common law, or a statutory assignment, which
is controlled by applicable statutes.
The state statutes require that the assign-
ment be recorded, schedules of assets and
liabilities be filed, notice be given to the
creditors, the assignee be bonded, and the
assignor be supervised by the court. Almost
every jurisdiction prohibits the granting of a
preference. All creditors except those with liens
or statutorily created priorities are treated
equally. Some statutes empower an assignee to
set aside prior fraudulent conveyances, and
others authorize the assignee to set aside
preferences made before the assignment.
If a debtor has made substantial preferences,
fraudulent conveyances, or allowed liens void-
able in
BANKRUPTCY to attach to his or her
property, then creditors might be able to force
the debtor into bankruptcy if they decide that
the assignment does not adequately protect
their rights. An efficiently handled assignment
for benefit of creditors is frequently more
advantageous to creditors than bankruptcy
because it usually brings about better liquida-
tion prices and its less rigid and formal structure
saves time and money.
FURTHER READINGS
Buckley, Mike C., and Gregory Sterling. 2003. “What Banks
Need to Know about ABCs.” Banking Law Journal 120
(January).

movements in a small number of states have
sought to allow terminally ill patients to hasten
death through more active means. As of 2009,
two states have enacted statutes allowing for
assisted suicide, and the issue is being litigated
and otherwise debated in other states.
Physicians abide by the Hippocr atic Oath as
a code of ethics. The oath is: “I will follow that
method of treatment , which, according to my
ability and judgment, I consider for the benefit
of my patients, and abstain from whatever is
deleterious and mischievous. I will give no
deadly medicine to anyone if asked, nor suggest
any such counsel.” The American Medical
Association takes a stance in line with this oath,
strictly forbidding physicians from participating
in assisted suicide because such a practice is
“fundamentally incompatible with the physi-
cian’s role as healer, would be difficult or
impossible to control, and would pose serious
societal risks.”
The majority of states have outlawed
assisted suicide through legislation, while courts
in other states have determined that assisted
suicide is a crime under common law. Since the
1990s, though, several states have considered
proposals to allow terminally ill patients to self-
administer lethal doses of medication pre-
scribed by a doctor.
Jack Kevorkian

this evidence, authorities in Michigan charged
Kevorkian with first-degree premeditated mur-
der, criminal assistance of a suicide, and
delivery of a controlled substance for adminis-
tering legal medication to a terminally ill man.
A jury in 1999 found Kevorkian guilty of
second-degree murder in 1999. He was sent to
prison and served eight years of a 10- to 25-year
sentence. He was released in 2007.
Constitutionality of Assisted-Suicide
Statutes
The Supreme Court issued two decisions that
significantly affected the law governing assisted
suicide. In Washington v. Glucksberg (521 U.S.
702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 [1997]),
the Court held that states have the right to
prohibit assisted suicide. The case arose when
three terminally ill patients brou ght an action
against the State of Washington seeking a
declaratory judgment that the state’s ban on
assisted suicide violated the patients’ due
process rights. A unanimous Supreme Court
held that assisted suicide is not a fundamental
liberty interest protected by the due process
clause of the Fourteenth Amendment. Based on
this conclusion, the state only had to prove that
its assisted suicide bore a rational relationship to
a legitimate government interes t. The Court
conclude that the state had met this standard.
In a second case, Vacco v. Quill (521 U.S.

in voluntary. Although court challenges delayed
the statute implementation, the statute took
effect in October 1997. Between 1997 and 2008,
a total of 401 patients took their own lives
through assisted suicide method.
On November 6, 2001, former U.S. attorney
general John Ashcroft issued a ruling that
declared the use of controlled substances for
the purpose of assisted suicide violated the
Controlled Substances Act (CSA) (21 U.S.C. §§
801 et seq.). This ruling, known as the Ashcroft
Directive, reversed the position taken by former
attorney general Janet Reno in 1998. Two days
after the publication of the directive, the state of
Oregon filed suit in federal court against
Ashcroft and other federal officers and agencies.
The U.S. District Court for the District of
Oregon on November 8, 2001, enjoined the
enforcement of the directive.
The CSA includes a schedule of controlled
substances that are available only through
written prescription. In 1971 attorney general
John N. Mitchell issued a regulation that
requires such a prescrip tion to be used “for a
legitimate medical purpose by an in dividual
practitioner acting in the usual course of
his professional practice” (21 C.F.R. § 1306.04
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ASSISTED SUICIDE 399
[2005]). Under the CSA, physicians are required

exercise this type of control. The Ninth Circuit
thus let the injunction remain in force.
The U.S. Supreme Court granted certiorari
in 200 5 and rendered its decision on January 17,
2006. In an opinion written by Justice Anthony
Kennedy, the ma jority affirmed the Ninth
Circuit’s decision. Kennedy wrote that Ash-
croft’s interpretation of the CSA was not
entitled to deference by the Court because the
CSA only extended limited power to the
attorney general’s office. Moreover, the Court
noted that Ashcroft did not have sufficient
expertise for his rule to be entitled to deference.
According to Kennedy, “[t]he deference here is
tempered by the Attorney General’s lack of
expertise in this area and the apparent absence
of any consultation with anyone outside the
Department of Justice who might aid in a
reasoned judgment.”
The federal government continued to argue
that its power extended to this area through the
provisions of the CSA. Kennedy disagreed
entirely. “The Government, in the end, main-
tains that the prescription requirement dele-
gates to a single Executive officer the power to
effect a radical shift of authority from the States
to the Federal Government to define general
standards of medical practice in every locality,”
Kennedy wrote. “The text and structure of the
CSA show that Congress did not have this far-

physician-assisted suicide is a right guaranteed
under the Montana Constitution.
FURTHER READINGS
Behuniak, Susan M., and Arthur G. Svenson. 2003.
Physician-Assisted Suicide: The Anatomy of a Constitu-
tional Law Issue. Lanham: Rowman & Littlefield.
Mitchell, John B. 2007. Understanding Assisted Suicide: Nine
Issues to Consider. Ann Arbor: Univ. of Michigan Press.
Wester-Mittan, Candle M. 2009. Physician-Assisted Death:
Four Views on the Issue of Legalizing PAD: A Legal
Research Guide. Buffalo, N.Y.: W.S. Hein.
CROSS REFERENCES
Euthanasia; Suicide
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
400 ASSISTED SUICIDE
ASSIZE, OR ASSISE
A j udicial procedure in early England whereby a
certain number of men in a community were
called together to hear and decide a dispute; a type
of court. A type of writ, commanding the
convening of such a tribunal in order to determine
disputed rights to possess land. An edict or statute
issued by an ancient assembly.
For example, the Assize of Clarendon was a
statute, or ordinanc e, passed in the tenth year of
the reign of King Henry II (1164). It proclaimed
that those who were accused of a heinous crime
and were unable to exonerate themselves had
forty days to gather provisions from friends to
provide for their sustenance before they were

ASSOCIATE JUSTICE
The designation given to a judge who is not the
chief or presiding justice of the court on which he
or she sits.
An associate judge is usually a member of an
appellate court.
ASSOCIATION, FREEDOM OF
See FREEDOM OF ASSOCIATION.
ASSOCIATION OF TRIAL LAWYERS
OF AMERICA
See AMERICAN ASSOCIATION FOR JUSTICE.
ASSUMPSIT
[Latin, He undertook or he promised.] A
promise by which someone assumes or undertakes
an obligation to another person. The promise may
be oral or in writing, but it is not under seal. It is
express when the person making the promise puts
it into distinct and specific language, but it may
also be implied because the law sometimes imposes
obligations based on the conduct of the parties or
the circumstances of their dealings.
Assumpsit was one of the common-law
FORMS OF ACTION. It determined the right to sue
and the relief available for someone who
claimed that a contract had been breached.
When the
COMMON LAW was developing in
England, there was no legal remedy for the
breach of a contract.
RANULF GLANVILL, a famous

courts began to allow lawsuits for badly
performed obligations but not for a complete
failure to perform what was required by
contract. Unexpectedly, this restriction was
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ASSUMPSIT 401
abandoned also, and a new form of action was
recognized by the courts, an action in special
assumpsit for breach of an express agreement.
Special assumpsit gave a new legal right to
parties who could not sue on a debt. Gradually
it became possible to sue in assumpsit if the
defendant owed a debt and then violated a fresh
promise to pay it. This action came to be known
as indebitatus assumpsit, which means “being
indebted, he promised.”
As time passed, courts were willing to
assume that the fresh prom ise had been ma de
and to impose obligations as if it had. This
allowed lawsuits for a whole range of contract
breaches, not just those recognized by an action
on the debt or in special assumpsit. If the
plaintiff could claim that services had been
performed or goods had be en delivered to the
defendant, then the law would assume that the
defendant had promised to pay for them. An y
failure to do so gave the plaintiff the right to sue
in assumpsit. This development allowed such a
wide range of lawsuits based on promises to
private parties that it came to be known as

limited only to the amount that the mortgaged
property is sold for in the case of foreclosure. If
the property is sold for less than the mortgage
debt, the mortgag ee must seek the remaining
balance due from the seller, the original
mortgagor.
ASSUMPTION OF RISK
A defense, fact s offered by a party against whom
proceedings have been instituted to diminish a
plaintiff’s cause of action or defeat recovery to an
action in negligence, which entails proving that the
plaintiff knew of a dangerous condition and
voluntarily exposed himself or herself to it.
Under the federal rules of
CIVIL PROCEDURE,
assumption of the risk is an
AFFIRMATIVE DEFENSE
that the DEFENDANT in a NEGLIGENCE action must
plead and prove. The doctrine of assumpti on of
risk is also known as volenti non fit injuria.
Situations that encompass assumption of
the risk have been classified in three broad
categories. In its principal sense, assumption of
the risk signifies that the
PLAINTIFF, in advance,
has consented to relieve the defendant of an
obligation of conduct toward him or her and to
take a chance of injury from a known risk
ensuing from what the defendant is to do or
leave undone. The consequence is that the

she might even act with unusual circumspection
because he or she is cognizant of the danger that
will be encountered. If that is the case, the
defense operates to refute the defendant’s
negligence by denying the duty of care that
would invoke this
LIABILITY, and the plaintiff
does not recover because the defendant’s
conduct was not wrongful toward the plaintiff.
With respect to the second and third
situations, however, the plaintiff’s conduct in
confronting a known risk might be in itself
unreasonable, because the danger is dispropor-
tionate to the advantage the plaintiff is pursuing,
as when, with other transportation available, the
individual chooses to ride with an intoxicated
driver. If this occurs, the plaintiff’s conduct is
a type of contributory negligence, an act or
omission by the plaintiff that constitutes a
deficiency in ordinary care, which concurs with
the defendant’s negligence to comprise the direct
or
PROXIMATE CAUSE of injury. In such cases, the
defenses of assumption of risk and contributory
negligence overlap.
In this area of interse ction, the courts have
held that the defendant can employ either
defense or both. Because ordinarily either is
sufficient to bar the action, the defenses have
been distinguished on the theory that assump-

free from liability for negligence.
The courts have refused to uphold such
agreements, however, if one party possesses a
PATENT disadvantage in bargaining power. For
example, a contract exempting an employer from
all liability for negligence toward employees is
void as against public policy. A carrier transport-
ing cargo or passengers for hire cannot evade its
public responsibility in this manner, even though
the agreement limits recovery to an amount less
than the probable damages. The contract has
been upheld, however, when it represents a
realistic attempt to assess a value as liquidated or
ascertained damages in advance, and the carrier
graduates its rates in accordance with such value,
so that complete protection would be available to
the plaintiff upon paying a higher rate. The same
Visitors to
professional sporting
events assume the risk
that they may be
injured by
competitors or game
paraphernalia during
the contest.
KEVORK DJANSEZIAN/
GETTY IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ASSUMPTION OF RISK 403

accept and consent to it, to assume responsibil-
ity for personal safety, and to unburden the
defendant of the obligation. Spectators at
certain sports events assume all the known risks
of injury from flying objects. Plaintiffs who
enter business premises as invitees and detect
dangerous conditions can be deemed to assume
the risks when they continue voluntarily to
encounter them.
Knowledge of Risk
The plaintiff will not normally be regarded as
assuming any risk of either conditions or
activities of which he or she has no knowledge.
The plaintiff must not merely create the danger
but must comprehend and appreciate the
danger itself.
The applicable standard is basically subjec-
tive in nature, tailored to the particular plaintiff
and his or her situation, as opposed to the
objective standard of the reasonable person of
ordinary prudence, which is employed in
contributory negligence. If because of age, lack
of information, or experience, the plaintiff does
not comprehend the risk entailed in a known
situation, the individual will not be regarded as
consenting to assume it. Failure to exercise
ordinary care to discover the danger is not
encompassed within assumption of risk, but in
the defense of contributory negligence.
An entirely subjective standard, however,

Although knowledge and understanding of
the risk incurred are encompassed within the
concept of assumption of the risk, it is possible
for the plaintiff to assume risks of whose specific
existence he or she is unaware—to consent to
venture into unknown conditions. In a majority
of instances, the undertaking is express, although
it can arise by implication in a few cases. A guest
who accepts a gratuitous ride in an automobile
has been regarded as assuming the risk of defects
in the vehicle, unknown to the driver.
Voluntary Assumption
The doctrine of assumption of risk does not
bar the plaintiff from recovery unless the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
404 ASSUMPTION OF RISK
individual’s decision is free and voluntary.
There must be some manifestation of consent
to relieve the defendant of the obligation of
reasonable conduct. A risk is not viewed as
assumed if it appears from the plaintiff’s words
or from the circumstances, that he or she does
not actually consent. If the plaintiff relinquishes
his or her better judgment upon assurances that
the situation is safe or that it will be remedied or
upon a promise of protection, the plaintiff does
not assume the risk, unless the danger is so
patent and so extreme that there can be no
reasonable reliance upon the assurance.
Even when the plaintiff does not protest, the

dangerously defective set of steps cannot assert
assumption of risk against a patron who uses
the steps as the sole convenient means of access
to the company’s premises. The same principle
applies to a city maintaining a public roadway
or sidewalk or other public area that the
plaintiff has a right to use and premises onto
which the plaintiff has a contractual right to
enter. When a reasonable alternative is available,
the plaintiff’s recalcitrance in unreasonably
encountering danger constitutes contributory
negligence, as well as assumption of risk.
Violation of Statute
The plaintiff still assumes the risk where the
defendant’s negligence consists of the violation
of a statute. A guest who accepts a nighttime
ride in a vehicle with inoperative lights has been
regarded as consenting to relieve the defendant
of the duty of complying with the standard
established by the statute for protection and
cannot recover for injuries. Particular statutes,
however, such as child labor acts and safety
statutes for the benefit of employees, safeguard
the plaintiff against personal inability to protect
himself or herself due to improvident judgment
or incapability to resist certain pressures. Since
the basic objective of such statutes would be
frustrated if the plaintiff were allowed to assume
the risk, it is generally held that the plaintiff
cannot do so, either expressly or impliedly.

enacted for the safety of employees, where the
infraction contributed to the employee’s injury
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ASSUMPTION OF RISK 405
or death. This doctrine was abolished because of
the extreme hardship it imposed on workers in
this dangerous line of employment.
FURTHER READINGS
Drago, Alexander J. 2002. “Assumption of Risk: An Age-Old
Defense Still Viable in Sports and Recreation Cases.”
Fordham Intell. Prop. Media & Ent. Law Journal 12
(winter).
Gilles, Susan M. 2002. “From Baseball Parks to the Public
Arena: Assumption of the Risk in Tort Law and
Constitutional Libel Law.” Temple Law Review 75
(summer).
Owen, Richard. 2000. Essential Tort. 3d ed. London:
Cavendish, Ltd.
Rabin, Robert L. 2003. Perspectives on Tort Law. Frederick,
MD: Aspen.
Simons, Kenneth W. 2002. “Reflections on Assumption of
Risk.” UCLA Law Review 50 (December).
CROSS REFERENCES
Cognizance; Consent; Insurance; Public Utilities; Reason-
able Person.
ASSURED
A person protected by insurance coverage against
loss or damage sti pulated by the provisions of a
policy purchased from an insurance company or
an underwriter.

for people whose governments intend to do
them harm.
Asylum in the United States is regulated
under Section 208 of the Immigration and
Nationality Act (INA), which was passed in
1952 and has been amended periodically
afterward. Previously, asylum matters were
handled by the Immigration and
NATURALIZATION
Service (INS). The Homeland Security Act of
2002 created three new agencies to handle all
matters formerly handled by the INS. These
new agencies, the Bureau of Citizenship and
Immigration Services (BCIS); the Bureau of
Customs and Border Protection; and the
Bureau of Immigration and Customs Enforce-
ment were made part of the
HOMELAND SECURITY
DEPARTMENT
that became operational in March
2003. Although the BCIS was technically a new
agency, it was to continue to conduct all
business, including processing applications and
requests, as the INS had.
Eligibility for Asylum
People who can prove that they will be
persecuted if they are returned to their home
country can apply for asylum in the United
States. Much persecution is based on race,
RELIGION, and politics, but there are other

States either through affirmative asylum or
defensive asylum. In affirmative asylum, the
person applying submits the proper paperwork
(known as Form I-589) to the BCIS and is
called to appear before an asylum officer for an
interview. In defensive asylum, the person in
question has been placed in removal proceed-
ings by the Immigration Court and has to
appear before an immigration judge from the
Executive Office for Immigration Review
(EOIR). Those who seek defensive asylum
include undocumented
ALIENS who have been
caught entering the country illegally, but who
also may be genuinely afraid of being persecuted
if they are sent home. Asylum officers often
refer undocumented aliens to EOIR for a
defensive hearing if they feel that the fear of
persecution is credible.
Article 3 of the
UNITED NATIONS Convention
Against Torture (1999) states that no asylum
seeker can be returned home if the threat of
torture is strong enough. The BCIS does have
the option, however, of sending an unsuccessful
asylum seeker to a third country in which there
is no danger of torture or persecution.
Derivative Asylum
Often asylum seekers want protection not just
for themselves but also for their families.

Pena was granted asylum by a San Francisco
immigration judge in 1996 because she had
suffered years of
DOMESTIC VIOLENCE from her
Guatemalan husband. In June 1999 the BIA
reversed the immigration judge’s decision and
ordered Ms. Alvarado to be deported to
Guatemala. The BIA ruled against gr anting
asylum, in part because it saw domestic violence
as a private matter within her own family,
despite Ms. Alvarado’s argument that she was,
in fact, a member of a persecuted group. (She
belonged to a support group for abused women.)
The decision led to the denial of many women
seeking asylum protection who were fleeing from
a wide range of
HUMAN RIGHTS violations, includ-
ing trafficking for
PROSTITUTION, honor killing,
and domestic violence. In January 2001 Attorney
General
JANET RENO ordered the BIA to issue a new
decision in Ms. Alvarado’s case after the Depart-
ment of Justice issued new regulations on the
issue of gender asylum. The Department of
Justice consulted with experts in domestic
violence and noted its position that certain forms
of domestic violen ce may indeed constitute
persecution. For example, if a country’s domestic
violence laws were weak or ineffective against