2d 147 1973, where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an ABORTION during the first trimester of pregnancy without state interfer-ence.
Trang 1a state statute forbidding married adults from usingBIRTH CONTROLon the ground that the law violated the sanctity of the marital relationship
In Griswold the Supreme Court held that the First, Fourth, Fifth, and Ninth Amendments create a PENUMBRA of privacy, which serves to insulate certain behavior from governmental coercion or intrusion According to the Court, this penumbra of privacy, though not expressly mentioned in the Bill of Rights, must be protected to establish a buffer zone or breathing space for those freedoms that are constitution-ally enumerated
Seven years later, in Eisenstadt v Baird, 405 U.S 438, 92 S Ct 1029, 31 L Ed 2d 349 (1972), the Supreme Court struck down a Massachusetts statute that banned the distribu-tion of contraceptives to unmarried persons In striking down this law, the Supreme Court enunciated a broader view of privacy, stating that all persons, married or single, enjoy the liberty to make certain intimate decisions free from government restraint, including the deci-sion of whether to bear or beget a child
Eisenstadt foreshadowed the decision in ROE V
WADE, 410 U.S 113, 93 S Ct 705, 35 L Ed 2d
147 (1973), where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an ABORTION during the first trimester of pregnancy without state interfer-ence Roe subsequently was interpreted to prevent state and federal governments from passing laws that unduly burden a woman’s right to terminate her pregnancy (WEBSTER V
REPRODUCTIVE HEALTH SERVICES, 492 U.S 490, 109
S Ct 3040, 106 L Ed 2d 410[1989])
The liberty interest protected by the Due Process Clause places other substantive limita-tions on legislation regulating intimate deci-sions For example, the Supreme Court has recognized a due process right of parents to raise their children as they see fit, including the right to educate their children in private schools (Pierce v Society of the Sisters, 268 U.S 510, 45 S
Ct 571, 69 L Ed 1070[1925]) Parents may not
be compelled by the government to educate their children at public schools without violat-ing principles of substantive due process The Supreme Court also has ruled that members of extended families, such as grandparents and grandchildren, enjoy a due process right to live under the same roof, despite housing ordi-nances that limit occupation of particular dwellings to immediate relatives (Moore v City
of East Cleveland, 431 U.S 494, 97 S Ct 1932,
52 L Ed 2d 531[1977])
During the 1990s, the Supreme Court was asked to recognize a general right to die, under the doctrine of substantive due process Al-though the Court stopped short of establishing such a far-reaching right, certain patients may exercise a constitutional liberty to hasten their deaths under a narrow set of circumstances In Cruzan v Missouri Department of Health, 497 U.S 261, 110 S Ct 2841, 111 L Ed 2d 224 (1990), the Supreme Court ruled that the Due Process Clause guarantees the right of compe-tent adults to make advanced directives for the withdrawal of life-sustaining measures should they become incapacitated by a disability that leaves them in a persistent vegetative state Once
it has been established by clear and convincing evidence that a mentally incompetent and persistently vegetative patient made such a prior directive, a spouse, parent, or other appropriate guardian may seek to terminate any form of artificial hydration or nutrition
The U.S Court of Appeals for the Ninth Circuit cited Cruzan in support of its decision establishing the right of competent, but termi-nally ill, patients to hasten their deaths by refusing medical treatment when the final stages
of life are tortured by pain and indignity (Compassion in Dying v Washington, 79 F.3d
790 [1996]) In WASHINGTON V GLUCKSBERG, 521 U.S 702, 117 S Ct 2258, 138 L Ed 2d 772 (1997), however, the Supreme Court reversed this decision, holding that there is no due process right toASSISTED SUICIDE
The liberty interest recognized by the doctrine of substantive due process permits individuals to lead their lives free from unreasonable and arbitrary governmental impo-sitions Nevertheless, this liberty interest does not require the absence of all governmental restraint Economic regulations will be upheld under the Due Process Clause so long as they serve a rational purpose, while non-economic regulations normally will be sustained if they do not impinge on a fundamental liberty and otherwise are reasonable
The U.S Supreme Court continues to revisit the concept of substantive due process In 2003, the Supreme Court was asked to review the constitutionality of a Texas statute criminalizing homosexual SODOMY The statute made it a misdemeanor for a person to engage in“deviate
428 SUBSTANTIVE DUE PROCESS
Trang 2sexual intercourse” with another individual of
the same sex, but did not prohibit such conduct
when undertaken with a person of the opposite
sex TheDEFENDANT, an adult male, was arrested
for violating the statute by engaging in
consen-sual homosexual relations in the privacy of his
home The Court found that Texas Penal Code
section 21.06 violated substantive due process
by creating this double standard governing the
legality of oral and anal sex between
heterosex-ual and homosexheterosex-ual partners.LAWRENCE V.TEXAS,
539 U.S 558, 123 S Ct 2472, 156 L Ed 2d 508
(2003) Justice ANTHONY KENNEDY wrote the 6–3
decision
Overruling a 17-year-old precedent,
Ken-nedy said that history and tradition are the
starting point, but not in all cases the ending
point, of substantive due process inquiry In
Bowers v Hardwick, 478 U.S 186, 106 S Ct
2841, 92 L Ed 2d 140 (1986), which rejected a
claim advocating recognition for an almost
identical substantive due process liberty interest,
Kennedy maintained that the Court had failed
to appreciate the nature and scope of the liberty
interest at stake.“To say that the issue in Bowers
was simply the right to engage in certain sexual
conduct demeans the claim the individual put
forward [in that case], just as it would demean a
married couple were it to be said marriage is
simply about the right to have sexual
inter-course,” Justice Kennedy explained Although
“[t]he laws involved in Bowers and here
are statutes that purport to do no more than
prohibit a particular sexual act [t]heir
pen-alties and purposes have more far-reaching
consequences, touching upon the most private
human conduct, sexual behavior, and in the
most private of places, the home,” the Court
continued The statutes in question “seek to
control a personal relationship that, whether
entitled to formal recognition in the law or not,
is within the liberty of persons to choose
without being punished as criminals.”
The deficiencies in Bowers became even
more apparent in the years following its
announcement, Justice Kennedy observed The
25 states with laws prohibiting sodomy in
Bowers had been reduced to 13 by 2003, and
four of those 13 states applied their laws only
against homosexual conduct But even in the
states where homosexual sodomy was
pro-scribed, Kennedy emphasized, there was a
pattern of non-enforcement with respect to
consenting adults acting in private Thus, the
Court concluded that homosexuals enjoy a constitutionally protected liberty under the Due Process Clause, and that liberty gives them
a right to engage in private consensual sexual activity without intervention of government
In the years immediately following the Lawrence decision, the Supreme Court did not expand the substantive due process doctrine
However, lower courts commonly hear argu-ments about substantive due process claims For instance, in Dias v City & County of Denver, 567 F.3d 1169 (10th Cir 2009), the U.S Court of Appeals for the Tenth Circuit reviewed a challenge to a Denver, Colorado, city ordinance banning the ownership and possession of pit bulls A group of residents brought suit, alleging that the ordinance violated their substantive due process rights The court agreed that the plaintiffs raised a CAUSE OF ACTION because the court concluded that the ordinance did not appear to be rationally related to the govern-ment’s interest in banning pit bulls
FURTHER READINGS Bridegam, Martha 2003 The Right to Privacy New York:
Chelsea House.
Garrow, David J 1998 Liberty and Sexuality: The Right to Privacy and the Making of Roe vs Wade Berkeley: Univ.
of California Press.
Keynes, Edward 1996 Liberty, Property, and Privacy:
Toward a Jurisprudence of Substantive Due Process.
University Park: Pennsylvania State Univ Press.
Krotoszynski, Ronald J., Jr 2002 “Expropriatory Intent:
Defining the Proper Boundaries of Substantive Due Process and the Takings Clause ” North Carolina Law Review 80 (March).
Phillips, Michael J 2001 The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s Westport, Conn.: Praeger.
Riggs, Robert E 1990 “Substantive Due Process in 1791.”
Wisconsin Law Review (July-August).
Rubin, Peter J 2003 “Square Pegs and Round Holes:
Substantive Due Process, Procedural Due Process, and the Bill of Rights ” Columbia Law Review 103 (May).
Sunstein, Cass R 2009 A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before Princeton, N.J.: Princeton Univ Press.
Weaver, Russell L 2009 Inside Constitutional Law: What Matters and Why New York: Aspen Publishers.
CROSS REFERENCES Constitutional Law; Death and Dying; Due Process;
Incorporation Doctrine; Labor Law; Quinlan, In re; Rational Basis Test; Strict Scrutiny; Unenumerated Rights.
SUBSTANTIVE LAW The part of the law that creates, defines, and regulates rights, including, for example, the law of
SUBSTANTIVE LAW 429
Trang 3contracts, torts, wills, and real property; the essential substance of rights under law
Substantive law and PROCEDURAL LAW (also calledADJECTIVE LAW) are the two main categories within the law Substantive law refers to the body of rules that determine the rights and obligations of individuals and collective bodies
Procedural law is the body of legal rules that govern the process for determining the rights of parties
Substantive law refers to all categories of public and PRIVATE LAW, including the law of contracts, real property, torts, andCRIMINAL LAW For example, criminal law defines certain behavior as illegal and lists the elements the government must prove to convict a person of a crime In contrast, the rights of an accused person that are guaranteed by the Fourth, Fifth, and Sixth Amendments to the U.S Constitution are part of a body of criminal procedural law
U.S substantive law comes from theCOMMON LAW and from legislative statutes Until the twentieth century, most substantive law was derived from principles found in judicial deci-sions The common law tradition built upon prior decisions and applied legal precedents to cases with similar fact situations This tradition was essentially conservative, as the substance of law in a particular area changed little over time
Substantive law has increased in volume and changed rapidly in the twentieth century as Congress and state legislatures have enacted statutes that displace many common law principles In addition, the National Conference
of Commissioners on Uniform State Laws, the
AMERICAN BAR ASSOCIATION, and the American Law Institute have proposed numerous model codes and laws for states to adopt For example, the Commissioners on Uniform State Laws and the American Law Institute drafted the UNIFORM COMMERCIAL CODE (UCC), which governs com-mercial transactions The UCC has been adopted in whole or substantially by all states, replacing the common law and divergent state laws as the authoritative source of substantive
COMMERCIAL LAW Other examples of widely used model codes include the American Bar Associa-tion’s Model Code ofPROFESSIONAL RESPONSIBILITY
for lawyers and the American Law Institute’s
MODEL PENAL CODE
CROSS REFERENCES Model Acts; Uniform Acts.
SUBSTITUTED SERVICE Service of process upon a defendant in any manner, authorized by statute or rule, other thanPERSONAL SERVICEwithin the jurisdiction; as by publication, by mailing a copy to his or her last known address, or
by personal service in another state
SUCCESSION The transfer of title to property under the law of
DESCENT AND DISTRIBUTION The transfer of legal or official powers from an individual who formerly held them to another who undertakes current responsibilities to execute those powers
SUCCESSION OF STATES Succession occurs when one state ceases to exist
or loses control over part of its territory, and another state comes into existence or assumes control over the territory lost by the first state One central concern in this instance is whether the international obligations of the former state are taken over by the succeeding state Changes
in the form of government of one state, such as the replacement of a monarchy by a democratic form of government, do not modify or termi-nate the obligations incurred by the previous government
When the state ceases to exist, however, the treaties it concluded generally are terminated, and those of the successor state apply to the territory These include political treaties like alliances, which depend on the existence of the state that concluded them But certain obliga-tions, such as agreements concerning bound-aries or other matters of local significance, carry over to the successor state More difficult to determine is the continuing legality of treaties granting concessions or contract rights Schol-arly opinion has diverged on this aspect of succession, and state practice has likewise divided Consequently, each case must be studied on its merits to determine whether the rights and duties under the contract or conces-sion are such that the successor state is bound
by the obligations of the previous state The Vienna Convention for the Succession
of States, adopted in 1978, adopts the “clean slate” theory, under which a new state starts afresh, with neither rights nor obligations under the agreements of its predecessor state, unless the new state assumes some or all of the agreements of the prior state, either expressly or
430 SUBSTITUTED SERVICE
Trang 4by implication The same rule applies to both
former colonies and to states arising from
secession or other separation: the new state is
not bound by treaties of the prior state unless it
and the other contracting party accept the treaty
expressly or by implication The United States is
a signatory to the Vienna Convention, although
it was never ratified by the U.S SENATE It is
currently followed by the U.S.STATE DEPARTMENT
SUE
To initiate a lawsuit or continue a legal proceeding
for the recovery of a right; to prosecute, assert a
legal claim, or bring action against a particular
party
SUFFER
To admit, allow, or permit
The term suffer is used to convey the idea of
ACQUIESCENCE, passivity, indifference, or
absten-tion from preventive acabsten-tion, as opposed to the
taking of an affirmative step
For example, a person can suffer a default
on his or her mortgage by not paying the
monthly bill
SUFFRAGE
The right to vote at public elections
SUI GENERIS
[Latin, Of its own kind or class.] That which is
the only one of its kind The concept has been
applied across different types of law, such as
intellectual property rights The Semiconductor
Chip Protection Act of 1984, 17 U.S.C §§
901-915, is one example of this, in that the law does
apply to copyright or patenting semiconductor
chips, but instead comprise a unique protection for
this one particular item, hence it is sui generis
SUI JURIS
Possessing full social and CIVIL RIGHTS; not under
any legal disability, or the power of another, or
guardianship Having the capacity to manage
one’s own affairs; not under legal disability to act
for one’s self A child or someone of unsound mind
would not be classified as sui juris, as they do not
have legal competence
SUICIDE
Suicide is the deliberate taking of one’s own life
Under COMMON LAW, suicide, or the inten-tional taking of one’s own life, was a felony that was punished byFORFEITUREof all the goods and chattels of the offender Under modern U.S
law, suicide is no longer a crime Some states, however, classify attempted suicide as a criminal act, but prosecutions are rare, especially when the offender is terminally ill Instead, some jurisdictions require a person who attempts suicide to undergo temporary hospitalization and psychological observation A person who causes the death of an innocent bystander or would-be rescuer while in the process of attempting suicide may be guilty of MURDER or
MANSLAUGHTER Assisted Suicide More problematic is the situation in which someone helps another to commit suicide
Aiding or abetting a suicide or an attempted suicide is a crime in all states, but prosecutions are rare Since the 1980s, the question of whether physician-assisted suicide should be permitted for persons with terminal illnesses has been the subject of much debate, but as of
2009 this issue had not been resolved
Suicide Rates in the United States, by Select Population Characteristics, in 2006
20 16 12
Rate per 100,000 population
8 4 0
Young (15–24
Elderly (65–74
11.1
Total U.S.
population
SOURCE: Centers for Disease Control and Prevention, National Vital Statistics System, National Vital
Statistics Reports, Deaths: Final Data for 2006,
April 2009
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
SUICIDE 431
Trang 5The debate over physician-assisted suicide concerns persons with debilitating and painful terminal illnesses Under current laws a doctor who assists a person’s suicide could be charged with aiding and abetting suicide Opponents of decriminalizing ASSISTED SUICIDE argue that decriminalization would lead eventually to doctors being allowed to assist persons who are not terminally ill to commit suicide
The debate on physician-assisted suicide intensified after 1990 when JACK KEVORKIAN, a retired Michigan pathologist, attended many suicides Kevorkian admitted to obtaining carbon monoxide and instructing persons who suffered from terminal or degenerative diseases
on how to administer the gas so they would die
Despite the efforts of Michigan legislators and prosecutors to convict Kevorkian of murder, the pathologist, who was dubbed “Doctor Death,”
successfully fought the charges Three murder charges were dismissed by Michigan courts, and
in 1994 Kevorkian was acquitted of violating Michigan’s assisted suicide law (Mich Comp
Laws § 752.1021 et seq.) Despite Kevorkian’s acquittals other assisted suicide advocates be-lieve his methods have actually hurt the cause
In 1997 the U.S Supreme Court held that neither the due process clause (Washington v
Glucksberg, 521 U.S 702, 117 S Ct 2258, 138 L
Ed 2d 772) nor the EQUAL PROTECTION clause (Vacco v Quill, 521 U.S 743, 117 S Ct 2293,
138 L Ed 2d 834) of theFOURTEENTH AMENDMENT
includes a right to assisted suicide
After four acquittals, Kevorkian was con-victed in March 1999 of second-degree murder and delivery of a controlled substance by a jury
in Pontiac, Michigan Kevorkian administered a lethal injection in September 1998 to Thomas Youk, a 52-year-old man who suffered from amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease), a fatal neurological disorder that slowly disables its victims Kevorkian performed the procedure on the CBS television program 60 Minutes amid great controversy
At the time of his trial, Kevorkian repre-sented himself, insisting that only he could explain to the jury that he did not intend to kill Youk but to end his suffering The jury nevertheless reached a guilty verdict Although
he could have been sentenced to life in prison,
he was sentenced to 10 to 25 years in prison He was released from prison in 2007
Kevorkian was not entirely alone in his crusade to legalize assisted suicide In 1994,
Oregon voters passed the Oregon Death with Dignity Act (DWDA), which allows physicians
to prescribe lethal medication to Oregon residents who request it The statute requires that the patient must be 18 years or older, must
be able to make and communicate healthcare decisions, and must have been diagnosed with a terminal illness that likely will result in death within six months While physicians may make the prescription, patients must self-administer
it, since the DWDA specifically prohibits“lethal injection, mercy killing, or active euthanasia.” Oregon is, as of 2009, the only jurisdiction in the world that has legalized physician-assisted suicide
The Oregon legislature enacted the DWDA after residents voted in favor of the law twice, 51 percent in favor in 1994, then 60 percent in
1997 The law originally went into effect in 1994 but immediately was suspended by court injunctions pending legal challenges After the Supreme Court rendered its decisions in Glucksberg and Vacco, the Ninth Circuit Court
of Appeals lifted theINJUNCTION The Oregon law went into effect on October 27, 1997
Between 1998 and 2001, between 70 and 96 patients—the exact numbers are disputed— committed suicide under the act In November
2001, U.S attorney generalJOHN ASHCROFTissued
a directive stating that physicians who prescribe lethal doses of drugs to end the lives of terminally ill patients would be subject to criminal charges and have their medical licenses revoked or suspended Ashcroft issued this directive pursuant to the Controlled Substances Act and reversed the position previously taken
by former attorney general JANET RENO, who determined that the Oregon statute was outside the scope of the Controlled Substances Act Members of Congress, including Senator Orrin Hatch (R-Utah) and Representative Henry Hyde (R-Ill.), also unsuccessfully sought to pass federal legislation that would have revoked the registration of Oregon physicians who partici-pated in assisted suicide efforts
In response to Ashcroft’s order, the state of Oregon brought suit against the attorney general, seeking a permanent injunction to prevent him and the U.S JUSTICE DEPARTMENT
from enforcing the directive In April 2002, U.S District Court Judge Robert E Jones issued the injunction and also criticized Ashcroft for his handling of the directive According to Jones, the Controlled Substances Act was not intended
432 SUICIDE
Trang 6to override a state’s decision concerning what
constitutes legitimate medical practice, at least
in the absence of federal law prohibiting such a
practice The judge also found that Congress
never intended, through the Controlled
Sub-stances Act or other federal law, to grant blanket
authority to the attorney general or the Drug
Enforcement Agency to define what constitutes
the legitimate practice of medicine The
gov-ernment appealed this decision but ultimately
the Supreme Court upheld it in (Gonzales v
Oregon, 546 U.S 243, 126 S Ct 904, 163 L Ed
2d 748 (2006)
The DWDA has strict requirements that are
designed to prevent abuse of the act Patients
must make two verbal requests for lethal
medication separated by at least 15 days, plus
a written request Two physicians must
inde-pendently confirm that the patient has a
terminal illness likely to result in death within
six months and that the patient is capable to
make and communicate healthcare decisions If
either physician believes the patient suffers from
depression or any other psychiatric disorder, he
or she must refer the patient for counseling The
prescribing physician must request, but not
require, the patient to inform his or herNEXT OF
KIN of the suicide decision The prescribing
physician also must inform the patient of
alternatives to suicide, including hospice care
and pain control, and give the patient the
opportunity to change his or her mind after the
15 day waiting period
The strict DWDA requirements have not
silenced its critics Opponents in the medical
community, including Physicians for
Compas-sionate Care, believe that physician-assisted
suicide is contrary to the profession’s
pur-pose—to promote health Religious opponents,
including the Roman Catholic Church,
Mor-mons, and Christian fundamentalists, believe
that suicide of any kind devalues life Not Dead
Yet, an organization of disabled persons,
believes that states should instead enact
legisla-tion to improve access to health and hospice
care and the overall quality of life, for terminally
ill patients Many opponents are concerned that
poor or uneducated patients will be pressured
by family members or the healthcare insurance
industry to choose death over life with its
medically expensive consequences
To the supporters of physician-assisted
suicide, the issue is a matter of personal
autonomy and control The Hemlock Society,
an organization that supports physician-assisted suicide, claims that terminally ill patients must
be allowed to end their lives voluntarily rather than suffer through the painful and disabling effects of a terminal illness
In 2008, a Montana trial court ruled that a terminally ill patient had the constitutional right
to receive aid in dying The state appealed the decision to the state suprme court On Decem-ber 31, 2009, the supreme court ruled that state law protects doctors from prosecution for helping terminally ill people die In the 4–3 decision, the court did not rule on whether physician-assisted suicide is a right guaranteed under the Montana Constitution
Teen Suicide and Cyber Bullying The topic of teen suicide took center stage in
2006, when 13-year-old Megan Meier hanged herself after being the target of ongoing cyber bullying The online harassment (cyber bully-ing) primarily took place through the social networking Website MySpace and was sent to Meier by Lori Drew, the mother of Meier’s former friend, who was posing as a teen boy A federal district court jury found Drew guilty of three misdemeanors for violating the Computer
FRAUDand Abuse Act However, the trial judge overturned the verdict and acquitted Drew of all charges The case against Drew was based on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking The judge concluded that the argument had no merit, as it criminalized what would have been a breach of contract
In the wake of Meier’s suicide, and the suicide of other teens attributed to cyber bullying, several states have adopted legislation specifically directed at prohibiting cyber bully-ing These states include Arkansas, Delaware, Idaho, Iowa, Minnesota, New Jersey, Oregon, South Carolina and Washington Many school districts have also adopted policies to address cyber bullying
FURTHER READINGS Birnbacher, Dieter, and Edgar Dahl 2008 Giving Death a Helping Hand: Physician-Assisted Suicide and Public Policy New York: Springer.
Hinduja, Sameer, and Justin W Patchin 2008 Bullying Beyond the Schoolyard: Preventing and Responding to Cyberbullying Thousand Oaks, Calif.: Corwin Press.
SUICIDE 433
Trang 7Kopelman, L M., and K A de Ville 2001 Physician-Assisted Suicide: What Are the Issues? New York: Springer.
“State Action on Cyber-Bullying.” 2008 USA Today (February 6) www.usatoday.com Available online at http://www.usatoday.com/news/nation/2008-02-06-cy-ber-bullying-list_N.htm (accessed October 7, 2009).
CROSS REFERENCES Death and Dying; Euthanasia; Patients ’ Rights; Physicians and Surgeons.
SUIT SeeLAWSUIT
SUMMARY Immediate; peremptory; off-hand; without a jury;
provisional; statutory In a legal proceeding, it means without the formality of a full proceeding, but rather short and concise
A SUMMARY JUDGMENTis a final decision in a
CIVIL ACTIONthat circumvents the need for trial and presentation of evidence because there is no genuine issue or dispute of material fact in the lawsuit that must be decided The only ques-tions are of law, which can be determined expediently by a judge In such an action, the party who believes that he or she is entitled to prevail as aMATTER OF LAWmakes a motion for summary judgment The motion may be directed toward all or part of case In deciding such a motion, the court considers the entire record of the case and, if the evidence warrants
it, can even grant a summary judgment to the party who did not ask for it Summary judgment is governed in federal courts by the Federal Rules of CIVIL PROCEDURE and in STATE COURTSby state codes of civil procedure
SUMMARY JUDGMENT
A summary judgment is a procedural device used during civil litigation to promptly and expedi-tiously dispose of a case without a trial It is used when there is no dispute as to the material facts of the case and a party is entitled to judgment as a matter of law
Any party may move for summary judg-ment; it is not uncommon for both parties to seek it A judge may also determine on her own initiative that summary judgment is appropri-ate Unlike with pretrial motions to dismiss, information such as affidavits, interrogatories, depositions, and admissions may be considered
on a motion for summary judgment Any
evidence that would be admissible at trial under the rules of evidence may support a motion for summary judgment Usually a court will hold oral arguments on a summary judgment motion, although it may decide the motion on the parties’ briefs and supporting documenta-tion alone
The purpose of summary judgment is to avoid unnecessary trials It may also simplify a trial, as when partial summary judgment dispenses with certain issues or claims For example, a court might grant partial summary judgment in aPERSONAL INJURYcase on the issue
of liability A trial would still be necessary to determine the amount of damages
Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) theMOVANTmust be entitled to judgment as
a MATTER OF LAW A genuine issue implies that certain facts are disputed Usually a party opposing summary judgment must introduce evidence that contradicts the moving party’s version of the facts Moreover, the facts in dispute must be central to the case; irrelevant or minor factual disputes will not defeat a motion for summary judgment Finally, the law as applied to the undisputed facts of the case must mandate judgment for the moving party Summary judgment does not mean that a judge decides which side would prevail at trial, nor does a judge determine the credibility of witnesses Rather, it is used when no factual questions exist for a judge or jury to decide The moving party has the initial burden to show that summary judgment is proper even if the moving party would not have theBURDEN OF PROOFat trial The court generally examines the evidence presented with the motion in the light most favorable to the opposing party Where the opposing party will bear the burden of proof
at trial, the moving party may obtain summary judgment by showing that the opposing party has no evidence or that its evidence is insuffi-cient to meet its burden at trial
Jurisdictions vary in their requirements for opposing a summary judgment motion Federal rule ofCIVIL PROCEDURE56 governs the applica-bility of summary judgment in federal proceed-ings, and each state has its own rules In some states it is sufficient if the party opposing the motion merely calls the court’s attention
to inconsistencies in the pleadings and the
434 SUIT
Trang 8movant’s evidence without introducing further
evidence This approach rarely results in a
court’s granting summary judgment By
con-trast, other jurisdictions, including federal
courts, do not permit a party opposing
summary judgment to rest on the pleadings
alone Once the movant has met the initial
burden of showing the absence of a genuine
issue of material fact, the burden then shifts to
the opposing party to set forth specific evidence
demonstrating that a genuine issue for trial
indeed exists
FURTHER READINGS
Kane, Mary Kay 2007 Civil Procedure in a Nutshell 6th ed.
St Paul, Minn: West Law School.
Little, Laura 2007 Federal Courts Examples & Explanations
Boston: Aspen.
Wright, Charles Alan 2002 Law of Federal Courts 6th ed.
St Paul, Minn.: West Group.
CROSS REFERENCE
Civil Procedure.
SUMMARY PROCEEDINGS
An expedited and streamlined form of litigation,
in various state courts, for the prompt disposition
of legal actions, as in disputes between a landlord
and a tenant over the tenant’s overstaying on the
leased premises after the term has run (known as a
“holdover” situation), or when a landlord
attempts to hasten the tenant’s removal from the
property for any number of reasons (known as an
“eviction”)
LEGAL PROCEEDINGSare regarded as summary
when they are shorter and simpler than the
ordinary steps in a suit Summary proceedings
are ordinarily available for cases that require
prompt action and generally involve a small
number of clearcut issues Different judicial
districts have different requirements in these
proceedings
FURTHER READINGS
Dolan, Robert F 2009 Rasch’s Landlord and Tenant
Including Summary Proceedings 4th ed St Paul, Minn.:
West.
SUMMARY PROCESS
A legal procedure used for enforcing a right that
takes effect faster, more efficiently, and more
cost-effectively than ordinary methods The legal papers—
a court order, for example—used to achieve an
expeditious resolution of the controversy
Because summary process deprives a DEFEN-DANT of all the time and legal defenses usually available, a PLAINTIFF may invoke it only when specifically permitted by law For example, some states (for example, Massachusetts) pro-vide for a special procedure for evicting a tenant without the normal delays of a lawsuit, and some states allow summary process for resolv-ing incidental issues that arise between the parties during the pendency of a lawsuit In the case ofEVICTIONof a non-paying tenant, the purpose is to come to a speedy resolution and consider the delinquent payment and any basis the tenant may have had for withholding the rent As such, its scope is narrow and focused
SUMMONS The paper that tells a defendant that he or she is being sued and asserts the power of the court to hear and determine the case A form of legal process that commands the defendant to appear before the court on a specific day and to answer the complaint made by the plaintiff
The summons is the document that offi-cially starts a lawsuit It must be in a form prescribed by the law governing procedure in the court involved, and it must be properly served on, or delivered to, the defendant If the prescribed formalities are not observed, the court lacks authority to hear the dispute
In the federal district courts, the summons
is prepared by the attorney for the plaintiff and given to the clerk of the court where the case will be heard When the plaintiff’s complaint, setting out his claim, is filed with the court, the clerk signs the summons and gives it and a copy
of the complaint to a U.S marshal or to someone else appointed to serve the papers
Once the summons and complaint are served
on the defendant, she must respond to them within twenty days or whatever other time the court allows
Some states follow this same procedure, but other states allow service of the summons and complaint by delivery directly to the defendant
In those states, the lawsuit is considered begun
as soon as the defendant receives the papers, even though nothing has yet been filed with a court Actions commenced in this way are sometimes called“hip pocket” suits
CROSS REFERENCE Service of Process.
SUMMONS 435
Trang 9A sample summons.
ILLUSTRATION BY GGS
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REPRODUCED BY
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PART OF CENGAGE
LEARNING.
Plaintiff
v
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 20 days after service of this summons on you (not counting the day you received it)—or 60 days if you are the United States or
a United States agency, or an officer or employee of the United States described in Fed R Civ P 12 (a)(2) or (3)—you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure The answer or motion must
be served on the plaintiff or plaintiff’s attorney, whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint You also must file your answer or motion with the court.
CLERK OF COURT
Date: _
Signature of Clerk or Deputy Clerk
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed R Civ P 4 (l))
This summons for (name of individual and title, if any) was received by me on (date) _.
I personally served the summons on the individual at (place) _
_ on (date) _; or
I left the summons at the individual’s residence or usual place of abode with (name)
_, a person of suitable age and discretion who
resides there, on (date) , and mailed a copy to the individual’s last known address; or
I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
My fees are $ _ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
AO 440 (Rev 02/09) Summons in a Civil Action
United States District Court for the
Civil Action No.
0.00
Summons
Additional information regarding attempted service, etc:
436 SUMMONS
Trang 10vSUMNER, CHARLES
Charles Sumner served as U.S senator from
Massachusetts for 23 years starting in 1851 His
career in the Senate was a turbulent one,
marked by much controversy, but he is cited
as one of the major proponents of rights for
blacks
Sumner was born January 6, 1811, in
Boston, Massachusetts Sumner graduated from
Harvard University with a bachelor of arts
degree in 1830 and a bachelor of laws degree in
1833
After his ADMISSION TO THE BAR in 1834,
Sumner traveled through Europe from 1837 to
1840 to analyze foreign judicial systems When
he returned to the United States, he became
interested in reform issues and emerged as a
reform leader and an abolitionist He was
instrumental in the development of the
Free-Soil Party in 1848 and endorsed MARTIN VAN
BUREN, the candidate of that party, in the
presidential election of 1848
Sumner staunchly opposed SLAVERY and
advocated the revocation of the FUGITIVE SLAVE
ACT OF 1850 (9 Stat 462) He vehemently
attacked the Kansas-Nebraska Bill of 1854 (10
Stat 277), which allowed residents of new
territories to determine the slavery issue for
their areas In 1856, in a speech known as“The
Crime against Kansas,” Sumner attacked
STE-PHEN A.DOUGLAS, the originator of the bill, and
South Carolina senator Andrew Pickens Butler,
who strongly supported slavery After the
scathing oration, Sumner was beaten with a
cane by Representative Preston Smith Brooks,
who was related to Senator Butler The injuries
Sumner sustained prevented him from actively
participating in senatorial affairs for the next
three years
In 1861 Sumner became the presiding officer of the Senate Committee on Foreign Relations He held that position until 1871, when his radical behavior resulted in his removal from that office
During theRECONSTRUCTIONperiod, Sumner was a member of the radical Republican faction
He opposed President Andrew Johnson’s con-servative policy toward the South and advocated
a policy that would allow freed men to own land that was previously a part of their owner’s estates Sumner also believed that the state legislatures should control the school system, and that all races should be allowed to attend public schools Sumner and Johnson were often
1811 Born, Boston, Mass.
1812–14 War of 1812
1834 Admitted to Mass bar
1833 Earned LL.B from Harvard
1830 Earned B.A.
from Harvard
1837–40 Traveled to Europe and analyzed foreign judicial systems
1848 Helped found the Free-Soil Party
1856 Attacked pro-slavery senators in a speech called "The Crime Against Kansas"; beaten with a cane by Rep Brooks as a result
1851–74 Served in U.S Senate
1861–65 U.S Civil War
1861–71 Presided over the Senate Committee on Foreign Relations
1874 Died, Washington, D.C.
1868 Supported the impeachment of President Johnson
Charles Sumner.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION.
SUMNER, CHARLES 437