who seeks to create a world in which men have no dominion over women. Famous for making pointed statements such as “I am a feminist … not the fun kind,” Dworkin is considered an extremist by most people familiar with her work, includ- ing many of her fellow femi nists. She has zealously advocated the censorship of all PORNOGRAPHY, which, she says, degrades women, discriminates against them as a class, and incites men to sexual violence. With Professor Catherine MacKinnon of the University of Michigan Law School, Dworkin has championed antipornography ordinances for several cities in the United States. The two also helped author the Violence against Women Act (S. 11, 103d Cong., 1st Sess. [1993]), a federal law signed by President BILL CLINTON as part of a larger crime bill in September 1994, which makes sex-based violence a CIVIL RIGHTS violation and allows victims to sue for compen- satory and PUNITIVE DAMAGES and attorney’s fees (42 U.S.C.A. § 13981 [Supp. V 1993]). The Canadian Criminal Code adopted the MacKinnon-Dworkin definition of pornogra- phy Criminal Code R.S.C., ch. C-34, § 159 (8) (1970) (Can.), and the Canadian Supreme Court unanimously affirmed the constitutionality of that definition, which was transferred to § 163 in 1985. Butler v. The Queen (1 S.C.R. 452) in February 1992, making the shipment and sale of pornographic materials in Canada more difficult for that country’s booksellers. MacKinnon and Dworkin define pornography GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50 DWORKIN, ANDREA as any material whose “dominant characteristic is the undue exploitation of sex or of sex and any one or more of the following subject s, namely crime, horror, cruelty and violence.” Dworkin was born September 26, 1946, in Camden, New Jersey, the daughter of Harry Spiegel and Sylvia Spiegel. She has devoted much of her adult life to fighting what she sees as the most visible signs of men’s need to control and do violence to women: pornogra- phy, PROSTITUTION, incest, DOMESTIC VIOLENCE, SEXUAL HARASSMENT, stalking, and RAPE. Although much has been written about Dworkin, little of the coverage has dealt with her early life. However, Dwo rkin’s admittedly autobiographical novel Mercy (1991) m a y pro- vide insight into some of the events that helped to shape this controversial feminist crusader: the book chronicles the sexual victimization— including molestation and rape—faced by the protagonist, Andrea, as a child, a rebellious teenager, and a young woman. Dworkin was drawn toward the law after graduating from high school in 1964, but she did not pursue a legal career because she believed law schools at the time were run by people who didn’t think women should be there. She joined the embryonic anti–Vietnam War movement; graduated from Bennington College, of Vermont; and spent the late 1960s living overseas. While in Amsterdam, she married a political radical, who beat her repeatedly. Having been a waitress, receptionist, secre- tary, typist, salesperson, and factory worker, Dworkin fully embarked on a career as a radical feminist after her marriage ended and she returned to the United States in 1972. In the 1970s she began speaking and writing about the politics of sexuality and her affinity for women. Her early books include Woman Hat- ing: A Radical Look at Sexuality (1974) and a compilation of essays called Our Blood: Prophe- cies and Discourses on Sexual Politics (1976), which called for an abandonment of women’s quest for sexual equality in favor of more radical solutions necessary to achieve a complete social realignment of the sexes. During the time she was publishing these works, Dworkin gained notoriety for her assertions that all sex is rape and all sexually explicit materials are evidence of rape. After the 1991 Anita Hill–Clarence Thomas hearings, Dworkin wrote an introduction to a book called Sexual Harassment: Women Speak Out (Sumrall and Taylor, eds., 1993), in which Andrea Dworkin 1946–2005 ▼▼ ▼▼ 1950 2000 1975 ❖ ◆ ◆◆ ◆❖ ◆◆◆ ◆ ◆ ◆ ◆ 1946 Born, Camden, N.J. 1950–53 Korean War 1961–73 Vietnam War 1964–68 Participated in anti-war protests while at Bennington College 1968–72 Lived in Amsterdam, married and divorced 1972 Returned to United States 1974 Woman Hating: A Radical Look at Sexuality published 1978 Right Wing Women: The Politics of Domesticated Females published 1983–84 Minneapolis adopted antipornography ordinance written by Dworkin and MacKinnon, but mayor vetoed it twice 1987 Intercourse published 1994 Violence Against Women Act signed into law 2005 Died, Washington, D.C. 2002 Heartbreak: The Political Memoir of a Feminist Militant published 2000 Scapegoat: The Jews, Israel, and Women's Liberation published 1997 Life and Death: Unapologetic Writings on the Continuing War Aganist Women published 1989 Letters from a War Zone published 1992 MacKinnon-Dworkin definition of pornography affirmed by Canadian Supreme Court in Butler v. The Queen 1985 Testified before the Attorney General's Commission on Pornography Andrea Dworkin. ª COLIN MCPHERSON/ COLIN MCPHERSON/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DWORKIN, ANDREA 51 she shared some of her experiences with sexual harassment. Dworkin met MacKinnon, a graduate of Yale Law School and also an avid feminist, in 1977. They began giving speeches and lobbying together for antipornography ordinances. In the fall of 1983, they attracted attention when they teamed up to teach a course on pornography at the University of Minnesota Law School, the first class of its kind. As a result of the course, several members of the city council in Minnea- polis asked the pair to write an antipornography ordinance for the city. In the resulting ordi- nance, Dworkin and MacKinnon defined por- nography as “the graphic sexually explicit subordination of women, whether in picture or in words.” The law would have allowed female rape victims to sue producers and distributors of erotic materials for damages if their attacker claimed that pornography made him do it, even if no criminal charges were filed. Following two days of explosive public hearings on the issue, the city council adopted the ordinance in late 1983, only to have the mayor veto it. In 1984 a new Minne apolis city council again adopted the same ordinance, and the mayor again vetoed it. A Dworkin- MacKinnon supporter in Minneapolis doused herself with gasoline and set herself ablaze amidst the controversy. Dworkin and MacKinnon subsequently proposed the same type of ordinance in Indianapolis, but after booksellers and readers challenged its co nstitutionality, the U.S. Court of Appeals for the Seventh Circuit ruled that the ordinance discriminated on the grounds of free speech (American Booksellers Ass’n v. Hudnut, 771 F.2d 323 [1985]). In the late 1980s Dworkin again coauthored a similar ordinance, this time for Bellingham, Washington. Although voters in Bellingham endorsed the concept by ballot in November 1988, the AMERICAN CIVIL LIBERTIES UNION (ACLU) persuaded a federal judge to invalidate the ordinance in February 1989 on FIRST AMENDMENT freedom-of-the-press grounds. In the early 1990s, Dworkin and MacKinnon introduced yet another similar initiative in Cambridge, Massachusetts, which was opposed by the ACLU and ultimately struck down. In addition to leading antiporn legislative efforts in several states, Dworkin also looked for change at a national level. In 1985 she testified before Attorney General EDWIN MEESE III’s Commission on Pornography—established at President Ronald Reagan’s behest to assess pornography’s social effects—about the causal link between pornography and violence against women. As part of her evidence that pornogra- phy provides a “blueprint for male domination over women, ” she cited serial killer Ted Bundy’s admission, on the eve of his execution, that pornography had made him kill women. The resulting bill, officially called the Pornography Victims’ Compensation Act (S. 1521, 102d Cong., 2d Sess.)—but nicknamed the Bundy Bill—would have allowed victims of sex crimes to sue producers and distributors of sexual material if the victims could prove that the material incited the crimes. The bill did not pass in Congress. Dworkin went on to consult with Senator Joseph R. Biden Jr. (D-Del.) who sponsored a related bill in 1990 (S. 2754, 101st Cong., 1st Sess.). A version of this bill was ultimately incorporated into President Clinton’s crime bill and passed as the Violence Against Women Act (108 Stat. 1902 to 1955). In the 1990s and into the 2000s, Dworkin continued to advocate her controversial theories of feminism. She lectured at COLLEGES AND UNIVERSITIES and appeared at rallies throughout the United States and numerous foreign coun- tries. She produced a number of works, includ- ing essays, books, and poetry, among them: Intercourse (1987), Life and Death: Unapologetic Writings on the Continuing War against Women (1997), Scapegoat: The Jews, Israel, and Women’s Liberation (2000), and Heartbreak: The Political Memoir of a Feminist Militant (2002). In 2002 Dworkin donated her papers to the Schlesinger Library of the Radcliffe Institute for Advanced Study at Harvard University. The collection includes traditional types of material, including personal and professional correspon- dence, drafts of writings and speeches, tran- scripts of interviews, reviews of her work, and newspaper clippings. In addition, she donated teaching materials, photographs, and audio and videotapes from her public life. In failing health from weight-loss surger y and knee-replacement surgery, Dworkin died athomeinWashington,D.C.inApril2005 of acute m yocarditis. Memorial services were held at the New School in New York City on May 25, 2005, when she was eulogized by Robin M organ, GLORIA STEINEM,andCATHARINE MACKINNON . WOMAN IS NOT BORN : SHE IS MADE. I N HER MAKING, HER HUMANITY IS DESTROYED .SHE BECOMES SYMBOL OF THIS , SYMBOL OF THAT : MOTHER OF EARTH , SLUT OF THE UNIVERSE ; BUT SHE NEVER BECOMES HERSELF BECAUSE IT IS FORBIDDEN FOR HER TO DO SO . —ANDREA DWORKIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 DWORKIN, ANDREA FURTHER READINGS “Anti-Porn Legal Theorists Gather in Chicago.” 1993. National Law Journal (March 22). Dworkin, Andrea. 2002. Heartbreak: The Political Memoir of a Feminist Militant. New York: Basic Books. MacKinnon, Catharine, and Andrea Dworkin, eds. 1997. In Harm’s Way: The Pornography Civil Rights Hearings. Cambridge, Mass.: Harvard Univ. Press. CROSS REFERENCE Women’s Rights. v DWORKIN, RONALD MYLES Ronald Myles Dworkin is a leading internation- al legal and moral theorist and advocate of AFFIRMATIVE ACTION who has kindled fierce political and judicial debate concerning his views. A law professor at New York University (NYU) School of Law, Dworkin is also a Fellow of the British Academy and a member of the American Academy of Arts and Sciences. He is considered to be one of the leading contem- porary experts on jurisprudence, the science of law. Dworkin, who was born December 11, 1931, received a B.A. from Harvard University in 1953 and from Oxford University in 1955. He earned a master’s degree at Yale University and received an LL.B. from Harvard Law School in 1957. He clerked for the eminent Judge Learned Hand. After his clerkship, he became associated with the New York law firm of Sullivan and Cromwell. From 1962 to 1969 he was a law professor at Yale University Law School. In 1969 he was appointed to the Chair of Jurisprudence at Oxford University and later became a Fellow of University College. Dworking continues to split his time between London and New York, holding a joint appointment at University College and at NYU where he is a professor in the Philosophy Department and the Frank Henry Sommer Professor of Law. A prolific writer, Dworkin has authored dozens of articles for philosophical and legal journals and has written on legal and political topics for the New York Review of Books. His focus is on health care issues, equality, affirma- tive action, COMMON LAW,andconstitutional interpretation. Dworkin has also written numer- ous books, several of which have been translated Ronald Myles Dworkin 1931– ❖ 1931 Born ◆ ◆◆ ◆ 1939–45 World War II ▼▼ ▼▼ 1950 1975 2000 1925 ◆ ◆ 1953 Graduated from Harvard University 1955 Graduated from Oxford University 1957 Earned law degree and master’s degree from Harvard and Yale, respectively ◆ ◆ ◆ ◆ ◆ ◆ ◆ 1962 Named law professor at Yale University Law School 2000 Published Sovereign Virtue 1993 Published Life’s Dominion 1986 Published Law’s Empire 1977 Published Taking Rights Seriously 1969 Named Chair of Jurisprudence at Oxford University 1954 Montgomery, Ala., bus boycott to protest segregation 1929 Wall Street crash; Great Depression begins 2001 Terrorists attack Pentagon and World Trade Towers 2007 Named Holberg Laureate by Norwegian government Ronald Dworkin. COURTESY OF UNIVERSITY OF VIRGINIA. OF COURSE THE MORAL READING ENCOURAGES LAWYERS AND JUDGES TO READ AN ABSTRACT CONSTITUTION IN THE LIGHT OF WHAT THEY TAKE TO BE JUSTICE . H OW ELSE COULD THEY ANSWER THE MORAL QUESTIONS THAT ABSTRACT CONSTITUTION ASKS THEM ? —RONALD DWORKIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DWORKIN, RONALD MYLES 53 into major European languages as well as Japanese and Chinese. Among his best-known works are: Taking Rights Seriously (1977); Law’s Empire (1986); Life’s Dominion: An Argument About ABORTION, EUTHANASIA, and Individual Freedom (1993); and Sovereign Virtue: The Theory and Practice of Equality (2000). Unlike many of his contemporaries, Dworkin has ventured beyond the academic audience in many of his writings. For example, Life’s Dominion is an earnest attempt to engage readers on all sides of the abortion debate. In Taking Rights Seriously, Dworkin lays the groundwork for his philosophy by criticizing two leading theories of law: the positivist theory (and its main proponent, H. L. A. Hart), which holds that laws of a community are rules that have been established by the conventions of a community, and that there is no connection between morality and legality; and utilitarian- ism, the idea that laws are in place for the good of the majority. Instead, Dworkin espouses the view that the basic purpose of the law is to foster equality tempered by personal responsi- bility; the most important goal of the law is for judicial decisions and statutes to be internally consistent with and logically follow the best interpretation of society’s political and legal order, a concept Dworkin refers to as “integrity.” Dworkin expands on his philosophy in what some consider to be his legal epic, Law’s Empire. He discounts the conventionalist notion that law is based strictly on tradition and established authority, arguing that judges must interpret past legal decisions rather than mechanically apply the law based on prece- dence. Dworkin’s integrity-based approach to law has drawn strong support from liberals and those who espouse a judicial activist point of view while igniting a firestorm of reproach and criticism from conservatives and strict conven- tionalists, who contend that Dworkin’s theory would place too much discretion in the hands of judges, essentially changing law to partisan politics. Outside of his work as a legal philosopher, Dworkin is co-chair of the DEMOCRATIC PARTY Abroad, a member of the Council of Writers and Scholars Educational Trust, and a HUMAN RIGHTS consultant to the Ford Foundation. In 2007 Dworkin received the Holberg Interna- tional Memorial Prize, an award reserved for scholars in the fields of law, social sciences, theology, and the arts and humanities. FURTHER READINGS Burley, Justine, ed. 2004. Dworkin and His Critics: With Replies by Ronald Dworkin. London: Blackwell. Dworkin, R. M. 1996. Freedom’sLaw:TheMoralReadingof the American Constitution. New York: Oxford Univ. Press. Guest, Stephen. 1992. Ronald Dworkin. Palo Alto, Calif.: Stanford Univ. Press. Hershovitz, Scott, ed. 2006. Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin. New York: Oxford Univ. Press. Hunt, Alan, ed. 1992. Reading Dworkin Critically. New York: St. Martin’s Press. CROSS REFERENCES Ethics, Legal; Legal Positivi sm. DYER ACT The Dyer Act, also called the Nati onal Motor Vehicle THEFT Act (18 U.S.C.A. § 2311 et seq.), was enacted in 1919 to impede the interstate trafficking of stolen vehicles by organized thieves. There are three elements that must be established BEYOND A REASONABLE DOUBT if an accused is to be convicted of the offense: (1) a vehicle is stolen, (2) the DEFENDANT knows that the vehicle is stolen, and (3) the defendant transports the vehicle in interstate or foreign commerce. A person who aids and abets in the commission of this offense is equally culpable as a principal who has actually committed the crime. The punishment for conviction under the Dyer Act is an unspecified fine, imprisonment of no longer than ten years, or both. DYING DECLARATION A statement by a person who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As a result, it is an exception to the hearsay rule, w hich prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness. If the person who made the dying declaration had the slightest GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 DYER ACT hope of recovery, no matter how unreasonable, the statement is not admissible into evidence. A person who makes a dying declaration must, however, be competent at the time he or she makes a statement, otherwise, it is inadmissible. A dying declaration is usually introduced by the prosecution, but can be used on behalf of the accused. As a ge neral rule, courts refuse to admit dying declarations in civil cases, even those for WRONGFUL DEATH, or in criminal actions for crimes other than the HOMICIDE of the decedent. State and FEDERAL RULES OF EVIDENCE govern the use of dying declarations in their respective proceedings. FURTHER READINGS Adelkoff, Sherri K. 1998. “Dialing ‘M’ for Murder: Analyzing the Admissibility of the Telephone Dying Declaration.” Duquesne Law Review 36 (spring). Bernstein, Michelle A. 1997. “Evidence—A Modern Appli- cation ofDying-Declaration Exception to Hearsay Rule— State v. Scholl” Suffolk Univ. Law Review 30 (summer). Jarreau, Jessica C. 2006. “Dying Declarations in an Ever-changing World.” Defense Counnsel Journal 73 (October 1). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DYING DECLARATION 55 EARL WARREN LEGAL TRAINING PROGRAM The Earl Warren Legal Training Program was begun in 1972 for the purpose of increasing the number of black attorneys in the United States. The program provides financial aid on the basis of need to qualified law students for the three full years of law school. Emphasis is placed on scholarships for applicants who wish to enroll in law schools in the South. The program seeks to retain professional and personal relations with minority lawyers and holds training institutes for young and experienced minority lawyers. Begun as a special project of the NAACP LEGAL DEFENSE AND EDUCATIONAL FUND , the program is now a separate corporation (The Earl Warren Training Program, Inc.). The program was founded by JACK GREEN- BERG , professor of law at Columbia Law School, who served as director–counsel of the NAACP Legal Defense and Edu cation Fund at the time (1961-1984). In 2001 Greenberg was the recipient of the Annual Award for Leadership in HUMAN RIGHTS, presented by the Columbia Human Rights Law Review. CROSS REFERENCE Warren, Earl. EARNED INCOME Sources of money derived from the labor, professional service, or entrepreneurship of an individual taxpayer as opposed to funds generated by investments, dividends, and interest. Wages, salaries, and fees are types of earned income that, if below a statutorily determined amount, entitle a taxpayer to a reduction of INCOME TAX liability. EARNEST MONEY A sum of money paid by a buyer at the time of entering a contract to indicate the intention and ability of the buyer to carry out the contract. Normally such earnest money is applied against the purchase price. Often the contract provides for forfeiture of this sum if the buyer defaults. A deposit of part payment of purchase price on sale to be consummated in future. EASEMENT A right of use over the property of another. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters. The ease- ment was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross). Easements frequently arise among owners of adjoining parcels of land. Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor’s land to gain access to E 57 the road, as well as the right of a MUNICIPAL CORPORATION to run a sewer line across a strip of an owner’s land, which is frequently called a RIGHT OF WAY. Easements can be conveyed from one individual to another by will, deed, or contract, which must comply with the STATUTE OF FRAUDS and can be inherited pursuant to the laws of DESCENT AND DISTRIBUTION. An easement is a nonpossessory interest in another’s land that entitles the holder only to the right to use such land in the specified manner. It is distinguishable from a PROFIT A PRENDRE that is the right to enter another’sland and remove the soil itself or a product thereof, such as crops or timber. An easement appurtenant attaches to the land permanently and benefits its owner. In order for it to exist, there must be two pieces of land owned by different individuals. One piece, the dominant estate or tenement, is the land that is benefited by the easement. The other piece , known as the servient estate or tenement, is the land that has the burden of the easement. An easement appurtenant is a cove- nant RUNNING WITH THE LAND since it is incapable of a separate and independent existence from the land to which it is annexed. A common example would be where one landowner—A— is the owner of land that is separated from a road by land owned by B. If B sells A a right of way across his or her land, it is a right that is appurtenant to A’s land and can only be used in connection thereof. An easement in gross is not appurtenant to any estate in land. It arises when a servient piece of land exists without a dominant piece being affected. This type of easement is ordinarily personal to the holder and does not run with the land. For example, if A has a number of trees on his or her property and B contracts with A to enter A’slandtoremove timber, B has both an easement in gross and a profit. At COMMON LAW, an easement in gross could not be assigned; however, m ost courts currently a llow certain types of ease ments in gross to be transferred. Easements are categorized as being either affirmative or negative. An affirmative easement entitles the holder to do something on another individual’s land, whereas a negative easement divests an owner of the right to do something on the property. For example, the owner of land might enter into an agreement with the owner of an adjoining piece of land not to build a high structure that would obstruct the light and air that go onto the adjoining owner’s land. This easement of light and air deprives the property owner who gives it up from enjoying ownership rights in the land to the fullest possible extent and is labeled a negative easement. There are various ways in which ease- ments are created. An express easement is clearly stated in a contract, deed, or will. An easement by im plicati on occurs when the owner of a piece of land divides such land into smaller pieces and sells a smaller piece to another person, retaining a right to enter such piece of land. For example, a seller divides his or her property and sells half to a purch aser. The piece that the purchaser buys has a sewer pipe beneath it that serves both pieces of property. The seller has an implied easeme nt tousethesewerpipethatrunsunderthe purchaser’sland. An easement by prescription arises through an individual’s use of land as opposed to the po- ssession thereof. An easement of this nature will be recognized in these instances: (1) the easement is adverse or contrary to the interests, and absent the permission, of the landowner; (2) it is open and notorious; (3) it is continuous and uninter- rupted; and (4) it exists for the period of time prescribed by state statute. If for a period of time beyond the prescribed statutory period A creates and openly uses a right of way across B’sland without B’s permission then an easement by prescription is created. An easement can either be terminated through the expiration of its term as determined upon its creation or by one of several events occurring subsequent to creation. Events that can extinguish an easement include these: (1) the same individual becoming the owner of the dominant as well as the servient estate when an appurtenant easement existed; (2) the owner of an easement in gross obtaining ownership of the servient estate; (3) the owner of the dominant tenement executing a deed or will releasing the easement in favor of the owner of the servient tenement; and (4) the abandonment of an easement. v EASTMAN, CRYSTAL Crystal Eastman was a leading American writer, labor lawyer, and activist for women’s rights GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 58 EASTMAN, CRYSTAL . pornography GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50 DWORKIN, ANDREA as any material whose “dominant characteristic is the undue exploitation of sex or of sex and any one or more of the. SYMBOL OF THIS , SYMBOL OF THAT : MOTHER OF EARTH , SLUT OF THE UNIVERSE ; BUT SHE NEVER BECOMES HERSELF BECAUSE IT IS FORBIDDEN FOR HER TO DO SO . —ANDREA DWORKIN GALE ENCYCLOPEDIA OF AMERICAN LAW, . MCPHERSON/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DWORKIN, ANDREA 51 she shared some of her experiences with sexual harassment. Dworkin met MacKinnon, a graduate of Yale Law School