federal bankruptcy proceedings. The debtor is not
discharged from unpaid debts by this procedure since
creditors do not agree to any discharge. [Cases: Debtor
and Creditor C=:> 1.]
assignment ofdower (dow-dr). See ASSIGNMENT (2).
assignment of error. (l7c) A specification of the trial
court's alleged errors on which the appellant relies in
seeking an appellate court's reversal, vacation, or mod
ification of an adverse judgment. PI. assignments of
error. S~e ERROR. Cf. WRIT OF ERROR. [Cases: Appeal
and Error 0::>718; Criminal Law C=:> 1129.]
assignment of income. See assignment ofwages under
ASSIGNMENT (2).
assignment-of-income doctrine. Family law. The com
mon-law principle that the person who has earned
income is the person taxed on it, regardless of who
receives the proceeds. _ Under this doctrine, future
income assigned to another is taxable to the assignor.
For example, in Lucas v. Earl, 281 U.S. 111,50 S.Ct.
241 (1930), the Court held that a husband who was the
sole wage-earner could not assign to his wife half his
income and then pay the federal income tax on only
the unassigned part.
assignment oflease. See ASSIGNMENT (2).
assignment of property. See EQUITABLE DISTRIBU
TION.
assignment ofrealty. See ASSIGNMENT (2).
assignment-of-rents dause. A mortgage provision or
separate agreement that entitles the lender to collect
rents from the mortgaged premises if the borrower
defaults. [Cases: Mortgages C=:> 199(2).]
assignment of rights. (I8c) Contracts. The transfer
of rights, esp. contractual rights, from one party to
another. [Cases: Assignments C:::> 17.]
assignment ofwages. See ASSIGNMENT (2).
assignment pro tanto. See ASSIGNMENT (2).
assignor (as-d-nor or ~-SI-n~r or ~-sI-nor). (17c) One who
transfers property rights or powers to another. -Also
spelled aSSigner. [Cases: Assignments
assignor estoppel. See ESTOPPEL.
Assimilative Crimes Act. A federal statute proViding
that state law applies to a crime committed within a
federal enclave in that state (such as a reservation or
military installation) if the crime is not punishable
under federal law. 18 USCA  13. -This statute uses
local laws as gap-fillers for federal criminal law. [Cases:
Criminal Law (;=, 16.J
assisa armorum (<l-SI-Zd ahr-mor-dm). [Law Latin
"assize ofarms"] Hist. A statute requiring the keeping
ofarms for the common defense. -Also termed assize
ofarms. See Assize ofArms under ASSIZE (2).
assisa cadere (<l-Sl-Z~ kad-d-ree), vb. [Law Latin] Hist. To
fail in the assize, as by being nonsuited. assisa continuanda (<l-SI-Zd kdn-tin-yoo-an-dd) [Law
Latin] Hist. A writ addressed to the justices of assize
for the continuation ofa case.
assisa de foresta (~-SI-Z<l dee for-es-td), n. [Law Latin
"assize ofthe forest"] Hist. A statute concerning orders
to be observed in the royal forest. -Also termed ordi
natio forestae; assisa forestae.
assisa de mensuris (a-sl-z3 dee men-s[y]oor-is), n. [Law
Latin "assize of measures"] Hist. A common rule for
weights and measures, established by Richard I in the
eighth year of his reign.
assisa de morte antecessoris. See assize ofmort d 'ancestor
under ASSIZE (6).
assisa de nocumento (d-SI-Zd dee nok-Y<l-men-toh), n.
[Law Latin "assize ofnuisance"]. See assize ofnuisance
under ASSIZE (8).
assisa de utrum (d-SI-Zd dee yoo-trdm), n. [Law Latin
"assize of utrum"] See ASSIZE UTRUM.
assisa forestae. See ASSISA DE FORESTAE.
assisa friscae fortiae. See assize offresh force under
ASSIZE (7).
assisa mortis d'ancestoris (3-SI-Zd mor-tis dan-ses-tor
is), n. [Law Latin] See assize ofmort d'ancestor under
ASSIZE (6).
assisa novae disseysinae (~-SI-Zd noh-vee di-see-zin-ee),
n. [Law Latin] See ASSIZE OF KOVEL DISSEISIN.
assisa panis et cerevisiae (<l-SI-Zd pan-is et ser-<l-vish
ee-ee), n. [Law Latin "assize ofbread and ale"] Hist. A
statute passed in the 51st year ofthe reign ofHenry III,
regulating the sale of bread and ale. Also termed
statute ofbread and ale.
assisa proroganda. See DE ASSISA PROROGANDA.
assisa ultimae praesentationis (d-SI-Zd al-ti-mee pree
z3n-tay-shee-oh-nis or preZ-dn-), n. [Law Latin] See
assize ofdarrein presentment under ASSIZE (7).
assisa venalium (a-sI-zd v~-nay-lee-dm), n. [Law Latin]
Hist. The assize ofsalable commodities.
assise. See ASSIZE.
assiser. See ASSIZER.
assistance. Civil law. Compensation for an effort to save
a threatened vessel, cargo, or ship personnel at sea. Cf.
NO CURE, NO PAY.
assistance, writ of. See WRIT OF ASSISTANCE.
assistance ofcounsel. (17c) Representation by a lawyer,
esp. in a criminal case. -The phrase in its modern uses
derives from the Sixth Amendment: "In all criminal
prosecutions, the accused shall enjoy the right ... to
have the assistance of counsel for his defense." U.S.
Con st. amend. VI. See RIGHT TO COUNSEL. [Cases:
Criminal Law C=:> 1710-1975.]
effective assistance ofcounsel. (1937) A conscientious,
meaningful legal representation, whereby the defen
dant is advised of all rights and the lawyer performs
all required tasks reasonably according to the prevail
ing profeSSional standards in criminal cases. See Fed.

139
R. Crim. P. 44; 18 USC A  3006A. [Cases: Criminal
Law 1870-1975.]
"The law is in flux on precisely what constitutes the
'effective' assistance of counsel. The Supreme Court has
yet to set forth a definitive standard, and lower courts
have adopted differing ones. Prior to the 19705 the most
common standard was the 'mockery of justice' standard,
under which counsel's assistance was 'ineffective' only
when it was so inadequate that it reduced the trial 'to a
farce' or rendered it a 'mockery ofjustice: Since that time,
most courts have abandoned this formulation in favor of
more stringent requirements, stipulating, for example, that
'counsel must exercise [the] normal skill and knowledge
which normally prevails at the time and place' (Moore v.
United States, 432 F.2d 730 (3d Or. 1970)), that counsel
must render the 'reasonably competent assistance of an
attorney acting as his diligent advocate' (United States v.
Decoster, 487 F.2d 1197 (D.C. Or. 1973, or that counsel's
representation must be 'within the range of competence
demanded of attorneys in criminal cases' (Marzullo v.
Maryland, 561 F.2d 540 (4th Cir. 1977. All of these new
standards beg the questions of what traditional level of
practice is to be regarded as 'customary,' 'diligent,' or 'rea
sonable.' Thus, little has been definitively resolved by the
new, higher standards." Arval A. Morris, "Right to Counsel,"
in 1 Encyclopedia of Crime and Justice 278, 283 (Sanford
H. Kadish ed., 1983).
inadequate assistance ofcounsel. See ineffective assis
tance ofcounsel.
ineffective assistance ofcounsel. (1957) A representa
tion in which the defendant is deprived of a fair trial
because the lawyer handles the case unreasonably,
usu. either by performing incompetently or by not
devoting full effort to the defendant, esp. because
of a conflict of interest . In determining whether a
criminal defendant received ineffective assistance of
counsel, courts generally consider several factors: (1)
whether the lawyer had previously handled criminal
cases; (2) whether strategic trial tactics were involved
in the allegedly incompetent action; (3) whether, and
to what extent, the defendant was prejudiced as a
result of the lawyer's alleged ineffectiveness; and
(4) whether the ineffectiveness was due to matters
beyond the lawyer's control. Also termed inad
equate assistance ofcounsel. [Cases: Criminal Law
C=> 1870-1975.]
"The Sixth Amendment right to assistance of counsel has
been held to imply the 'right to the effective assistance of
counsel.' The Court has often said that the converse inef
fective assistance of counsel is a constitutional denial
of the Sixth Amendment right, even if the lawyer has been
retained by rather than appointed for the defendant. 'Inef
fective' does not necessarily mean incompetent or unpre
pared; it means an inability to perform as an independent
lawyer devoted to the defendant.. . However, counsel's
assistance is not necessarily ineffective because the lawyer
made mistakes. Only very serious errors, such as would
likely have produced an entirely different outcome at trial,
will suffice to require a new trial." Jethro K. Lieberman, The
Evolving Constitution 263-64 (1992).
Assistant Commissioner for Patents. See commissioner
for patents under COMMISSIONER.
Assistant Commissioner for Trademarks. See commis
sioner for trademarks under COMMISSIONER.
assistant jurisdiction. See JURISDICTION. assize
Assistant United States Attorney. See UNITED STATES
ATTORNEY.
assisted conception. Family law. The fertilization of a
woman's egg with a man's sperm by some means other
than sexual intercourse. See ARTIFICIAL INSEMINA
TION; IN VITRO FERTILIZATION; GAMETE INTRAFALLO
PIAN TRANSFER; ZYGOTE INTRAFALLOPIAN TRANSFER.
[Cases: Child CustodyC=>274.5; Children Out-of Wed
lock C=>15; Parent and Child C-~20.]
assisted reproductive technology. Family law. Any
medical means of aiding human reproduction, esp.
through laboratory procedures. -Abbr. ART. Also
termed assisted reproduction; assisted-reproductive
therapy. [Cases: Child Custody C-::o274.5; Children
Out-of-Wedlock C= 15; Parent and Child C=>20.]
assisted self-determination. See assisted suicide under
SUICIDE.
assisted suicide. See SUICIDE.
assize (a-sIz), n. (14c) 1. A session ofa court or council.
maiden assize. Hist. 1. An assize in which no prisoner
is sentenced to death. 2. An assize in which the sheriff
presents the judges with white gloves because there
are no prisoners to try . This practice stemmed from
a custom in which a prisoner who was convicted of
murder but pardoned by the Crown presented gloves
to the judges as a fee.
2. A law enacted by such a body, usu. one setting the
measure, weight, or price of a thing.
Assize ofArms. An 1181 statute requiring every man
to keep arms suitable to his station in life. See ASSISA
ARMORUM.
Assize ofClarendon (klar-~:m-d<:m). Hist. A decree
issued in 1166 by Henry II to the justices in eyre and
sheriffs concerning criminal procedure . The Assize
expanded the reach of the king's courts by asserting
royal jurisdiction over serious crimes. See CO.NSTITU
TIONS OF CLARENDON.
Assize ofNorthampton. Hist. A decree issued in 1176
by Henry II as an expansion and reissue ofthe Assize
of Clarendon, instructing judges esp. on questions of
tenure, relief, and dower.
3. The procedure provided for by such an enact
ment. 4. The court that hears cases involving that pro
cedure. 5. A jury.
grand assize. (often cap.) A sworn panel summoned
by judicial writ to resolve disputes concerning real
property.  Henry II instituted the Grand Assize in
the 12th century as an alternative to trial by battle.
Also termed magna assisa.
petite assize. A jury convened to decide questions of
posseSSion.
6. Ajury trial.
assize ofmort d'ancestor (mor[t] dan-ses-t<lr). An
action for the recovery ofland belonging to the claim
ant's ancestor . Mort d'ancestor was abolished in

the early 19th century. -Also termed assisa mortis
d'ancestoris; assisa de morte antecessoris.
judicial assize. An assize begun by judicial writ and
deriving from pleas of gage, mort d'ancestor, and
darrein presentment.
petty assize. An assize begun by an original writ .
Petty assizes were characterized by the form of the
writ, which specified the questions to be put to the
panel, and ordered that a panel be assembled. The
petty assizes were novel disseisin, mort


to be put to the
panel, and ordered that a panel be assembled. The
petty assizes were novel disseisin, mort d'ancestor,
utrum, and darrein presentment.
"The word 'Assisa' means originally the sitting of a court
or assembly. It then comes to denote the things done, the
enactments passed, at such a court or assembly. Thus
we speak of the Assize of Clarendon, or the Assize of
Northampton. Certain of these enactments in Henry II's
reign introduced a new procedure for the trial of questions
as to the ownership or possession of lands held by free
tenure. The Grand Assize introduced this new procedure
for the determination of questions of ownershi p; the pos
sessory assizes for the determination of question of pos
session." 1 William Holdsworth, A History of English Law
275 (7th ed. 1956).
7. A jury's finding. 8. A writ. -Also spelled assise;
assisa.
assize afdarrein presentment (dar-ayn pri-zent-mant),
n. [fr. French dernier presentation "last presentment"]
Hist. A writ allOWing a person with a right of advowson
that had been disturbed by another claimant to have
a jury determine who last had last presented a clerk
to a benefice and then to allow that person to present
again and to recover damages for interference . This
was abolished by the Real Property Limitation Act of
1833 and was replaced by the quare impedit action.
Also spelled darreign. -Also termed darreign pre
sentment; assize oflast presentation; assisa ultimae
praesentationis; assize de ultima presentatione. See
ADVOWSON; QUARE IMP EDIT.
"An assise of darrein presentment, or last presentation,
lies when a man, or his ancestors, under whom he claims,
have presented a clerk to a benefice, who is instituted; and
afterwards upon the next avoidance a stranger presents a
clerk. and thereby disturbs him that is the real patron. In
which case the patron shall have this writ, directed to the
sheriff to summon an assise or jury, to enquire who was
the last patron that presented to the church now vacant,
of which the plaintiff complains that he is deforced by the
defendant: and, according as the assise determines that
question, a writ shall issue to the bishop; to institute the
clerk of that patron, in whose favour the determination is
made, and also to give damages ...." 3 William Blackstone,
Commentaries on the Laws ofEng/and 245 (1768).
"[Alt some time or another during his reign Henry gave a
possessory action, the assize of darrein presentment, ..
which stands to the writ of right ofadvowson in somewhat
the same relation as that in which the novel disseisin stands
to the writ of right for land. If the church is vacant and two
persons are quarrelling about the advowson, it is very nec
essary that some provisional, some possessory judgment
should be given .... The principle of the new assize is.
simply stated, this: 'He who presented last time, let him
present this time also; but this without prejudice to any
question of right.' An inquest of neighbours is summoned
to declare who it was that presented the last parson," 1
Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward 1148-49 (2d ed.
1898).
assize offreshforce. Hist. A writ available in urban
areas to disseise another's land . This writ is so called
because it was available only within the first 40 days
after title accrued to the person seeking it. -Also
termed assisa friscae fortiae.
assize ofnovel disseisin. Hist. A writ for a tenant who
has been disseised of lands and tenements . This
institution of English law flourished for about 300
years -from the 12th century to the 15th. It had
become wholly obsolete by the mid-17th century.
Also termed assisa novae disseysinae.
"[Up to the 15th century,] 'assize of novel disseisin' was
a series of perfectly plain words, as plain as the words
'proceeding in recent ejectment: which translate them
into modern English, would be to us. Even to humble
contemporaries whose linguistic horizons did not extend
beyond English, the institution itself apart from its name
was perfectly straightforward. It meant that ifa freeholder
of land was ejected from his property he could require the
sheriff to set up ajury of twelve, have them go look at the
land, and bring them before the king's justices when they
next came to hold court in the county. The justices asked
the jurors whether the freeholder had been illegally put
out of his holding, as he complained, and if they said that
he had then the court would restore the land to him at
once." Donald W. Sutherland, The Assize ofNovel Disseisin
1-2 (1973).
assize ofnuisance. Hist. A writ available to a landowner
suffering from a nuisance on another's land; a writ
to abate a nuisance . This writ also entitled a suc
cessful plaintiff to damages. Also termed assisa
de nocumento.
"The assize of nuisance. This was supplementary to
the famous assize of novel disseisin which was limited to
redressing any act of the defendant that interfered with
the plaintiff's seisin of land. It was therefore useless if
the injury to the plaintiff began wholly on the defendant's
land (e.g., if he erected there a dam which diverted water
from the plaintiff's land), for the injury was not a disseisin
as there was no entry on the plaintiff's land. This gap was
filled by the assize of nuisance as early as the thirteenth
century. It extended both to injuries to servitudes stricto
sensu and to common rights." P.H. Winfield, A Textbook of
the Law of Tort  130, at 443 (5th ed. 1950).
assizer, n. Hist. 1. A member ofa grand assize. See grand
assize under ASSIZE (5). 2. Scots law. A juror. 3. One
having custody of the standards of weight and measure;
esp., one who fixes the assize of bread, ale, and other
items ofgeneral consumption. -Also spelled assizor;
assiser; assisor.
Assizes de Jerusalem (a-slz-az da ja-roo-sa-lam). A code
of feudal law intended to serve as the law of the lands
conquered by the Crusaders . The code was prepared
in the 12th century after the lO99 conquest of Jerusa
lem.
assize utrum (yoo-tram). [Latin] Hist. A writ to deter
mine whether land claimed by a church was held by
lay or spiritual tenure . This writ is named after its
emphatic word, which required the fact-finder to
determine whether (utrum) the land belonged to the
church. -Also termed (erroneously) assize ofutrum;
assize de utrum.

141
"In the assize utrum a jury was summoned to decide
whether land was held by lay or spiritual tenure a pre
liminary question to any litigation about it, for the Church
claimed jurisdiction over spiritual land. later the Church
was to lose this jurisdiction, and the assize utrum became
the parson's substitute for the writ of right. This curious
development was brought about in this way. A parson could
not use the writs of right, for. like a life tenant. he could not
trace his title back to the seisin of an ancestor. The assize
utrum could be made to serve the parson, however, for
the question asked in the writ was whether certain land
in a parish was 'the free alms of the Church of x.' If the
answer was 'yes,' then it followed that it was the parson
of the parish's land." Brian Simpson. An Introduction to the
History ofthe Land Law 30-31 (1961).
"[TJhe 'assize utrum' ... is important as being the first
instance known to us of the general use of the royal pro
cedure by way of inquest in a matter of private litigation.
If the answer of the inquest was that this land was held
in frankalmOign. then the case went to the ecclesiastical
coun; if that it was lay fee, then to the appropriate lay
tribunal. In the course of the thirteenth century the ecclesi
astical courts lost their jurisdiction over land held by spiri
tual tenure, and the 'assize utrum' came to be used not as
a merely preliminary procedure but as a mode of deciding
in royal courts a question of title to glebe land." Geoffrey
Radcliffe & Geoffrey Cross, The English Legal System 33-34
(G.J. Hand & D.J. Bentley eds., 6th ed. 1977).
assizor. See ASSIZER.
associate, n. (16c) 1. A colleague or companion. 2. A
junior member ofan organization or profession; esp.,
a lawyer in a law firm, usu. with fewer than a certain
number of years in practice, who may, upon achiev
ing the requisite seniority, receive an offer to become
a partner or shareholder. -Also termed associate
attorney. 3. Hist. English law. An officer of a common
law court responsible for maintaining the court's
records, attending jury trials, and entering verdicts .
In 1894, associates' duties were taken over by the staff
of the Central Office. See CLERK OF ASSIZE; CENTRAL
OFFICE.
associate agent. See AGENT (3).
associate attorney. See ATTORNEY.
associated person. Securities. 1. A partner, officer,
director, branch manager ofa broker or dealer, or any
person performing similar functions or occupying a
similar status, any person directly or indirectly con
trolling, controlled by, or under common control with
the broker or dealer, or any employee of the broker or
dealer -with two exceptions: (1) those whose functions
are solely clerical or ministerial, and (2) those required
to register under state law as a broker or dealer solely
because they are issuers ofsecurities or associated with
an issuer of securities. 15 USCA  78(a}(21), (49). [Cases:
Securities Regulation ~40.12.] 2. A natural person
who is a partner, officer, director, or employee of: (1)
the issuer; (2) a general partner ofa limited partnership
issuer; or (3) a company or partnership that controls,
is controlled by, or is under common control with the
issuer. Cf. AFFILIATE (2).
associate judge. See JUDGE.
associate justice. See JUSTICE (2). association-in-fact enterprise
association. (16c) 1. The process of mentally collecting
ideas, memories, or sensations. 2. A gathering ofpeople
for a common purpose; the persons so joined. 3. An
unincorporated organization that is not a legal entity
separate from the persons who compose it . If an
association has sufficient corporate attributes, such as
centralized management, continuity ofexistence, and
limited liability, it may be classified and taxed as a cor
poration. -Also termed unincorporated association;
voluntary association. [Cases: Associations 1.]
beneficial association. See benevolent association.
benefit association. See benevolent association.
benevolent association. An unincorporated, nonprofit
organization that has a philanthropic or charitable
purpose. -Also termed beneficial association; benefit
association; benevolent society; fraternal society;
friendly society. [Cases: Associations
homeowners' association. 1. An association ofpeople
who own homes in a given area and have united to
improve or maintain the area's quality. [Cases: Associ
ations ~1; Condominium (:;::::>8.] 2. An association
formed by a land developer or homebuilder to manage
and maintain property in which the developer or
the builder owns an undivided common interest.
Homeowners' associations which are regulated by
statute in many states -are commonly formed by
restrictive covenant or a declaration ofrestrictions.
Also spelled homeowners association. -Also termed
owners' association.
nonprofit association. A group organized for a purpose
other than to generate income or profit, such as a sci
entific, religiOUS. or educational organization. [Cases:
Associations ~1; Charities ~1, 39. 46.]
owners' association. 1. See homeowners' association.
2. See OWNERS' ASSOCIATION.
professional association. (1837) 1. A group of profes
sionals organized to practice their profession together.
though not necessarily in corporate or partnership
form. 2. A group ofprofeSSionals organized for educa
tion, social activity. or lobbying, such as a bar associa
tion. -Abbr. P.A. [Cases: Attorney and Client
31; Health ~295.]
trade association. (1909) An association of business
organizations having similar concerns and engaged
in similar fields, formed for mutual protection, the
interchange ofideas and statistics, and the establish
ment and maintenance of industry standards. A
trade association may be composed of members of
a Single industry (e.g., the Chemical Manufacturers
Association) or members having a common interest
or purpose (e.g., the Consumer Mortgage Coalition).
Among the joint actions that a trade association often
takes are conecting industry data, advertiSing, mar
keting, and engaging in public relations and govern
ment relations.
association-in-fact enterprise. Under RICO, a group of
people or entities that have not formed a legal entity. but
that have a common or shared purpose, and maintain

142 Association of American Law Schools
an ongoing organizational structure through which
the associates function as a continuing unit.  A RICO
violation is not shown merely by proving that an enter
prise, including an association-in-fact, exists. A pattern
of racketeering activity must also be proved. 18 USCA
 1961(4); United States v. Turkette, 452 U.S. 576, 101
S.Ct. 2524 (1981). [Cases: Racketeer Influenced and
Corrupt Organizations (::=>36.]
Association ofAmerican Law Schools. An organization
of U.S. law schools that have each


Organizations (::=>36.]
Association ofAmerican Law Schools. An organization
of U.S. law schools that have each graduated at least
three annual classes of students. -Abbr. AALS.
Association of Legal Writing Directors. A nonprofit
corporation composed of the directors and former
directors oflaw-schoollegal-writing programs, mostly
in the United States. Created in 1996 to improve
those programs, it supports research and scholarship;
holds a biennial conference; conducts (with the Legal
Writing Institute) an annual survey of the programs;
maintains a listserv; represents writing teachers before
the American Bar Association; and publishes various
resources, including the ALWD Citation Manual. -
Abbr. ALWD (aI-wid). See ALWD CITATION MANUAL.
assoil (<I-soyt), vb. [l.aw French] Hist. To acquit or
absolve; to deliver from excommunication. -Also
spelled assoi/e. Also termed absoile; (Issoilyie.
assultus premeditatus. See assault purpense under
ASSAULT.
assumed bond. See guaranteed bond (1) under BOND
(3).
assnmed name. (17c) 1. ALIAS (1). 2. The name under
which a business operates or by which it is commonly
known <Antex Corporation's assumed name is
Computer Warehouse> . Many states require an indi
vidual or business operating under an assumed name to
file an assumed-name certificate, usu. in the secretary
of state's office or the county clerk's office where the
principal place of business is located. -Also termed
fictitious name. See D/B/A. Cf. corporate name under
NAME. [Cases: Corporations ~46.1
assume or reject. Bankruptcy. (Of a debtor-in-possession
or a trustee) to make an election under the Bankruptcy
Code concerning an executory contract or an unex
pired lease within a prescribed period, depending on
the chapter of the Code under which the case is pro
ceeding and the subject matter of the contract . The
timing, procedure, and consequences of the election
are described in 11 USCA  365. [Cases: Bankruptcy
~3102.1.]
assumpsit (;J-sam[p]-sit). fLaw Latin "he undertook"]
(16c) 1. An express or implied promise, not under seal,
by which one person undertakes to do some act or pay
something to another <an assumpsit to pay a debt>.
2. A common-law action for breach of such a promise
or for breach of a contract <the creditor's assumpsit
against the debtor>. [Cases: Assumpsit, Action of~
1.]
"It was early known as 'trespass on the case upon
promises,' but in time came to be designated assumpsit (he assumed or promised), and lies for damages for breach
of all contracts, parol or simple, whether written or verbal,
express or implied." Edwin E. Bryant, The Law of Pleading
Under the Codes ofCivil Procedure 9-10 (2d ed. 1899).
"In its origin an action of tort, [assumpsit] was soon trans
formed into an action of contract, becoming afterwards a
remedy where there was neither tort nor contract. Based
at first only upon an express promise, it was afterwards
supported upon an implied promise, and even upon a ficti
tious promise. Introduced as a special manifestation of the
action on the case, it soon acquired the dignity of a distinct
form of action, which superseded Debt, became concurrent
with Account, with Case upon a bailment, a warranty, and
bills of exchange, and competed with Equity in the case of
the essentially equitable quasi-contracts growing out of the
principle of unjust enrichment. Surely, it would be hard to
find a better illustration of the flexibility and power of self
development of the Common Law:' James Barr Ames, "The
History ofAssumpsit," in 3 Select Essavs in Anglo-American
Legal Historv 298 (1909).
general assumpsit. (18c) An action based on the defen
dant's breach of an implied promise to pay a debt to
the plaintiff. -Also termed common assumpsit;
indebitatus assumpsit. [Cases: Assumpsit, Action of
"General assumpsit is brought for breach of a fictitious or
implied promise raised by law from a debt founded upon
an executed consideration. The basiS of the action is the
promise implied by law from the performance of the con
sideration. or from a debt or legal duty resting upon the
defendant." Benjamin J. Shipman, Handbook of Common
Law Pleading  59, at 153 (Henry Winthrop Ballantine ed.,
3d ed. 1923).
"[TJhe word 'assumpsit' suggest[s] the making of a promise.
While that is true in the case of the action of special assump
sit, the promise alleged in the action of general assumpsit
was only a fiction. Accordingly in the latter action, the word
'assumpsit' no more means that an obligation exists as the
result of making a contract, than that a contract is involved
because the obligation is described as quasi-contractual."
Charles Herman Kinnane, A First Book on AngloAmerican
Law 633-34 (2d ed. 1952).
indebitatus assumpsit (in-deb-i-tay-tds a-sam[p]-sit).
[Latin "being indebted, he undertook"]!. A form of
action in which the plaintiff alleges that the defen
dant contracted a debt and, as consideration, had
undertaken (Le., promised) to pay . 1he action was
eqUivalent to the common-law action for debt (an
action based on a sealed instrument), but could be
used to enforce an oral debt. In England, indebitatus
assumpsit was abolished in 1873 by the Judicature Act.
But it is still used in several American states, such as
California. See CONCESSIT SOLVERE. 2. See general
assumpsit.
"[I]f I verbally agree to pay a man a certain price for a
certain parcel of goods, and fail in the performance, an
action of debt lies against me; for this is a determinate
contract: but if I agree for no settled price, I am not liable to
an action of debt, but a special action on the case, accord
ing to the nature of my contract. And indeed actions of
debt are now seldom brought but upon special contracts
under seal .... [Tlhe plaintiff must recover the whole debt
he claims, or nothing at all. For the debt is one single cause
of action, fixed and determined; and which therefore, if
the proof varies from the claim, cannot be looked upon as
the same ... action of debt .... But in an action on the
case, on what is called an indebitatus assumpsit, which
is not brought to compel a specific performance of the

143
contract, but to recover damages for its non-performance,
the implied assumpsit, and consequently the damages for
the breach of it, are in their nature indeterminate; and will
therefore adapt and proportion themselves to the truth of
the case which shall be proved, without being confined to
the precise demand stated in the declaration." 3 William
Blackstone, Commental'ies on the Laws of England 154
(1768).
special assumpsit. An action based on the defendant's
breach ofan express contract. -Also termed express
assumpsit. [Cases: Assumpsit, Action ofC=6.]
"Special assumpsit lies for the recovery of damages for
the breach of simple contract, either express or implied in
fact. The term 'special contract' is often used to denote an
express ~r explicit contract as contrasted with a promise
implied in law." Benjamin J. Shipman, Handbook of Com
monLaw Pleading  58, at 148 (Henry Winthrop Ballantine
ed., 3d ed. 1923).
"From the allegations concerning the 'assumpsit,' a new
action which split off from the action on the case came
to be known as the action of assumpsit. Since, however,
the plaintiff had to allege and prove a specific or special
promise, in order to get a judgment, the action came to
be known as the action of 'special assumpsit.' When the
special promise came to be regarded as the basis of the
action, the action came to be regarded as a contract action,
rather than one based on unclassified 'wrongs.'" Charles
Herman Kinnane, A First Book on Anglo-American Law
633-34 (2d ed. 1952).
assumption, n. (l3c) 1. A fact or statement taken as
true or correct; a supposition <a logical assumption>.
2. The act of taking (esp. someone else's debt or other
obligation) for or on oneself; the agreement to so take
<assumption ofa debt>. -assume, vb.
assumption ofmortgage or trust deed. The acquisi
tion of real property coupled with the assumption of
personal liability for debt secured by that property.
[Cases: Mortgages C=279.]
implied assumption. (1852) The imposition ofpersonal
liability on a land purchaser who buys subject to a
mortgage and who deducts the mortgage amount
from the purchase price, so that the purchaser is
treated as having assumed the debt. [Cases: Mort
gages C=279.]
assumption clause. 1. A mortgage provision that pro
hibits another from assuming the mortgage without
the permission of the mortgagee. [Cases: Mortgages
C::>272.] 2. A provision by which the transferee of an
instrument agrees to assume an obligation ofthe trans
feror.
assumption fee. A lender's charge for processing records
for a new buyer's assumption of an existing mortgage.
[Cases: Mortgages C=>279.J
assumption of mortgage or trust deed. See ASSUMP
TION.
assumption of the risk. (1824) Torts. 1. The act or an
instance of a prospective plaintiff's taking on the risk
of loss, injury, or damage <the skydiver's assumption
ofthe risk>. -Also termed assumption ofrisk. [Cases:
Negligence
"[Assumption of risk] has been a subject of much con
troversy, and has been surrounded by much confusion, assumption of the risk
because 'assumption of risk' has been used by the courts
in several different senses, which traditionally have been
lumped together under the one name, often Without realiz
ing that any differences exist. There are even courts which
have limited the use of the term 'assumption of risk' to
cases in which the parties stand in the relation of master
and servant, or at least some other contractual relation; but
they have been compelled to invent other names for other
cases, such as 'incurred risk,' or 'volenti non fit injuria.'
This appears to be largely a distinction without a differ
ence; and most courts have made general use of the one
term.... In its most basiC sense, assumption of risk means
that the plaintiff, in advance, has given his express consent
to relieve the defendant of an obligation of conduct toward
him, and to take his chances of injury from a known risk
arising from what the defendant is to do or leave undone."
W. Page Keeton et aI., Prosser and Keeton on the Law of
Torts  68, at 480-81 (5th ed. 1984).
2. The principle that one who takes on the risk of loss,
injury, or damage cannot maintain an action against a
party that causes the loss, injury, or damage <assump
tion ofthe risk was not a valid defense> . Assumption
ofthe risk was originally an affirmative defense, but in
most jurisdictions it has now been wholly or largely
subsumed by the doctrines ofcontributory or compara
tive negligence. Ihe risk assumed by the person was
often termed an incurred risk.
implied assumption ofthe risk. An assumption based
on the plaintiff's conduct that seems to consent to
relieve another ofliability for negligence . For this
defense to apply, the plaintiffs conduct must suggest
(1) open consent to the risk, (2) voluntary participa
tion in the activity, and (3) full understanding of the
danger. See VOLENTI NON FIT INJURIA.
primary assumption ofthe risk. A legal conclusion that
the defendant was not negligent because the defen
dant either did not owe a duty of care to the injured
party or did not breach any duty owed. Courts
decide questions of duty through policy judgments,
which include the relative balance between risks and
utilities. [Cases: Negligence (;~554.4.]
"Primary assumption of risk occurs when the plaintiff
voluntarily participates in an activity involving certain
inherent risks and encounters one of the inherent risks;
the defense is a complete bar to recovery because there is
no duty of care to protect another from the risks inherent
in a voluntary activity." 4 Ann Taylor Schwing, California
Affirmative Defenses 2d  48:24, at 59 (1996).
"Primary assumption of risk is sometimes viewed as a
misnomer. This concept is frequently described as a
noduty rule because the plaintiff, by engaging in a known
and potentially risky activity, has relieved the defendant of
the duty of care normally owed to the plaintiff. Under the
primary-assumption-of-risk/noduty doctrine, 'there [would
bel no liability because the defendant did not breach a duty
of care to the plaintiff.' [Kenneth S. Abraham, The Forms
and Functions of Tort Law 155 (1997).] Traditionally, the
no-duty rule completely bars a plaintiff's recovery. Courts
limit the use of primary assumption of risk in com parative
negligence jurisdictions because of the harshness of this
rule. Recently, some comparative-negligence jurisdictions
have started to review primary assumption-of-risk claims
within the framework of their comparativefault system,
refusing to automatically bar the plaintiff's entire recovery."
Luke Ellis, Note, Talking About My Generation: Assumption
ofRisk and the Rights ofInjured Concert Fans in the Twenty
First Century, 80 Texas L. Rev. 607, 618 (2002).

secondary assumption ofrisk. 1. The act or an instance
of voluntarily encountering a known unreasonable
risk that is out ofproportion to any advantage gained .
 With secondary assumption


of voluntarily encountering a known unreasonable
risk that is out ofproportion to any advantage gained .
 With secondary assumption of the risk, the fact
finder considers the reasonableness of the plaintiff's
conduct in the particular case, balancing the risks and
utilities under the circumstances. 2. An affirmative
defense to an established breach ofa duty, based on a
claim that the plaintiff acted unreasonably in encoun
tering a known risk. See contributory negligence under
NEGLIGENCE. [Cases: Negligence (;:::>554.4.]
voluntary assumption ofthe risk. An intentional and
unreasonable exposure ofoneself to danger created by
another's negligence, when one knows or has reason
to know of the danger.
assurance, n. (14c) 1. Something that gives confidence;
the state ofbeing confident or secure <self-assurance>.
2. English law. See life insurance under INSURANCE <she
obtained assurance before traveling abroad, naming
her husband as the beneficiary>. 3. The act oftransfer
ring real property; the instrument by which it is trans
ferred <the owner's assurance of the farm to his son>.
4. A pledge or guarantee <adequate assurances of the
borrower's solvency>. assure, vb.
adequate assurance. 1. Contracts. A circumstance or a
contractual obligor's act that gives an obligee reason to
be confident that the contract will be duly performed.
 Ifthe obligee has good reason to feel insecure and
justifiably demands assurance, an obligor's failure to
provide adequate assurance may constitute a repudia
tion of the contract. UCC  2-609. [Cases; Sales
152, 184.] 2. Bankruptcy. Evidence that a debtor will
probably be able to perform its obligations under a
contract, such as the posting of a bond or a showing
that the debtor will generate sufficient income to
pay any arrearages and future payment obligations.
[Cases; Bankruptcy (;:::>2481,3114.]
collateral assurance. A pledge made in addition to the
principal assurance of an agreement.
common assurance. See MUNIMENT OF TITLE.
further assurance. (17c) A covenant, usu. contained
in a warranty deed, whereby the grantor promises to
execute any document that might be needed in the
future to perfect the title that the original instrument
purported to transfer.
assured, n. Insurance. One who is indemnified against
loss; INSURED. [Cases: Insurance (;:::>2100.J
assurer. See LNSURER.
as their interests may appear. See A TIMA.
astipulation (as-tip-Yd-Iay-sh;m). Archaic. Agreement;
assent.
astitution (as-t;l-t[yjoo-sh;m). Archaic. See ARRAIGN
MENT.
astrarius (as-trair-ee-ds), n. [Law Latin "hearth owner"]
Hist. The owner or occupant ofa house. Also termed
astrer (as-trdr). See heres astrarius under HERES.
astronomical day. See solar day (2) under DAY. asylee (d-5I-Iee). A refugee applying for asylum; an asy
lum-seeker. [Cases: Aliens, Immigration, and Citizen
ship (;:::>504-543.]
asylum. (15c) 1. A sanctuary or shelter. 2. Protection of
usu. political refugees from arrest by a foreign juris
diction; a nation or embassy that affords such protec
tion. Also termed political asylum. [Cases: Aliens,
Immigration, and Citizenship (;::=504-543.] 3. An
institution for the protection and relief of the unfor
tunate, esp. the mentally ilL Also termed (in sense
3, archaically) insane asylum. [Cases: Asylums and
Assisted Living Facilities (;:::> 10; Mental Health
31.]
atamita (;l-tam-i-td), n. [Latin] Civil law. A great-great
great-grandfather's sister.
at arm's length. See ARM'S-LENGTH.
atavia (;l-tay-vee-;l), n. [Latin] Roman & civil law. A
great-great-great grandmother.
atavunculus (at-d-v<lngk-y;J-I;lS), n. (Latin] Civil law. A
great-great-great-grandfather's brother.
atavus (at-;l-V;JS), n. [Latin] Roman & civil law. The male
ascendant in the fifth degree; a great-grandfather's or
great-grandmother's grandfather; a fourth grandfa
ther.
at bar. (l7c) Now before the court <the case at bar>.
Also termed at bench; at the bar .
at bench. See AT BAR.
at equity. According to equity; by, for, or in equity.
a terme (a tairm). [Law French] For a term.
a terme de sa vie (a tairm dd sa vee). [Law French] For
the term ofhis life.
a terme que n'est mye encore passe (a tairm b nay mee
awn-kor pahs). [Law French] For a term that has not
yet passed.
a terme que passe est (a tairm b pahs ay). [Law French]
For a term that has passed.
ATF. abbr. BUREAU OF ALCOHOL, TOBACCO, FIREARMS,
AND EXPLOSIVES.
Atilian law. See LEX ATILIA.
ATIMA (;Hee-m;l). abbr. As their interests may appear.
 The phrase is sometimes used in insurance policies
to show that the named insured has an interest, usu.
an unspecified one, in the property covered by the
policy and is entitled to benefits to the extent of that
interest. The phrase is also used in a policy's mortgage
clause to protect the mortgagee's real-property interest.
See INSURABLE INTEREST; MORTGAGE CLAUSE. [Cases:
Insurance (;:::> 3450.]
Atinian law. See LEX ATINIA.
at issue. (18c) Taking opposite sides; under dispute; in
question <the federal appeals courts are at issue over
a question oflaw>.
at-issue waiver. (1985) An exemption from the attorney
client privilege, whereby a litigant is considered to have
waived the privilege by taking a position that cannot

145
be effectively challenged without analyzing privileged
information. Cf. OFFENSIVE-USE WAIVER. [Cases: Privi
leged Communications and Confidentiality (::::'j 168.]
Atlantic Reporter. A set of regionallawbooks, part of the
West Group's National Reporter System, containing
every published appellate decision from Connecticut,
Delaware, Maine, Maryland, New Hampshire, New
Jersey, Pennsylvania, Rhode Island, and Vermont, as
well as the decisions of the District of Columbia Munic
ipal Court of Appeals, from 1885 to date . The first
series ran from 1885 to 1938; the second series is the
current one. -Abbr. A.; A.2d.
at large. (14,) 1. Free; unrestrained; not under control
<the suspect is still at large>. 2. Not limited to any
particular place, person, matter, or question <at-large
election>. 3. Chosen by the voters ofan entire political
entity, such as a state, county, or city, rather than from
separate districts within the entity <council member
at large>. 4. Not ordered in a topical way; at random
<statutes at large>. 5. Fully; in detail; in an extended
form <there wasn't time to discuss the issue at large>.
at-large election. See election at large under ELECTION.
at law. (16c) According to law; by, for, or in law.
atmatertera (at-may-tar-tar-a), n. [Latin] Civil law. A
great-great-great-grandmother's sister. Also termed
abmatertera magna (ab-may-tar-tdr-d mag-nd).
at maturity. See date ojmaturity under DATE.
atort (a-tor), adv. [Law French] Hist. Wrongfully.
a tort et a travers (a tor tay a tra-vair). [Law French]
Without consideration or discernment.
a tort ou a droit (a tor 00 a drwah). [Law French) Right
or wrong.
at par, adj. (Of a stock or bond) issued or selling at face
value.
. atpatruus (at-pa-troo-dS), n. [Latin] Civil law. A brother
ofa great-great-grandfather.
at-pleasure appointment. See pleasure appointment
under APPOINTMENT (1).
at-risk rules, n. pl. (1977) Statutory limitations ofa tax
payer's deductible losses to the amount the taxpayer
could actually lose, to prevent the taxpayer from shel
tering income. [Cases: Internal Revenue (::::'3389.]
atrocious assault. See ASSAULT.
atrocious felony. See FELONY.
ATS. abbr. At the suit of.
ATSDR. abbr. AGENCY FOR TOXIC SUBSTANCES AND
DISEASE REGISTRY.
attach, vb. (14c) 1. To annex, bind, or fasten <attach the
exhibit to the pleading>. 2. To take or seize under legal
authority <attach the debtor's assets>. [Cases: Attach
ment 1; Federal Civil Procedure (;:::::>581.] 3. To
become attributed; to adhere <jeopardy attaches when
the jury is sworn>. attachment
attache (at-<l-shay or a-ta-shay), n. A person who serves
as a technical adviser to an embassy. [Cases: Ambas
sadors and Consuls
attachiamenta bonorum (<l-tach-ee-<l-men-t<l
b<l-nor-<lm), n. [Law Latin] Hist. A distress taken on
goods and chattels by bailiffs, as security to answer an
action for debt.
attachiamentum (a-tach-ee-d-men-t<lm), n. [Law Latin]
An attachment. PI. attachiamenta.
attaching creditor. See CREDITOR.
attachment. (14c) 1. The seizing of a person's property
to secure a judgment or to be sold in satisfaction of
a judgment. -Also termed (in civil law) proviSional
seizure. Cf. GARNISHMENT; SEQUESTRATION (1). [Cases:
Attachment 1; Federal Civil Procedure C:='581
590.]
attachment ofwages. The attachment by a plaintiff of a
defendant's earnings as an employee . In some juris
dictions, an attachment-of-earnings order requires
the defendant's employer to deduct a specified sum
or percentage of the defendant's wages or salary and
to pay the money into court. The court then sends the
money to the plaintiff. Federal law provides a garnish
ment statute for satisfaction of judgments for child
support and alimony. Under this statute, up to 50%
of a wage-earner's disposable income can be seized
if the wage-earner has another family of dependents
and up to 60% if there is only one family. Ifthe obligor
is more than three months in arrears, an additional
5% can be seized until the arrearage is paid. 15 USCA
 1673(b)(2). -Also termed attachment ojearnings;
wage-Withholding; automatic wage-withholding; wage
assignment. Cf. GARNISHMENT; INCOME-WITHHOLD
ING ORDER. [Cases: Execution C:='420.5; Garnish
ment C'::::> 1.]
prejudgment attachment. An attachment ordered
before a case is decided. Cf. provisional attachment .
provisional attachment. A prejudgment attachment
in which the debtor's property is seized so that if
the creditor ultimately prevails, the creditor will be
assured of recovering on the judgment through the
sale of the seized property . Ordinarily, a hearing
must be held before the attachment takes place, and
most courts require the creditor to post a bond for
any damages that result from the seizure (esp. if the
creditor ultimately loses in the lawsuit). Cf. prejudg
ment attachment.
2. The arrest of a person who either is in contempt of
court or is to be held as security for the payment of a
judgment. [Cases: Contempt C:='56; Execution C~421;
Federal Civil Procedure C'-::>27 14.] 3. A writ ordering
legal seizure of property (esp. to satisfy a creditor's
claim) or of a person. -Also termed writ ojattach
ment. [Cases: Attachment Federal Civil Pro
cedure C:='581.]
ancillary attachment. An attachment that results in
seizure and holding ofproperty pending a resolution

146 attachment bond
ofthe plaintiff's claim. Also termed attachment on
mesne process. [Cases: Attachment
4. The creation ofa security interest in property, occur
ring when the debtor agrees to the security, receives
value from the secured party, and obtains rights in
the collateral. DCC  9-203. Cf. PERFECTION. [Cases:
Secured Transactions <>::: 133.] 5. The act ofaffixing or
connecting; something (as a document) that is affixed
or connected to something else.
attachment bond. See BOND (2).
attachment lien. See LIEN.
attachmen.t ofearnings. See attachment ofwages under
ATTACHMENT (1).
attachment ofrisk. (I900) The point when the risk ofloss
ofpurchased goods passes from the seller to the buyer.
DCC  2-509. [Cases: Sales ~198.]
attachment ofwages. See ATTACHMENT (1).
attachment on mesne process. See ancillary attachment
under ATTACH


ofwages. See ATTACHMENT (1).
attachment on mesne process. See ancillary attachment
under ATTACHMENT (3).
attainder (;J-tayn-d;Jr), n. (1Sc) 1. At common law, the
act of extinguishing a person's civil rights when that
person is sentenced to death or declared an outlaw
for committing a felony or treason. 2. Hist. A grand
jury proceeding to try whether a jury has given a false
verdict. 3. 1he conviction ofa jury so tried. See BILL OF
ATTAINDER. -attaint (;J-taynt), vb.
"The word attainder is derived from the Latin term aUine
tus, Signifying stained or polluted, and includes, in its
meaning, all those disabilities which flow from a capital
sentence. On the attainder, the defendant is disqualified
to be a witness in any court; he can bring no action, nor
perform any of the legal functions which before he was
admitted to discharge; he is, in short, regarded as dead in
law." 1 Joseph Chitty, A Practical Treatise on the Criminal
Law 725 (2d ed. 1826).
attaint (;J-taynt), adj. (14c) Maligned or tarnished repu
tationally; under an attainder for crime.
. attaint, n. Hist. A writ to inquire whether a 12-member
jury gave a false verdict. -Ifit was so found (by a
24-member jury), the judgment based on the verdict
was overturned. The writ was abolished in England in
1826.
attempt, n. (16c) 1. The act or an instance ofmaking an
effort to accomplish something, esp. without success. 2.
Criminal law. An overt act that is done with the intent
to commit a crime but that falls short of completing
the crime. _ Attempt is an inchoate offense distinct
from the intended crime. Under the Model Penal Code,
an attempt includes any act that is a substantial step
toward commission ofa crime, such as enticing, lying
in wait for, or following the intended victim or unlaw
fully entering a building where a crime is expected to be
committed. Model Penal Code  5.01. -Also termed
criminal attempt; offer. See DANGEROUS-PROXIMITY
TEST; INDISPENSABLE-ELEMENT TEST; LAST-PROXI
MATE-ACT TEST; PHYSICAL-PROXIMITY TEST; PREPARA
TION; PROBABLE-DESISTANCE TEST; RES IPSA LOQUITUR
TEST; PREPARATION; SUBSTANTIAL-STEP TEST. Cf. CONSPIRACY; SOLICITATION (2). [Cases: Criminal Law
44.J attempt, vb.
"An attempt to commit an indictable offence is itself a
crime. Every attempt is an act done with intent to commit
the offence so attempted. The existence of this ulterior
intent or motive is the essence of the attempt .. , . (Yet] raj
Ithough every attempt is an act done with intent to commit
a crime, the converse is not true. Every act done with this
intent is not an attempt, for it may be too remote from the
completed offence to give rise to criminal liability, not
withstanding the criminal purpose of the doer. I may buy
matches with intent to burn a haystack, and yet be clear
of attempted arson; but if I go to the stack and there light
one of the matches, my intent has developed into a criminal
attempt." John Salmond, Jurisprudence 387 (Glanville L.
Williams ed., 10th ed. 1947).
"Attempt ... is the most common of the preliminary crimes.
It consists of steps taken in furtherance of an indictable
offence which the person attempting intends to carry out
if he can. As we have seen there can be a long chain of
such steps and it is necessary to have some test by which
to deCide that the particular link in the chain has been
reached at which the crime of attempt has been achieved;
that link will represent the actus reus of attempt ...."J.W.
Cecil Turner, Kenny's Outlines of Criminal Law 79 06th
ed.1952).
attempted assault. See ASSAULT.
attempted marriage. See void marriage under MARRIAGE
(1).
attempted monopolization. See MONOPOLIZATION.
attempted suicide. See SUICIDE.
attempt to assault. See attempted assault under
ASSAULT.
attempt to attempt. (1903) A first step made toward a
criminal attempt of some sort, such as a failed effort
to mail someone a note inciting that person to engage
in criminal conduct. _ As a general rule, courts do not
recognize an attempt to commit a crime that is itself
an attempt. But some jurisdictions recognize this
offense, esp. when the attempted crime is defined to
be an independent substantive crime. For example,
some jurisdictions recognize an attempted assault if
assault is defined as placing a person in apprehension
ofbodily injury (as opposed to being defined merely
as an attempted battery). In this situation, courts
have been willing to punish conduct that falls short of
the attempted crime but constitutes more than mere
preparation to commit it. See attempted assault under
ASSAULT. [Cases: Criminal Law ~44.]
attendance officer. See TRUANCY OFFICER.
! attendant, adj, (lSc) Accompanying; resulting <atten
dant circumstances>.
attendant circumstance. See CIRCUMSTANCE.
attendant term. See TERM (4).
attentate (d-ten-tayt), 11. His!. 1. A criminal attempt. 2.
An assault. 3. An erroneous step taken by a lower-court
judge after a case has been stayed or appealed.
attenuation doctrine (<l-ten-Yd-way-sh,m). (1962)
Criminal procedure. The rule providing that evidence
obtained by illegal means may nonetheless be admis
I sible if the connection between the evidence and the

147
illegal means is sufficiently attenuated or remote.
This is an exception to the fruit-of-the-poisonous
tree doctrine. See FRUlT-OF-THE-POISONOUS-TREE
DOCTRINE. [Cases: Criminal Law <:;::>394.1(3).]
atterminare (a-tar-mi-nair-ee), vb. [Law Latin] 1. To put
off to a succeeding term; to adjourn. 2. To prolong the
time to pay a debt.
atterminement (a-tar-min-mant). 1. The granting of a
delay for some purpose; esp., the extension of time to
pay a debt. 2. The fixing of a time limit. attermine,
vb.
attermoiement (at-af-moy-a-mant). [Law FrenchJ Eccles.
law. COMPOSITION (1).
attest (a-test), vb. (16c) 1. To bear witness; testify <attest
to the defendant's innocence>. 2. To affirm to be true or
genuine; to authenticate by signing as a witness <attest
the will>. [Cases: Wills C=> 113.] attestation (a-te
stay-shan), n. attestative (;J-tes-td-tiv), adj.
attestation clause. (18c) A provision at the end of an
instrument (esp. a will) that is signed by the instru
ment's witnesses and that recites the formalities
required by the jurisdiction in which the instrument
might take effect (such as where the will might be
probated). The attestation strengthens the presump
tion that all the statutory requirements for executing
the will have been satisfied. -Also termed witness
ing part. Cf. TESTIMONIUM CLAUSE. [Cases: Wills
113.]
attested copy. See certified copy under COPY.
attested will. See WILL.
attester (a-tes-tdr). One who attests or vouches for.
Also spelled attestant; attestator; attestor.
attesting witness. See WITNESS.
at the bar. See AT BAR.
at the courthonse door. (Of the posting of a notice of
judicial sale, etc.) on the courthouse door, or in direct
proximity to the door, as on a bulletin board that is
located just outside the door and that is regularly used
for the posting of legal notices . Some statutes may
specify that the notice be actually posted on the door.
See POSTING (5).
at-the-market price. See PRICE.
attorn (;)-tarn), vb. (Isc) l. To agree to be the tenant of
a new landlord. -Also termed attorn tenant. [Cases:
Landlord and Tenant Is.J 2. To transfer (money,
goods, etc.) to another.
attornatus (at-df-nay-tds). [Law LatinJ One who is
attorned, or put in the place ofanother; an attorney.
attorney. (14c) 1. Strictly, one who is designated to
transact business for another; a legal agent. -Also
termed attorney-in-fact; private attorney. 2. A person
who practices law; LAWYER. Also termed (in sense
2) attorney-ai-law; public attorney. Cf. COUNSEL (2).
Abbr. att'y. PI. attorneys. [Cases: Attorney and Client
(:::::>63.J attorney
associate attorney. 1. See ASSOCIATE (2). 2. Patents.
An attorney who is registered to practice before the
U.S. Patent and Trademark Office, who has been
appOinted by a principal attorney, and who is autho
rized to prosecute a patent application through the
filing of a power of attorney. [Cases: Patents C'='97.]
attorney ad litem (ad II-tern or -t;)m). A court
appointed lawyer who represents a child during the
course of a legal action, such as a divorce, termina
tion, or child-abuse case. _ The attorney owes to the
child the duties ofloyalty, confidentiality, and compe
tent representation. A child'8 right to legal representa
tion in a juvenile proceeding was mandated in In re
Gault, 387 U.S.!, 87 S.Ct. 1428 (1967). The appoint
ment ofan attorney ad litem is a limited one --only
for a specific lawsuit. -Also termed child's attorney;
attorney for the child. Cf. guardian ad litem under
GUARDIAN. [Cases: Infants (:::::>j90.]
attorney not ofrecord. 1. A lawyer who is not recog
nized as a party's legal representative. Cf. attorney
ofrecord (1). [Cases: Attorney and Client C=>72.] 2.
Patents & trademarks. An attorney whose name is not
included in a power of attorney on file with the u.s.
Patent and Trademark Office for a patent or trade
mark application. An attorney not of record may
nevertheless prosecute a patent application if regis
tered to practice before the U.S. Patent and Trade
mark Office and appointed by the principal attorney.
37 CFR 1.34(a). Cf. attorney not recognized.
attorney not recognized. Patents. An attorney
appointed by a patent applicant but not registered to
practice before the U.S. Patent and Trademark Office.
 A power of attorney appointing an unregistered
attorney is void. Cf. attorney not ofrecord. [Cases:
Patents (;:::::>97.]
attorney ofrecord. 1. The lawyer who appears for a
party in a lawsuit and who is entitled to receive, on the
party's behalf, all pleadings and other formal docu
ments from the court and from other parties. -Also
termed counsel ofrecord. See OF RECORD (1). [Cases:
Appearance (>:::>3.J 2. Patents & Trademarks. The
attorney or agent whose name is included in the
power of attorney filed by an applicant for a patent
or a trademark registration . For a patent applica
tion, the attorney of record must be a patent attorney
or a patent agent. [Cases: Patents C=>97.)
briefing attorney. 1. An attorney who specializes in
brief-writing, particularly appellate briefs and legal
memoranda. 2. CLERK (5).
panel attorney. (1951) A private attorney who rep
resents an indigent defendant at the government's
expense. A panel attorney is usu. a member of an
affiliated list and aSSigned by a court to a particular
client.
research attorney. 1. An attorney who specializes in
proViding legal support by researching, by writing
memoranda, and by preparing drafts ofdocuments. 2.
CLERK (5). -In some jurisdictions, a research attorney

148 attorney, power of
is a midlevellaw clerk, above a briefing attorney but
below a staff attorney.
settlement attorney. An attorney who specializes in
negotiating resolutions for disputes, such as pending
lawsuits, or in finalizing negotiated transactions, such
as real-property sales. Sometimes also termed (in
real-property sales) settlement agent.
special attorney. See special counsel under COUNSEL.
staffattorney. (1934) 1. A lawyer who works for a
court, usu. in a permanent position, on matters such
as reviewing motions, screening docketing state
ments, preparing scheduling orders, and examin
ing habeas corpus petitions. -Staff attorneys do not
rule on motions or decide cases, but they review and
research factual and legal points, and recommend
proposed rulings to judges, as well as drafting the
orders implementing those rulings. See CLERK (5).
[Cases: Courts (;::::;)55.] 2. An in-house lawyer for an
organization, esp. a nonprofit organization but some
times for a corporation. Cf. in-house counsel under
COUNSEL. 3. A lawyer who works for a law firm and
performs the functions ofan associate but who is not
on a partnership track.
attorney, power of. See POWER OF ATTORNEY.
attorney-at-law. See ATTORNEY (2).
attorney-client privilege. See PRIVILEGE (3).
attorney-client relationship. See RELATIONSHIP.
attorney fees


ge. See PRIVILEGE (3).
attorney-client relationship. See RELATIONSHIP.
attorney fees. See ATTORNEY'S FEES.
attorney for the child. See attorney ad litem under
ATTORNEY.
attorney general. (l6c) The chieflaw officer ofa state or
of the United States, responsible for advising the gov
ernment on legal matters and representing it in liti
gation. _ "General" is a postpositive adjective, not an
honorific, so the title should not, strictly speaking, be
shortened. -Abbr. AG. PI. attorneys general. [Cases:
Attorney General
attorney general's opinion. (1808) 1. An opinion fur
nished by the U.S. Attorney General to the President
or another executive official on a request concerning a
question oflaw. [Cases: Attorney General ~6.1 2. A
written opinion by a state attorney general, usu. given
at the request of a public official, interpreting a legal
provision.
attorney in charge. See lead counsel (1) under
COUNSEL.
attorney-in-fact. See ATTORNEY (1).
attorney malpractice. See legal malpractice under MAL
PRACTICE.
attorney not ofrecord. See ATTORNEY.
attorney not recognized. See ATTORNEY.
attorney of record. See ATTORNEY.
Attorneys and Agents Registered to Practice Before the
U.S. Patent and Trademark Office. A PTO publication listing all registered patent attorneys and agents
by name and location.
attorney's fees. (i8c) The charge to a client for services
performed for the client, such as an hourly fee, a flat fee,
or a contingent fee. -Also spelled attorneys'fees.
Also termed attorney fees. Cf. RETAINER (2). [Cases:
Attorney and Client (;:::::' 137, 142.1, 146.1.]
attorney's lien. See LIEN.
attorney-witness rule. See LAWYER-WITNESS RULE.
attorney work product. See WORK PRODUCT.
attorney-work-product privilege. See WORK-PRODUCT
RULE.
attornment (;l-tarn-mant), n. (16c) 1. A tenant's agree
ment to hold the land as the tenant of a new landlord.
[Cases: Landlord and Tenant C=-':-15.]2. A constructive
delivery involVing the transfer of mediate possession
while a third person has immediate possession; esp.,
a bailee's acknowledgment that he or she will hold the
goods on behalf ofsomeone other than the bailor. -For
the other two types of constructive delivery, see CON
STITUTUM POSSESSORIUM; TRADITIO BREVI MANU.
attorn, vb.
"[Another] form of constructive delivery is that which is
known to English lawyers as attornment .... The mediate
possessor of a thing may deliver it by procuring the imme'
diate possessor to agree with the transferee to hold it for
the future on his account, instead of on account of the
transferor. Thus if I have goods in the warehouse of A
and sell them to B, I have effectually delivered them to B
so soon as A has agreed with B to hold them for him, and
no longer for me." John Salmond, Jurisprudence 306-07
(Glanville L. Williams ed., 10th ed. 1947).
attorn tenant. See ATTORN (1).
attractive nuisance. See NUISANCE.
attractive-nuisance doctrine. (I903) Torts. The rule
that a person who owns property on which there is
a dangerous thing or condition that will foreseeably
lure children to trespass has a duty to protect those
children from the danger <the attractive-nuisance
doctrine imposed a duty on the school to protect the
children from the shallow, polluted pond on school
property>. -Also termed turntable doctrine; torpedo
doctrine. See ALLUREMENT; DANGEROUS INSTRUMEN
TALITY. [Cases: Negligence (;:::>1l72-1178.]
attribution, n. The process outlined in the Internal
Revenue Code -by which a person's or entity's stock
ownership is assigned to a related family member or
related entity for tax purposes. Also termed stock
attribution. [Cases: Internal Revenue ~3626.1
attribute, vb. attributive, adj.
attribution right. Copyright. A person's right to be
credited as a work's author, to have one's name appear
in connection with a work, or to forbid the use ofone's
name in connection with a work that the person did
not create. -Attribution rights constitute one aspect
of the moral rights recognized primarily in civil-law
countries. Under the Visual Artists Rights Act of 1990,
the creators of a very limited class of works-called
works ofvisual art-have certain statutory attribution

rights. 17 USCA  106A. Under the Berne Convention
Implementation Act, attribution rights afforded foreign
copyright owners may be enforceable in the U.S. Also
termed rights ofattribution; paternity; maternity. Cf.
INTEGRITY RIGHT; MORAL RIGHT. [Cases: Copyrights
and Intellectual Property C=>36.]
att'y. abbr. ATTORNEY.
ATVEF. abbr. ADVANCED TELEVISION ENHANCEMENT
FORUM.
at will. (14c) Subject to one's discretion; as one wishes
or chooses; esp. (of a legal relationship), able to be ter
minated or discharged by either party without cause
<employment at will>.
at-will employment. See employment at will under
EMPLOYMENT.
at-will tenancy. See tenancy at will under TENANCY.
Atwood doctrine. The principle that, to the extent an
ERISA plan and its summary-plan description conflict
regarding the circumstances under which benefits may
be denied, the summary-plan description controls.
Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir.
1995); 29 USCA  1022. See SUMMARY-PLAN DESCRIP
TION. [Cases: Labor and Employment C=>483(2).)
au besoin (oh bd-zwan). [French "in case of need") A des
ignation in a bill ofexchange stating who is responsible
for payment if the drawee fails or refuses to pay . For
example, au besoin is part ofthe phrase au besoin, chez
Messrs. Garnier et DuCloux (meaning "in case ofneed,
apply to Messrs. Garnier and DuCloux").
A.U.C. abbr. AB URBE CONDITA.
auction, n. (l6c) A public sale ofproperty to the highest
bidder. Under UCC  2-328, a sale at auction is ordi
narily complete when the auctioneer so announces in a
customary manner, as by pounding a hammer. Also
termed auction sale. [Cases: Auctions and Auctioneers
1,7.) auction, vb.
auction without reserve. An auction in which the
property will be sold to the highest bidder, no
minimum price will limit bidding, the owner may
not withdraw property after the first bid is received,
the owner may not reject any bids, and the owner
may not nullify the bidding by outbidding all other
bidders. In an auction without reserve, the owner
essentially becomes an offeror, and each successively
higher bid creates a contingent acceptance, with the
highest bid creating an enforceable contract. Also
termed absolute auction. See WITHOUT RESERVE.
[Cases: Auctions and Auctioneers
auction with reserve. An auction in which the property
will not be sold unless the highest bid exceeds a
minimum price. See WITH RESERVE. [Cases: Auctions
and Auctioneers C-~7.l
Dutch auction. 1. An auction in which property is ini
tially offered at an excessive price that is gradually
lowered until the property is sold. 2. An auction in
which several identical items are offered simultane~
ously, one to a bidder, and sold to the highest bidders for the amount of the lowest winning bid. 3. Secu
rities. A method of tendering stock shares whereby
a corporation provides a price range, shareholders
indicate how many shares they will sell and at what
price, and the corporation buys however many shares
it wants at the lowest prices offered. -Also termed
Dutch-auction tender method. [Cases: Auctions and
Auctioneers <::=7.]4. Securities. An auction ofsecuri
ties, usu. other than stock, in which a security's price
is gradually lowered until it meets an acceptable bid
and is sold. 5. Securities. An auction of a new issue
of stock in which there is a stated minimum price
per share, but bidders may offer a higher price for
any number of shares until the highest price offered
becomes the final price at which all the shares issued
will be sold. -Also termed (in sense 4) offer for sale
by tender.
knock-out auction. An auction at which two or more
bidders have agreed in advance not to bid against one
another. At common law, knock-out auctions were
not forbidden, on grounds that a person could not
be constrained to make an offer. But most jurisdic
tions now have statutes that (1) forbid dealers (those
who buy at auctions with the intention of reselling
to others) from giving or offering an inducement to
abstain from bidding at an auction, and (2) penalize
the person who seeks such an inducement from a
dealer. lCases: Auctions and Auctioneers C=>7.J
auctioneer, n. A person legally authorized to sell goods
or lands of other persons at public auction for a com
mission or fee. The auctioneer is the property owner's
agent up to the moment when a purchaser's bid is
accepted, when the auctioneer becomes the purchaser's
agent. -Formerly also termed vendue master. (Cases:
Auctions and Auctioneers
auction market. See MARKET.
auction sale. See AUCTION.
auctor (ahk-tor), n. [Latin "author") 1. The source of a
right or title, such as a grantor; AUTHOR (2). 2. A prin
cipal.
auctore praetore (awk-tor-ee pree-tor-ee). [Latin) 1.
Roman law. On the authority of the praetor. 2. Scots
law. With the sanction ofa judge.
auctorin rem suam (awk-tor in rem s[y]oo-;}m). [Latin)
Rist. One who acts on one's own behalf; a principal in
one's own affairs.
auctoritate judicis (awk-tor-;}-tay-tee joo-di-sis). [Latin)
Rist. By judicial authority.
audience, n. A hearing before judges. See RIGHT OF
AUDIENCE.
audience test. Copyright. A judicial analysis used to
determine whether the lay observer or an ordinary,
reasonable audience would conclude that the protect
able expression in a copyrighted work is substantially
similar to the expression in the accused work. -Also
termed ordinary-observer test; ordinary-lay-observer

150 Audio Home Recording Act
test. [Cases: Copyrights and Intellectual Property<:;:='
53(1).1
Audio Home Recording Act. Copyright. A 1992 federal
law designed to prevent copyright-infringement suits
based on the manufacture, importation, distribution,
or sale of digital-audio technology . Manufacturers
ofdigital recording devices must pay royalties on sales
of the devices and related media, and build security
mechanisms into each device. The security mechanisms
allow the owner of a digital-recording device to make
a copy from the original medium, but not to make a
copy from the copy. 17 USCA  1001-1010. -Abbr.
AHRA. Copyrights and Intellectual Property
audiovisual work. See WORK (2).
audit, n. (15c) A formal examination ofan individual's or
organization's accounting records, financial situation,
or compliance with some other set of standards. See
GENERALLY ACCEPTED AUDITING STANDARDS. audit,
vb. auditor, n.
audit ofreturn. See tax audit.
compliance audit. An audit conducted by a regulatory
agency, an organization, or a third party to assess
compliance with one or more sets oflaws and regu
lations.
correspondence audit. An IRS audit of a taxpayer's
return conducted by mail or telephone. [Cases:
Internal Revenue (:::>4443.]
desk audit. A review of a civil-service position to deter
mine whether its duties and responsibilities fit the
prescribed job classification and pay scale. [Cases:
Officers and Public Employees (;:::::c 11.8.:
double audit. An audit ofthe same subject performed
separately by two independent auditors.
environmental audit. A company's voluntary self-audit
to evaluate its environmental-management programs
and to determine whether it is in compliance with
environmental regulations.
event-driven audit. An audit that focuses on particu
lar transactions or activities that may raise signifi
cant legal issues . Unlike routine periodic audits,
an event-driven audit can focus substantial auditing
resources on analyzing a particular event.
field audit. An IRS audit conducted at the taxpayer's
business premises, accountant's offices, or lawyer's
offices. [Cases: Internal Revenue C~'4443.1
independent audit. An audit conducted by an outside
person or firm not connected with the person or orga
nization being audited.
internal audit. An audit performed by an organiza
tion's personnel to ensure that internal procedures,
operations, and accounting practices are in proper
order.
office audit. An IRS audit of a taxpayer's return con
ducted in the IRS agent's office. [Cases: Internal
Revenue C='4443.) periodic audit. An audit conducted at regular intervals
to assess a company's current condition.
post audit. An audit of funds spent on


. An audit conducted at regular intervals
to assess a company's current condition.
post audit. An audit of funds spent on a completed
capital project, the purpose being to assess the effi
ciency with which the funds were spent and to
compare expected cash-flow estimates with actual
cash flows.
tax audit. The review of a taxpayer's return by the IRS,
including an examination of the taxpayer's books,
vouchers, and records supporting the return. -Also
termed audit ofreturn. [Cases: Internal Revenue
4443.]
transactional audit. An audit performed for due
diligence purposes to determine whether there are
potentially significant problems with a transaction.
 Transactional audits are often conducted in real
property transactions to identify any environmen
tal problems. In that context, the audit is sometimes
called a site assessment.
audita querela (aw-dI-td kWd-ree-Id). [Law Latin "the
complaint having been heard"] A writ available to a
judgment debtor who seeks a rehearing of a matter on
grounds of newly discovered evidence or newly existing
legal defenses. [Cases: Audita Querela (;:::::c 1.1
"The writ of audita querela (= quarrel having been
heard) ... , introduced during the time of Edward Ill, was
available to reopen ajudgment in certain circumstances.
It was issued as a remedy to defendant where an important
matter concerning his case had arisen since the judgment.
Its issue was based on equitable, rather than common law
principles." L.B. (urzon, English Legal History 103 (2d ed.
1979).
"Audita querela is distinguished from coram nobis in that
coram nobis attacks the judgment itself. whereas audita
querela may be directed against the enforcement, or
further enforcement, of ajudgment which when rendered
was just and unimpeachable." 7A c.J.S. Audita Querela  2,
at 901 (1980).
audit committee. See COMMITTEE.
audit letter. A written request for an attorney, banker,
or someone else to give financial auditors informa
tion about a person or entity being audited, including
information about pending or threatened litigation .
The recipient ofan audit letter usu. sends the response
(called an audit-letter response) directly to the financial
auditors. See AUDIT RESPONSE.
audit-letter response. See AUDIT RESPONSE.
audit of return. See tax audit under AUDIT.
audit opinion. See OPINIOK (2).
auditor. A person or firm, usu. an accountant or an
accounting firm, that formally examines an individ
ual's or entity's financial records or status.
city auditor. A municipal official responsible for
examines a city's accounts and financial records.
county auditor. An official who examines a county's
accounts and financial records.
state auditor. The appointed or elected official respon
sible for overseeing state fiscal transactions and

151
auditing state-agency accounts. See AUDIT. [Cases:
States C:>76.]
audit privilege. In an intellectual-property license agree
ment, the right of the licensor to inspect the licensee's
books and records. Also termed audit rights. [Cases:
Copyrights and Intellectual Property C'"::) 107.]
audit report. An independent auditor's written state
ment, usu. accompanying a company's financial state
ment, expressing the auditor's opinion ofthe accuracy
ofthe company's financial condition as set forth in the
financial statement.
audit respo.nse. A letter that an attorney provides to a
client's financial auditors, usu. at the client's request,
regarding matters such as pending or threatened
litigation. Audit responses should comply with
the American Bar Association's Statement of Policy
Regarding Lawyer's Responses to Auditors' Requests
for Information, published in December 1975. -Also
termed audit-letter response. See AUDIT LETTER.
audit rights. See AUDIT PRIVILEGE.
audit trail. (1954) The chain of evidence connecting
account balances to original transactions and calcu
lations.
augmented estate. See ESTATE (3).
aula regis (aw-b ree-jis). [Latin "king's hall"] Hist. See
CURIA REGIS.
AuntJemima doctrine. Trademarks. The principle that a
trademark is protected not only from use on a directly
competing product, but also from use on a product
so closely related in the marketplace that consumers
would be confused into thinking that the products
came from a Single source. Aunt Jemima Mills Co. v.
Rigney & Co., 247 F. 407 (2d Cir. 1917); 15 l;SCA  1114.
 In the namesake case, the name used on pancake
flour was later used on syrup. lhe issue was not whether
a competitor was trying to pass off goods, but whether
it was fair to let the name's second user jeopardize the
goodwill built up by the first user. See COMPLEMEN
TARY GOODS. [Cases: Trademarks 1104.]
aural acquisition. (1968) Criminal law. l;nder the
Federal Wiretapping Act, hearing or tape-recording
a communication, as opposed to tracing its origin or
destination. 18 USCA  2510(4). [Cases: Telecommu
nications
AUSA. abbr. See assistant United States attorney under
;';NITED STATES ATTORNEY.
Australian ballot. See BALLOT (4).
aut dedere autjudicare. [Latin "extradite or prosecute"]
International law. The principle that a nation where a
fugitive from justice is found has a duty to either extra
dite the fugitive to the nation from which the person
has fled or to prosecute the person in its own courts.
 This is an emerging prinCiple, and not accepted as a
customary rule in international law. Cf. AUT DEDERE
AUT POENAM PERSEQUI; AUT DEDERE AUT JUDICARE
AUT TRANSFERERE. author
aut dedere aut judicare aut transferere. [Latin "extra
dite, prosecute, or transfer"] International law. An
emerging principle that a nation may choose neither to
extradite nor to prosecute a person accused of a crime
but instead may" deliver" the person to a third nation .
This is not a de facto extradition because the receiving
state may also refuse to surrender the accused person
to the requesting state. Cf. AUT DEDERE AUT j;';DICARE;
AUT DEDERE AUT POENAM PERSEQUL
aut dedere aut poenam persequi. [Latin "extradite or
enforce the sanction"] International law. The rule that a
sentence handed down by a court against a person who
flees or has ned to another nation should be enforced by
that nation ifit chooses not to extradite the person. Cf.
AUT DEDERE AUT JUDICARE; AUT DEDERE AUT JUDICARE
AUT TRANSFERERE.
authentic act. Civil law. 1. A writing signed before a
notary public or other public officer. [Cases: Acknowl~
edgment C:> 1.]2. A certified copy ofa writing. [Cases:
Evidence (;:::;;)343.]
authenticate, vb. 1. To of(a thing).
[Cases: Criminal Law C:>366-381.]
2. To render authoritative or authentic, as by attestation
or other legal formality. See UCC  9-102(a)(7).
authentication, n. (lSc) 1. Broadly, the act of proving
that something (as a document) is true or genuine, esp.
so that it may be admitted as evidence; the condition of
being so proved <authentication of the handwriting>.
[Cases: Criminal Law Evidence C:> 366-381.]
2. Specif., the assent to or adoption ofa writing as one's
own.
"The concept of authentication, although continually used
by the courts without apparent difficulty. seems almost to
defy precise definition. Some writers have construed the
term very broadly, as does Wigmore when he states that
'when a claim or offer involves impliedly or expressly any
element of personal connection with a corporeal object,
that connection must be made to appear ... .' So defined,
'authentication' is not only a necessary preliminary to the
introduction of most writings in evidence, but also to the
introduction of various other sorts of tangibles." John W.
Strong et aI., McCormick on Evidence  218, at 350 (5th ed.
1999) (italics in original).
self-authentication. (1939) Authentication without
extrinsic evidence of truth or genuineness . In
federal courts, certain writings, such as notarized
documents and certified copies ofpublic records, may
be admitted into evidence by self-authentication. Fed.
R. Evid. 902. [Cases: Criminal Law C-'"::)444; Evidence
C:>366-381.]
authentic interpretation. See INTERPRETATION.
authenticum (aw-then-t<1-k<1m). Roman & civil law. 1.
An original instrument. 2. (cap.) A Latin version of
134 Novels promulgated by Justinian mostly in Greek
between A.D. 535 and 556. Also termed Authenti
cae.
author. 1. Copyright. The person who creates an
expressive work, or the person or business that hires
another to create an expressive work.  In copyright
law, "author" applies to a broad range ofoccupations,

152 authoritative precedent
including writers, artists, programmers, choreogra
phers, and translators. [Cases: Copyrights and Intel
lectual Property C=:>41(1).] 2. One from whom a right
or title derives in some way other than by descent. See
AUCTOR (1).
authoritative precedent. See binding precedent under
PRECEDENT.
authority. (Bc) 1. The right or permission to act legally
on another's behalf; esp., the power of one person to
affect another's legal relations by acts done in accor
dance with the other's manifestations of assent; the
power delegated by a principal to an agent <authority
to sign the contract>. -Also termed power over other
persons. See AGENCY. [Cases: Principal and Agent
96.]
"The term 'authority,' like the term 'contract; may easily be
used in three senses, and is therefore a term to be avoided
when accurate reasoning is desirable. It may be used to
mean (1) the operative acts of the principal, (2) a physical
document executed by the principal, or (3) the legal rela
tions consequent upon the preceding operative facts (l)
and (2), and especially the legal power conferred upon the
agent to bring the principal into new legal relations without
any further action by the principal. The operative facts may
be spoken words, a document together with the acts neces
sary to execute it, or other conduct by the principal appar
ently expressing an intention to create a power. Hereafter,
the word 'authority' will be used to denote these opera
tive facts; in other cases the word power will usually be
substituted. This latter word is not so likely to be taken in
shifting senses, in spite of the fact that 'power ofattorney'
generally means a physical document under seal." William
R. Anson, Principles of the Law ofContract 508 n.1 (Arthur
l. Corbin ed., 3d Am. ed. 1919).
actual authority. (l8c) Authority that a principal
intentionally confers on an agent or authority that
the agent reasonably believes he or she has as a result
of the agent's dealings with the principaL. Actual
authority can be either express or implied. -Also
termed real authority. [Cases: Principal and Agent
(::::,96,99.]
"Actual authority is such as a principal intentionally confers
upon the agent, or intentionally, or by want of ordinary
care, allows the agent to believe himself to possess." Cal.
Civ. Code  2316.
apparent authority. (1808) Authority that a third party
reasonably believes an agent has, based on the third
party's dealings with the principal, even though
the principal did not confer or intend to confer the
authority.  Apparent authority can be created by
law even when no actual authority has been con
ferred. -Also termed ostensible authority; authority
by estoppel. [Cases: Principal and Agent (:::::c99.]
"The term 'apparent authority' means that a legal power is
vested in the agent in the absence of any intention by the
principal that it should exist, or even in spite of his inten
tion that it should not exist. The operative facts causing
this power to exist are acts of the principal which, consid
ered along with surrounding facts, induce the third person
with whom the agent deals to believe reasonably that the
principal intended the power to exist. The power is real and
not merely apparent. The agent is indeed a wrongdoer in
exercising the power. He possesses the power but not the
legal privilege of using it. Likewise, the authority (meaning
the action of the principal creating the agent's power) is real. It is only the intention of the principal to create such
a power that is merely apparent (i.e., non-existent)." William
R. Anson, Principles of the Law ofContract 510 n.1 (Arthur
L Corbin ed., 3d Am. ed. 1919).
'''Apparent authority' of an insurance agent means such
authority as an insurer knowingly permits the agent to
assume, or which it holds him out as possessing, that is,
such authority as he appears to have by reason of actual
authority or such authority as a reasonably prudent man
would suppose the agent to possess." John Alan Appleman
&Jean Appleman, Insurance Law and Practice  8674
(1981).
authority coupled with an interest. (17c) Authority
given to an agent for valuable consideration . This
authOrity cannot be unilaterally terminated by the
principal. Cf. naked authority. [Cases: Principal and
Agent (:::::c34.1
constructive authority. (1823) Authority that is inferred
because ofan earlier grant ofauthority.
express authority. (l6c) Authority given to the agent
by explicit agreement, either orally or in writing.
Also termed stipulated authority. [Cases: Principal


agent
by explicit agreement, either orally or in writing.
Also termed stipulated authority. [Cases: Principal
and Agent (;:::'96.]
general authority. (17c) A general agent's authority,
intended to apply to all matters arising in the course
ofthe principal's business.
implied authority. (18c) Authority intentionally
given by the principal to the agent as a result of the
principal's conduct, such as the principal's earlier
acquiescence to the agent's actions. -Also termed
presumptive authority. [Cases: Principal and Agent
C=:>99.J
incidental authority. (18c) Authority needed to carry
out actual or apparent authority . For example, the
actual authority to borrow money includes the inci
dental authority to sign commercial paper to bring
about the loan. Also termed inferred authority.
[Cases: Principal and Agent (;:=>99.]
inherent authority. (l7c) Authority ofan agent arising
from the agency relationship.
naked authority. (18c) Authority delegated to an agent
solely for the principal's benefit, without a beneficial
interest in the matter for the agent. This author
ity can be revoked by the principal at any time. Cf.
authority coupled with an interest.
ostensible authority. See apparent authority.
presumptive authority. See implied authority.
real authority. See actual authority.
special authority. (l8c) AuthOrity limited to an indi
vidual transaction.
stipulated authority. See express authority.
supervisory authority. See SUPERVISORY AUTHORITY.
2. Governmental power or jurisdiction <within the
court's authority>. 3. A governmental agency or cor
poration that administers a public enterprise <transit
authority>. Also termed public authority. [Cases:
Municipal Corporations (;:;::>2.]

153
constituted authority. (often pl.) Each of the legisla
tive, executive, and judicial departments officially and
rightfully governing a nation, people, municipality,
or other governmental unit; an authority properly
appointed or elected under organic law, such as a
constitution or charter.
examining authority. A self-regulatory organization
registered with the Securities and Exchange Com
mission and vested with the authority to examine,
inspect, and otherwise oversee the activities ofa reg
istered broker or dealer.
4. A legal writing taken as definitive or decisive; esp., a
judicial or administrative decision cited as a precedent
<that case is good authority in Massachusetts> . The
term includes not only the decisions of tribunals but
also statutes, ordinances, and administrative rulings.
[Cases: Courts C=>88.]
adverse authority. (18c) Authority that is unfavorable
to an advocate's position . Most ethical codes require
counsel to disclose adverse authority in the control
ling jurisdiction even ifthe opposing counsel has not
cited it.
imperative authority. Authority that is absolutely
binding on a court. -Also termed binding author
ity. Cf. binding precedent under PRECEDENT.
persuasive authority. (1842) Authority that carries
some weight but is not binding on a court.
"It may be well to call attention to the fact that the word
'authority' is used by lawyers in at least two senses, one
abstract and the other concrete. The word [in its concrete
sense] refer[s] to the book or other repository to which
one resorts to find propositions of law, and sometimes the
word is used in an even narrower sense to mean reported
cases. In its abstract sense, however, 'authority' is sub
stantially equivalent to 'influence' or 'power,' and in this
sense 'authority' may be diVided into two grades, in that
the force of a statement of law is either imperative (that
is to say, absolutely binding upon the courts) or simply
persuasive. The use of the terms 'primary' and 'second
ary' authority, as applied in the concrete sense, must not
be confused with the use of the terms 'imperative' and
'persuasive' authority, as used in the abstract sense. That
is to say, a book of primary authority may be either impera
tive or persuasive, according to the circumstances.. ,or
it may be of no force at all. Books of secondary authority
are, in the nature of things, usually merely of persuasive
authority." William M. Lile et aI., Brief Making and the Use
ofLawBooks12(3ded.1914).
primary authority. (1826) Authority that issues directly
from a law-making body; legislation and the reports
oflitigated cases.
secondary authority. (1826) Authority that explains the
law but does not itself establish it, such as a treatise,
annotation, or law-review article.
S. A source, such as a statute, case, or treatise, cited
in support of a legal argument <the brief's table of
authorities>.
authority by estoppel. See apparent authority under
AUTHORITY (1).
authorization clause. Patents. A Patent Act provi
sion directing that if a person uses or manufactures autolimitation
something protected by a valid U.S. patent, acts on
behalf of the U.S. government, and acts with the gov
ernment's authorization or consent, the U.S., not the
person, is deemed the infringing user or manufacturer .
 Ifan infringing act is done by a government contrac
tor or subcontractor working for the U.S. and the act
is covered by the authorization or consent clause, the
patent owner's only recourse is a suit against the U.S.
in the U.S. Claims Court for compensation. The autho
rization or consent clause is in the second paragraph
of 28 USCA  1498(a). Also termed consent clause.
[Cases: United States ~97.]
authorization to sell. See LISTING (I).
authorize, vb. (14c) 1. To give legal authority; to empower
<he authorized the employee to act for him>. 2. To
formally approve; to sanction <the city authorized the
construction project>. authorization, n.
authorized capital. See nominal capital under
CAPITAL.
authorized capital stock. See capital stock (1) under
STOCK.
authorized committee. See SPECIAL LITIGATION COM
MITTEE.
authorized shares. See capital stock (1) under STOCK.
authorized stock. See capital stock (1) under STOCK.
authorship. See work ofauthorship under WORK (2).
author's right. Copyright. The system of protecting the
moral and economic rights of the creator ofa work, esp.
in civil-law countries. Also termed (in French) droit
d'auteur; (in German) Urheberrecht; (in Italian) diritto
d' autore; (in Spanish) derecho de autor.
"[O]n almost every point of consequence, the traditions
of copyright and author's right are far more alike than
they are unlike. One reason is that the Berne Convention
bridges the two traditions, with the result that its extensive
minimum standards have dictated substantively similar
rules for countries in both camps." Paul Goldstein, Interna
tional Copyright: Principles, Law, and Practice 4 (2001).
author's share. Copyright. An author's portion ofroyal
ties, as determined by an agreement with the publisher.
[Cases: Copyrights and Intellectual Property C=>48.]
autocracy (aw-tok-r<l-see), n. (l7c) Government by one
person with unlimited power and authority; unlim
ited monarchy. autocratic (aw-t<l-krat-ik), adj.
autocrat (aw-t<l-krat), n.
autograph, n. A person's own writing or signature;
HOLOGRAPH. Cf. ALLOGRAPH.
autolimitation, n. An authority's establishment of rules
that, in effect, limit the authority's own power.
autolimit, vb.
"The theory ofJellinek (Allgemeine Staatslehre), so far as
the writer understands it, is not an explanation either. In
his view something which he calls the State, not defined,
but, as it seems, a group of persons, finds itself in posses
sion of power, and establishes rules. These are the law.
This process he calls 'autolimitation.' It is true that a body
with supreme power does make law. An autocrat, man or
group, without rules, may do justice, though it probably
will not, but it does not make law there is no Rechtsstaat.

154 Automated Bond System
But autolimitation is, as Professor Brierly notes ... , a con
tradiction in terms. If the State's power is limited, it must be
by some superior power. But even accepting the analysis,
we are no better off." W.W. Buckland, Some Reflections on
Jurisprudence 24 (1945).
Automated Bond System. The New York Stock
Exchange's computerized network that enables sub
scribers to electronically transmit quotations and
execute orders for bond trades. Abbr. ABS.
Automated Patent System. A computerized database of
patents, maintained by the C.S. Patent and Trademark
Office database. Abbr. APS. Also termed auto
mated p!tent search system.
automated transaction. (1977) A contract formed or
performed, in whole or in part, by electronic means or
by electronic messages in which neither party's elec
tronic actions or messages establishing the contract
are intended to be reviewed by an individual in the
ordinary course. UCITA  2-102(a)(7), 102:lOUC;
UETA 14.
automatic-adjustment clause. A provision in a utility
rate schedule that allows a public utility to increase its
rates without a public hearing or state review, ifcertain
operating costs, such as the price of fuel, increase.
Federal Energy Regulatory Comm'n v. Mississippi, 456
U.S. 742, 102 S.Ct. 2126 (1982). [Cases: Electricity (:=:,
11.3(4,6); Public Utilities C:)128.]
automatic-assignment doctrine. Trademarks. The rule
that, absent evidence to the contrary, the sale of an
entire business carries with it and transfers to the pur
chaser any common-law marks used in that business
without the need for a written assignment. _ For marks
registered under the Lanham Act or under some state
registration schemes, a written assignment is required
to transfer an interest in a registered mark or in a
pending application to register a mark. [Cases: Trade
marks <>1201(2).]
automatic disclosure. See DISCLOSURE (2).
automatic perfection. See PERFECTION.
automatic stay. See STAY.
automatic suspension. See automatic stay under STAY.
automatic-transfer statute. See TRANSFER STATUTE.
automatic wage-withholding. See attachment of wages
under ATTACHMENT (1).
automatism (aw-tom-;3-tiz-;3m), n. (1838) 1. Action or
conduct occurring without will, purpose, or reasoned
intention, such as sleepwalking; behavior carried out
in a state of unconsciousness or mental dissociation
without full awareness. _ Automatism may be asserted
as a defense to negate the requisite mental state of
voluntariness for commission of a crime. [Cases:
Criminal Law <>46.] 2. The state of a person who,
though capable ofaction, is not conscious ofhis or her
actions. -automaton, n.
"How far is automatism a defence? It has been defined as
involuntary action performed in a state of unconscious
ness not amounting to insanity. Theoretically the defence
is that no act in the legal sense took place at all the plea is that there was no volition or psychic awareness." George
Whitecross Paton, A Textbook ofJurisprudence 315 (G.W.
Paton & David P. Derham eds . 4th ed. 1972).
ambulatory automatism. Automatism that consists in
irresponsible or purposeless wanderings.
automobile exception. (1970) The doctrine that when
probable cause exists, a law-enforcement officer need
not obtain a warrant before searching a movable vehicle
(such as a car or boat) in which an individual has a
lessened expectation of privacy . 1his is an excep
tion to the Fourth Amendment's warrant requirement
for search and seizure; exigent circumstances are
presumed to exist. Once the right to conduct a war
rantless search arises, the actual search may take place
at a later time. Carroll v. United States, 267 U.S. 132,
45 S.Ct. 280 (1925); Cardwell v. Lewis, 417 U.S. 583, 94
S.Ct. 2464 (1974); California v. Acevedo, 500 U.S. 565,
111 S.Ct. 1982 (1991). See exigent circumstances under
ClRCUMSTA::'-ICE. [Cases: Controlled Substances (;=-114;
Searches and Seizures <>60.]
automobile exclusion. See EXCLUSION (3).
automobile-guest statute. See GUEST STATUTE.
automobile homicide. See vehicular homicide under
HOMICIDE.
automobile insurance. See INSURANCE.
autonomic law (aw-ta-no m-ik). (1832) An internal regu
lation that has its source in various forms ofsubordi
nate and restricted legislative authority possessed by
private persons and bodies ofpersons . Examples are
corporate bylaws, university regulations, and the rules
of the International Monetary Fund.
autonomous tariff. See TARIFF (2).
autonomy (aw-tahn-a-mee), n. (17c) 1. The right ofself
government. 2. A self-governing nation. 3. An individ
ual's capacity for self-determination. autonomous
(aw-tahn-;3-m;3s), adj.
autonomy ofthe parties. See FREEDOM OF CONTRACT.
autonomy privacy. See PRIVACY.
autopsy (aw-top-see). (1678) 1. A medical examination
of a corpse to determine the cause of death, esp. in a
criminal investigation. Also termed postmortem;
necropsy. [Cases: Coroners 2. The evidence of
one's own senses.
"To a