Theresa Ann’s mother and father sought to have her declared brain dead, but a judge stated that under Florida statutes, a declaration of brain death may be made only if activity in all parts of the brain has ceased (Fla. Stat. § 382.009). The judge noted that Theresa Ann had lower-brain activity. She died ten days after birth, without having donated her organs. Influenced by the court’s decision in this case, the Council on Ethical and Judicial Affairs (“CEJA”) reversed their longstanding position that an anencephalic infant must be declared dead in order to be treated as an organ donor. CEJA is a subdivision of the AMERICAN MEDICAL ASSOCIATION (“AMA”), which interprets the principles of medical ethics for the AMA. Organ Procurement: Is It Better to Give or to Sell? I n the early days of organ transplant surgery, during the 1960s and 1970s, the practice was seen as experimental and risky. Patients’ bodies often rejected a transplant, and the survival rate in many cases was deemed too low to be accept- able. However, with the development of new surgical procedures and the wide use of new immunosuppressive drugs s uch as cyclosporine in the 1980s organ trans- plantation became a common medical technique available to more and more people. In the 1980s, more than 400,000 transplants were performed in the United States. The age range of heart transplant recipients has expanded from 45 to over 60 at the upper limit, and to infancy at the lower limit. Results such as these have caused such a demand for organ transplants that there are far more potential organ recipients than available organs. Those who are deemed medically suitable to receive organs are put on long waiting lists, and it is often months or years before they get the organs they need; many others are deemed medically unsuitable and are not even put on waiting lists. Some have criticized the term medically unsuitable as an arbitrary and uncertain medical judgment used simply to prevent raising the hopes of those who are unlikely to get a timely transplant. What should be done about this dire shortage of organs available for trans- plantation? Three different organ pro- curement systems have been proposed as a means of alleviating the situation: an organ market, a presumed consent program, and a required request pro- gram. All three proposals have their advocates and detractors. Organ Market Although the sale of human organs was made illegal by the 1985 National Organ Transplantation Act (42 U.S.C.A. § 274(e)), an organ market remains a widely discussed alter- native to the generally accepted approach of encouraged voluntarism. Its suppor- ters claim that the system of encouraged voluntarism, which supplies organs free of cost through altruistic donation, has created a rapidly worsening organ shortage. Typically, advocates of the market system are quick to note that they do not support a market in organs from living donors, nor do they envision donors and recipients haggling in hospital rooms. Instead, they focus on paying potential donors a fixed amount for signing a contract that authorizes the future re- moval of one or more of their organs at death. This may, for example, occur in the form of a uniform cash payment or tax credit to all individuals who agree to sign a donor form on the back of their driver’s license application. This type of arrangement is called a forward market because payment for the organ occurs well before the organ is removed. The amount paid for such donor contracts could be adjusted up or down depending on the demand for organs. Some of those who call for an organ market take the economist’s perspective and claim that it is the best alternative because it would maximize social wel- fare. The benefits of such a system would include an increase in the supply of organs, and thus the saving of many more lives and the improved health of many more patients. More patients who have to undergo the expensive and time- consuming procedure of kidney dialysis, for example, would be able to instead receive a transplant. Moreover, firms and individuals engaged in the procurement business would have a direct financial incentive to increase public awareness of the facts surrounding organ donation and transplantation. Advocates claim that a market would also produce a number of indirect benefits. Medical professionals would be able to choose from a greater number of available organs from the dead—termed cadaveric organs—and obtain higher- quality organs that more precisely match the tissue type of the recipient. With more closely matched organs would come less need to rely on living donors, thus avoiding the pain, loss of pay, and risks associated with donor surgery. Moreover, more organs would mean more transplant operations, and with increased frequency, the cost of those operations would fall as hospitals and their staffs become more proficient at conducting and managing them. Organ market supporters also argue that an undersupply of organs leads to a black market, and that this market will only become greater with time. Finally, an increase in the harvesting of cadaveric GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 368 ORGAN TRANSPLANTATION Rather than require an anencephalic infant to be declared dead before organ donation, as the AMA had done in the past, CEJA’s 1994 opinion provided that organs could be obtained from a still-living anencephalic infant. CEJA supported this position by reasoning that anencephalics have no consciousness and there- fore do not have the rights of human beings. The AMA adopted the opinion, and for a short time the official position of the AMA was that organs could be harvested from a living anencephalic infant. A public and professional outcry followed this announcement. Physicians, parents of handicapped infants, and clergymen were all opposed to the new position. In reaction to the protest, the AMA took the organs would eventually lead to greater social acceptance of the practice as part of the death process. Critics see an organ market as not expanding the number of choices avail- able but diminishing them, thereby undermining the ethical goal of individ- ual autonomy and free choice. Even if sales were restricted to organs from those who are dead, they claim, the potential conflicts of interest on the part of physicians, patients, and families would erode the capability of individuals to make decisions about their own bodies. Critics also point out that if the sale of organs from living subjects were permitted, poor people would have economic incentives to sell their body parts, and as a result their own health could suffer. Detractors of the market approach also claim that it would not increase the supply of organs and that the price of organs would be so high that few people would consent to give away their valuable organs. Some also claim that an organ market would result in lower-quality organs because poorer people, who are generally less healthy, would be more likely to sell organs for profit. Moreover, if organs had to be purchased, poor people would not be able to afford transplants. Market advocates counter that the total costs of organ transplanta- tion would likely fall under a market system, making it more, not less, accessi- ble to poor people. Presumed Consent Program The presumed consent system of organ procurement is currently used in many European countries. It means that medical professionals are presumed to have a deceased individual’s and surviv- ing family members’ consent to remove needed organs, unless those individuals have earlier made known their objec- tions to organ removal. Supporters of this system argue that it increases the supply of organs, makes the decision to remove organs much easier, and further removes the physician and hospital from liability. Critics of the presumed consent system find fault with it for economic, legal, and ethical reasons. Looking at the program in terms of economics, they claim that it does not actually increase the number of organs harvested because it does not impose financial incentives for organ requests. As a result, medical staff still exhibit a reluctance to remove organs and that leads to a continuation of the organ shortage. Critics also claim that a presumed consent system is expensive to create and maintain. It requires the creation of large, centralized registries listing individuals’ decisions regarding their own body, and these must be updated continuously. Mistakes inevitably occur, causing unwanted or- gan removal and expensive lawsuits. Other critics of the presumed con- sent system find it legally suspect and charge that if it is implemented in the United States it will violate the Due Process Clause of the Constitution. Those who find fault with the ethical premise of presumed consent argue that it removes the moral dignity surrounding donation by making it mandatory. It also detracts from the goal of free choice and autonomous behavior by precluding the individual from making no decision or from leaving the decision to others. Required Request Program A re- quired request program is a more moderate approach to the problem of organ donation. It seeks to reform the existing system of encouraged voluntarism by requiring that family members or guardians be given the opportunity to make an organ donation when a death has occurred. Such a program would require hospitals to have a specially trained person to approach families and inquire about organ dona- tion at the time death is pronounced. The request would be noted in writing on the death certificate to ensure that medical providers comply with the policy. The required request system would allow for exceptions in cases where a request would not be in the best interests of family members or guardians, with such exceptions also duly noted on the death certificate. Such a system, its advocates claim, would increase freedom of choice by informing individuals of their options. Proponents of this system point to statistics that indicate that in the U.S. public, the level of altruism regarding organ donation is quite high. In some hospitals, for example, more than 60 percent of the families who were asked to donate the organs of loved ones agreed to do so. The problem with the current system, they maintain, is that donor cards do not adequately tap this altruistic sentiment. They also note that a required request system would ensure that donor cards or written directives are honored. With time, such requests would become a routine part of the death process in medical facilities, making them less surprising and less intrusive to family privacy at the time of death. Critics of the required request sys- tem say that it would not do enough to change an already flawed organ procure- ment system. Moreover, they argue that approaching families in the hours fol- lowing the death of a loved one imposes too much psychological distress. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ORGAN TRANSPLANTATION 369 unusual action of having a public hearing on the matter. Based on the results of that hearing, CEJA suspended its position in 1995, thus returning to the position that the AMA had held since 1982: An anencephalic infant must be declared dead in order to be treated as an organ donor. The AMA and the CEJA continue to hold this position. FURTHER READINGS Blair, Roger D., and David L. Kaserman. 1991. “The Economics and Ethics of Alternative Cadaveric Organ Procurement Policies.” Yale Journal on Regulation 8 (summer). Bryan, Jenny, and John Clare. 2001. Organ Farm: Pig to Human Transplants. London: Carlton. Caplan, Arthur L. 1992. If I Were a Rich Man Could I Buy a Pancreas? and Other Essays on the Ethics of Health Care. Bloomington: Indiana Univ. Press. Gerritsen, Tess. 1996. Harvest. New York: Simon & Schuster. Green, Reg. 2000. The Nicholas Effect: A Boy’s Gift to the World. Cambridge, Mass.: O’Reilly & Associates. Harris, Curtis E., and Stephen P. Alcorn. 2001. “To Solve a Deadly Shortage: Economic Incentives for Human Organ Donation.” Issues in Law & Medicine 16 (spring). Kaserman, David L., and A.H. Barnett. 2002. The U.S. Organ Procurement System: A Prescription for Reform. Washington, D.C.: AEI Press. Koch, Tom. 2002. Scarce Goods: Justice, Fairness, and Organ Transplantation. Westport, Conn.: Praeger. Kristof, Nicholas D. 2002. “Psst! Wanna Sell a Kidney?” Chicago Daily Law Bulletin (November 12). Naylor, Chad D. 1989. “The Role of the Family in Cadaveric Organ Procurement.” Indiana Law Journal 65 (winter). Rozovsky, Fay A. 2007. Consent to Treatment: A Practical Guide. 4th ed. New York: Aspen Publishers. Sylvia, Claire, and William Novak. 1997. A Change of Heart. New York: Little, Brown. CROSS REFERENCES Death and Dying; Fetal Rights; Organ Donation Law. ORGANIC LAW The basic law or ruling document of a country, either textual or unwritten, that sets down the fashion in which its government will be organized. ORGANIZATION A generic term for any type of group or association of individuals who are joined together either formally or legally, typically with a common purpose. The term organization includes a corpora- tion, government, partnership, and any type of civil or political association of people. ORGANIZED CRIME Criminal activity carried out by an organized enterprise. Most historians believe that modern orga- nized crime began in Italy in the late nineteenth century. The secretive Sicilian group La Cosa Nostra, along with other Sicilian mafia, were more powerful than the Italian government in the early twentieth century. In 1924 Benito Mussolini’s fascist government rose to power, and Mussolini orchestrated a crackdown on the Italian mafia. Those mafiosi who were not jailed or killed were forced to flee the country. Many came to the United States, where they flourished in the art of bootlegging and other criminal activity. Since the 1920s organiz ed crime has crossed ethnic lines and is associated with no particular ethnic group. In the 2000s, organized crime syndicates include groups from such diverse places as Russia, Africa, China, Japan, Hungary, and Romania. Congress and many states maintain laws that severely punish crime committed by criminal enterprises. On the federal level, Congress passed the Organized Crime Control Act in 1970, Pub. L. No. 91-452, 84 Stat. 922. The declared purpose of the act is to eradicate organized crime by expanding evidence-gather- ing techniques for law enforcement, specifying more acts as being crimes, authorizing en- hanced penalties, and providing for the FORFEI- TURE of property owned by criminal enterprises. The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. § 1961 et seq., is the centerpiece of the Organized Crime Control Act. RICO is a group of statutes that define and set punishments for organized crime. The act’s provisions apply to any enterprise that engages in RACKETEERING activity. Racketeering is the act of engaging in a pattern of criminal offenses. The list of offenses that constitute racketeering when committed more than once by an enterprise is lengthy. It includes EXTORTION, FRAUD, MONEY LAUNDERING, federal drug offenses, MURDER, KIDNAPPING, gambling, ARSON, ROBBERY, BRIBERY, dealing in obscene matter, COUNTERFEITING, EMBEZZLEMENT, OBSTRUC- TION OF JUSTICE , obstruction of law enforcement, tampering with witnesses, filing of a false statement to obtain a passport, passport FORGERY and false use or misuse of a passport, peonage, SLAVERY, unlawful receipt of WELFARE funds, interstate transport of stolen property, sexual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 370 ORGANIC LAW exploitation of children, trafficking in COUNTER- FEIT labels for audio and visual works, criminal INFRINGEMENT of copyrights, trafficking in CON- TRABAND cigarettes, white slavery, violation of payment and loan restrictions to LABOR UNIONS, and harboring, aiding, assisting, or transporting illegal ALIENS. RICO also includes forfeiture provisions that allow the government to take the property of parties found guilty of violations of the act. Organized criminal enterprises make money by specializing in a variety of crimes, including extortion, BLACKMAIL, gambling, loan-shar king, political corruption, and the manufacture and sale of illicit narcotics. Extortion, a time-tested endeavor of organized crime, is the acquisition of property through the use of threats or force. For instance, a criminal enterprise located in a certain neighborhood of a city may visit shop- keepers and demand a spe cific amount of so- called protection money. If a shopkeep er does not pay the money, the criminal organization may strike at him, his property, or his family. Blackmail is similar to extortion. It is committed when a person obtains money or value by accusing the victim of a crime, threatening the victim with harm or destruction of the victim’s property, or threatening to reveal disgraceful facts about the victim. Gambling and loan-sharking are other tradi- tional activities of organized criminal enterprises. Where gambling is illegal, some organized crime groups act as the LOCUS for gambling activity. In states where some gambling is legal and some gambling is illegal, organized crime groups offer illegal GAMING. During the 2000s, authorities implicated organized crime groups with some scams involving INTERNET gambling. In fact, organized crime has developed to become more sophisticated during the era of the Internet. Authorities have determined that the same groups involved in such criminal enterprises as drug trading and human traffick- ing have also become involved in financial fraud, online scams, IDENTITY THEFT, and mali- cious acts targeting websites and web-based companies. Organized crime groups have often been associated with the practice of loan-sharking, which is the provision of loans at illegally high interest rates accompanied by the illegal use of force to collect on past due payments. In organized crime circles, such loans usually are made to persons who cannot obtain credit at legitimate financial institutions and who can serve the criminal enterprise in some way in the event they are unable to repay the loan. Loan- sharking provides organized criminal enter- prises with money and helps enlarge the enterprise by bringing into the fold persons who owe a debt to the enterprise. Political corruption has diminished as a focus of organized crime. In the first half of the twentieth century, some organized crime groups blackmailed or paid money to poli ticians in return for favorable legislation and favorable treatment from city hall. This sort of activity has decreased over the years as public scrutiny of political activity has increased. Conversely, the FEDERAL BUREAU OF INVESTIGATION (FBI) has warned that corruption still takes place as a means to allow organized crime groups to maintain their operations. Another venture in organized crime is the manufacture and sale of illicit narcotics. This practice was prefigured in the activities of organized crime from 1919 to 1933. During this period alcohol was illegal under the EIGHTEENTH AMENDMENT to the U.S. Constitution, and the manufacture and sale of liquor was a favorite activity of organized crime groups. The manufacture and sale of illegal liquors, or bootlegging, was extremely profitable, and it gave organized crime a foothold in American life. Man y organized criminal enterprises sub- sequently imitated bootlegging by selling other illegal drugs. Violence often accompanies organized crime. Many crime syndicates use murder, torture, ASSAULT,andTERRORISM to keep themselves powerful and profitable. The constant threat of violence keeps victims and witnesses silent. Without them, prosecutors find it difficult to press charges against organized criminals. The modern notion of organized crime in the United States has expanded beyond the prototypical paradigm of family operations. Organized crime in the 2000s refers to any group of persons in a continuing operation of criminal activity, including street GANGS.To combat the violence and other illegal activity of street gangs, federal and state legislatures have passed laws pertaining specifically to street gangs. Many states provide extra punishment for persons in street gangs who are convicted of certain crimes. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ORGANIZED CRIME 371 On the federal level, a street gang is defined as an ongoing group, club, organization, or associa- tion of five or more persons formed for the purpose of committing a violent crime or drug offense, with members who have engaged in a continuing series of violent crimes or drug law violations that affect interstate or foreign com- merce (18 U.S.C.A. § 521). Any person in a street gang convicted for committing or conspiring to commit a violent federal crime or certain federal drug offenses receives an extra ten years in prison beyond the prison sentence for the actual crime. Whereas street gangs cause concern from the local to the federal level, a growing concern is the influence that foreign organized crime groups have within the United States. Citizens in the United States can be targeted personally by organized crime groups who have a physical presence in the country, or citizens can be targeted from afar via electronic communica- tions. The FBI believes that foreign organized crime groups in Europe, Asia, and Africa are starting to cooperate in their efforts rather than to try to compete with one another. Authorities estimate that organized crime generates $1 trillion per year in illegal profits. Despite stringent punishments, organized crime is difficult to eradicate. It tends to occur in large cities where anonymity is relatively easy to maintain. The size and hereditary makeup of many enterprises make them capable of surviv- ing the arrest and imprisonment of numerous members. Many organized crime participants are careful, efficient, and professional criminals, making them difficult to apprehend. Another reason organized crime is so durable is that the participants are extremely dedicated. The group looks after its own and there are serious consequences of betrayal. Members of organized crime groups often take an oath of allegiance. For example, members of La Cosa N ostra stated, “I enter alive into this organization and leave it dead.” FURTHER READINGS Abadinsky, Howard. 2003. Organized Crime. 7th ed. Belmont, CA: Wadsworth/Thomson Learning. Bonanno, Bill. 2000. Bound by Honor: A Mafioso’s Story. New York: St. Martin’s. Federal Bureau of Investigation: Organized Crime. Available online at http://www.fbi.gov/hq/cid/orgcrime/ocshome. htm (accessed May 21, 2009). Goodwin, Brian. 2002. “Civil versus Criminal RICO and the ‘Eradication” of La Cosa Nostra.” New England Journal on Criminal & Civil Confinement 28 (summer). Jankiewicz, Sara. 1995. “Comment: Glasnost and the Growth of Global Organized Crime.” Houston Journal of International Law 18 (fall). Lyman, Michael D., and Gary W. Potter. 2004. Organized Crime. 3d ed. Upper Saddle River, NJ: Pearson Prentice Hall. CROSS REFERENCE Capone, Alphonse; Drugs and Narcotics; Eighteenth Amendment; Hoffa, James Riddle; Money Laundering; Racketeering; Syndicate. ORGANIZED CRIME CONTROL ACT OF 1970 See RACKETEERING. ORIGINAL INTENT Original intent is the theory of interpretation by which judges attempt to ascertain the meaning of a par ticular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified. Sometimes called original understanding, originalism, or original meaning, the theory of original intent is applied by judges when they are asked to exercise the power of JUDICIAL REVIEW during a legal proceeding. (The power of judicial review is the power of state and federal courts to review and invalidate laws that have been passed by the legislative and executive branches of government but are alleged to violate a constitutional principle.) Not every judge adheres to the theory of original intent, and many adherents fail to apply it in a uniform and faithful manner. Judges who do attempt to apply this j udicial philosophy generally agree that only through its application may courts be bound by the law and not their own views of what is desirable. They also generally agree that courts must apply original intent in order to preserve the representative democracy created by the federal Constitution. Originalists observe that the democracy created by the U.S. Constitution is marked by three essential features: a SEPARATION OF POWERS, FEDERALISM, and a BILL OF RIGHTS. The Constitu- tion separates the powers of the federal govern- ment into three branches, which helps foster what is known as a system of checks and balances. Article I of the Constitution delegates lawmaking power to the legislative branch, which comprises the two houses of Congress. This lawmaking power authorizes members of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 372 ORGANIZED CRIME CONTROL ACT OF 1970 Congress to pass legislation that reflects the values of their voting constituency, usually consisting of a plurality or majority of the adults residing in the representative’s home state. If a representative makes policy that is inconsistent with the values of the representa- tive’s constituents, the representative will likely be voted out of office at the next election and replaced by someone who is more sensitive to popular will. Under this system, Congress remains perpetually accountable to American voters, who, originalists point out, are the ultimate source of authority from which the Constitution derives its legitimacy. The exe cutive branch is also held account- able to Americans at the voting booth. Every four years, U.S. citizens are given the opportu- nity to determine who will be president of their country. They generally vote for someone who is perceived to represent their economic, societal, and person al interests on a variety of issues, including taxes, the WELFARE system, and the right to live and die free from governmental restraint. Article II empowers the president to sign the congressional acts that he approves and VETO the rest, enabling the executive branch to influence national policy, if not make it. The president may also influence national policy by promul- gating executive decrees (which are orders issued by the executive branch without con- gressional approval) that are intended to implement a constitutional provision, federal law, or treaty. In addition, Article II charges the president with the responsibility of enforcing legislation that has been passed by Congress and signed into law. Article III of the Constitution delegates federal judicial power to the U.S. SUPREME COURT and to other “inferior” federal courts that Congress may establish. Unlike the president and members of Congress, federal judges are largely unaccountable to the U.S. electorate. Once appointed to the bench by the president and confirmed by the SENATE, federal judges hold office for life, unless they retire or are removed for “treason, BRIBERY, or other high crimes and misdemeanors” (U.S. Const. art. II, § 4). Although Article III does not confer the power of judicial review, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the Supreme Court ruled that it is “emphatically the duty” of the federal “judicial department to say what the law is” by “resolving the operation” of congressional legislation that conflicts with the paramount law of the U.S. Constitution. Marbury thus emphasized the traditional role of courts as oracles of the law; however, it provided little guidance on how courts should interpret and apply the particular provisions of the Constitution. Originalists attempt to provide this guid- ance. They argue that the interpretation of most written documents, legal or otherwise, involves a form of “communication” in which “the writer seeks to communicate with the reader,” Constitutional interpretation is no different, originalists say, because it involves the attempt of judges, as readers, to understand the meaning of a constitutional provision as conveyed by the Framers and ratifiers who authored it. Origin- alists believe that judges who fail to employ this method of interpretation transform courts into naked power organs. Originalists contend that judges who deviate from the original understanding of a constitu- tional provision are forced to replace that understanding with their own subjective sympathies, social preferences, and notions of reasonableness. When judges substitute their own value choices for those actually written in the Constitution, federal courts become super-legislatures that make decisions based on the personal will of judges and not the LAW OF THE LAND (Day-Brite Lighting v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 [1952]). Originalists assert that judges who legislate from the bench violate the separation of powers by making law rather than i nterp reting and applying it. These judges al so violate the principles of federalism, the second essential feature of U.S. constitutional democracy iden- tifi ed by originalists. Under these principles, courts must strike an appropriate balance between the sovereignties of stat e and federal governments, not all owing th e smaller st ate governments to be wholly consumed by the ubiquitous federal government. Originalists contend that this balance im permissibly tips in favor of the federal gover nment when federal courts invent new constitutional rights that state governments are then required to enforce. Such rights have protected areas concern- ing homosexual behavior, ABORTION, CAPITAL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ORIGINAL INTENT 373 PUNISHMENT, and individual pr ivacy. Ju stice CLARENCE THOMAS, an exponent of o riginalism, obse rved that “[t]he federal Con stitution” is not meant to “address all ills in our society” (Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 [1992][Thomas, J., dissenting]). Nor is the Constitution meant, Thom as said, “to prohibi t ever ything that is intensely undesirable” ( Bennis v. Michigan, 516 U.S.442, 116 S. Ct. 994, 134 L. Ed. 2d 68 [1996 ] [Thomas, J., concurring]). Originalists claim that the Constitution must protect only the areas of life that are expressly referred to or fairly implied by the explicit language of its text. In other words, where the Constitution stops speaking, the state governments may begin. Respect for principles of federalism, then, is intimately connected with the third essential feature of U.S. Constitutional democracy iden- tified by originalists, the Bill of Rights. The Bill of Rights protects certain freedoms from the popular will, no matter how democratically the majority attempts to trample them. In all other areas, originalists assert, state and federal majorities are entitled to rule for no better reason than that they are majorities. Originalists explain that majority tyranny occurs if legisla- tion invades areas properly left to individual freedom, and minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. Originalists argue that the judiciary facil- itates minority tyranny by improperly inter- preting the Bill of Rights to guarantee liberties not contemplated by the language and intent of the Framers. To avoid this pitfall, originalists believe, judges must safeguard only the liberties that can be clearly derived from the Constitu- tion. Originalists cite a series of cases in which the Supreme Court recognized a right to privacy as the antithesis of proper constitutional interpretation. In Griswold v. Connecticut, 381 U.S . 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court struck down a state law that forbid married adults from using contraceptives, because it violated their right to privacy guarante ed by the First, Third, Fourth, Fifth, Ninth, and Four- teenth Amendments. Although a majority of the Court recognized privacy interests that may be inferred from these several constitutional amendments, Justice POTTER STEWART noted in a dissenting opinion that “no such general right of privacy” can be found in the express language of “the Bill of Rights” or “any other part of the Constitution.” Originalists argue that courts cannot apply a general right to privacy in a politically neutral manner without protecting all sorts of illegal activities that are conducted in private, such as spousal abuse, price-fixing, and PROSTITUTION. Justice ANTONIN SCALIA has been one of the more ardent proponents of originalism on the Supreme Court. Scalia is careful to distinguish what he calls original intent from original meaning. According to Scalia, there is no way to determine the original intentio ns of those who drafted or ratified the U.S. Constitution, because those intentions often include undis- closed mental impressions. Instead, Scalia advocates a Constitution that is interpr eted in light of its original meaning, which can be determined by what lawmakers, lawyers, judges, newspapers, and those who ratified a constitu- tional provision said and wrote about it at the time of its adoption. Scalia’s majority opinion in District of Columbia v. Heller, —U.S.— 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), is often cited as an exemplar in originalist JURISPRUDENCE.In Heller, the Court found that the original meaning of the Second Amendment’s right to bear arms protects an individual’s righ t to own a gun and thus confers more than just a collective right to use guns in connection with a well-regulated MILITIA. Form er federa l appeal s court Judge Robert Bork was one of the more controversial exponents of originalism in U.S. history. Nominated in 1987 by President RONALD REAGAN to replace retiring justice LEWIS POWELL,Bork articulated a number of positions before and during confirmation hearings that raised the ire of civil lib ertarians across the United States. Based on his version of original ism, Bork declared that the Supreme Court’sdecisionin Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which lim ited a state’ s power to make abortion criminal, w as itself unconstitutional; that the Court’sdecisions implementing the “one man, one vote” princi- ple in national and local elections were mistaken; that homosexuals do not have constitutional rights against DISCRIMINATION; and that prosecutors should be able to use ille gally obtained evidence in court. Bork’s nomination was defeated by a vote of 58-42 in the Senate. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 374 ORIGINAL INTENT After Bork’s defeat, subsequent confirma- tion hearings have spent a significant amount of time focused on the role that originalism plays in a nominee’s jurisprudence. For example, during the separate confirmation hearings of Justice SAMUEL ALITO (nominated in 2005 by President GEORGE W. BUSH to replace retiring Justice SANDRA DAY O’CONNOR) and Chief Justice JOHN ROBERTS (nominated in 2005 by President Bush to replace retiring Chief Justice WILLIAM REHNQUIST ), the Senate questioned the two nominees about whether they adhered to any form of original intent as they understood it. Alito seemed to believe that the Court should try to discern the Framers intent, when that intent is knowable, while Roberts seemed to believe in a constitutional interpretation that evolved with society. Both Alito and Roberts were approved by the Senate, and many legal observers agreed at the time that it was too early to tell how important a role originalism would play in their jurisprudence on the Supreme Court. FURTHER READINGS Bork, Robert H. 1990. The Tempting of America: The Political Seduction of the Law. New York: Free Press. ———. 1971. “Neutral Principles and Some First Amend- ment Problems.” Indiana Law Journal 47. Drakeman, Donald L. 2010. Church, State, and Original Intent. New York: Cambridge University Press. Dworkin, Ronald. 1994. Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Knopf. ———. 1990. Review of Bork’s Jurisprudence, by Robert H. Bork. University of Chicago Law Review 57. ———. 1977. Taking Rights Seriously. Cambridge, Mass.: Harvard Univ. Press. Graglia, Lino. 1992. “Interpreting the Constitution: Posner on Bork.” Stanford Law Review 44. Hand, Learned. 1958. The Bill of Rights. Cambridge, Mass.: Harvard Univ. Press. Howard, Robert M., and Jeffrey A. Segal. 2002. “An Original Look at Originalism.” Law & Society Review 36. Levy, Leonard W. 2000. Original Intent and the Framers’ Constitution. Chicago: Ivan R. Dee. Lively, Donald. 2008. The Constitution, Race, and Renewed Relevance of Original Intent: Reclaiming the Lost Opportunity of Federalism. Amhurst, N.Y.: Cambria Press. Pankratz, Jeffrey. 1992. “Neutral Principles and the Right to Neutral Access to the Courts.” Indiana Law Journal 67. Posner, Richard A. 1990. “Bork and Beethoven.” Stanford Law Review 42. Scalia, Antonin. 1989. “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57. Scheef, Robert W. 2001. “‘Public Citizens’ and the Constitution: Bridging the Gap between Popular Sovereignty and Original Intent.” Fordham Law Review 69. Wechsler, Herbert. 1959. “Toward Neutral Principles of Constitutional Law.” Harvard Law Review 73. CROSS REFERENCES Bork, Robert Heron; Constitution of the United States; Jurisprudence; Penumbra; Scalia, Antonin. ORIGINAL JURISDICTION The authority of a tribunal to entertain a lawsuit, try it, and set forth a judgment on the law and facts. Original jurisdiction is distinguishable from APPELLATE jurisdiction, which is the power of a court to hear and enter judgment upon a case brought for review. For example, the U.S. Supreme Court’s caseload consists almost en- tirely of appellate cases from the circuit courts of appeal. When two or more states are locked in a dispute, however, the SUPREME COURT has original jurisdiction to gather and hear evidence, much like a trial court. The Court appoints a SPECIAL MASTER to hear the evidence and prepare factual findings. It then hears oral arguments and issues a decision, as it does in appellate jurisdiction cases. Because it is the highest court in the United States, the Supreme Court’s decision in original jurisdiction cases is final, with no right of appeal. One example of such a case is New Jersey v. New York, 523 U.S. 767, 118 S. Ct. 1726, 140 L. Ed. 2d 993 (1998), in which the Supreme Court took evidence and determined which state had claim to Ellis Island. Another case that involved original jurisdic- tion was Chisolm v. Georgia. In this case, dating back to 1792, Alexander Chisholm, the executor of the estate of Robert Farquhar, attempted to sue the state of Georgia in the Supreme Court over payments that were due to him for goods that Farquhar had supplied to Georgia during the American Revolutionary War. The U.S. Attorney General argued the case for the PLAINTIFF, and the DEFENDANT, Georgia, refused to appear, claiming that as a sovereign it did not have to appear in court over a suit to which it did not consent. The Court ruled 4 to 1 in favor of the plaintiff, stating that Article 3, Section 2, of the Constitution nullified the States’ SOVER- EIGN IMMUNITY and granted federal courts the affirmative power to hear disputes between states and private citizens. The ELEVENTH AMEND- MENT was ratified thereafter in 1795. CROSS REFERENCE Chisolm v. Georgia. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ORIGINAL JURISDICTION 375 ORIGINAL WRIT A document formerly used to commence a lawsuit in English courts. Historically, the writ needed to start a personal action was a mandatory letter from the king, issued by the Chancery and sealed with the Great Seal. It was directed to the sheriff of the county where the wrong was supposed to have been committed and required the sheriff to command that the defendant either satisfy the plaintiff’s claim or answer the charges that had been made. This form of writ has been replaced by the summons, which commences civil actions in the early 2000s, but the summons is still sometimes called an original writ. ORIGINATION FEE A charge imposed by a lending institution or a bank for the service of processing a loan. For example, a bank might charge an individual who has applied for a student loan an origination fee of one percent for processing the application and granting the loan. In 2008, in two companion cases of first impression, a federal court in Maryland held that a Maryland law, the Maryland Secondary Mortgage Loan Law, allows a lender to charge a number of fees that arise from the origination of a secondary mortgage loan, and not merely a loan origination fee. Hafford v. Equity One, Inc., No. AW-07-1633; Cabrejas v. Accredited Home Lenders, Inc., No. AW-06-0975. Plain- tiffs had claimed that lenders were violating the Maryland statute by charging fees other than a single loan origination fee to cover underwriting and closing costs, and they claimed that the charges were “illegal and excessive.” Under this particular statute, lenders may charge an origination fee not exceeding 10 percent of net loan proceeds, but the total amount of the fees charged did not reach this limit here. ORPHAN’S COURT The designation of tribunals in a number of northeastern U.S. states that have probate or surrogate jurisdiction. Some jurisdictions refer to this type of court as a “probate court.” Such a court ordinarily has the power to handle such matters as the establishment of wills, the administration and distribution of decedents’ estates, the supervision of the guardianship of INFANTS, and the control of their property. OSTENSIBLE Apparent; visible; exhibited. Ostensible authority is power that a princi- pal, either by design or through the absence of ordinary care, permits others to believe his or her agent possesses. CROSS REFERENCE Agency. v OTIS, JAMES, JR. James Otis Jr. was a Massachusetts lawyer who became a leading colonial political activist in the 1760s. His constitutional challenge to British governance of the colonies in the WRITS OF ASSISTANCE CASE in 1761 was one of the most important legal events leading to the American Revolution. A brilliant speaker and writer, Otis faded from the revolutionary scene as he struggled with alcoholism and mental illness. Otis was born on February 5, 1725, in West Barnstable, Massachusetts. His father, James Otis Sr., was a prominent merchant and political figure in the colony. Otis graduated from Harvard College in 1743 and was admitted to the bar in 1748. He moved his law practice from Plymouth, Massachusetts, to Boston in 1750 and was appointed advocate general of the Boston vice-admiralty court in 1756. He served until 1761, when the furor over writs of assistance pushed Otis into becoming an opponent of the colonial government he served. A writ of assistance was a general SEARCH WARRANT that allowed customs officers to command the assistance of any local public official in making entry and seizing CONTRABAND goods. Goods seized by use of the writ were brought before the vice-admiralty court, which determined if the goods had been imported lawfully. SMUGGLING had bedeviled the colonial government for many years, but the need for tax revenue during the course of the French and Indian War led to a crackdo wn. The use of the writ made revenue collection easier, but it upset the merchant community of Boston. Otis resigned his position on the vice- admiralty court and agreed to represent the merchants in challenging the legality of the writs of assistance. At trial Otis argued that the 376 ORIGINAL WRIT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION writs were a form of tyranny. He coined the phrase “A man’s home is his castle” to describe the sanctity and privacy that a citizen deserved from his or her government. More important, he argued that the writs were unconstitutional under British law. Though England did not have a written constitution, Otis referred to the accumulation of practices and attitudes throughout English history that set limits on the power of government. In his view there were traditional limits beyond which the Parliament or the king could not legitimately go. The writs exceeded these bounds and were therefore null and void. Though he lost the Writs of Assistance case, his theory caught the public’s attention. It provided justification for an increasing number of protests against taxation without representation. The case also elevated Otis as a radical colonial leader. In May 1761 he was elected to the General Court of Massachusetts. This body, which served as the provincial legislature, gave Otis a platform to expound his radical political views. In 1762 he published A Vindication of the Conduct of the House of Representatives of the Province of Massachu setts Bay. In the pamphlet he defended the legislature’s refusal to pay for ships that England had sent to protect the colony from pirates. He wrote numerous papers to the other colonies and to the government in England arguing for political freedom. His ideas became a part of the address that the STAMP ACT Congress of 1765 sent to the House of Commons protesting taxation of the colonies. As the colonies moved closer to breaking away from England, Otis’s influence faded, the result of alcoholism and mental illness. In 1769 he was struck in the head by a customs officer who disliked Otis’s views. This injury left him mentally incapacitated and unable to continue in public life. He died on May 23, 1783, in Andover, Massachusetts, after being struck by lightning. FURTHER READINGS Purcell, Jeffrey W. 1999. “James Otis: ‘Flame of Fire’ Revolutionary Opposing the Writs of Assistance and Loyal British Subject?” Massachusetts Legal History 5 (annual): 147–78. CROSS REFERENCES Writs of Assistance Case; English Law; Fourth Amendment. James Otis Jr. LIBRARY OF CONGRESS. James Otis Jr. 1725–1783 ▼▼ ▼▼ 1725 1800 1775 1750 ❖ ❖ ◆ ◆ ◆ ◆ ◆ ◆ 1783 Died, Andover, Mass. 1775–83 American Revolution 1769 Struck in the head by a customs officer who disliked his views; resigned from political life 1761–69 Served in the General Court of Mass. 1762 Published A Vindication of the Conduct of the House of Representatives of the Province of Massachusetts Bay 1761 Opposed the Writs of Assistance case 1756–61 Served as advocate general of the Boston vice- admiralty court 1750 Moved law practice to Boston 1748 Admitted to Mass. bar 1743 Graduated from Harvard College 1725 Born, West Barnstable, Mass. ◆ 1765 Stamp Act imposed on American colonies by British Parliament OTIS, JAMES, JR. 377 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION . 5 (annual): 1 47 78 . CROSS REFERENCES Writs of Assistance Case; English Law; Fourth Amendment. James Otis Jr. LIBRARY OF CONGRESS. James Otis Jr. 172 5– 178 3 ▼▼ ▼▼ 172 5 1800 177 5 175 0 ❖ ❖ ◆ ◆ ◆ ◆ ◆ ◆ 178 3. of the Constitution delegates lawmaking power to the legislative branch, which comprises the two houses of Congress. This lawmaking power authorizes members of GALE ENCYCLOPEDIA OF AMERICAN LAW, . sexual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 370 ORGANIC LAW exploitation of children, trafficking in COUNTER- FEIT labels for audio and visual works, criminal INFRINGEMENT of copyrights,