The right may be claimed only by a defendant; plaintiff cannot petition for removal of a case he or she has commenced in state court, even after the defendant asserts a counterclaim agai
Trang 1to protect the public health Thus, state laws requiring the vaccination of all children before they are allowed to attend school are constitu-tional because the laws are designed to prevent the widespread epidemic of contagious diseases
Public health protection has been deemed to outweigh any competing interest in the exercise
of religious beliefs that oppose any forms of medication or immunization
A number of cases have involved the issue of whether there is a compelling state interest to require that a blood transfusion be given to a patient whose religion prohibits such treatment
In these cases, the courts look to the specific facts of the case, such as whether the patient is a minor or a mentally incompetent individual, and whether the patient came to the hospital voluntarily seeking help The courts have generally authorized the transfusions in cases
of minors or mentally incompetent patients in recognition of the compelling government interest to protect the health and safety of people However, the courts are divided as to whether they should order transfusions where the patient is a competent adult who steadfastly refuses to accept such treatment on religious grounds despite the understanding that her or his refusal could result in death
The use of secular courts to determine intra-church disputes has raised issues under both the Free Exercise Clause and the Estab-lishment Clause The Supreme Court decided
in the 1871 case of Watson v Jones, 80 U.S
679, 20 L Ed 666, that judicial intervention in cases involving ownership and control of church assets necessarily had to be limited to determining and enforcing the decision of the highest judicatory body within the particular religious group For congregational religious groups, such as Baptists and Jews, the majority
of the congregation was considered the highest judicatory body In hierarchical religions, such
as the Roman Catholicism and Russian Ortho-doxy, the diocesan bishop was considered the highest judicatory authority The Supreme Court consistently applied that principle until its 1979 decision in Jones v Wolf, 443 U.S 595,
99 S Ct 3020, 61 L Ed 2d 775 In that case, the Court held that the “neutral principles of law developed for use in all property disputes”
could be constitutionally applied in intra-church litigation Under this case, courts can examine the language of the church charters, real and PERSONAL PROPERTY deeds, and state
statutes relating to the control of property generally
Religious Oaths Prohibited
The Constitution also refers to religion in Article VI, Clause 3, which provides, “No religious test shall ever be required as a qualification to any office or public trust under the United States.” The provision is binding only on the federal government
In early American history, individual states commonly required religious oaths for public officers But after the Revolutionary War, most
of these religious tests were eliminated As of
2010, the individual states, through their constitutions or statutes, have restrictions simi-lar to that of the U.S Constitution on imposing
a religious oath as a condition to holding a government position
Freedom to express religious beliefs is entwined with the First Amendment guarantee of freedom of expression The federal or state gover-nments cannot require an individual to declare a belief in the existence of God as a qualification for holding office (Torcaso v Watkins, 367 U.S
488, 81 S Ct 1680, 6 L Ed 2d 982[1961]) Congress took an unprecedented step when
it passed the International Religious Freedom Act of 1998 (Pub L.105-292, 112 Stat 2787) The law seeks to promote religious freedom worldwide It created a special representative to theSECRETARY OF STATEfor international religious freedom This representative serves on a U.S Commission on International Religious Free-dom, an advisory organization The act gives the president authority to take diplomatic and other appropriate action with respect to any country that engages in or tolerates violations
of religious freedom In extreme circumstances, the president is empowered to impose eco-nomic sanctions on countries that systemati-cally deny religious freedom
Standing
In several cases, the Court has ruled that a person
or an organization lacks standing to challenge
a government’s actions on First Amendment grounds In Hein v Freedom from Religion Foundation, Inc., 551 U.S 587, 127 S Ct 2553,
168 L Ed 2d 424 (2007), an organization challenged the faith-based initiatives of President George W Bush, arguing that these initiatives violated the Establishment Clause In a 5–4
318 RELIGION
Trang 2decision, the Court held that the organization
lacked taxpayer standing to bring the challenge
FURTHER READINGS
Blomquist, Robert F 2003 “Law and Spirituality: Some First
Thoughts on an Emerging Relation ” UMKC Law
Review 71 (spring).
Haarscher, Guy 2002 “Freedom of Religion in Context.”
Brigham Young University Law Review 2002 (spring).
Novak, David 2009 In Defense of Religious Liberty.
Wilmington, Del.: ISI Books.
Semonche, John E., ed 1985 Religion and Law in American
History Chapel Hill: University of North Carolina
Press.
Skotnicki, Andrew 2000 Religion and the Development of the
American Penal System Lanham, Md.: University Press
of America.
Spiropoulos, Andrew C 1997 “The Constitutionality
of Holiday Displays on Public Property (Or How
the Court Stole Christmas) ” Oklahoma Bar Journal
(May 31).
Vile, John R., David L Hudson, Jr., and David Schultz 2009.
Encyclopedia of the First Amendment Washington, D.C.:
CQ Press.
Williams, Cynthia Norman 2003 “America’s Opposition to
New Religious Movements: Limiting the Freedom of
Religion ” Law and Psychology Review 27 (spring).
CROSS REFERENCES
Charities; Ecclesiastical Courts; Flag; Immunization
Pro-grams; Parent and Child; Schools and School Districts;
Scopes Monkey Trial; Standing.
REMAINDER
A future interest held by one person in the real
property of another that will take effect upon the
expiration of the other property interests created at
the same time as the future interest
The law of real property permits a person
who owns real estate to convey all or part of
her rights in the property to another person or
persons Legal conveyances of property become
more complicated when the person who owns
the property, the grantor, gives a present interest
(the right to the possession and use of the
property) in the property to one person for either
life or a set period of time, and also gives a future
interest (also called a nonpossessory interest) in
the property to another person The future
interest is called a remainder, and the holder of
this interest is called the remainderman
Remainders are subdivided into two
princi-pal categories: contingent remainders and vested
remainders A contingent remainder can be
created in two different ways First, it can be a
remainder to a person not ascertained at the time
the interest is created For example, Tom owns
Blackacre in fee simple, which means he owns it with no ownership limitations While Bob and Jane are alive, Tom conveys Blackacre to Bob for life, with a remainder to the heirs of Jane The heirs of Jane are not yet known, so they have a contingent remainder
A remainder also will be classified as contingent, whether or not the remainderman
is ascertained, where the possibility of becoming
a present interest is subject not only to the expiration of the preceding property interest but also to some specific event occurring before the expiration of the preceding interest This event
is called a special condition precedent For example, if Tom owns Blackacre in fee and conveys Blackacre to Bob for life and then to Jane if she marries Bill, then Jane has a contingent remainder in fee, conditioned on the death of Bob and the marriage to Bill
A vested remainder is a future interest to an ascertained person, with the certainty or possibility of becoming a present interest subject only to the expiration of the preceding property interests If Tom owns Blackacre in fee simple and conveys Blackacre to Bob for life and
to Jane in fee simple, Jane has a vested remainder in fee that becomes a present interest upon the death of Bob As a remainderman, she simply has to wait for Bob’s death before assuming a present interest in Blackacre
For a remainder to be effective, it must be contained in the same instrument of convey-ance (document, such as a deed) that grants the present interest to another person
CROSS REFERENCE Estate.
REMAND
To send back
A higher court may remand a case to a lower court so that the lower court will take a certain action ordered by the higher court A prisoner who is remanded into custody is sent back to prison subsequent to a PRELIMINARY HEARING
before a tribunal or magistrate until the hearing
is resumed, or the trial is commenced Cases removed from state to federal court can then be remanded to state court from federal court
REMEDIAL STATUTE
A law enacted for the purpose of correcting a defect
in a prior law, or in order to provide a remedy
REMEDIAL STATUTE 319
Trang 3where none previously existed Remedial statutes are typically liberally construed
One promiment example of a federal remedial statute designed to protect public health is the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), more commonly known as “Super-fund.” CERCLA was enacted in 1980 to give the federal government the ability to respond to various forms and instances of environmental pollution and hazards In 1986, CERCLA was amended by the Superfund Amendments and Reauthorization Act (SARA) CERCLA autho-rized two types of response actions: short-term removals, where actions may be taken to address a hazardous release (or the threat of a hazardous release) requiring prompt response, and long-term remedial response actions, which are meant to reduce the harm from releases (or threats of releases) of hazardous substances that are potentially damaging but not immedi-ately life-threatening The federal government maintains a list of specific sites, the Environ-mental Protection Agency’s National Priorities List (NPL), where these activities can be carried out The statute authorizes the use of federal funds to clean up these toxic sites
FURTHER READING U.S Environmental Protection Agency CERCLA Overview.
http://epa.gov/superfund/policy/cercla.htm (accessed Sept 26, 2009).
REMEDY The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual
The law of remedies is concerned with the character and extent of relief to which an individual who has brought a legal action is entitled once the appropriate court procedure has been followed, and the individual has established that he or she has a substantive right that has been infringed by theDEFENDANT Categorized according to their purpose, the four basic types of judicial remedies are (1) damages; (2) restitution or UNJUST ENRICHMENT; (3) coercive remedies; and (4) declaratory remedies
The remedy of damages is generally intended to compensate the injured party for any harm he or she has suffered This kind of
damages is ordinarily known as“compensatory damages.” Money is substituted for that which
DAMAGES, generally a few cents or one dollar, are awarded to protect a right of a plaintiff even though he or she has suffered no actual harm The theory underlying the award of PUNITIVE DAMAGESis different, as they are imposed upon the defendant in order to deter or punish him
or her, rather than to compensate the plaintiff The remedy of restitution, which is also called unjust enrichment, is designed to restore the plaintiff to the position he or she occupied before his or her rights were violated It is ordinarily measured by the defendant’s gains, as opposed to the plaintiff’s losses, in order to prevent the defendant from being unjustly enriched by the wrong The remedy of restitu-tion can result in either a pecuniary recovery or
in the recovery of property There are a number
of specific remedies that deal with unjust enrichment The remedy of recission permits a court to dissolve a contract, while the remedy of reformation authorizes a court to rewrite a contract to reflect the true intentions of the parties The remedy ofQUANTUM MERUITallows a court to award payment to for work under a contract that was never completed
Coercive remedies are orders by the court to force the defendant to do, or to refrain from doing, something to the plaintiff AnINJUNCTION
backed by the CONTEMPT power is one kind of coercive remedy When issuing this type of remedy, the court commands the defendant to act, or to refrain from acting, in a certain way
In the event that the defendant willfully disobeys, he or she might be jailed, fined, or otherwise punished for contempt A decree for
to perform his or her part of a contract after a breach thereof has been established It is issued only in cases where the subject matter of a contract is unique
Declaratory remedies are sought when a plaintiff wishes to be made aware of what the law is, what it means, or whether or not it is constitutional, so that he or she will be able to take appropriate action The main purpose of this kind of remedy is to determine a party’s rights in a particular situation
Nature of Remedies
Remedies are also categorized as“equitable” or
“legal” in nature
320 REMEDY
Trang 4Monetary damages awarded to a plaintiff
because they adequately compensate him or her
for the loss are considered a legal remedy
AnEQUITABLE REMEDYis one in which a recovery
of money would be an inadequate form of relief
Courts design equitable remedies to do
justice in specific situations where money does
not provide complete relief to individuals who
have been injured Injunctions, decrees of
specific performance, declaratory judgments,
and constructive trusts are typical examples of
some kinds of equitable remedies Restitution is
regarded as either a legal or equitable remedy,
depending upon the nature of the property
restored
The distinction between legal and equitable
remedies originally came about because courts
of law only had the power to grant legal
remedies, whereas courts of equity granted
equitable remedies to do justice in situations
where money would be inadequate relief The
courts of law and the courts of equity have
merged, but the distinction still has some
importance because in a number of courts, a
trial by jury is either granted or refused,
according to whether the remedy sought is legal
or equitable When a legal remedy is sought, the
plaintiff is entitled to a jury trial, but this is not
true when an equitable remedy is requested
Sometimes a plaintiff will have both legal
and equitable remedies available for the redress
of personal grievances In such a case, a plaintiff
might have to exercise anELECTION OF REMEDIES
Provisional Remedies
A provisional remedy is one that is adapted to
meet a specific emergency It is the temporary
process available to the plaintiff in aCIVIL ACTION
that protects him or her against loss,IRREPARABLE
INJURY, or dissipation of the property while the
action is pending Some types of provisional
remedies are injunction, RECEIVERSHIP, arrest,
attachment, andGARNISHMENT
REMISSION
Extinguishment or release of a debt
A remission is conventional when it comes
about through an express grant to the debtor by
a creditor It is tacit when the creditor makes a
voluntary surrender of the original title to the
debtor under private signature constituting the
obligation
The term remission is also used in reference
to the forgiveness or condonation of an injury
or offense, or the act through which aFORFEITURE
or penalty is forgiven
REMIT
To transmit or send To relinquish or surrender, such as in the case of a fine, punishment, or sentence; to refer to an authority, esp to send a case back to a lower court
An individual, for example, might remit money to pay bills
CROSS REFERENCE Remand.
REMITTANCE Money sent from one individual to another in the form of cash, check, or some other manner
Financial statements sent by a creditor to a debtor frequently refer to the process of submitting a monthly remittance
REMITTITUR The procedural process by which an excessive verdict of the jury is reduced If money damages awarded by a jury are grossly excessive as aMATTER
OF LAW, or perhaps significantly more than the plaintiff had sought, the judge may exercise discretion to order the plaintiff to remit a portion
of the award Rules and standards vary by jurisdiction The inverse of remittitur, in which a jury’s award of damages is subsequently increased,
is known as “additur.”
The remedy of remittitur is designed to cure
an award of damages that is grossly excessive, without the necessity of a new trial or an appeal
In some cases, an award by a jury is so completely out of line with the damages proven
in the case that it isUNCONSCIONABLE Ordinarily, however, an award of PUNITIVE DAMAGES will not be upset as excessive in the absence of gross error or prejudice on the part
of the jury
Remittitur frequently occurs when a DEFEN-DANT requests a new trial because he or she regards the verdict for thePLAINTIFFas excessive
In the case of BMW of North America, Inc v
Gore, 517 U.S 559 (1996), in which the buyer of
a luxury sedan learned that the manufacturer had applied a second coat of paint before the sale, and was awarded $4 million in punitive
REMITTITUR 321
Trang 5damages for thus devaluing the car (later remitted to $2 million), the U.S.SUPREME COURT
reviewed the constitutional standard of exces-sive punitive damages and the ratio of punitive damages toCOMPENSATORY DAMAGES
REMOVAL The transfer of a person or thing from one place to another The transfer of a case from one court to another In this sense, removal generally refers to a transfer from a court in one jurisdiction to a court
in another, whereas a change of venue may be granted simply to move a case to another location within the same jurisdiction
Normally a plaintiff has the right to choose the court where he or she will commence an action An important exception to this rule is the defendant’s right, in some circumstances, to have a case removed from a state court to a federal court Federal law explains this right of removal in detail It is available only when the federal court has jurisdiction, or authority, to hear such a case The right may be claimed only
by a defendant; plaintiff cannot petition for removal of a case he or she has commenced in state court, even after the defendant asserts a counterclaim against the plaintiff that would justify the exercise of federal jurisdiction
If a plaintiff has more than one claim against
a defendant, and not all of the claims qualify for removal, it is not clear whether the whole case should be sent to the applicable federal court
Sometimes the individual claims that support federal jurisdiction can be severed and heard in federal court individually This can be done if the removable claims are sufficiently distinct that they can be determined on their own
Otherwise they must be tried together A federal court has discretion to weigh the circumstances and decide each case on its own facts The right
of the plaintiff to pick the court must be balanced with the right of the defendant to use a federal court when there is federal jurisdiction
The same considerations apply when there are multiple defendants, and some are entitled to removal of the case but others are not If there are multiple defendants and multiple claims, the reasoning can become rather confusing
The process of removal raises serious questions concerning FEDERALISM, the relation-ship of the states and the federal government
The idea of a federal court ousting a state court from a lawsuit already pending in the state is
somewhat unsettling The removal procedure itself emphasizes the potential for conflict A person who is sued in a state court files a petition in the nearest federal court asking for removal of the action, which has the effect of removing the action to the federal court A copy
of that petition is then filed in the state court The state court can take no further action whatsoever unless, and until, the federal court remands, or sends, the case back to it The procedure generally works well because federal judges are careful to recognize the legitimate interests of the states in determining causes that are not necessarily federal in nature
CROSS REFERENCE Federal Question.
RENDER Return; yield; pay or perform, as in charges or services
To render judgment means to pronounce, declare, or state the decision of the court in a particular case To render a verdict means that a jury agrees upon and returns a written decision into court and hands the decision to the judge sitting at the trial
RENEWAL Rehabilitation; reestablishment; substitution of a new right or obligation for another of the same or similar nature
In regard to bonds, renewal signifies an extension of time for maturity A stipulation for the renewal of a lease requires the making of a new lease, as opposed to an extension, which involves adding time to a leasehold agreement already in existence without executing a new instrument
vRENO, JANET PresidentBILL CLINTONappointed Janet Reno to
be U.S attorney general on February 11, 1993 She was his third choice for the post The first woman to serve as U.S attorney general, Reno previously served as the state attorney for Florida’s Dade County, which includes Miami During her first term as attorney general, Reno sought stricter GUN CONTROL laws, lobbied for funding for more local police officers, and worked with communities to develop more effective methods of crime prevention
322 REMOVAL
Trang 6Reno was born on July 21, 1938, in Miami,
Florida Her parents were journalists who
worked for Miami daily newspapers Reno
attended public schools in Dade County and
enrolled at Cornell University in 1956 After her
graduation in 1960, she attended Harvard Law
School, one of only 16 women in a class of more
than 500 students She graduated in 1963 but
found that her gender made it difficult to find
work as a lawyer in Miami
In 1971 Reno was named staff director of
the Florida House Judiciary Committee In that
position, she oversaw the revision of the Florida
court system In 1973, she was named counsel
for the state senate’s committee responsible for
revising the Florida Criminal Code That same
year, she accepted a position in the Dade
County state attorney’s office She quickly
succeeded in organizing a juvenile division
within the office
Reno left the state attorney’s office in 1976 to
become a partner in a private Miami law firm
She was drawn back into government service in
1978 when the Dade County state attorney
stepped down before the end of his term
Appointed to be state attorney, Reno was elected
to a full term in November 1978, and the voters
returned her to office four more times
As state attorney, Reno managed an office of
940 employees with an annual budget of $30
million and a yearly docket of 120,000 cases
She established a career-criminal unit that
worked with federal officials and local law
enforcement to arrest and convict career criminals and to sentence them to substantial prison time Reno also helped establish the Miami drug court, which has been a model for courts in the United States The drug court provides alternative punishment for nonviolent offenders who have a drug-abuse problem
More than half of those offenders who have completed the program have remained free of drugs
Janet Reno 1938–
2000 1975
1950
❖
1939–45
World War II
1950–53 Korean War
1961–73 Vietnam War
1938 Born,
Miami, Fla.
1960 Earned A.B in chemistry from Cornell University
1967 Formed law partnership
of Lewis and Reno
◆
1963 Graduated from Harvard Law School 1973 Appointed
to Dade County state attorney’s office; organized
a juvenile court division within two months
◆
1971 Named staff director of the Florida House Judiciary Committee
1978–92 Served as Florida state attorney
◆
◆
1990 Ran unopposed for reelection to state attorney’s office
◆
1993 Became first woman appointed U.S attorney general;
approved raid of Branch Davidian complex in Waco, Texas
◆
1994 Helped President Clinton win congressional approval of biggest crime legislation in U.S.
history; appointed Kenneth Starr independent counsel to investigate Whitewater allegations
2002 Ran unsuccessfully for Democratic nomination in Florida gubernatorial race
2000 Ordered federal agents
to seize Elian Gonzales from Miami relatives for repatriation to Cuba; inducted into National Women’s Hall of Fame 1993–2000 Served as U.S Attorney General
◆
1998 Won approval from federal judicial panels to expand Independent Counsel Kenneth Starr’s Whitewater inquiry
to include investigating subordination of perjury; refused to appoint independent counsel to investigate campaign finance allegations against President Clinton; filed federal antitrust litigation against Microsoft Corporation
2009 Received the American Judicature Society’s Justice Award
◆
◆
Janet Reno.
ALEX WONG/GETTY IMAGES RENO, JANET 323
Trang 7Reno also focused attention on prevention programs that enabled children to grow in a safe, constructive environment She helped to reform the juvenile justice system and pursued delinquent fathers forCHILD SUPPORTpayments
As U.S attorney general, Reno entered the public spotlight almost immediately On Febru-ary 28, 1993, approximately 100 agents from the
BUREAU OF ALCOHOL,TOBACCO AND FIREARMS(ATF) raided the Waco, Texas, compound of the members of the Branch Davidian religious cult, who were led by David Koresh The agents and cult members exchanged gunfire Four ATF agents died, six cult members were killed, and
16 others were wounded
After the unsuccessful raid, a long standoff ensued Reno oversaw the negotiations between Koresh and agents of the FEDERAL BUREAU OF INVESTIGATION (FBI) For 51 days negotiations continued, but in April the FBI alerted Reno that cult members were planning a massSUICIDE Although Koresh had released some children, many remained in the compound
Reno ordered anASSAULTon the compound, which took place on April 19, 1993 Cult members started fires in three locations, which soon engulfed the wooden buildings Approxi-mately 86 cult members, including 17 children, died that day Reno, expressing anguish over the loss of life, particularly the children’s lives, took full responsibility for the decision to storm the compound She came under heavy attack for having approved the plan, which she defended
as having been based on the information known
at the time She conceded, however, that based
on the results, it obviously had been the wrong decision
Reno became embroiled in another major national controversy in 1999 and 2000 after fisherman found a six-year-old boy named Elian Gonzalez floating in an inner tube off the coast of Florida on Thanksgiving Day in
1999 The boy’s mother and stepfather had tried
to flee Cuba, but both died after their boat capsized The boy’s relatives in Miami wanted him to stay in the United States, but his father, who remained in Cuba, demanded his return
For four months during 2000, the nation debated whether the boy should be returned to Cuba Reno and the now-defunct IMMIGRATION
that the boy should be returned to his father but allowed the courts to make the decision When
a federal court ruled that the boy should be returned to his father, Reno and the INS demanded that the relatives turn the boy over
to authorities The relatives refused, and Reno eventually ordered armed federal agents to enter the home of the relatives who were keeping the boy Elian was eventually returned to his father
in Cuba Reno came under fire for a number of reasons during the controversy, most notably due to her decision to use armed guards to gain
CUSTODYof the boy
Reno’s greatest achievement during the first Clinton administration was helping the presi-dent win congressional approval of the 1994 crime bill, the most substantial crime legislation
in U.S history (Pub L No 103-322, 108 Stat 1796) The $30.2 billion measure was a complex mixture of government spending and changes
to previous CRIMINAL LAW It authorized the funding of social programs, the hiring of 100,000 police officers nationwide, and the building of new prisons Reno applauded the increased legal protections afforded to women and children under theVIOLENCE AGAINST WOMEN ACT OF 1994, which was contained in the bill, although, in 2000, the U.S Supreme Court struck it down as unconstitutional The NA-TIONAL RIFLE ASSOCIATION had protested Reno’s efforts to ban 19 assault-style firearms, yet Congress included this controversial measure in the final bill The bill also prohibited gun purchases by people who are subject to court restraining orders because ofDOMESTIC VIOLENCE Reno has traveled throughout the United States, meeting with local officials to encourage crime prevention programs and law enforcement methods such as community policing
Reno served two full terms as attorney general, stepping down at the end of the Clinton administration in 2001 She will be remembered for many important convictions, including the capture and convictions of Theodore Kaczynski, also known as the Unabomber; Timothy McVeigh and Terry Nichols, the perpetrators
of the Oklahoma City bombing; Mir Aimal Kasi, who killed two CIA officers in a 1993 attack; and those responsible for the World Trade Center bombing During her tenure,
a leak to the media resulted in the false assumption of Richard Jewell’s involvement in the Centennial Olympic Park bombing Reno later apologized and expressed her regret over the leak
ME MADDER THAN
—J ANET R ENO
324 RENO, JANET
Trang 8In 1998 the House Government Reform
and Oversight Committee voted to cite Reno for
documents during President Bill Clinton’s
never came to vote in the House, and the
documents were eventually turned over to
Congress
In September 2001 Reno made national
headlines again when she announced that she
would run for governor of Florida in the 2002
election A year later, she lost the Democratic
nomination in the race to political newcomer
Bill McBride Reno has since retired from public
life but frequently makes guest appearances for
Democratic and other political causes
FURTHER READINGS
Anderson, Paul 1994 Janet Reno: Doing the Right Thing.
New York: J Wiley.
“Exit Interview: Janet Reno.” 2001 MacNeil/Lehrer
News-hour PBS Available online at www.pbs.org/newshour/
bb/politics/jan-june01/reno_1-18.html (accessed August
20, 2009).
Powell, H Jefferson 1999 The Constitution and the
Attorneys General Durham, N.C.: Carolina Academic
Press.
RENT STRIKE
An organized protest on the part of tenants in
which they withhold the payment of consideration
for the use or occupation of property from their
landlord until their grievances are settled
A rent strike is ordinarily unlawful since a
tenant who occupies leasehold premises has a
legal obligation to pay rent Even if a landlord
does not make needed repairs or provide
necessary services, a tenant ordinarily is not
released from the obligation to pay rent unless
he or she leaves the premises and can show that
they were uninhabitable, or unless the tenant
can demonstrate that the landlord was
attempt-ing to force him or her to move out
Certain courts refuse to recognize rent
strikes as lawful on the grounds that any failure
to pay rent constitutes a breach of the tenant’s
obligation and legally makes the tenant subject
to eviction A rent strike, however, is
distin-guishable from other failures to pay rent
because its purpose is to coerce the landlord
to take a particular action Increasingly the
courts have recognized that a rent strike is not
an ordinary failure to pay rent Some
jurisdic-tions have developed procedures through which
tenants are able to pay their rent into the court,
or to a court-appointed receiver The landlord receives the money only after essential repairs have been made, or the receiver can use the funds to contract for such repairs
CROSS REFERENCE Landlord and Tenant.
RENUNCIATION TheABANDONMENTof a right; repudiation; rejection
The renunciation of a right, power, or privi-lege involves a total divestment thereof; the right, power, or privilege cannot be transferred
to anyone else For example, when an individual becomes a citizen of a new country, that indi-vidual must ordinarily renounce his or her citi-zenship in the old country
RENUNCIATION OF WAR Although INTERNATIONAL LAW draws some dis-tinction between a just and an unjust war, state practice until the conclusion ofWORLD WAR Ihad generally disregarded that distinction and main-tained war as a legitimate means of resolving disputes or increasing the power of the state
Recognized methods for resolving disputes peacefully did exist, however; under the COVE-NANT of the LEAGUE OF NATIONS, for example, member states promised to utilize such meth-ods before resorting to war
Formal rejection of war as a means of national policy for settling controversies came
in 1928 with the conclusion of the Kellogg-Briand Pact Titled the General Treaty for the Renunciation of War, the Kellogg-Briand Pact obligated signatories to abandon force in favor
of negotiation, arbitration, mediation, or other methods of settling disputes peacefully Al-though the signatories renounced war with each other, the Kellogg-Briand Pact still permitted war for self-defense, for collective enforcement
of international obligations, between signatories and nonparty states, and against a signatory that had derogated its obligations under the treaty by going to war
broader acceptance than the KELLOGG-BRIAND PACT, carries the aims of the pact further by prohibiting the use of force or even the threat of force The charter also attempts to impose these obligations on nonmembers in Article 2(6)
RENUNCIATION OF WAR 325
Trang 9Following WORLD WAR II, American occupa-tion forces in Japan led by General Douglas MacArthur drafted a new Japanese constitution
Article 9 of the constitution, which was adopted
in 1947, declares Japan’s renunciation of war:
“Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.”
CROSS REFERENCES Mediation; International Law.
RENVOI The process by which a court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that arises
In some instances, the rules of the foreign state might refer the court back to the law of the forum where the case is being heard
The term renvoi also refers to the rules that,
in a lawsuit by a nonresident upon a cause arising locally, the capacity to sue is determined
by the law of the nonresident’s domicile, rather than by local law
The doctrine of renvoi is seldom followed in the United States and has also been rejected by a number of foreign legal scholars
REORGANIZATION The process of carrying out, through agreements and legal proceedings, a business plan for winding
up the affairs of, or foreclosing a mortgage upon, the property of a corporation that has become insolvent
Reorganization is ordinarily accomplished
by way of aJUDICIAL SALEof the property of the corporation The purchasers then often form a new corporation to which substantially all assets
of the old are transferred
CROSS REFERENCE Bankruptcy.
REORGANIZATION PLAN
A scheme authorized by federal law and promul-gated by the president whereby he or she alters the structure of federal agencies to promote govern-ment efficiency and economy through a transfer, consolidation, coordination, authorization, or abolition of functions
A reorganization plan must specify the reorganizations that the president deems to be necessary after making an investigation A plan may provide for
1 the transfer of the whole or a part of an agency, or of the whole or a part of the functions thereof, to the jurisdiction and control of another agency;
2 the abolition of all or a part of the functions
of an agency, except that no enforcement function or statutory program shall be abolished by the plan;
3 the consolidation or coordination of the whole or a part of an agency, or of the whole or a part of the functions thereof, with the whole or a part of another agency
or the functions thereof;
4 the consolidation or coordination of a part
of an agency or the functions thereof with another part of the same agency or the functions thereof;
5 the authorization of an officer to delegate any of his or her functions; or
6 the abolition of the whole or a part of an agency that does not have, or on the taking effect of the reorganization plan will not have, any functions
No more than three plans may be pending before Congress at one time In the message conveying a reorganization plan, the president must specify, with respect to each abolition of a function encompassed in the plan, the statutory authority for the exercise of the function The message must also estimate any reduction or increase in expenditures, itemized whenever practicable, and describe in detail any improve-ments in management, delivery of federal services, execution of the laws, and increases in efficiency
of government operations that, it is expected, will ensue from the reorganization plan
The president can withdraw the plan at any time prior to the conclusion of 60 calendar days of
President Calvin
Coolidge, Secretary of
Commerce Herbert
Hoover, and Secretary
of State Frank Kellogg
(all three standing),
with representatives of
the governments that
ratified the
Kellogg-Briand Pact, a formal
renunciation of war.
LIBRARY OF CONGRESS
326 RENVOI
Trang 10DEPARTMENT OF HOMELAND SECURITY
REORGANIZATION PLAN
Introduction
This Reorganization Plan is submitted pursuant to Section 1502 of the Department of Homeland Security Act of 2002 (“the Act”), which
requires submission, not later than 60 days after enactment, of a reorganization plan regarding two categories of information concerning
plans for the Department of Homeland Security (“the Department” or “DHS”):
(1) The transfer of agencies, personnel, assets, and obligations to the Department pursuant to this Act.
(2) Any consolidation, reorganization, or streamlining of agencies transferred to the Department pursuant to this Act Section 1502(a).
Section 1502(b) of the Act identifies six elements, together with other elements “as the President deems appropriate,” as among those
for discussion in the plan Each of the elements set out in the statute is identified verbatim below, followed by a discussion of current
plans with respect to that element.
This plan is subject to modification pursuant to Section 1502(d) of the Act, which provides that on the basis of consultations with
appropriate congressional committees the President may modify or revise any part of the plan until that part of the plan becomes effective.
Additional details concerning the process for establishing the Department will become available in the coming weeks and months, and the
President will work closely with Congress to modify this plan consistent with the Act.
Plan Elements
(1) Identification of any functions of agencies transferred to the Department pursuant to this Act that will not be transferred to the
Department under the plan.
Except as otherwise directed in the Act, all functions of agencies that are to be transferred to the Department pursuant to the Act will be
transferred to the Department under the plan The functions of agencies being transferred to the Department which the Act directs are
not to be transferred are the following:
• Pursuant to Section 201(g)(1) of the Act, the Computer Investigations and Operations Section (“CIOS”) of the National
Infrastructure Protection Center (“NIPC”) of the Federal Bureau of Investigation (“FBI”) will not transfer to the Department with
the rest of NIPC CIOS is the FBI headquarters entity responsible for managing all FBI computer intrusion field office cases (whether
law enforcement or national security related).
• Pursuant to Sections 421(c) & (d) of the Act, the regulatory responsibilities and quarantine activities relating to agricultural import
and entry inspection activities of the United States Department of Agriculture (“the USDA”) Animal and Plant Health Inspection
Service (“APHIS”) will remain with the USDA, as will the Secretary of Agriculture’s authority to issue regulations, policies, and
procedures regarding the functions transferred pursuant to Sections 421(a) & (b) of the Act.
• Pursuant to Subtitle B of Title IV of the Act, the authorities of the Secretary of the Treasury related to Customs revenue functions, as
defined in the statute, will not transfer to the Department.
• Functions under the immigration laws of the United States with respect to the care of unaccompanied alien children will not transfer
from the Department of Justice to DHS, but will instead transfer to the Department of Health and Human Services pursuant to
Section 462 of the Act.
(2) Specification of the steps to be taken by the Secretary to organize the Department, including the delegation or assignment of
functions transferred to the Department among officers of the Department in order to permit the Department to carry out the
functions transferred under the plan
(A) Steps to be taken by the Secretary to organize the Department The President intends that the Secretary will carry out the following
actions on the dates specified All of the following transfers shall be deemed to be made to DHS, and all offices and positions to be
established and all officers and officials to be appointed or named shall be deemed to be established, appointed, or named within DHS.
January 24, 2003 (effective date of the Act pursuant to Section 4):
• Establish the Office of the Secretary.
• Begin to appoint, upon confirmation by the Senate, or transfer pursuant to the transfer provisions of the Act, as many of the following
officers as may be possible:
(1) Deputy Secretary of Homeland Security
(2) Under Secretary for Information Analysis and Infrastructure Protection
(3) Under Secretary for Science and Technology
(4) Under Secretary for Border and Transportation Security
(5) Under Secretary for Emergency Preparedness and Response
(6) Director of the Bureau of Citizenship and Immigration Services
(7) Under Secretary for Management
(8) Not more than 12 Assistant Secretaries
(9) General Counsel
(10) Inspector General
(11) Commissioner of Customs
Reorganization Plan
[continued]
A sample reorganization plan REORGANIZATION PLAN 327