Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P8 pdf

Sutherland concluded that states were obliged under the Constitution to provide the right to an attorney in a criminal case and that the right had not been extended to the defendants.. S

Trang 1

In a 7–2 decision delivered on November 7,

1932, the Court reversed all seven convictions

Justice GEORGE SUTHERLAND, writing for the majority, began the opinion by recounting the procedural history of the case and reciting the paltry and sometimes inaccurate record of the case Sutherland noted that the record indicated that the defendants had been repre-sented by counsel at the ARRAIGNMENT, “But no counsel having been employed the record does not disclose when, or under what circum-stances, an appointment of counsel was made, or who was appointed.” Sutherland also referred to the mob surrounding the defendants Sutherland wrote that“it does not appear that the defendants were seriously threatened with mob violence;

but it does appear that the attitude of the community was one of great hostility.” Although the intimidating atmosphere played a part in the opinion, the Supreme Court was more concerned with the procedures employed by the trial court

Judge Hawkins had appointed the entire bar

of Scottsboro to represent the defendants, but

he did not require the attorneys to accept the case Sutherland quoted the colloquy between Hawkins and Roddy that occurred just before the trial, which revealed that no attorney was prepared to take the case Nevertheless, Hawkins allowed the trials to go forward, “and in this casual fashion,” Sutherland lamented, “the matter

of counsel in a capital case was disposed of.”

Sutherland began the Court’s legal analysis

by declaring that, although the defendants may have appeared guilty, they were nonetheless presumed to be innocent Sutherland then proceeded to frame the issue in the case as whether the defendants were denied the assis-tance of counsel and, if so, whether such a denial was an infringement of their rights under

Consti-tution, the amendment that makesDUE PROCESS

requirements applicable to the states

Sutherland concluded that states were obliged under the Constitution to provide the right to an attorney in a criminal case and that the right had not been extended to the defendants Sutherland cited Supreme Court

PRECEDENTfor the proposition that due process can be determined by ascertaining“what were the settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence.” He then examined the history of the criminal

defendant’s right to an attorney and concluded that such a right did not exist in England until the mid-nineteenth century, that the English rule was assailed by legal analysts in England and rejected by 12 of the 13 colonies, and that it was a necessary incident to due process of law The denial of counsel, Sutherland declared,

“is so outrageous and so obviously a perversion

of all sense of proportion that the rule was constantly, vigorously and sometimes passionately assailed by English statesmen and lawyers.”

Sutherland still had to make the requirement

of counsel applicable to the states The passage of the Fourteenth Amendment in 1868 forbid states

to “deprive any person of life, liberty, or property, without due process of law,” but it remained for the court to determine precisely what procedures constituted due process Quot-ing Hebert v State of Louisiana, 272 U.S 312,

47 S Ct 103, 71 L Ed 270 (1926), Sutherland explained that due process was required if a right was“of such a character that it cannot be denied without violating those‘fundamental principles

of liberty and justice which lie at the base of all our civil and political institutions.’”

Sutherland noted that it was well established that due process in a criminal case necessarily included an opportunity to be heard Such an opportunity could not be achieved even by intelligent laypersons

Having established that the right to an attorney was a fundamental due process right applicable to the states, Sutherland applied the law to the facts of the case The defendants were held incommunicado and prevented from obtaining counsel of their own choice Suther-land declared that because of

the ignorance and illiteracy of the defen-dants, their youth, the circumstances of public hostility, the imprisonment, and close surveillance of the defendants by military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all [because] they stood in deadly peril of losing their lives—we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process

The failure of the trial court to appoint counsel was likewise a denial of due process Hawkins had made an attempt to appoint attorneys, but it was a feeble one Sutherland

58 POWELL V ALABAMA

Trang 2

declared that the attorneys were not “given

that clear appreciation of responsibility or

impressed with that individual sense of duty

which should and naturally would accompany

the appointment of a selected member of

the bar.”

The Powell holding declared that the Due

Process Clause of the Fourteenth Amendment

required that state courts give defendants an

opportunity to obtain counsel It also created

the rule that due process requires state courts to

appoint counsel for indigent defendants in all

capital cases and that a free attorney for

indigent defendants in noncapital cases is

required if an unfair trial would result without

the appointment Powell was used as precedent

for other Supreme Court decisions expanding

establishing that the legal representation

defen-dants receive should not fall below a minimum

standard of effectiveness

The defendants were retried again and again

after the Supreme Court reversed their

convic-tions In 1935 the High Court again intervened

in the prosecutions, reversing the convictions

based on the fact that there were no blacks on

the jury rolls (Norris v Alabama, 294 U.S 587,

55 S Ct 579, 79 L Ed 1074[1935])

In 1937 four of the defendants were released,

but the other five defendants remained in prison

Each eventually gained release through either

PAROLEor escape In 1976 Alabama officials took

a new look at the case, and Governor GEORGE

WALLACE pardoned Clarence Norris Norris, the

last surviving defendant, had violated his parole

by fleeing Alabama and had been at large for

more than 30 years

FURTHER READINGS

Geimer, William S 1995 “A Decade of Strickland’s Tin

Horn: Doctrinal and Practical Undermining of the

Right to Counsel.” William and Mary Law Review 4.

Goodman, James 1994 Stories of Scottsboro: The Rape Case

That Shocked 1930’s America and Revived the Struggle for

Equality New York: Pantheon.

Haskins, James 1994 The Scottsboro Boys New York: Holt.

Horne, Gerald 1997 Powell v Alabama: The Scottsboro Boys

and American Justice New York: Franklin Watts.

White, Welsh S., and James J Tomkovicz 2004 Criminal

Procedure: Constitutional Restraints upon Investigation

and Proof New York: LexisNexis.

CROSS REFERENCES

Capital Punishment; Criminal Procedure; Fourteenth

Amendment; Incorporation Doctrine; Right to Counsel.

POWER The right, ability, or authority to perform an act

An ability to generate a change in a particular legal relationship by doing or not doing a certain act

In a restricted sense, a liberty or authority that

is reserved by, or limited to, a person to dispose of real or PERSONAL PROPERTY, for his or her own benefit or for the benefit of others, or that enables one person to dispose of an interest that is vested

in another

POWER OF ATTORNEY

A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal It is sometimes called an “attorney-in-fact,” as the person authorizing the other to act is the principal

or granter (of the power), and the one authorized

to act is the agent or attorney-in-fact

Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining

a safe-deposit box Powers of attorney can be written to be either general (full) or limited to special circumstances A power of attorney generally is terminated when the principal dies

or becomes incompetent, but the principal can revoke the power of attorney at any time

One special type of power of attorney that is used frequently is the “durable” power of attorney A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal The two types of durable power of attorney are immediate and

“springing.” The first type takes effect as soon as the durable power of attorney is executed The second is intended to“spring” into effect when a specific event occurs, such as the disability of the principal Most often, durable powers of attorney are created to address decisions involving either property management or health care

Durable powers of attorney have become popular because they enable the principal to have his or her affairs handled easily and inexpensively after he or she has become incapacitated Before the durable power of attorney was created, the only way to handle the affairs of an incapacitated person was to appoint a guardian, a process that frequently involves complex and costly court proceedings, as well as the often humiliating determination that the principal is wholly incapable and in need of

POWER OF ATTORNEY 59

Trang 3

A sample document

granting power of

attorney.

Date:

I, _ , the undersigned, of ,

do hereby confer full power of attorney on _

of as true and lawful attorney-in-fact for me and in my name, place and stead, and on my behalf, and for my use and benefit, regarding the following:

FIRST: To ask, demand, litigate, recover, and receive all manner of goods, chattels, debts, rents, interest, sums of money and demands whatsoever, due or hereafter to become due and owing, or belonging to me, and to make, give and execute acquittances, receipts, satisfactions or other discharges for the same, whether under seal or otherwise;

SECOND: To make, execute, endorse, accept and deliver in my name or in the name of my aforesaid attorney all checks, notes, drafts, warrants, acknowledgments, agreements and all other instruments in writing, of whatever nature, as to my said attorney - in - fact may seem necessary to conserve my interests;

THIRD: To execute, acknowledge and deliver any and all contracts, debts, leases, assignments of mortgage, extensions of mortgage, satisfactions of mortgage, releases of mortgage, subordination agreements and any other instrument or agreement of any kind or nature whatsoever, in connection therewith, and affecting any and all property presently mine or hereafter acquired, located anywhere, which to

my said attorney-in-fact may seem necessary or advantageous for my interests;

FOURTH: To enter into and take possession of any lands, real estate, tenements, houses, stores or buildings, or parts thereof, belonging to

me that may become vacant or unoccupied, or to the possession of which I may be or may become entitled, and to receive and take for me and in my name and to my use all or any rents, profits or issues of any real estate to me belonging, and to let the same in such manner

as to my attorney shall seem necessary and proper, and from time to time to renew leases;

FIFTH: To commence, and prosecute on my behalf, any suits or actions or other legal or equitable proceedings for the recovery of any of

my lands or for any goods, chattels, debts, duties, and to demand cause or thing whatsoever, due or to become due or belonging to me, and to prosecute, maintain and discontinue the same, if he or she shall deem proper;

SIXTH: To take all steps and remedies necessary and proper for the conduct and management of my business affairs, and for the recovery, receiving, obtaining and holding possession of any lands, tenements, rents or real estate, goods and chattels, debts, interest, demands, duties, sum or sums of money or any other thing whatsoever, located anywhere, that is, are or shall be, by my said attorney-in-fact, thought to be due, owing, belonging to or payable to me in my own right or otherwise;

SEVENTH: To appear, answer and defend in all actions and suits whatsoever that shall be commenced against me and also for me and in

my name to compromise, settle and adjust, with each and every person or persons, all actions, accounts, dues and demands, subsisting

or to subsist between me and them or any of them, and in such manner as my said attorney-in-fact shall think proper; hereby giving to my said attorney power and authority to do, execute and perform and finish for me and in my name all those things that shall be expedient and necessary, or which my said attorney shall judge expedient and necessary in and about or concerning the premises, or any of them, as fully as I could do if personally present, hereby ratifying and confirming whatever my said attorney shall do or cause to be done in, about

or concerning the premises and any part thereof.

Powers conferred on said attorney-in-fact shall not be restricted or limited by the aforementioned specifications regarding situation of representation The rights, powers and authority of said attorney-in-fact granted in this instrument shall commence and be in full force and effect on , (Month & Day) _, (Year) and such rights, powers and authority shall remain in full force and effect thereafter until I give notice in writing that such power is terminated.

It is my desire, and I so freely state, that this power of attorney shall not be affected by any subsequent disability or incapacity that may befall me

FURTHERMORE, upon a finding of incompetence by a court of appropriate jurisdiction, this power of attorney shall be irrevocable until such time as said court determines that I am no longer incompetent.

Signature

Power of Attorney

FULL POWER OF ATTORNEY

[continued]

60 POWER OF ATTORNEY

Trang 4

protection With a durable power of attorney, on

the other hand, a principal can appoint someone to

handle his or her affairs after he or she becomes

incompetent, and the document can be crafted to

confer either general power or power in certain

limited circumstances Because no judicial

pro-ceedings are necessary, the principal saves time and

money and avoids the stigma of being declared

incompetent

The concept of the durable power of

attorney was created in 1969 when the National

Conference of Commissioners on Uniform

State Laws promulgated the UNIFORM PROBATE

CODE (U.P.C § 5–501) Ten years later, the

provisions of the code concerning the durable

power of attorney were modified and published

as the Uniform Durable Power of Attorney Act

(UDPA) All fifty states recognize some version

of the durable power of attorney, having

adopted either the UDPA or the Uniform

Probate Code, or some variation of them

Versions of the durable power of attorney vary

from state to state Certain powers cannot be

delegated, including the powers to make,

amend, or revoke a will; change insurance

beneficiaries; contract a marriage; and vote

FURTHER READINGS

Bogus, Carl T 2001 Why Lawsuits are Good for America:

Disciplined Democracy, Big Business, and the Common

Law New York: New York Univ Press.

Foonberg, Jay G 1999 How to Start and Build a Law

Practice 4th ed Chicago: American Bar Association.

Giesel, Grace M 2009 Mastering Professional Responsibility.

Durham, NC: Carolina Academic Press.

Gillers, Stephen 2009 Regulation of Lawyers: Problems of

Law and Ethics 8th ed New York: Aspen Publishers.

Hobson, Wayne K 1986 The American Legal Profession and

the Organizational Society, 1890–1930 New York:

Garland.

Walton, Kimm Alayane 2000 What Law School Doesn’t

Teach You But You Really Need to Know New York:

Harcourt Brace Legal and Professional Publications.

CROSS REFERENCES

Admission to the Bar; Attorney; Attorney-Client Privilege;

Attorney Misconduct; Bar Association; Canons of Ethics;

Ethics, Legal; Examination; Lawyer; Legal Malpractice;

Professional Responsibility; Unauthorized Practice.

PRAECIPE

[Latin, Give an order.] A request for a writ of

summons; one of the forms of legal process used to

commence an action A praecipe was drawn up in

the alternative and commanded the defendant to do

what was ordered or to appear and show why he or

she had not done it An order that commands the

clerk of a court to issue a formal writ of execution

directing the enforcement of a judgment already

rendered and commanding a public officer to seize

the defendant’s property in order to satisfy the debt

Not all lawsuits will involve pracecipes

PRAYER The request contained in a bill inEQUITYor a civil

COMPLAINTthat the court grant the process, aid, or relief that the plaintiff or countersuing defendant seeks (such as the type of remedy, either money damages or an injunction, and the form or dollar amount) Following the pleading’s description of the conflict and allegations, the prayer tends to begin with “Wherefore,” followed by the specific action or award wanted

PREAMBLE

A clause at the beginning of a constitution or statute explaining the reasons for its enactment and the objectives it seeks to attain

Generally a preamble is a declaration by the legislature of the reasons for the passage of the statute, and it aids in the interpretation of any ambiguities WITHIN THE STATUTE to which it is prefixed It has been held, however, that a preamble is not an essential part of an act, and it neither enlarges nor confers powers

CROSS REFERENCE Constitution of the United States.

PRECATORY LANGUAGE Words in a will or a trust used by the testator (the person making the will) or settlor (the person making a trust) to express a wish or desire to have his or her property disposed of in a certain way or

to have some other task undertaken, which do not necessarily impose a mandatory obligation upon anyone to carry out the wish

Precatory language in a will or trust usually includes such terms as the testator’s “request,”

“hope,” or “desire” that property be given to a certain person or be disposed of in a particular manner Whether such language can be viewed

as mandatory, thus creating an enforceable will

or trust, or whether it merely expresses the testator’s wish to have something done has been

a difficult issue for the courts The court must look to the intent of the testator to determine whether the precatory language establishes an enforceable agreement

The court usually examines a number of factors, including other language used in the will or trust, to determine the testator’s intent

For example, if in her will Anne says only that she “wishes” or “would like” her house to be sold to her cousin Bill on her death, the court

PRECATORY LANGUAGE 63

Trang 7

may find the language to be precatory and thus unenforceable because Anne was merely expres-sing a wish or a recommendation But if elsewhere in the will a definite selling price is indicated, the court may conclude that Anne, despite the precatory terms used, did intend for her cousin to be offered the house because she took the additional step of specifying the price for which the property was to be disposed of at her death

In addition to examining other language in the will or trust for clues to the testator’s intent, the court may look to the relationship of the parties involved For instance, if Tom puts language in a trust“requesting” that his daughter receive money or a particular gift, a judge may be more apt to enforce the trust In doing so, the court acts on the assumption that Tom and his daughter share a close personal relationship and that he would want her to be provided for following his death even if he was less than definite in the language he used in the trust

Furthermore, language in a will or trust making a gift to charity may sometimes be upheld even if it appears to be precatory For example, if Sue states in her will that she“would like” some of her money to be used for a particular program at a university, a court may view her language as mandatory When a charitable organization is involved, courts, as

a policy matter, tend to construe language liberally to make the gift effective

The litigation that often results from precatory language in wills and trusts can be avoided by the careful use of clear and definite language that leaves no doubt as to how the testator wishes to dispose of her or his property

Seeking legal advice when drafting a will or trust may be the best way to prevent litigation

FURTHER READINGS DiRusso, Alyssa A 2007 “He Asks, She Says: Gender, Language, and the Law of Precatory Words in Wills ” Wisconsin Women’s Law Journal 22.

McElwee, L A 1992 “Precatory Language in Wills: Mere Utterances of the Sibyl? ” Probate Law Journal 11.

PRECEDENT

A court decision that is cited as an example or analogy to resolve similar QUESTIONS OF LAW in later cases

The Anglo-American common-law tradi-tion is built on the doctrine of STARE DECISIS

(“stand by decided matters”), which directs a court to look to past decisions for guidance on how to decide a case before it This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law Reliance upon precedent contributes predictability to the law because it provides notice of what a person’s rights and obligations are in particular circumstances

A person contemplating an action has the ability to know beforehand the legal outcome

It also means that lawyers can give legal advice

to clients based on settledRULES OF LAW The use of precedent also stabilizes the law Society can expect the law, which organizes social relationships in terms of rights and obligations, to remain relatively stable and coherent through the use of precedent The need is great in society to rely on legal rules, even if persons disagree with particular ones JusticeLOUIS D.BRANDEISemphasized the impor-tance of this when he wrote, “Stare decisis is usually the wise policy, because in most matters

it is more important that the applicable rule of law be settled than that it be settled right” (Burnet v Coronado Oil & Gas Co., 285 U.S

393, 52 S Ct 443, 76 L Ed 815[1932]) Reliance upon precedent also promotes the expectation that the law is just The idea that like cases should be treated alike is anchored in the assumption that one person is the legal equal of any other Thus, persons in similar situations should not be treated differently except for legally relevant and clearly justifiable reasons Precedent promotes judicial restraint and limits a judge’s ability to determine the outcome of a case in a way that he or she might choose if there were no precedent This function

of precedent gives it its moral force

Precedent also enhances efficiency Reli-ance on the accumulation of legal rules helps guide judges in their resolution of legal disputes If judges had to begin the law anew

in each case, they would add more time to the adjudicative process and would duplicate their efforts

The use of precedent has resulted in the publication of law reports that contain case decisions Lawyers and judges conduct legal research in these reports seeking precedents

64 PRECEDENT

Trang 8

They try to determine whether the facts of the

present case precisely match previous cases If

so, the application of legal precedent may be

clear If, however, the facts are not exact, prior

cases may be distinguished and their precedents

discounted

Though the application of precedent may

appear to be mechanical, a simple means of

matching facts and rules, it is a more subjective

process Legal rules, embodied in precedents,

are generalizations that accentuate the

impor-tance of certain facts and discount or ignore

others The application of precedent relies on

reasoning by analogy Analogies can be neither

correct nor incorrect but only more or less

persuasive Reasonable persons may come to

different yet defensible conclusions about what

rule should prevail

The judicial system maintains great fidelity

to the application of precedents There are

times, however, when a court has no precedents

to rely on In these“cases of first impression,” a

court may have to draw analogies to other areas

of the law to justify its decision Once decided,

this decision becomes precedential

Appellate courts typically create precedent

The U.S Supreme Court’s main function is to

settle conflicts over legal rules and to issue

decisions that either reaffirm or create

prece-dent Despite the Supreme Court’s reliance on

precedent, it will depart from its prior decisions

when either historical conditions change or the

philosophy of the court undergoes a major shift

The most famous reversal of precedent isBROWN

V BOARD OF EDUCATION, 347 U.S 483, 74 S Ct

686, 98 L Ed 873 (1954), in which the Supreme

Court repudiated the “separate but equal”

doctrine of PLESSY V FERGUSON, 163 U.S 537,

16 S Ct 1138, 41 L Ed 256 (1896) This

doctrine had legitimated racial SEGREGATION for

almost sixty years but finally gave way in Brown,

when a unanimous court ruled that separate

but equal was a denial of EQUAL PROTECTIONof

the laws

CROSS REFERENCES

Case Law; Court Opinion.

PRECEPT

A standard or rule of conduct In old French law,

a kind of letter issued by the king in subversion of

the laws, being orders to the judges to do or

tolerate things contrary to law

PRECINCT

A constable’s or police district A small geographi-cal unit of government An election district created for convenient localization of polling places

A county or municipal subdivision for casting and counting votes in elections

PRECIPE See PRAECIPE

PRECLUSION ORDER

A court sanction that prevents a party who has not complied with a direction to supply information in the discovery stage of a lawsuit from later supporting or challenging designated claims or defenses related to the facts that he or she withheld

Rule 37 of the Federal Rules of Civil Procedure governs the granting of preclusion orders in actions brought in federal courts

CROSS REFERENCE Civil Procedure.

PREEMPTION

A doctrine based on the SUPREMACY CLAUSE of the U.S Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws As such, a state may not pass a law inconsistent with the federal law

A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law

Article VI, Section 2, of the U.S Constitu-tion provides that the “ Constitution, and the Laws of the United States shall be the supreme Law of the Land.” This SUPREMACY

government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power The federal preemption doctrine is a judicial response to the conflict between federal and state legislation When it is clearly established that a federal law preempts a state law, the state law must be declared invalid

A state law may be struck down even when

it does not explicitly conflict with federal law, if

a court finds that Congress has legitimately occupied the field with federal legislation

Questions in this area require careful balancing

of important state and federal interests

PREEMPTION 65

Trang 9

A sample preclusion

order.

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE,

A PART OF CENGAGE

LEARNING.

Preclusion Order

SUPREME COURT OF THE STATE OF NEW YORK

_ X

Plaintiff,

Defendant.

_ X

J.:

Index No.: _

In this matrimonial action, plaintiff / defendant moves by order to show cause for an order precluding plaintiff / defendant from introducing at trial any evidence not previously disclosed pertaining to _ The plaintiff / defendant

opposes the motion.

The plaintiff / defendant motion regarding discovery is granted to the extent of directing that the plaintiff / defendant may not introduce

evidence with respect to _ that has not been produced at least ten (10) days after service of a copy of this order with notice of entry.

This constitutes the decision and order of the court.

Dated: _

Justice Supreme Court

Preclusion Order February, 2004

66 PRECLUSION ORDER

Trang 10

Problems arise when Congress fails to make its

purpose explicit, which is often the case The

court must then draw inferences based on the

presumed objectives of federal law and the

supposed impact of related STATE ACTION

Preemption is not limited to the application

of federal statutes A state law may also be

preempted by a treaty, an executive agreement, or

an administrative regulation Thus, for instance,

regulations promulgated pursuant to the

OCCUPA-TIONAL SAFETY AND HEALTH ACT OF1970 preempt any

state laws that conflict with those regulations

The federal right to regulate interstate

commerce under the COMMERCE CLAUSE of the

U.S Constitution has resulted in federal

preemption of state labor laws Likewise, the

Terminal, 411 U.S 624, 93 S Ct 1854, 36 L

Ed 2d 547 (1973), declared that state and local

laws that interfere with comprehensive federal

environmental laws and regulations are invalid

In California v Federal Energy Regulatory

Commission, 495 U.S 490, 110 S Ct 2024, 109 L

Ed 2d 474 (1990), the Supreme Court held that

state regulations imposing minimum flow rates

on rivers used to generate hydroelectric power

were preempted by the Federal Power Act

(16 U.S.C.A § 791 et seq.) In Mississippi Power

and Light Company v Mississippi ex rel Moore,

487 U.S 354, 108 S Ct 2428, 101 L Ed 2d 322

(1988), the Court held that the Federal Energy

Regulatory Commission’s regulations preempted

a state’s authority to set electric power rates

At the state level, preemption occurs when a

state statute conflicts with a local ordinance on

the same subject matter Preemption within the

states varies according to individual state

constitutions, provisions for the powers of

political subdivisions, and the decisions ofSTATE

COURTS For example, if a state legislature enacts

gun-control legislation, and the intent of the

legislation is to occupy the field ofGUN CONTROL,

then a municipality is preempted from enacting

its own gun-control ordinance

The issue of preemption has dominated

litigation over the right of states to require

insurance companies and Health Maintenance

Organizations (HMOs) to accept “any willing

[healthcare] provider” rather than to force

consumers to stay within the health providers’

exclusive networks HMOs and insurance

companies have argued that the 1974 federal

(ERISA) preempted these state laws ERISA is

an extremely complex and technical set of

provisions that seek to protect employee benefit programs, which include pension plans and healthcare plans Healthcare providers have pointed to the comprehensive nature of ERISA

as demonstrating the intent of Congress to maintain a uniform national system Therefore, they have argued, state laws must be preempted

to affect this purpose

The U.S Supreme Court rejected the ERISA preemption argument in two cases involving health insurance In Moran v Rush Prudential HMO, Inc., 536 U.S 355, 122 S Ct 2151, 153 L

Ed 2d 375 (2002), the Court in a 5–4 decision upheld an Illinois law that required HMOs to provide independent review of disputes between the primary care physician and the HMO In Kentucky Association of Health Plans, Inc v

Miller, 538 U.S 329, 123 S Ct 1471, 155 L Ed

2d 468 (2003), the Court tackled the “any willing provider rule.” In a unanimous decision, the Court held that Kentucky laws were not preempted by ERISA The Court concluded that the laws did not concern employee benefit plans

as defined by ERISA but instead were insurance regulations This was an important distinction because state insurance regulations are not preempted by ERISA

FURTHER READINGS Hoenig, Michael 2002 “Supreme Court Teaches Preemp-tion Lessons ” New York Law Journal 228 (December).

“Interstate Commerce—Preemption.” 2002 New Jersey Law Journal 169 (July).

Walsh, Edward 2003 “Supreme Court Sides with States on HMOs: Groups Can Be Opened to All Providers ” Washington Post (April 3).

CROSS REFERENCES Federalism; States ’ Rights.

PREEMPTIVE RIGHT The privilege of a stockholder to maintain a proportionate share of the ownership of a corporation by purchasing a proportionate share

of any new stock issues

In most jurisdictions, an existing stock-holder has the right to buy additional shares of a new issue to preserveEQUITYbefore others have

a right to purchase shares of the new issue

PREFERENCE The act of an insolvent debtor who pays one or more creditors the full amount of their claims or a larger amount than they would be entitled to receive on a pro rata distribution

PREFERENCE 67

Định dạng
Số trang	10
Dung lượng	196,42 KB