REASONABLE WOMAN A standard used by fact finders in sexual harassment litigation to determine whether sexual harassment has occurred.. The standard that is used in evaluating whether a p
Trang 1defendant’s liberty or in the defendant’s death, outcomes far more severe than occur in civil trials where money damages are the common remedy
Reasonable doubt is required in criminal proceedings under the due process clause of the
FIFTH AMENDMENTto the U.S Constitution In In
re Winship (397 U.S 358, 90 S Ct 1068, 25 L
Ed 2d 368[1970]), the U.S.SUPREME COURTruled that the highest standard of proof is grounded
on“a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”
The reasonable doubt standard is not used
in every stage of a criminal prosecution The prosecution and defense need not prove beyond
a reasonable doubt that every piece of evidence offered into trial is authentic and relevant If a prosecutor or defendant objects to a piece
of evidence, the objecting party must come forward with evidence showing that the dis-puted evidence should be excluded from trial
Then the trial judge decides to admit or exclude
it based on a preponderance of the evidence presented A similar procedure employing a preponderance standard is used when a party challenges a variety of evidence, such as coerced confessions, illegally seized evidence, and state-ments extracted without the furnishing of the so-called Miranda warning
The reasonable doubt standard is inapplica-ble to still other phases of a criminal prosecu-tion Lower standards of proof are permissible
in PAROLE revocation proceedings, proceedings
to revoke PROBATION, and prison inmate disci-plinary proceedings
In jury trials, a panel of 12 jurors must reach
a unanimous verdict concerning whether the prosecutor has proven the defendant’s guilt beyond a reasonable doubt In the event that the jury is unable to reach a unanimous verdict, the panel is said to be hung Although the case is dismissed against the defendant in response to a
HUNG JURY, the prosecutor has the discretion to bring the case against the defendant again The unanimity of a criminal verdict is distinct from civil trials, in which a panel may render a verdict
if, for example, three-fourths of the jurors agree
FURTHER READINGS Boyce, Ronald N., Donald A Dripps, and Rollin M Perkins.
2007 Criminal Law and Procedure 10th ed New York:
Foundation Press.
Loewy, Arnold H 2003 Criminal Law in a Nutshell 4th ed.
St Paul, Minn.: West.
Whitman, James Q 2008 The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial New Haven: Yale Univ Press.
CROSS REFERENCES Beyond a Reasonable Doubt; Clear and Convincing Proof; Criminal Law; Criminal Procedure; Due Process of Law; Preponderance of Evidence.
REASONABLE FORCE The amount of force necessary to protect oneself
or one’s property Reasonable force is a term associated with defending one’s person or property from a violent attack, theft, or other type of unlawful aggression It may be used as a defense in
a criminal trial or to defend oneself in a suit alleging tortious conduct If one uses excessive force, or more than the force necessary for such protection, he or she may be considered to have forfeited the right to defense Reasonable force is also known as legal force
A person is generally justified in using force that is intended or likely to cause death or great bodily harm if the person reasonably believes that such force is necessary to prevent the commission of a forcible felony The person is also generally justified in using such extreme force to prevent or terminate another’s unlawful entry into, or attack upon, a dwelling if: (1) the entry is made or attempted in a violent manner, and he reasonably believes that such force is necessary to prevent personal violence to himself or another then in the dwelling, or (2)
he reasonably believes that such force is necessary to prevent the commission of a felony
in the dwelling Thus, using violent force against
a would-be burglar who flees upon being discovered would likely be unnecessary and inappropriate and therefore not justifiable
REASONABLE PERSON
A phrase frequently used inTORTandCRIMINAL LAW
to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability
The decision whether an accused is guilty of
a given offense might involve the application of
an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances In most cases, persons with greater than average skills,
or with special duties to society, are held to a higher standard of care For example, a physician
268 REASONABLE FORCE
Trang 2who aids a person in distress is held to a higher
standard of care than is an ordinary person
CROSS REFERENCES
Negligence.
REASONABLE TIME
In the absence of an express or fixed time
established by the parties to an agreement or
contract (especially one that falls under the purview
of theUNIFORM COMMERCIAL CODE[UCC]), any time
which is not manifestly unreasonable under the
circumstances For example, if a contract does not
fix a specific time for performance, the law will infer
(and impose) a reasonable time for such
perfor-mance This is defined as that amount of time
which is fairly necessary, conveniently, to do what
the contract requires to be done, as soon as
circumstances permit The term “reasonable time”
has other (related) applications: UCC 2-206(2)
requires that acceptance of an offer be made within
a “reasonable time” if no time is specified
The reasonableness or unreasonableness of
time used or taken by a party may be the subject of
JUDICIAL REVIEWin light of the nature, purpose, and
circumstances of each case In considering whether
there has been unreasonable delay in performance,
a court may also consider other factors such
as prior dealings between the parties, business
routine or custom within the trade, and whether
there were any objective manifestations of
expec-tation expressed between the parties
REASONABLE WOMAN
A standard used by fact finders in sexual
harassment litigation to determine whether sexual
harassment has occurred
Under title VII of the CIVIL RIGHTS Act of
1964 (42 U.S.C.A §§ 2000e–2000e-2 [1988]), it
is illegal for an employer to discriminate against
employees on the basis of gender UnderSEXUAL
HARASSMENT guidelines set forth by the EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, the two
basic types of sexual harassment are QUID PRO
QUOsexual harassment and hostile environment
harassment (29 C.F.R § 1604[1993]) Quid pro
quo harassment occurs when an employer
condi-tions employment opportunities on an employee’s
submission to unwelcome sexual advances
Hostile environment harassment is unwelcome
sexual conduct that interferes with an
indivi-dual’s employment or creates an intimidating,
hostile, or offensive work environment The
standard that is used in evaluating whether a person has been subjected to sexual harassment varies from jurisdiction to jurisdiction: Some use a reasonable person standard, and some use a reasonable woman standard
In evaluating alleged sexual harassment, the reasonable person standard is an objective standard of perception based on a fictitious, reasonable individual In using this standard in
a sexual harassment case, the fact finder would ask whether a reasonable person in the plaintiff’s position would have felt that the respondent’s actions constituted grounds for a sexual harassment claim By contrast, a reason-able woman standard allows the fact finder to ask whether a reasonable woman in the plaintiff’s position would have felt that the respondent’s actions constituted sexual harass-ment The difference is that the reasonable woman standard takes into account the differ-ent perceptions between men and women regarding words or actions of a sexual nature
Although a number of courts have applied the reasonable woman standard since it was first introduced in the 1980s, many courts take the position that the reasonable person standard is more objective because it is gender-neutral The courts that use the reasonable woman standard recognize a difference between men and women regarding the effect of unwanted sexual interac-tion Because women historically have been more vulnerable toRAPE and sex-related violence than have men, these courts believe that the proper perspective for evaluating a claim of sexual harassment is that of the reasonable woman
FURTHER READING Goldberg, Deborah B 1995 “The Road to Equality: The Application of the Reasonable Woman Standard in Sexual Harrassment Cases ” Cardozo Women’s Law Journal 2.
CROSS REFERENCES Sex Discrimination; Women ’s Rights.
REBATE Discount; diminution of interest on capital lent in consideration of prompt repayment thereof; re-duction of a charge that is not credited in advance but is returned subsequent to payment in full
A rebate can also be effected by the government, as a budgetary item, for the benefit
of the public As part of the economic stimulus
of the American Recovery and Reinvestment Act, in 2009, the federal government provided
REBATE 269
Trang 3financial support to various state-run rebates concerning purchases considered to be in the public interest For example, in July 2009, the U.S Department of Energy announced a program to provide nearly $300 million in rebates to families for the purchase of qualified energy-efficient appliances
A tax rebate is a sum of money refunded to a taxpayer after full payment of the tax has been made
REBUS SIC STANTIBUS [Latin, At this point of affairs; in these circum-stances.] A tacit condition attached to all treaties
to the effect that they will no longer be binding as soon as the state of facts and conditions upon which they were based changes to a substantial degree
REBUT
To defeat, dispute, or remove the effect of the other side’s facts or arguments in a particular case or controversy
When a defendant in a lawsuit proves that the plaintiff’s allegations are not true, the defendant has thereby rebutted them
REBUTTABLE PRESUMPTION
A conclusion as to the existence or nonexistence of
a fact that a judge or jury must draw when certain evidence has been introduced and admitted as true
in a lawsuit but that can be contradicted by evidence to the contrary
A rebuttable presumption can be over-turned only if the evidence contradicting it is true and if a reasonable person of average
intelligence could logically conclude from the evidence that the presumption is no longer valid For example, a person who has been judicially declared incompetent is presumed incompetent unless there is sufficient proof, usually in the form of medical testimony, that the person has regained competency
In CRIMINAL LAW, there is a PRESUMPTION OF INNOCENCEin favor of the accused The prosecu-tion must establish BEYOND A REASONABLE DOUBT
that the accused committed the crime charged
REBUTTER
InCOMMON-LAW PLEADING, the response made by a defendant to a plaintiff’s surrejoinder, which rebuts earlier denials made by the defendant The making of a rebutter occurs in the third round of the series of pleadings made by the parties First, there is the plaintiff’s declaration which is countered by the defendant’s plea Next, the plaintiff makes a replication which is answered by the defendant in his or her rejoinder In the third stage of PLEADING, the plaintiff makes a surrejoinder to which the defendant responds by use of the rebutter
RECALL The right or procedure by which a public official may be removed from a position by a vote of the people prior to the end of the term of office Recall is the retiring of an elected officer by
a vote of the electorate Some state constitutions prescribe the procedure that must be followed
in a recall—for example, requiring the filing of a petition containing the signatures of a specific number of qualified voters
Recall can also refer to a subsequent appearance in the WITNESS STAND of someone who has already given testimony in court That
is, a witness can be recalled
RECAPTION Regaining possession of; taking back
Recaption is a COMMON LAW remedy exer-cised by an individual who has been wrongfully deprived of goods Through recaption, the owner may lawfully claim and retake goods whenever he or she finds them, as long as this
is done in an orderly and legal manner An individual who removes his borrowed car that was not returned to him from his neighbor’s driveway is exercising recaption
Rather than reducing
retail prices, many
automobile
manufacturers choose
to offer rebates to new
car buyers.
KIM KULISH/
CORBIS SABA.
270 REBUS SIC STANTIBUS
Trang 4Acknowledgment in writing that something of
value, or cash, has been placed into an
indivi-dual’s possession; written confirmation of
pay-ment rendered Receipt of goods refers to the act
of taking physical possession of them
RECEIVER
An archaic term used in common law and civil
law countries to designate an individual who holds
and conceals stolen goods for thieves Currently,
an independent individual appointed by a court to
handle money or property during a lawsuit
Courts appoint receivers to take custody,
manage, and preserve money or property that is
subject to LITIGATION so that when the final
judgment is rendered, the property remains
available to accomplish what has been ordered
The power to appoint a receiver is rarely utilized
by the courts, and only upon a showing that it is
required to preserve the property RECEIVERSHIP
cannot properly be used to coerce a party or to
gain control of a business from someone who is
capable of managing it Receivership is an
EXTRAORDINARY REMEDY, designed to benefit
everyone involved It is, however, a harsh
remedy, since it involves restraining an
indivi-dual’s property, removing it from his control,
and causing additional legal expenses
The appointment of a receiver, which is a
provisional remedy to be exercised while
litigation is pending, is ordinarily prescribed
by statute, as are a receiver’s powers Generally,
a receiver can be appointed only after a lawsuit
is initiated
According to the statutes of different states,
receivers have been appointed in actions for
DIVORCE, the removal of a trustee, or the
FORECLOSURE of a mortgage and in proceedings
for the DISSOLUTION of a corporation, for an
accounting of partnership money, or for a
creditor’s suit Under federal law, a judge can
appoint a SECURITIES AND EXCHANGE COMMISSION
(SEC) receiver in an action involving alleged
SECURITIES misconduct by corporations or
indi-viduals
The appointment of a receiver is justified
when property in dispute is allowed to
deterio-rate to the extent where emergency repairs are
necessary, and where there is good reason to
suspect that the property is going to be sold,
wasted, taken out of state, misused, or destroyed
if the court does not act to preserve it A receiver can also be appointed in situations where it appears that no one with aLEGAL RIGHT
to manage certain property is present, or no mentally competent adult is entitled to hold it
A receiver is sometimes appointed to preserve property during litigation between two parties who appear to have an equal right to use the property but who are unwilling to acknowledge each other’s interest
A judge can appoint a receiver following the filing of an application, or petition, with the court In certain instances, all those who are interested in a case join together, and in the event that the court has jurisdiction over the property and the parties, an appointment can proceed upon their consent
An application for the appointment of a receiver is often submitted by a creditor It might beFRAUDor collusion for a debtor to have
a friendly creditor nominate an individual the debtor chooses A receiver generally should not
be appointed unless notice is served on all interested parties and a hearing is conducted where a judge determines the merits of the case
On good evidence that an emergency exists, a judge can grant the petition for a receivership and hold a hearing as soon as possible thereafter
Obligations
A receiver assumes control of all the property subject to the receivership but does not take title
to the property and cannot exercise control over property outside the territorial authority of the court Any property that has already been transferred in a fraudulent sale designed to cheat creditors is beyond the reach of the receiver; however, the receiver has the power to initiate a lawsuit, requesting that the court set aside the transfer Any rights, such as liens or mortgages, which others have in the property, remain valid Anyone in possession of property listed in the receivership order can be compelled
to turn it over to the receiver A refusal to comply, or interference with the receivership, is punishable as aCONTEMPTof court
A receiver does not represent the individual whose property is being administered, since the receiver is an officer of the court and is responsible to the court for protecting the interests of all opposing parties fairly Where it
is not clear how the receiver must perform his
RECEIVER 271
Trang 5or her duty, the receiver may properly apply to the court for instructions A receiver can be removed and held financially liable for failure to obey orders of the court, for neglect of duties, or for abuse of authority The receiver must exercise judgment in fulfilling the duties, and her decisions must be reasonable The receiver might be required to post a bond to ensure faithful performance of the duties and is required to account to the court at regular intervals for all the property entrusted to her during, and at the termination of, the appoint-ment
Compensation
A receiver has a right to be compensated for services and to be reimbursed for costs or traveling expenses In cases where it is necessary for the receiver to hire an attorney, counsel fees are allowed To obtain compensation, the receiver submits an itemized report of services
to the court The amount of payment depends upon the extent and value of the property, the difficulties encountered, and the time spent It is also based upon the receiver’s skill, experience, diligence, and the success of his efforts The time and manner of payment are, for the most part, left to the discretion of the court; unless authorized by the court, it is illegal for the receiver to take payment money out of the property being managed
RECEIVERSHIP
A court order whereby all the property subject to dispute in a legal action is placed under the dominion and control of an independent person known as a “receiver.”
Receivership is anEXTRAORDINARY REMEDY, the purpose of which is to preserve property during the time needed to prosecute a lawsuit, if a danger is present that such property will be dissipated or removed from the jurisdiction of the court if a receiver is not appointed
Receivership takes place through a court order and is utilized only in exceptional circumstances and with or without the consent of the owner of the property Federal Rule ofCIVIL PROCEDURE66 pertains to receivers appointed by federal courts
InSECURITIES AND EXCHANGE COMMISSION(SEC) receiverships, the federal government seeks
to bring persons or entitles into receivership for violation of SECURITIES laws, such as the
perpetration of aPONZI SCHEME For example, the SEC can bring an action to freeze and enjoin the sale of assets, and then ask a federal court to appoint a receiver to prevent misuse or waste of those assets Some factors that a court will consider in determining whether to appoint a receiver in such a case include: whether there has been FRAUD, whether there is imminent danger of any type of compromise to assets, and whether there are adequate legal remedies available In recent years, these actions have become more common
RECEIVING STOLEN PROPERTY The offense of acquiring goods with the knowledge that they have been stolen, extorted, embezzled, or unlawfully taken in any manner
The earliest statute that made receiving stolen property a crime was enacted in England
in 1692 It provided that the receiver—the person who accepts the property—should be deemed an accessory after the fact to the theft The crime became a separate substantive offense
in 1827, and it has been similarly treated in a majority of U.S jurisdictions
Elements Receiving stolen property is defined by statute
in most states Generally it consists of four elements: (1) the property must be received; (2)
it must have been previously stolen; (3) the person receiving the property must know it was stolen; and (4) the receiver must intend to deprive the owner of his or her property
A person receives stolen property by acquir-ing or takacquir-ing manual possession of it Physical possession, however, is not always required Under some statutes, it is sufficient if the accused has exercised control over the property For example, a statute may declare that paying for the property constitutes control, regardless
of whether the accused has handled it
In many jurisdictions a belief that the property is stolen satisfies the knowledge element It has been held that a mere suspicion does not constitute knowledge Some statutes provide that a person has knowledge if he knows, or has reason to know, that goods are stolen Another test is whether a reasonable person would suspect that the property was stolen Knowledge is commonly proved by the circumstances surrounding the receipt of the property For example, unexplained possession
272 RECEIVERSHIP
Trang 6of goods that were recently stolen raises a
presumption that the possessor received them
illegally
In order to be guilty, the receiver must
intend to deprive the owner of the property
The crime is committed even if the receiver
intends to obtain a reward for returning the
property because she has gained a benefit from
depriving the owner of possession, even
temporarily
Defenses
An honest, although mistaken, belief that
property is not stolen is a defense to the crime
of receiving stolen property Intoxication is
another defense, but the intoxication must be
severe enough to prevent any knowledge that
the property was stolen Infancy and insanity
are also good defenses
Punishment
The punishment for receiving stolen property
is a fine or imprisonment If the value of the
goods is substantial a person could be sentenced
to a felony-level punishment, which is greater
than one year in prison If the value of the goods
is below the felony-level, a person could be
sentenced to no more than one year or 90 days
in jail The term of years imposed varies from
state to state In jurisdictions where value is an
element of the offense, the severity of the
penalty is commensurate with the value of the
goods Where value is not an element, it might
still be significant in determining the severity of
the punishment
Civil Remedies
In a majority of states, the person whose
property was stolen may bring a conversion
action against the receiver of stolen property If
the accused is found to have converted the
property, the victim has a choice of remedies
The victim may demand that the accused return
the stolen property or may require the accused
to pay the full value of the property at the time
it was converted
Federal Law
Receiving stolen property is proscribed by
federal statute (18 U.S.C.A § 662) when it
occurs within the maritime or territorial
jurisdiction of the United States or when such
property has moved in interstate commerce
RECESS
In the practice of courts, a brief interval during which all business is suspended without an adjournment
A recess in legislative practice is an interval
of time between sessions of the same continu-ous body, as opposed to the period between the final adjournment of one legislative body and the convening of another at the next regular session
RECIDIVISM The behavior of a repeat or habitual criminal A measurement of the rate at which offenders commit other crimes, either by arrest or conviction baselines, after being released from incarceration
Both state and federal laws have been enacted in an attempt to reduce the number
of repeat or habitual offenses For example, Washington’s habitual criminal statute imposes
a minimum sentence of ten years imprisonment for persons convicted of a second felony, third misdemeanor, or third petit larceny Further-more, in the event that a person is convicted of
a third felony, fifth misdemeanor, or a fifth petit
LARCENY, the statute imposes a life sentence (Wash Rev Code § 9.92.090[1996])
Another state that has enacted a recidivism statute is California California’s recidivism statute, more commonly known as the THREE
-STRIKES LAW, increases sentencing when the recidivist commits additional crimes If the criminal is convicted of a second felony, the sentence doubles the sentence of the first-time felon, and if convicted of a third violent crime or serious felony, the person will be sentenced to triple the sentence of a first-time felon, or 25 years imprisonment, whichever is greater (Cal Penal Code § 667 [West 1996])
The three-strikes law was passed in 1994, after a voter REFERENDUM received 71 percent support
The ballot measure was prompted by the 1993 abduction-murder of 12-year-old Polly Klaas in Petaluma, California The killer, Richard Allen Davis, was a twice-convicted kidnapper who had been onPAROLEafter serving only half of a 16-year prison term for the second KIDNAPPING Because of the way the law is written, however, offenders with prior criminal records are being put behind bars for life for non-felony offenses such as petty theft and shoplifting
In March 2003 the Supreme Court ruled on two separate cases Ewing v California, 538 U.S
RECIDIVISM 273
Trang 711, 123 S Ct 1179, 155 L Ed 2d 108 (2003), and Lockyer v Andrade, 538 U.S 63, 123 S Ct
1166, 155 L Ed 2d 144 (2003), both involving California’s law providing for mandatory prison terms of 25 years to life for those convicted for the third time of a felony The Court failed to overturn the law, despite arguments that the sentences of those challenging the law consti-tuted cruel and usual punishment in violation
of the Eight Amendment The federal govern-ment and 26 states now have a three strikes-type law, imposing as much as a life prison term for criminals convicted of a third felony
Congress also responded to the recidivism rates in the United States by enacting the
VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 (Pub L No 103-322, 108 Stat
1796) This act mandates life imprisonment for the commission of a serious violent felony or a combination of two or more serious felonies or drug offenses
There are many ideas on how to solve the problem of recidivism Some of these include requiring literacy programs in penal institu-tions, electronic monitoring of home confine-ment, greater use of halfway houses, and“boot camp” programs consisting of military march-ing, discipline, physical trainmarch-ing, work, classes, and drug and alcohol treatment for young, first-time offenders
FURTHER READINGS Brooks, Justin 1994 “Keeping the Jailhouse Lawyer out of Jail ” Criminal Justice 9 (summer).
Burns, Jerald C., and Gennaro F Vito 1995 “An Impact Analysis of the Alabama Boot Camp Program.” Federal Probation 59 (March).
Farrington, David P., and Roger Tarling, eds 1985.
Prediction in Criminology Albany, N.Y.: State Univ of New York Press.
McClain, Meredith 1996 “‘Three Strikes and You’re Out’:
The Solution to the Repeat Offender Problem? ” Seton Hall Legislative Journal 20 (July).
McGovern, Virginia and Stephen Demuth 2009 “Racial and Ethnic Recidivism Risks: A Comparison of Postincarceration Rearrest, Reconviction, and Reincar-ceration among White, Black, and Hispanic Releasees ” The Prison Journal 89.
Potts, Jeff 1993 “American Penal Institutions and Two Alternative Proposals for Punishment ” South Texas Law Review 34 (October).
Zamble, Edward, and Vernon L Quinsey 2001 The Criminal Recidivism Process Cambridge, UK: Cambridge Univ Press.
CROSS REFERENCE Determinate Sentence.
RECIPROCAL Bilateral; two-sided; mutual; interchanged Reciprocal obligations are duties owed by one individual to another and vice versa A recipro-cal contract is one in which the parties enter into mutual agreements
Reciprocal laws are statutes of one state that give rights and privileges to the citizens of another state if that state extends similar privileges to the citizens of the first state A common example is the Reciprocal Enforce-ment of Support Act, which is a uniform law adopted in a majority of jurisdictions, by which
a tribunal in the state where a wife or mother resides is able to commence proceedings for
CHILD SUPPORTagainst a husband or father who resides in another state
There are other legal concepts using idea of reciprocality, including joint and reciprocal will, implied reciprocal servitude, reciprocal negative easement, reciprocal trust, reciprocal will, reciprocal discovery
RECISSION SeeRESCISSION
RECITAL
A formal statement appearing in a legal document such as a deed that is preliminary in nature and provides an explanation of the reasons for the transaction
The recital in a deed, for example, might indicate the reasons why the owner is selling the property
In PLEADING, a recital is the statement of matter that is introductory to a positive allegation; it begins with the words, “For that whereas ” and is followed by the claim of the party
RECKLESSNESS
A state of mind characterized by rashness, heedlessness of danger, or wanton conduct The state of mind accompanying an act that either pays no regard to its probable or possible injurious consequences, or which, though foreseeing such consequences, irresponsibly persists in spite of such knowledge It arises in matters of criminal as well
as civil (i.e., tort) law, and the standards vary from state to state
274 RECIPROCAL
Trang 8Recklessness transcends ordinary
NEGLI-GENCE To be reckless, conduct must
demon-strate indifference to consequences under
circumstances involving peril to the life or
safety of others (for example, wile driving or
handling hazardous items or materials), even if
no harm is intended This behavior is
particu-larly grievous when one recklessly endangers the
life of a child or an elderly person In two highly
controversial cases in 2006 (Kilmon v State and
Cruz v State), Maryland’s Court of Appeals
reversed two women’s convictions for reckless
endangerment of their unborn children, who
tested positive for cocaine at birth The court
concluded that the state’s criminal recklessness
standards had not been intended to apply drug
use by pregnant women
RECOGNITION
The confirmation or ACKNOWLEDGMENT of the
existence of an act performed, of an event that
transpired, or of a person who is authorized by
another to act in a particular manner
In tax law, a capital gain is recognized when
a taxpayer has actually received payment Such
gain must then be reported on INCOME TAX
forms, and capital gains tax must be paid on it
In INTERNATIONAL LAW, the term recognition
refers to the formal acknowledgment by one
state that another state exists as a separate and
independent government Recognition is not a
mere technicality A state has no status among
nations until it is recognized by other states, in
spite of the fact that it might possess all other
attributes of a state, including a definable
territory and population, a recognizable
gov-ernment, and a certain amount of continuity or
stability
The decision to recognize a new national
government is a political act that is in the
discretion of the officials who are responsible for
foreign policy In the United States, the
presi-dent makes the decision to recognize a country
and can do so by making a formal
announce-ment or by having another official, such as the
SECRETARY OF STATE, make the announcement for
him Recognition can also be informal, such as
by opening negotiations with a new state or
exchanging diplomats with it
A nation is not truly sovereign and
inde-pendent unless other nations recognize its
sovereignty Formal recognition operates to
assure a new state that it will be permitted to hold its place and rank as an independent political body among the nations
Recognition takes effect from the time it is given as if the state had always existed, and a new government can carry forward interna-tional projects initiated by the old government
it replaces
Many difficulties come into play when a government is not recognized For example, an unrecognized government is not entitled to participate in diplomatic negotiations or to have its laws applied in lawsuits or in jurisdictions
The term recognition is also used in relation
to armed conflicts If a state of belligerency is recognized, then the law of war applies with all
of its protections for prisoners of war and noncombatants Recognition of a state of belligerency ordinarily comes from an unin-volved state that declares itself neutral A neutral country is able to recognize a state of belliger-ency and carry on trade and diplomatic relations with both sides of the conflict
RECOGNIZANCE
A recorded obligation, entered into before a tribunal, in which an individual pledges to perform a specific act or to subscribe to a certain course of conduct
For example, an individual who owes money might enter into a recognizance whereby she agrees to satisfy the debt
InCRIMINAL LAW, an individual who has been found guilty of an offense can be mandated to enter into a recognizance whereby she agrees to keep the peace in the future An individual who has been accused but not yet convicted of a criminal offense may be allowed to go free prior
to the trial without being required to post a bail bond The accused individual provides the court with a formal written statement, which declares that his failure to appear will precipitate payment to the court of a specifically indicated sum of money This is known as a release on one’s own recognizance, or personal recogni-zance
RECONCILIATION The restoration of peaceful or amicable relations between two individuals who were previously in conflict with one another
RECONCILIATION 275
Trang 9Reconciliation ordinarily implies forgiveness for injuries on either or both sides The term is often applied to the parties to a DIVORCE who cease proceedings for the dissolution of their marriage upon a resolution of their differences
Reconciliation is used interchangeably with conciliation
RECONSTRUCTION The term Reconstruction refers to the efforts made in the United States between 1865 and
1877 to restructure the political, legal, and economic systems in the states that had seceded from the Union The U.S CIVIL WAR (1861–65) ended SLAVERY, but it left unanswered how the
11 Southern states would conduct their internal affairs after readmission to the Union Though some legal protections for newly freed slaves were incorporated into the Constitution by the Thirteenth, Fourteenth, and Fifteenth Amend-ments, by 1877, conservative Southern whites had reclaimed power and had begun to disenfranchise blacks
ABRAHAM LINCOLNtook the first steps toward Reconstruction in 1863 when he announced a post-war plan for the Southern states Under these terms, a state would have to renounce slavery and agree to comply with the Constitu-tion The states of Louisiana, Arkansas, and Tennessee agreed to these conditions and asked that its senators and representatives be read-mitted to Congress Radical Republicans in Congress objected to this plan, contending that
it would do nothing to change the Southern social system They introduced a tougher bill that Lincoln vetoed, which left the state of Reconstruction uncertain at the time of Lin-coln’s assassination The Freedmen’s Bureau was established as a social welfare agency for the newly freed slaves, but little else was agreed upon Lincoln’s successor, President ANDREW JOHNSON, came from Tennessee As governor, he had championed his state’s readmission to the Union under Lincoln’s terms As president, he revealed a hostility to the use of federal power to change the Southern way of life, in part because
he wanted to rebuild theDEMOCRATIC PARTYand ensure his election in 1868
Radical Republicans became incensed when Johnson issued a general pardon for most Confederates and then issued proclamations that permitted the Southern states to rejoin the Union after holding a constitutional convention
and agreeing to three conditions: repeal of the secession laws, repudiation of the Confederate debt, and ratification of theTHIRTEENTH AMEND-MENT, which ended slavery in the United States However, Johnson did not require the states to permit blacks to vote In 1866 Southern whites took back the reins of government and proceeded to passBLACK CODES, which restricted the freedoms of the newly freed slaves Racial
SEGREGATIONwas established, blacks were barred from serving on juries and as appearing as witnesses, and unemployed blacks were arrested and then auctioned off to employers to pay their fines
In 1866 Congress passed the FOURTEENTH AMENDMENT, which extended DUE PROCESS and
EQUAL PROTECTION rights to all persons and barred states from violating these rights Over time, this amendment would be used to apply most of the BILL OF RIGHTS to the states, but during the Reconstruction period it was used as the basis of additional statutes that imposed federal control over the Southern states In
1867 the Radical Republicans passed the First Reconstruction Act; three other acts would later
be passed by Congress to further define the scope of Reconstruction These acts abolished the Southern government that Johnson had authorized, placed the South back under military control, announced new state constitu-tional conventions, mandated that blacks be allowed to vote, and prevented former Confed-erate leaders from serving as public officials By mid-1868 Congress readmitted representatives from six states, and then the remainder complied with the act’s terms and were read-mitted in 1870
With these new constitutions in place, state and local elections took place Though some blacks were elected to public office, most officeholders were white However, most South-ern whites opposed these govSouth-ernments and the idea of black equality This prevalent attitude led to VIGILANTISM and TERRORISM by various groups, including the KU KLUX KLAN (KKK) These groups used terror to discourage blacks from asserting their political rights and frighten whites who collaborated with the new govern-ments Congress sought unsuccessfully to im-peach President Johnson, but Radical Repub-licans assumed conditions would improve with the election of GeneralULYSSES S GRANT to the presidency in 1868
276 RECONSTRUCTION
Trang 10Grant disappointed supporters of
Recon-struction over the ensuing eight years Though
Congress passed and the states ratified the
FIFTEENTH AMENDMENT in 1870, it had very little
impact in the South The amendment
prohib-ited voting discrimination based on race, but
blacks were intimidated by the KKK and local
employers and stayed away from the polls
Congress proceeded to pass three Force Acts in
1870 and 1871, wide-ranging criminal and civil
laws that sought to curb vigilantism Several
parts of these Force Acts remain in effect,
including theCIVIL RIGHTS TORT LAW 42 U.S.C.A
§ 1983 These laws had some effect, but they
required federal officers to enforce them The
desire of Northerners to continue this work had
begun to ebb, and, by the end of Grant’s term in
1877, it became apparent that federal efforts
were grinding to a halt
The 1876 presidential race between
Repub-licanRUTHERFORD B.HAYESand Democrat SAMUEL
TILDEN ended in an ELECTORAL COLLEGEdeadlock
due to disputed electors from Florida and
Oregon To avoid a constitutional crisis, a
commission was appointed to review the
contested states and decide on a winner In
the end, the Democrats allowed Hayes to be
declared the winner in exchange for a promise
that Hayes would withdraw all federal troops
and give Democrats a portion of the patronage
rights to federal jobs
The withdrawal of the troops symbolized the
end of Reconstruction, but an earlier Supreme
Court case had made clear that the legal system
would resist a broad reading of the Fourteenth
Amendment In the SLAUGHTERHOUSE CASES, 83
U.S 36, 21 L.Ed 394 (1873), the Supreme Court
read the amendment’sPRIVILEGES AND IMMUNITIES
CLAUSE virtually out of the Constitution The
Court effectively closed the door on the concept
of privileges and immunities as an enforcement
tool against state laws that restricted individual
civil rights On a 5–4 vote, the Court interpreted
the clause as protecting only rights of national
citizenship from the actions of the state
government This restrictive reading robbed
the Privileges and Immunities Clause of any
constitutional significance
Conservative white Democrats reasserted
their authority in 1877 and began to
disenfran-chise blacks again They enacted “Jim Crow”
segregation laws that directly challenged the
Fourteenth Amendment The Supreme Court
removed the last impediment to these efforts in theCIVIL RIGHTS CASES, 109 U.S 3, 3 S.Ct 18, 27 L.Ed 835 (1883) The Court invalidated the
CIVIL RIGHTS ACT of 1875, the last piece of Reconstruction legislation This act proclaimed
“the equality of all men before the law,” and promised to“mete out equal and exact justice”
to persons of every“race, color, or persuasion”
in public or private accommodations The law sought to prohibit racial segregation of trains, trolleys, theaters, hotels, restaurants, and other places that are open to the public The Supreme Court struck down the act, finding that the Fourteenth Amendment only prohibited official, state-sponsored discrimination The Fourteenth Amendment could not reach dis-crimination practiced by privately owned places
of public accommodation This Fourteenth Amendment“state action” requirement remains
a central tenet of modern civil rights law The Court’s holding meant that racial segregation could be imposed by private businesses More troubling was the Court’s belief, less than
20 years after the conclusion of the Civil War, that the time for concerns about equal treat-ment for blacks was over The Court stated that blacks should no longer be “special favorite[s]
of the law.”
Reconstruction has come to be regarded as a missed opportunity for U.S society Many of the issues that concerned political leaders of that period returned a hundred years later in the modernCIVIL RIGHTS MOVEMENT The Fourteenth Amendment would be revivified by the Su-preme Court, and surviving parts of the Force Acts would be used again
FURTHER READINGS Collier, Christopher 1999 Reconstruction and the Rise of Jim Crow, 1864–1896 New York: Benchmark.
Foner, Eric, and Olivia Mahoney 1997 America’s Recon-struction: People and Politics After the Civil War Baton Rouge, LA: Louisiana State Univ Press.
Peacock, Judith 2003 Reconstruction: Rebuilding after the Civil War Mankato, MN: Capstone.
CROSS REFERENCES Civil Rights Acts; Discrimination; Jim Crow Laws; Racial and Ethnic Discrimination.
RECONVEYANCE The transfer of real property that takes place when
a mortgage is fully paid off and the land is returned to the owner free from the former debt
RECONVEYANCE 277