RECORDING OF LAND TITLESA process by which proof of ownership of real property is filed in the appropriate county office or court to allow purchasers, creditors, and other interested par
Trang 1RECORDING OF LAND TITLES
A process by which proof of ownership of real property is filed in the appropriate county office or court to allow purchasers, creditors, and other interested parties to determine the status of the property interests therein
The process of recording begins when a duly executed, acknowledged, and delivered docu-ment is brought to the recorder’s office for filing in the record books in the county where the property is located The recorder’s office also keeps a set of indexes containing informa-tion about each document so that the document can be discovered by a title search A majority of states have a GRANTOR-GRANTEE INDEX, a set of volumes containing an alphabetical reference to the surname of the grantor followed by the name of the grantee, a brief description of the document and the property, and the location of the filed document in the official record books
The same information is contained in the
“grantee-grantor index,” which is organized alphabetically by surname of the grantee A few states use a“tract index,” which organizes all of the documents according to the location
of the property
An individual who plans to purchase land commissions a title search, which involves examining the list of successive conveyances, from original owner to the present holder, that affect a parcel of land The person conducting the title examination, usually a lawyer or title insurance examiner, prepares an “abstract of title,” summarizing the chain of title and listing any liens, charges, or liabilities to which the land may be subject TheABSTRACT OF TITLEis evidence
of the marketability of the record title; a purchaser of an interest in real property will take title subject to all interests constructively disclosed or implied by the record and subject
to any interests of which the purchaser has actual notice
In nearly every state the validity of a conveyance, as between grantor (seller) and grantee (purchaser), is not affected by whether the deed is filed in the public records or not; the question is not who has possession of the deed but who owns title to the land Before the enactment of state recording acts, the question
of priority of title was generally a question of time For example, if O, owner in fee simple of land, sells to A, giving A a deed to the land, but
O later decides to sell the same land to B, B takes nothing because A was first to purchase
the land, leaving O nothing to convey to B Under state recording acts, however, if A fails to record the deed before B buys and B meets certain criteria with respect to B’s status and behavior, B still receives good title from O and
A takes nothing B is considered a “bona fide purchaser” or a “purchaser in good faith,” if he
or she gives “valuable consideration without actual, implied or constructive notice of incon-sistent outstanding rights of others .” (Miller
v Hennen, 438 N.W.2d 366, 369 [Minn 1989]) Three general categories of state recording acts are in use in the United States: “notice,”
“race,” and “race-notice” recording statutes, the least common of which are the race recording acts Under a race recording statute, if A fails to record title, B must record his or her title before
A records (It is therefore a “race” to the recorder’s office such that the first person to file has title to the property.) To prevail against an unrecorded conveyance, B must have paid value, yet there is no requirement that B be without notice of A’s conveyance at the time of B’s recording in order to prevail
Unlike the race recording statute, the notice and race-notice recording statutes prevent B from prevailing if B is first to record but does so with notice of the prior unrecorded conveyance Under a notice recording statute, if B is a bona fide purchaser and is therefore without notice of A’s prior unrecorded conveyance, B will prevail regardless of whether A records before B On the other hand, under a race-notice recording statute, B will not prevail, despite her or his bona fide purchaser status, if B does not record before A
The recording statutes only work to the detriment of the holders of unrecorded instru-ments A properly recorded document will prevail over subsequent claims, regardless of whether those claimants actually search for or find the recorded instrument Courts often use the term “constructive notice” to describe this imputation of knowledge if a proper and reasonable investigation would have revealed the recorded instrument Because the recording system was designed to encourage and protect reliance on the public records, no legal protec-tion is afforded those individuals who have not significantly relied upon such records
A purchaser with actual notice of a prior unrecorded interest in the premises will take title subject to that interest even though it may
278 RECORDING OF LAND TITLES
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insufficient to provide notice, but if a purchaser
has heard more reliable information about a
possible adverse claim to the land, he or she is
expected to make a reasonable investigation
In such cases, an individual might be charged
with “inquiry notice” in addition to actual or
constructive notice of previous claims Inquiry
notice is not applied in the same manner as
constructive notice, which is applied
automati-cally; it must first be shown that a suspicious
fact existed to originate the duty to conduct an
inquiry
One of the most litigated aspects of notice is
the universally accepted rule that a purchaser of
an interest in land is deemed to have actually
viewed the land before buying The purchaser
is held to inquiry notice of the facts that
an inspection or a conversation with those
in possession of the land would disclose
The problem occurs in determining what is
possession—for example, when the holder of
the unrecorded interest only uses the property
for a limited purpose, such as for camping or
cutting timber
Not every instrument that has been
deliv-ered to the recorder’s office and copied into the
records is held to be recorded or to have
provided sufficient notice within the meaning of
the recording acts The recorder’s office makes
no representation that the instruments it
preserves are authentic and reliable, and in
many cases one cannot detect the defects by
solely examining the document itself For
example, the instrument may contain a forged
signature, have a defective ACKNOWLEDGMENT,
never have been delivered to the buyer, have
been issued by a seller who is without capacity,
and so on Some states have enacted curative
statutes which provide that after the passage of a
certain number of years, instruments that lack
seals or acknowledgments or other technical
requirements are deemed to have been properly
recorded
In some cases, documents can be located
only with difficulty, such as with“wild deeds”—
recorded deeds not appearing in the chain of
title Most of these difficulties do not occur in
tract-index systems in which all conveyances
affecting a given parcel will be indexed on a
single page There are situations, however, in
which the tract index shows conveyances by
parties who are not in the chain of the record
title Such conveyances do not impart
constructive notice of an interest However, they may not be disregarded, and they put the purchaser to the burden of an inquiry
The more problematic and common error occurs when the instrument has been misin-dexed at the recorder’s office In this situation courts generally hold that the instrument was not recorded because it was not indexed in a manner sufficient to provide constructive notice to any individual searching the record Some states, however, provide that an instrument is deemed recorded upon its deposit in the recorder’s office
In either case, the careful purchaser or grantee should return to the recorder’s office a few days after recording his or her deed to ensure that it has been properly recorded
Not all written instruments affecting real property interests are recordable Recording statutes may explicitly provide that certain documents need not be recorded to protect the individuals in whom a property interest is created, such as with short-term leases and executory sales contracts On the other hand, not all interests in land derive from written instruments These types of adverse claims to title fall entirely outside the coverage of the recording acts and include the following property interests: ADVERSE POSSESSION, prescrip-tiveEASEMENTS, implied easements, easements by necessity, and oral boundary line agreements
FURTHER READINGS Devlin, Robert T 2010 A Treatise on the Law of Deeds:
(Volume 2) Their Form, Requisites, Execution, Acknowl-edgment, Registration, Construction, and Effect General Books LLC.
Hinkel, Daniel F 2007 Essentials of Practical Real Estate Law.
4th ed Clifton Park, N.Y.: Thomson/Delmar Learning/
West Legal Studies.
Rawle, William Henry 2009 A Practical Treatise on the Law
of Covenants for Title Ithaca, N.Y.: Cornell University Library.
CROSS REFERENCE Registration of Land Titles.
RECORDS Written accounts of acts, transactions, or instru-ments that are drawn up pursuant to legal authority by an appropriate officer and appointed
to be retained as memorials or permanent evidence of matters to which they are related
A public record is a document that has been filed with, or furnished by, a governmental agency and is available to the public for
RECORDS 279
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The term record also applies to the formal, written account of a case, which contains the history of actions taken, papers filed, rulings made, and all written opinions
RECOUPMENT
To recover a loss by a subsequent gain In pleading, to set forth a claim against the plaintiff when an action is brought against one as a defendant Keeping back of something that is due, because there is an equitable reason to withhold it
A right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract
In various creative industries, it is common practice for a company, such as a book publisher or record label, to issue an“advance against royalties” to an artist This is a sum of money paid prior to the commercial release of a work, and it represents a prospective quantity of the eventual payments (per unit sold) that the company anticipates will be owed to the artist
When the work has sold enough copies that would otherwise trigger the crediting of royal-ties equal to the amount already paid out (based
on the determined per-unit royalty as a fraction
of the advance), the advance is said to have been
“recouped.” The company has withheld paying the artist royalties up to that point, but it has thus recovered its payment, by keeping what would have been the royalties from actual sales
so far, and it will no longer withhold additional royalties From that point onward, the company
is no longer out of pocket to the artist with regard to that advance payment, and the artist will begin receiving royalties beyond the value
of the amount advanced because he or she has,
in effect, paid the company back for the funds received in consideration of sales per unit
FURTHER READING Kohn, Al, and Bob Kohn 2002 Kohn on Music Licensing 3rd ed New York: Aspen Law & Business.
RECOURSE The right of an individual who is holding a
COMMERCIAL PAPER, such as a check or promissory note, to receive payment on it from anyone who
has signed it if the individual who originally made
it is unable, or refuses, to tender payment Recourse is the right of the holder to recover against a prior endorser, who is secondarily liable When a check is endorsed without recourse, it signifies that the endorser will not
be liable to pay in the event that payment is refused
RECOVERED MEMORY The remembrance of traumatic childhood events, usually involving sexual abuse, many years after the events occurred
The heightened awareness of child SEXUAL ABUSEthat developed in the 1980s brought with
it the controversial topic of recovered memory Some mental health therapists contended that children repress memories of abuse so completely that years later they have no memory
of it These therapists believed that through the use of recovered memory therapy, victims are able to recover the memories of the traumatic events and begin dealing with their psychologi-cal effects Others in the medipsychologi-cal community held deep reservations about the idea of repressed memory and the therapy techniques that purported to recover them These critics argued that without established standards or procedures, a psychotherapist faced the danger
of implanting false memories in a patient By the mid-1990s these fears were justified, as patients won multimillion dollar verdicts against their therapists based on claims that they created false and destructive memories
During the 1980s many adults who recov-ered memories of child sexual abuse through therapy sought to hold their abusers account-able in a court of law However, underSTATUTE
OF LIMITATIONSprovisions, the time for a lawsuit had expired Courts and legislators responded
by changing these laws Typically, these laws provide that the action must be filed within a certain number of years after thePLAINTIFFeither reaches the AGE OF MAJORITY or knew or had reason to know that sexual abuse caused the injury
Once the statute of limitations problem was resolved, a number of civil lawsuits were filed alleging sexual abuse that happened many years before Lawsuits against Catholic priests using recovered memories as evidence resulted in large damage awards in several cases Criminal charges were also successfully brought against
280 RECOUPMENT
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memory Apart from the award of damages,
some therapists believe that a trial and a
confrontation between the abuser and the
abused is essential to restoring the victim’s
mental health In the 1980s courts allowed
recovered memory testimony into evidence,
despite objections by defendants that there
was no scientific basis for believing memories
could be recovered In addition, defendants
contended that the memories were untrue,
implanted in the patient through a mixture of
drug therapy and suggestive questioning
By the early 1990s there was a backlash
against recovered memory and its use in the
law The False Memory Syndrome Foundation
was established as a support group by members
of families who claimed they had been falsely
accused of abuse by their children through
recovered memory Mental health professionals
also contested the validity of recovered memory
Some argued that it is never reliable, whereas
others believed it is sometimes reliable but only
when elicited by a properly trained professional
In 1994 the AMERICAN MEDICAL ASSOCIATION
(AMA) adopted a policy statement that
pro-claimed that recovered memories of childhood
sexual abuse are often unreliable and should not
be assumed to be true The AMA statement
concluded that few cases in which adults make
accusations of abuse can be proved or disproved
using recovered memories because there is no
way to distinguish the truth of memories from
imagined events That same year the American
Psychiatric Association also expressed
misgiv-ings about recovered memory
In 1994 a California jury awarded $500,000
in a MALPRACTICE case brought against two
therapists by Gary Ramona, a father who
claimed that the therapists had implanted false
memories of childhood sexual abuse in his
daughter In 1996 a Minnesota jury awarded
David and Lisa Carlson $2.5 million after the
longest psychiatric malpractice trial in U.S
history The Carlsons sued Lisa Carlson’s
therapist, charging that she used hypnosis,
drugs, coercion, and pressure to implant false
memories
By 1995 a number of state courts had issued
decisions that attacked the validity of recovered
memories and held that these memories were
insufficient to sustain a lawsuit unless supported
by independent evidence Statutes of limitations
also continued to be a problem for those
seeking to file lawsuits For example, in Dalrymple v Brown, 549 Pa 217, 701 A 2d
164 (1997), the Pennsylvania Supreme Court rejected a sexual assault claim based on recovered memory The alleged victim stated that the DEFENDANT had assaulted her in 1968 and 1969 when she was a young child but she had only recovered the memories of the assaults
in 1990 The defendant asked the court to dismiss the case because under Pennsylvania law the statutes of limitations required the victim to sue within two years after her eighteenth birthday
On appeal the Pennsylvania Supreme Court rejected the plaintiff’s contention that a discov-ery rule granted her an exemption from the two-year time limit This rule holds that if the injured party does not originally know an injury, then the limitations period does not begin until the discovery of the injury is reasonably possible Typical examples of the discovery rule are found inMEDICAL MALPRACTICE
cases, where a doctor’s error is unknown to the patient until its effects become physically evident The court held that the discovery rule applies only when the nature of the injury is such that plaintiffs cannot detect it, stating that
“it would be absurd to argue that a reasonable
In 1994, a jury awarded Gary Ramona (left)
$500,000 in a malpractice suit against two therapists whom he claimed had implanted false memories of childhood sexual abuse in his daughter.
AP IMAGES RECOVERED MEMORY 281
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a reasonable six year old, would repress the memory of a touching so that no amount of diligence would enable that person to know of the injury.”
As of 2009, the topic of recovered memory remains controversial within the psychiatric and legal communities In general, courts remain hostile to the introduction of testimony from individuals who claim to have recovered memories of child and sexual abuse
FURTHER READINGS Freyd, Jennifer, and DePrince, Anne 2001 Trauma and Cognitive Science New York: Routledge.
Lazo, Joy 1995 “True or False: Expert Testimony on Repressed Memory ” Loyola of Los Angeles Law Review 28.
Rogers, William 1995 “Recovered Memory” and Other Assaults upon the Mysteries of Consciousness: Hypnosis, Psychotherapy, Fraud, and the Mass Media Jefferson, NC: McFarland.
CROSS REFERENCES Child Abuse; Statute of Limitations.
RECOVERY The acquisition of something of value through the judgment of a court, as the result of a lawsuit initiated for that purpose
For example, an individual might obtain recovery in the form of damages for an injury
The term recovery is also used to describe the amount ultimately collected, or the amount
of the judgment itself
RECRIMINATION
A charge made by an individual who is being accused of some act against the accuser
Recrimination is sometimes used as a defense in actions for DIVORCE Traditionally, the underlying theory was that a divorce could
be granted only when one individual was innocent and the other guilty, and the defense
of recrimination allowed the party accused of misconduct to terminate divorce proceedings by asserting guilt against the other party As grounds for divorce were expanded, however, recrimination is now virtually obsolete because
of the onset of no-fault divorce However,
COMMON LAWcountries with fault-based divorces continue to use recrimination as a defense
Recrimination has been limited or eliminated
as a defense in some states, and others allow it
only where one spouse accuses the other of
ADULTERY, and theDEFENDANTwants to prove that the PLAINTIFF was also guilty of that offense In some jurisdictions, the courts have attempted to counterbalance the plaintiff’s accusation with the defendant’s defense by allowing only comparable grounds to be offset by recrimination
RECUSE
To disqualify or remove oneself as a judge over a particular proceeding because of one’s conflict of interest Recusal, or the judge’s act of disqualifying himself or herself from presiding over a proceeding,
is based on theMAXIMthat judges are charged with
a duty of impartiality in administering justice When a judge is assigned to a case, she reviews the general facts of the case and determines whether she has any conflict of interest concerning the case If a conflict of interest exists, the judge may recuse herself on her own initiative In addition, any party in a case may make a motion to require the judge to recuse herself from hearing the case The initial presiding judge usually determines whether or not the apparent conflict requires her recusal, and the judge’s decision is given considerable deference Some jurisdictions, however, require another judge to decide whether or not the presiding judge should be disqualified If a judge fails to recuse himself when a direct conflict of interest exists, the judge may later be reprimanded, suspended, or disciplined by the body that oversees JUDICIAL ADMINISTRATION In addition, in some cases where a judge presides over a matter in which he has a direct conflict of interest, any criminal conviction or civil damage award in the case may be reversed or set aside Generally, a judge must recuse himself if he has a personal bias or prejudice concerning a party to the lawsuit or has personal knowledge
of the facts that are disputed in the proceeding The CODE OF JUDICIAL CONDUCT, a judicial ethics code drafted by theAMERICAN BAR ASSOCIATIONin
1972 and adopted by most states and the federal government, outlines situations in which a judge should disqualify himself from presiding over a matter Canon 3C of the Judicial Code outlines these situations, including the judge’s personal bias or prejudice toward a matter or its participants, personal knowledge of the facts that are disputed in a case, a professional or familial relationship with a party or an attorney,
or a financial interest in the outcome of the
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mandate a judge’s disqualification or recusal if
any of these factors are present
In some cases the parties to a proceeding
may waive the judge’s disqualification and
allow the judge to preside over the case The
judge’s disqualification is waived when both
parties agree to the waiver or when one or more
of the parties continues to participate in the
proceedings
The term recusation was at one time
considered an exception to jurisdiction, the
effect of which was to disqualify the particular
judge by reason of the judge’s interest or
prejudice in the proceeding
FURTHER READINGS
Abramson, Leslie W 1992 Studies of the Justice System:
Judicial Disqualification Under Canon 3 of the Code of
Judicial Conduct 2d ed Chicago, Ill.: American
Judicature Society.
Comisky, Morvin, and Philip C Patterson 1987 The
Judiciary—Selection, Compensation, Ethics and
Disci-pline New York: Quorum Books.
Rotunda, Ronald D 2006 “Propriety of a Judge’s Failure to
Recuse When Being Considered for Another Position ”
Georgetown Journal of Legal Ethics 19 (fall).
CROSS REFERENCES
Canons of Judicial Ethics; Judicial Conduct.
RED CROSS CONVENTIONS
See GENEVA CONVENTIONS, 1949
RED SCARE
Throughout much of the twentieth century, the
United States worried about Communist
activi-ties within its borders This concern led to
sweeping federal action against ALIENS and
citizens alike during periods known today as
Red scares Using the derogatory term Red for
Communist, the phrase is a form of criticism: it
implies overreaction resulting from excessive
suspicion, unfounded accusation, and disregard
for CONSTITUTIONAL LAW
The first Red scare followed the Bolshevik
revolution in Russia in November 1917, and
lasted until 1920 It was marked by antiradical
legislation in U.S immigration law, extensive
federal probes of suspected radicals and their
organizations, and mass arrests and
deporta-tions of aliens The second Red scare arose prior
to World War II, and reached new heights
during the Cold War years
The origins of the first Red scare lay in the Russian Revolution and the horrendous expe-rience of WORLD WAR I.COMMUNISMwas not yet perceived as the only enemy; ANARCHISM (the advocacy of violent overthrow of government and law) also caused fear In the United States,
no great effort was made to separate these two political philosophies, for they both seemed to represent a single threat: foreign attempts to undermine the nation’s government and insti-tutions Congress responded by putting new antiradical protections in the IMMIGRATION Act
of 1918 (§§ 1–3, as amended, 8 U.S.C.A § 137 [c, e–g]) Although antagonism toward differ-ent races and beliefs had marked immigration law for decades, this change introduced politi-cal limits It allowed for the DEPORTATION of aliens on the grounds of anarchist beliefs or membership in anarchist organizations Riding
a wave of anti-immigrant sentiment, law-makers frequently grumbled about “foreign troublemakers.”
Early in 1919 Congress began pressuring the JUSTICE DEPARTMENT to take action against radicals It had a receptive audience in Attorney General A Mitchell Palmer A self-styled enemy
of foreign subversion who hoped to become president, Palmer was given to making public statements like“fully 90 percent of the commu-nist and anarchist agitation is traceable to aliens.” Then, on June 2, 1919, a bomb exploded outside Palmer’s Washington, D.C., home Found among the remains of the dead bomber was a pamphlet signed by “the anar-chist fighters,” warning of more violence to come The attack set in motion changes that would leave a lasting mark on federal law enforcement Palmer created the Radical Divi-sion of the Justice Department, and assigned a promising young bureaucrat named J Edgar Hoover to head it Within a few months, Hoover had compiled thousands of names of suspected radicals and their organizations; later,
as director of the FEDERAL BUREAU OF INVESTIGA-TION(FBI), he would compile more
Spurred by public expectations, the Justice Department acted in November 1919 and January 1920 by launching massive raids More than 10,000 people were arrested—some for membership in Communist or left-wing groups, others on no greater pretext than that they looked or sounded foreign—and then jailed and interrogated with little regard for their right to due process Hundreds were
RED SCARE 283
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Navy troop transport But the raids backfired and Congress was scandalized by the disregard shown for constitutional rights Along with the newly formed AMERICAN CIVIL LIBERTIES UNION
(ACLU) and the AMERICAN BAR ASSOCIATION, lawmakers denounced the attorney general
The raids had two unforeseen consequences for Palmer: first, they ended his presidential aspirations, and second, they dashed his hopes
of seeing new federal legislation that would allow for the arrest of subversive citizens, much
as the 1918 Immigration Act permitted depor-tation of subversive aliens Hoover, who had overseen the execution of the raids and some deportations, escaped reproach
The backlash against the first Red scare did nothing to prevent a recurrence Fears of anarchism subsided, but the onset of WORLD WAR II produced new worries about fascism, Nazism, and Communism The instigators of the second Red scare turned their gaze inward toward U.S citizens who now seemed danger-ous The alliance of the Soviet Union, Great Britain, and the United States came undone at the conclusion of World War II, as the Soviet Union occupied Eastern Europe and set up puppet Communist regimes In the United States, fears arose about Communists in the federal government who were committing
ESPIONAGEfor the Soviet Union Once the Soviet Union detonated an atomic bomb in 1949, new fears arose about traitors grew The conviction and execution of Julius and Ethel Rosenberg, the so-called“Atom Spies,” confirmed to many citizens that such fears were justified
House of Un-American Activities Committee
The creation of the House Un-American Activities Committee (HUAC) in 1938 played
a major part in fostering the second Red Scare
Lasting until 1969, this panel of the HOUSE OF REPRESENTATIVESheld many hearings into alleged subversion by private citizens, unions, and Hollywood The COLD WAR years also saw another dramatic manifestation of Red scare tactics The Communist witch-hunts of Senator
JOSEPH R.MCCARTHYbrought unfounded accusa-tions of Communist infiltration of the STATE DEPARTMENTand the military Both HUAC and McCarthy benefited substantially from the cooperation of the FBI, whose durable director, Hoover, fed them information
HUAC represented the last gasp of the Red scares In the late 1960s and early 1970s, the Cold War still had important geopolitical implications; however, federal interest in hunt-ing down radicals had waned A backlash against McCarthyism was a primary reason, as was the divisive experience of theVIETNAM WAR Although the Cold War continued until the breakup of the Soviet Union in 1991, its effects were felt primarily in foreign policy and military expansion As of 2009, the legacy of the Red scares to U.S law can be measured in several ways: a greater interest in civil liberties; a decline
of Congress’s role as a forum for interrogating private citizens; federal reform that has curtailed the power of the FBI; and a 1990 reform of immigration law that removed anarchism and Communism as grounds for deportation (Im-migration and Nationality Act of 1990, U.S.C.A
§ 1101 et seq.)
FURTHER READINGS Ackerman, Kenneth 2008 Young J Edgar Hoover: The Red Scare, and the Assault on Civil Liberties New York:
Da Capo.
Hagedorn, Ann 2008 Savage Peace: Hope and Fear in America, 1919 New York: Simon and Schuster Heale, M J 1998 McCarthy’s Americans: Red Scare Politics
in State and Nation, 1935–1965 Athens: Univ of Georgia Press.
Morgan, Ted 2003 Reds: McCarthyism in Twentieth-Century America New York: Random House Powers, Richard G 1987 Secrecy and Power: The Life of
J Edgar Hoover New York: Free Press.
CROSS REFERENCES Communism “House Un-American Activities Committee” (In Focus); Goldman, Emma; Smith Act.
REDEMPTION The release of an estate in real property from a mortgage
Redemption is the process by which land that has been mortgaged or pledged is bought back or reclaimed It is accomplished through a payment of the debt owed or a fulfillment of the other conditions
CROSS REFERENCE Mortgage.
REDLINING
A discriminatory practice whereby lending institu-tions refuse to make mortgage loans, regardless of
an applicant’s credit history, on properties in
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deteriorating
“Redlining” is known as such because some
lenders use a red pencil to outline such areas
Redlining violatesCIVIL RIGHTSstatutes
Although redlining is traditionally seen in the
context of financial lending, it can be seen in
other contexts as well For example, insurance
redlining is the discriminatory unavailability of
insurance Insurance redlining impairs the ability
of individuals of a particular class or group to
acquire property, because procuring insurance is
a prerequisite to obtaining a mortgage
REDRESS
Compensation for injuries sustained; recovery or
restitution for harm or injury; damages or equitable
relief Access to the courts to gain REPARATION for
a wrong
REDUCTIO AD ABSURDUM
[Latin, Reduction to absurdity.] In logic, a
method employed to disprove an argument by
demonstrating that, by accepting the argument’s
premise, one is led to absurd and untenable
propositions and consequences, perhaps by
show-ing an inherent contradiction in the argument as
formulated A reductio ad absurdum can serve as
a useful example for the discrediting of a law that
seems vague or overbroad, in order to show that it
would bring ridiculous, unintended consequences
if followed to the letter
vREED, STANLEY FORMAN
Stanley Forman Reed served as associate justice
of the U.S Supreme Court from 1938 to 1957
Before his appointment to the Court, Reed
served as U.S solicitor general Reed was a
strong supporter of congressional power to
regulate the U.S economy but was more
moderate in his support of civil liberties
Reed was born on December 31, 1884, in
Macon County, Kentucky Educated at private
schools, he graduated from Kentucky Wesleyan
College in 1902 He earned a second bachelor’s
degree at Yale University Reed attended law
school at both the University of Virginia and
Columbia University but never completed his
law degree In 1908, he went to Paris and
studied for a year at the Sorbonne
He returned from Europe and studied for the Kentucky bar exam He was admitted in 1910 and began a law practice as a solo practitioner in Macon County From 1912 to 1916, he served in the Kentucky General Assembly but left to serve
in the Army duringWORLD WAR I After the war,
he joined a large law firm
President HERBERT HOOVER appointed Reed general counsel of the Federal Farm Board in
1929 Though Reed was a Democrat, the Republican Hoover promoted him to general counsel of the RECONSTRUCTION Finance Corpo-ration (RFC) in 1932 The RFC was Hoover’s belated attempt to use the power of the federal government to lift the U.S economy out of the economic depression that had begun in No-vember 1929 When FRANKLIN D ROOSEVELT
succeeded Hoover as president in 1933, he kept Reed in this position
Reed continued to impress his superiors In
1935 he was appointed U.S solicitor general, whose duty it is to argue cases before the U.S
Supreme Court In this position Reed was called on to defend the constitutionality of
NEW DEAL economic programs that empowered the federal government to regulate the national economy He met a conservative Supreme Court, with the majority of the justices opposed
to these new programs The centerpiece of the New Deal was theNATIONAL INDUSTRIAL RECOVERY ACT OF 1933 (NIRA), 48 Stat 195, which was
THEUNITEDSTATES GRANTS TO ALL CITIZENS A RIGHT TO PARTICIPATE IN THE CHOICE OF ELECTED OFFICIALS [A] CHOICE WHICH CANNOT BE NULLIFIED
BY A STATE THROUGH CASTING ITS ELECTORAL PROCESS
IN A FORM WHICH PERMITS RACIAL DISCRIMINATION IN THE ELECTION. CONSTITUTIONAL RIGHTS WOULD BE OF LITTLE VALUE IF THEY COULD BE THUS INDIRECTLY DENIED
—S TANLEY F R EED
Stanley F Reed CORBIS.
Trang 9designed to bolster the national economy through the enforcement of “codes of fair competition.” Reed’s arguments in the 1935 case that challenged the constitutionality of the NIRA (A.L.A Schechter Poultry Corp v United States, 295 U.S 495, 55 S Ct 837, 79 L Ed
1570) were unsuccessful, and the act was declared unconstitutional
Although Reed had only mixed success defending New Deal programs before the Court,
he did argue and win several major cases: West Coast Hotel Co v Parrish (300 U.S 379, March
29, 1937; upholding MINIMUM WAGE laws), National Labor Relations Board v Jones &
Laughlin Steel Corporation (301 U.S 1, April
12, 1937; upholding the National Labor Rela-tions Act), and Steward Machine Company v
Davis (301 U.S 548, May 24, 1937; upholding the taxing power of the SOCIAL SECURITY Act)
With Reed developing a reputation as one of the strongest solicitor generals since the office’s creation in 1870, President Roosevelt, confident
of Reed’s belief in the New Deal, appointed him
to the Supreme Court in 1938 The appoint-ment marked the decline of conservative economic thought on the Court and helped pave the way for sustaining federal programs and policies in the future Reed consistently upheld the right of Congress, under the power
of theCOMMERCE CLAUSEof the U.S Constitution,
to regulate the national economy
Apart from economic issues, Reed was a moderate He wrote the majority opinion in Smith v Allwright (321 U.S 649, 64 S Ct 757,
88 L Ed 987 [1944]), which struck down the
“white primary” in the southern states The device effectively kept African Americans from
exercising their right to vote in any meaningful sense At that time, the South was a virtual one-party system dominated by the DEMOCRATIC PARTY State Democratic Parties excluded Afri-can AmeriAfri-cans from party membership, and state legislatures closed the primaries to every-one but party members African Americans were thus barred from voting in the primary The general election was a mere formality for the primary winner because there was at most token Republican opposition Reed declared the practice unconstitutional, because it violated the Fifteenth Amendment’s PROHIBITION against denying the right to vote to citizens because of their race Reed also voted to end the separate-but-equal doctrine of racial SEGREGATION in Brown v Board of Education (347 U.S 483, 74
S Ct 686, 98 L Ed 874[1954])
Reed was more conservative regarding civil liberties He supported the admission of illegally obtained evidence in criminal trials in Wolf v Colorado (338 U.S 25, 69 S Ct 1359, 93 L Ed
1782[1949]) and wrote the opinion in Adamson
v California (332 U.S 46, 67 S Ct 1672, 91 L
Ed 1903 [1947]), which declined to apply the Fifth Amendment’s guarantee against SELF
-INCRIMINATIONto state court proceedings Reed retired from the Court in 1957 He died on April 2, 1980, in Huntington, New York
FURTHER READING Fassett, John D 1994 New Deal Justice: The Life of Stanley Reed of Kentucky New York: Vantage.
REENTRY SeeRIGHT OF REENTRY
Stanley Forman Reed 1884–1980
1900
❖
1884 Born,
Macon County,
Ky.
◆
1902 Graduated from Kentucky Wesleyan University
1906–08 Attended law school at Univ of Va and Columbia
◆
1910 Admitted to Kentucky bar
1914–18 World War I
1912–16 Served in Kentucky General Assembly
◆
1929 Appointed general counsel of the Federal Farm Board
◆
1932 Appointed general counsel of the Reconstruction Finance Corporation
◆
1939–45 World War II
1950–53 Korean War
1961–73 Vietnam War
❖
1980 Died, Huntington, N.Y.
1954 Voted with
majority in Brown v
Board of Education
◆
◆
1938–57 Served as associate justice of U.S Supreme Court
1944 Wrote majority opinion in Smith v Allwright
1935 Appointed U.S solicitor general; argued Schechter Poultry Corp v United States before Supreme Court
286 REENTRY
Trang 10A judicial officer who presides over civil hearings
but usually does not have the authority or power
to render judgment
Referees are usually appointed by a judge in
the district in which the judge presides Referees
aid the judge by hearing certain matters and by
making recommendations concerning special or
complicated issues Judges generally delegate a
portion of their judicial power to referees, who
then report their recommendations to the judge
concerning the issue
The English chancery master was the
forerunner of the present-day referee In
eighteenth-century England, the chancellor
courts used special masters to aid the chancery
in handling its expanding EQUITY jurisdiction
Accordingly, the chancery master aided the
chancellor only in equitable matters, such as
marriage dissolutions, trust matters, and
finan-cial accountings U.S jurisdictions adopted the
use of special masters or referees modeled on
the English chancery master
In most jurisdictions a referee must be an
attorney Nevertheless, in some complex
prop-erty or financial matters, a judge may appoint a
person who is not an attorney to preside over a
dispute and to make recommendations The
term reference usually refers to the trial and
determination of issues arising in a civil action
by a person appointed for that purpose by the
court An order of reference, which is also called
a referral order, is the court order that appoints
the referee to hear and recommend action on
the issues that are specified in the order
Judges generally appoint a referee to hear
complicated matters, such as financial
account-ings, property lien issues, or business valuation
disputes Many jurisdictions also have referees
who are appointed to hear specified
special-jurisdiction matters, such as FAMILY LAW, trust
and probate, and pretrial discovery disputes
Parties to an action may agree to have a matter
heard by a referee In some jurisdictions the
parties’ consent to the appointment of a referee
to hear the matter may result in the parties’
waiver of any right to a jury trial
A referee makes recommendations to the
judge or court that appoints the referee but
generally does not issue enforceable orders A
referee generally cannot render judgment in a
case The referee’s general duty is to provide a
report to the appointing judge on the issues of
fact or law that prompted the referee’s appoint-ment It has been said that “nothing can originate before a referee, and nothing can terminate with or by the decision of a referee.”
Referees generally serve at the pleasure of the judge and accordingly hold less judicial authority than the appointing judge As a judicial officer, a referee is subject to theCODE OF JUDICIAL CONDUCT
In some jurisdictions a referee may be called
a SPECIAL MASTER, court commissioner, or a magistrate The Federal Rules of Civil Proce-dure, for example, allow for the appointment of
a“master,” who can be a referee, an auditor, an examiner, or an assessor Generally, however, the duties of a master are the same as those of a referee, and the appointing judge may limit the master’s powers to report only on specified issues or to perform only particular acts The federal judiciary also uses magistrate judges—
judicial officers who perform a broad range of delegated or statutory duties, such as presiding over initial hearings in criminal cases, misde-meanor trials, pretrial proceedings, and the trial
of civil cases The Federal Magistrate Act of 1968 (Pub L No 90-578, 82 Stat 1107 [codified at
28 U.S.C.A §§ 604, 631–639]) created the current system of federal magistrate judges and governs the duties of such magistrates
FURTHER READING Sinclair, Kent, Jr 1996 Practice before Federal Magistrates.
New York: Bender.
REFERENCE The process by which a tribunal sends a civil action, or a particular issue in the action, to an individual who has been appointed by the tribunal
to hear and decide upon it, or to obtain evidence, and make a report to the court
CROSS REFERENCE Referee.
REFERENDUM Referendum is the right reserved to the people to approve or reject an act of the legislature or the right of the people to approve or reject legislation that has been referred to them by the legislature
The referendum power is created by state constitutions and is conferred on the citizens of
a state or a local subdivision of the state A referendum provides the people with a means of expressing their opinion on proposed legislation
REFERENDUM 287