local or state officials, and, if necessary, appeals were made to the federal government. Such an approach was often so disorganized that it frustrated effective disaster relief. Federal aid was rarely immediate and instead came some time after a disaster had occurred. Critics of ten complained that the federal response to disas- ters was dilatory, insufficient, and inconsistent. During the 1930s, the expansion of the federal government under the New Deal— including greater federal participation in public works projects—led to a greater federal role in disaster assistance. NEW DEAL agencies such as the Reconstruction Finance Corporation, Federal Emergency Relief Administration, Federal Ci- vilian Works Administration, Works Pro- gress Administration, and Civilian Conservation Corps all participated in disaster control and recovery. The Army Corps of Engineers helped communities prevent and recover from flood damage, and the DEPARTMENT OF AGRICU LTURE offered aid to farmers who sustained economic losses in disasters. The 1930s marked the federal government’s first use of low-interest loans and outright grants for disaster relief—both features of subsequent disaster laws. During this same decade, Congress considered making the American Red Cross a government agency, but Red Cross officials chose to keep their organi- zation private. With the passage of the Disaster Relief Act of 1950 (Pub. L. No. 81-875, 64 Stat. 1109), Congress authorized a coordinated federal res- ponse to major disasters for the first time. The act, which was repealed in 1970, defined a disaster as “[a]ny flood, drought, fire, hurricane, earthquake, storm, or other catastrophe in any part of the U.S. which in the determination of the President, is or threatens to be of sufficient severity and magnitude to w arrant disaster assistance by the Federal government.” This definition gave the president broad powers to respond to a crisis, powers that related to the president’s role as commander in chief of the nation’s military and that have remained in all subsequent federal disaster legislation. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Property Loss in Major U.S. Weather Disasters, a 1980 to 2008 SOURCE: U.S. National Oceanic and Atmospheric Administration, National Climatic Data Center, “Billion Dollar U.S. Weather Disasters,” available online at htt p ://www.ncdc.noaa. g ov/oa/re p orts/billionz.html (accessed on Au g ust 12, 2009). Property loss (in billions of dollars) b a Weather-related disasters costing $1 billion or more, including hurricanes, tropical storms, floods, droughts, blizzards, severe freezes, ice storms, and wildfires. b Amounts are estimated. 0 20 40 60 80 100 120 140 160 180 1985 7.7 2001 7.8 2006 11.8 2007 10.9 1990 7.1 2000 7.2 1995 18.6 2002 15.6 2003 14.0 1980 55.4 2008 56.7 1988 71.2 2004 49.5 2005 171.2 1998 27.7 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 468 DISASTER RELIEF Later laws gradually increased the scope of federal disaster assistance. In the 1950s and 1960s Congress authorized the provision of temporary shelter, surplus federal supplies, loans, and unemployment assistance for disaster vic- tims. Many of these features were later incorpo- rated into the comprehensive Disaster Relief Act of 1970 (84 Stat. 1744 [42 U.S.C.A. § 4401 et seq.]). This act also offered generous assistance for the reconstruction of public facilities, autho- rizing 100 percent federal financing for such projects even when reconstruction went beyond damage caused by a particular disaster. The Stafford Act further expanded the role of the federal government in disaster relief. Under this legislation, the federal government may provide grants to fund a number of additional forms of assistance: the full cost for the reconstruction of certain private, nonprofit facilities and owner-occupied private residential structures; loans to local governments to cover operating expenses; free temporary housing for up to 12 months; the installatio n of essential utilities; mortgage or rental payments to indivi- duals for up to one year; and food stamps, legal services, and counseling services for low-income citizens. The act also includes an unprecedented authorization of long-range community eco- nomic recovery program s for disaster areas. Under these provisions, recovery planning coun- cils develop five-year recovery investment plans, which are eligible to receive up to 90 percent of their funding from the federal government. In 1979 concerns about overly bureaucratic procedures and a lack of coordination i n government efforts to respond to disasters, as well as the need for improved programs for disaster prevention and preparedness, led to the creation of FEMA. A poor federal response to disasters such as Hurricane Hugo and the Loma Prieta earthquake, both occurring in 1989, prompted calls for a greater use of the military in disaster relief. In 1993 amendments to the Stafford Act empowered the president to more readily call on the federal armed forces to assist in disaster relief. Disaster Relief for September 11 Victims The September 11, 2001, terrorist attacks against the United States triggered what became an unprecedented level of federal disaster relief. The twin towers at the World Trade Center complex in New York City collapsed after being targeted by two hijacked commercial airliners, and four other buildings partially collapsed shortly thereafter. Several nearby buildings also suffered extensive collateral damage. After the World Trade Center attacks, another hijacked plane was deliberately crashed into the Pentagon and a fourth hijacked plane crashed in Somerset County, Pennsylvania. In response to the attacks, President GEORGE W . BUSH immediately signed a major disaster declaration for five counties in New York. The disaster declaration was amended on September 27 and again on October 2, 2001, making all counties in the state of New York eligible for some form of federal disaster assistance in the wake of the terrorist attack. The president also promptly declared a federal emergency in Virginia under subsection 501(b) of the Stafford Act, and a short time later declared a major disaster in Virginia to trigger a broader range of Stafford-Act responses. In addition, the president declared an emer- gency for all 21 counties in New Jersey. These declarations made available federal programs that provide assistance for families and indivi- duals victimized by the attacks. Normally, the federal government would provide 75 percent of the disaster response costs with the remaining 25 percent of the costs undertaken by non- federal entities. However, FEMA reimbursed the states and affected local governments for 100 percent of the eligible costs for debris removal, emergency protective measures, and public infra- structure rebuilding costs in respon se to the September 11th terrorist attacks. Minutes after the first hijacked airplane hit the World Trade Center, FEMA activated a full Emergency Support Team at its National Interagency Emergency Operations Center in Washington, D.C. Federal officials immediately began arriving at the center to coordinate the nationwide response and recovery effort. Some 1,800 federal workers were deployed to New York to support the disaster response, about 800 from FEMA and almost 1,000 from other federal departments and agencies. FEMA’S top priori ties throughou t its entire disaster response effort included: (1) providing urban search and rescue support; (2) assisting in life saving operations; (3) meeting individual and public assistance needs; (4) implementing human services and victims assistance programs; and (5) assisting in debris removal (FEMA GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISASTER RELIEF 469 helped remove close to 1.4 millio n tons of debris from the disaster areas, then transported the debris to the sorting and dispo sal site at the Staten Island landfill). The New York City Office of Emergency Management’s US&R Task Force was among the first responders at the World Trade Center. The New York Force is part of FEMA’s28 Task Forces that make up the National US&R Response System. Its Task Force leader, Chief Raymond Downey, was one of the first respon- ders on the scene, where he ultimately died during search and rescue operations. The DEPARTMENT OF HEALTH AND HUMAN SERVICES and PUBLIC HEALTH SERVICE played an important role in the health and medical response. One hundred and sixty- seven persons were assigned to Disaster Medical Assistance Teams and a Medical Support Team to support the response in New York and remain in the city. Thirty-three Centers for Disease Control epidemiologists were assigned to track illness trends. A Veterinary Medical Assistance Team was deployed to treat the rescue dogs. Response to Hurricane Katrina and the Aftermath The SEPTEMBER 11TH ATTACKS led to the formation of the DHS in 2003. FEMA joined 22 other agencies to form DHS. Although the move was designed to strengthen the federal response to all sorts of emergencies, some critics believed that FEMA’s role under the DHS focused more on responding to terrorist attacks than natural disasters. On August 23, 2005, Hurricane Katrina formed over the Bahamas and within a week it caused catastrophic damage in Florida, Alabama, Mississippi, and Louisiana. The city of New Orleans was hit especially hard. As high-force winds struck the city, the city’s levee system failed, resulting in major flooding. A total of 1,300 people died in the disaster, making the hurricane the most destructive disaster in U.S. history. The response to Katrina by FEMA and other organizations led to heavy criticism. Bush and other public officials said that FEMA’s response was inadequate, and Bush pledged to make necessary reforms to ensure better preparedness. According to a report entitled The Federal Response to Hurricane Katrina: Lessons Learned, the cause for FEMA’s poor reaction to the disaster was that the agency “failed to adequately account for widespread or simultaneous cata- strophes.” In 2006 Bush signed the Post-Katrina Emergency Reform Act, Pub. L. No. 109-295, 120 Stat. 1355. This law significantly reorga- nized FEMA to allow the agency to respo nd more quickly to future disasters. Several mem- bers of Congress have also introduced bills that would remove FEMA from the DHS, but as of 2009 those proposals have failed. FURTHER READINGS Copelan, John J., Jr. 1995. “Disaster Law and Hurricane Andrew: Government Lawyers Leading the Way to Recovery.” Urban Lawyer 27 (winter). Federal Emergency Management Agency. Available online at http://www.fema.gov/ (accessed May 23, 2009). Junger, Sebastian. 2001. Fire. New York: Norton. Landis, Michele L. 1998. “Let Me Next Time Be ‘Tried by Fire’: Disaster Relief and the Origins of the American Welfare State 1789-1874.” Northwestern Univ. Law Review 92 (spring): 967–1034. Moss, David A. 2002. When All Else Fails: Government as the Ultimate Risk Manager. Cambridge: Harvard Univ. Press. National Response Framework, Resource Center. Available online at http://www.fema.gov/emergency/nrf/ (accessed May 23, 2009). Reitman, Judith. 1996. Bad Blood: Crisis in the American Red Cross. New York: Kensington. Swanson, Howard D. 2000. “The Delicate Art of Practicing Municipal Law Under Conditions of Hell and High Water.” North Dakota Law Review 76 (summer): 487–509. Tierney, Kathleen J., Michael K. Lindell, and Ronald W. Perry. 2001. Facing the Unexpected: Disaster Prepared- ness and Response in the United States. Washington, D.C.: Joseph Henry Press. U.S. Government Manual Website. Available online at www .gpoaccess.gov/gmanual (accessed November 10, 2003). CROSS REFERENCE Refugees. DISBAR To revoke an attorney ’s license to practice law. A disbarment proceeding is the investigation into the conduct of a member of the bar in order to determine whether or not that person should be disbarred or disciplined. The state bar association normally takes such action based on allegations of a lawyer’s UNETHICAL CONDUCT. For example, the bar association might initiate an action for disbarment against a lawyer who has revealed information obtained from the PRIVILEGED COMMUNICATION between the lawyer and a client. In one of the more high-profile cases of disbarment in recent history, the U.S. Supreme GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 470 DISBAR Court in 2001 moved to disbar former President WILLIAM JEFFERSON CLINTON, thus preventing him from practicing before the high court. The Court’s action came after a similar move by the Arkansas Supreme Court’s Committee on Professional Conduct, which recommended disbarment of the former president in that state. The actions stemmed from charges of contempt, OBSTRUCTION OF JUSTICE,andPERJURY based on misleading statements made by Clinton about his relationship with White House intern Monica Lewinsky. Those charges led to Clinton’s IM- PEACHMENT by the U.S. House of Representatives in 1998. Clinton agreed to a fine and suspension imposed by the Arkansas Supreme Court dis- barment committee and later asked to resign from the U.S. Supreme Court bar. DISCHARGE To liberate or free; to terminate or extinguish. A discharge is the act or instrument by which a c ontract or agreement is ended. A mortgage is discharged if it has been carried out to the full extent originally contemplated or terminated prior to total execution. Discharge also means to release, as from legal confinement in prison or the military service, or from some legal obligation such as jury duty, or the payment of debts by a person who is bankrupt. The document that indicates that an individual has been legally released from the military service is called a discharge. The performance of a duty discharges it. An attorney may speak of discharging a legal obligation. DISCIPLINARY RULES Precepts, such as the Code of Professional Respon- sibility, that proscribe an attorney from taking certain actions in the practice of law. Proceedings can be instituted to DISBAR an attorney who violates the disciplinary rules. DISCLAIMER The denial, refusal, or rejection of a right, power, or responsibility. A disclaimer is a defensive measure, used generally with the purpose of protection from unwanted claims or liability. A restaurant may disclaim responsibility f or loss o r damage t o a customer’s PERSONAL PROPERTY, or a disclaimer clause in a contract might set f orth certain p romises and deny all other promises or responsibilities. A disclaimer of warranty, which is provided for in the UNIFORM COMMERCIAL CODE, limits a warranty in the sale of goods. It may be general or specific in its terms. DISCONTINUANCE Cessation; ending; giving up. The discontinuance of a lawsuit, also known as a dismissal or a nonsuit, is the voluntary or involuntary termination of an action. DISCOVERY A category of procedural devices employed by a party to a c ivil or criminal action, prior to trial, to require the a dverse party to disclose information that is essential for the preparation of the requesting party’s case and that the other party alone knows or possesses. Civil Procedure Discovery devices used in civil lawsuits are derived from the practice rules of equity, which gave a party the right to compel an adverse party to disclose material facts and documents that established a CAUSE OF ACTION. The federal rules of CIVIL PROCEDURE have supplanted the traditional equity rules by regulating discovery in federal court proceedings. State laws govern- ing the procedure for civil lawsuits, many of which are based upon the federal rules, have also replaced the equity practices. Discovery is generally obtained either by the service of an adverse party with a notice to examine prepared by the applicant’sattorneyor by a court order pursuant to statutory provisions. Discovery d evices narrow the issues of a lawsuit, obtain evidence not readily accessible to the applicant for us e at trial, and as certain t he existence of information that might be introduced as evidence at trial. PUBLIC POLICY considers it desirable to give litigants access to all material facts not protected by privilege to f acilitate the fair and speedy administration of jus tice. Discovery proce- dures promote t he se ttlement of a lawsuit prior to trial by providing the parties with opportunities to realistically evaluate the facts before them. Discovery is contingent upon a party’srea- sonable belief that he or she has a GOOD CAUSE of action or defense. A court will deny discovery if the party is using it as a FISHING EXPEDITION to ascertain information for the purpose of starting an action or developing a defense. A court is responsible for protecting against the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISCOVERY 471 unreasonable investigation into a party’s affairs and must deny discovery if it is intended to annoy, embarrass, oppress, or injure the parties or the WITNESSES who will be subject to it. A court will stop discovery when used in BAD FAITH. Information Discovered Pretrial discovery is used for the disclosure of the identities of persons who know facts relevant to the commencement of an action but not for the disclosure of the identities of additional parties to the case. In a few jurisdictions, however, the identity of the proper party to sue can be obtained through discovery. Discovery pursuant to state and federal procedural rules may require a pa rty to reveal the names and addresses of witnesses to be u sed in the development of the case . Discovery is not automatically denied if an applicant already knows the matters for which he or she is seeking discovery since one of its purposes is to frame a pleading in a lawsuit. On the other hand, discovery is permitted only when the desired information is material to the preparation of the applicant’s case or defense. Discovery is denied if the matter is irrelevant or if it comes within the protection of a privi lege. Privileged Information Privileged matters are not a proper subject for discovery. For example, a person cannot be forced to disclose confiden- tial communications regarding matters that come within the ATTORNEY-CLIENT PRIVILEGE.Discovery cannot be obtained to compel a person to reveal information t hat w ould violate his or her constitutional guarantee against SELF-IN- CRIMINATION .However,ifapartyorwitnesshas been gr anted immunity rega rding the matters that are the basis of the asserted privilege, that party can be required to disclose su ch infor- mation on pretrial examination. A person who refuses to comply with discov- ery on the basis of an asserted privilege must claim the privilege for each particular question at the time of the pretrial examination. An attorney or the court itself cannot claim the privilege for that person. However, a person may waive the privilege and answer the questions put to him or her during discovery. Objections A party may challenge the validity of a pretrial examination if asserted prior to trial. The merits of such an objection will be evaluated by the court during the trial when it rules on the admissibility of the evidence. If the questions to be asked during a discovery, such as the identity and location of a particular witness, pose a threat to anyone’s life or safety, a party can make a motion to a court for a PROTECTIVE ORDER to deny discovery of such information. Refusal to Respond Failing to appear or answer questions at an examination before trial might result in a contempt citation, particularly if the person has disobeyed the command of a subpoena to attend. If discovery is pursuant to a court order, the court will require that the party’s refusal to answer questions be treated as if the party admitted them in favor of the requesting party. Such an order is called a PRECLUSION ORDER since the uncooperative party is precluded from denying or contradicting the matters admitted due to his or her intentional failure to comply with a discovery order. Costs A party who makes a motion for a court to order discovery may be required to pay or make provision for payment of costs—expenses incurred in obtaining discovery when it is granted. If the party eventually wins the lawsuit, the court may demand that the costs be paid by the adversary in the proceedings. Types of Discovery Devices Discovery of material information is obtainable by use of depositions, INTERROGATORIES, requests for the production and inspection of writings and other materials, requests for admission of facts, and physical examinations. Depositions A party to a lawsuit may obtain an oral pretrial examination of an adverse party or witness—the deponent—who is under OATH to respond truthfully to the questions. This interrogation is known as a deposition or an examination before trial (EBT). The notice or order of examination must specify the particular matters to be discovered and the lin e of questioning is usually restricted to such matters. However, the scope and extent of the examina- tion is within the discretion of the court. In some jurisdictions, a DEPONENT may bring along documents to refresh his or her memory and facilitate testimony. Such materials can be used only when relevant to the line of questioning to which the deponent is subject and only by the designated deponent. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 472 DISCOVERY Interrogatories Interrogatories are specific written questions submitted by a person, pur- suant to a discovery order, to an adversary who must respond under oath and in writing. Interrogatories must state questions in a precise manner so as to elicit an answer that is pertinent to the issues being litigated. Production and Inspection A litigant is generally entitled to the production and inspec- tion of relevant documents in the possession or control of an adversary pursuant to discovery. The applicant must have a reasonable belief that such evidence is necessary to the lawsuit if discovery is to be granted. Requests for Admissions of Facts A party may ask an adversary to admit any material fact or the authenticity of a document that is to be presented as evidence during the trial. This procedure, called a request for an admission of fact, facilitates the fair and efficient administra- tion of justice by minimizing the time and expense incurred in proving issues that are not in dispute. Only facts, not matters or conclusions of law or opinions, can be admitted when there is no disagreement between the parties. The requesting party does not have to make a motion before a court prior to making such a demand but must comply with any statutory require- ments. The matters or documents to be admitted must be particularly described and there must be a time limit for a reply. The response should admit or deny the request or explain in detail the reason for refusing to do so—for example, if the request calls for admission of a MATTER OF LAW . Failure to make a response within the specified time results in the matter being admitted, precluding the noncomplying party from challenging its admission during the trial. Physical Examination A mental or physical examination of a party whose condition is an issue in litigation may be authorized by a court in the exercise of its discretion. Criminal Procedure Under COMMON LAW, there was no discovery in criminal cases. As of the early 2000s, in federal and many state criminal prosecutions, only limited discovery is permissible, unlike the full disclosure of information available in civil actions. Limited discovery prevents the possible intimidation of prosecution witnesses and the increased likelihood of PERJURY that might result from unabridged disclosure. The obligation of the PROSECUTOR to prove the case BEYOND A REASONABLE DOUBT , the possibility of an uncon- stitutional INFRINGEMENT upon a defendant’s right against self-incrimination, and violations of the attorney-client privilege pursuant to a client’s RIGHT TO COUNSEL also hinder complete discovery. A DEFENDANT who requests parti- cular documents from the government may be required to submit items of a similar nature to the government upon its request for discovery. The disclosure of false evidence or the failure of the prosecution to disclose documents that are beneficial to the defense can result in a denial of DUE PROCESS OF LAW. The Federal Jencks Act (18 U.S.C.A. § 3500 [1957]) entitles a defendant to obtain access to prosecution documents necessary to IMPEACH the testimony of a prosecution witness by showing that the witness had made earlier statements that contradict present testimony. Theoretically, the defense cannot receive the statements until the witness has finished testimony on DIRECT EXAMI- NATION , but, in practice, such statements are usually available before then. Many states have similar disclosure rules. FURTHER READINGS Barthold, Walter. 1975. Attorney’s Guide to Effective Discov- ery Techniques. Upper Saddle River, N.J.: Prentice-Hall. Kraut, Jayson, et al, eds. 1983. American Jurisprudence. Rochester, N.Y.: Lawyers Cooperative. “Depositions and Discovery.” Federal Rules of Civil Procedure. Legal Information Institute, Cornell Univ. Law School. Available online at http://www.law.cornell.edu/rules/frcp/ index.html#chapter_v; website home page: http://www .law.cornell.edu (accessed September 2, 2009). CROSS REFERENCES Deposition; Immu nity; Interrogatories; Self-Incriminat ion. DISCRETION IN DECISION MAKING Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives. Legislatures, the presi dent and the gover- nors of the various states, trial and appellate judges, and administrative agencies are among the public officers and offices charged with making discretionary decisions in the discharge of public duties. All discretionary decisions made are subject to some kind of review and are also subject to reversal or modification if there has been an ABUSE OF DISCRETION. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISCRETION IN DECISION MAKING 473 An abuse of discretion occurs when a decision is not an acceptable alternative. The decision may be unacceptable because it is logically unsound, because it is arbitrary and clearly not supported by the facts at hand, or because it is explicitly prohibited by a statute or RULE OF LAW. Discretion in decision making can be viewed from the perspective of the flexibility and choices granted to the decision maker based on the decision being made. Only the Constitution, through judicial enforcement, can limit discre- tionary decision making by legislative bodies to pass laws. Great flexibility is granted to the executive branch in the area of foreign relations decision making. Statutes and prior judicial decisions limit the flexibility and discretion of a judge in a court of law. Moreover, Congress has granted broad decision-making authority to administrative agencies and their administrators, giving them great flexibility to make decisions within their area of concern. Legislative Discretion Legislatures have very broad discretion to create and pass laws that prohibit, regulate, and encourage a wide variety of activities. In Article I, Section 8, of the U.S. Constitution, Congress is empowered to “make all Laws which shall be necessary and proper” for carrying out its enumerated powers. Most state legislatures are empowered by similar language in their state constitution. An example of a proper exercise of legislative discretion is to make STALKING a crime and to make that crime punishable by fines or imprisonment. The discretion of legislatures is also limited by the U.S. and state constitutions. A state may not pass a statut e that allows the police to search any person’s residence at any time for any reason, because that statute would clearly violate the U.S. Constitution’s FOURTH AMEND- MENT protection against unreasonable searches and seizures. Executive Discretion Executive discretion, such as that vested in the president by Article II of the U.S. Constitution, is most evident in the area of foreign affairs: the president is the commander in chief of all the military forces and has the power to make treaties with other countries. If Congress is silent on a particular issue—that is, if Congress has not passed a specific statute or resolution concerning that issue—then the president has broad discretion to act. This arrangement is particularly relevant in the area of foreign policy during war or other military action when decisions must be made quickly in response to rapidly changing circumstances. One improper exercise of executive discre- tion that is almost always reversed by reviewing courts is impoundment, whereby a president places in reserve a sum of money appropriated by Congress for a particular purpose, effective- ly blocking that appropriation. Courts have routinely held t hat the p resident has no implied power to take such action. Implied powers are those held by the president but not granted expressly by statute, regulation, or constitution. The act of impoundment con- stitutes an abuse of discretion by the executive branch. Judicial Discretion Judicial discretion is a very broad concept because of the different kinds of decisions made by judges and because of the different limits placed on those decisions. Article III, Section 2, of the U.S. Constitution grants the judiciary broad power, which extends “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made.” Judges’ decisions must be made based on the “rule of law,” which, in the United States, derives not only from statutes passed by Congress but also from the tenets of the Con- stitution. In addition, COMMON LAW,orjudge- made law, provides limits based on the principle of STARE DECISIS, which holds that a court’s decision in a particular case must comport with the rules of law as they have been determined Judges’ discretion in decision making has been reduced by federal sentencing guidelines, but they still enjoy some latitude as they sentence those found guilty of crimes. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 474 DISCRETION IN DECISION MAKING by that court or by other, higher-level courts in previous cases. Legal conclusions that do not fit within the prescribed limits of both statutory and common law may be overturned by a reviewing court if that court determines that the conclusions were an abuse of judicial discretion. At one time, the SENTENCING of those convicted of crimes was almost entirely within the discretion of judges. Judges could take into account various mitigating factors (circum- stances reducing the degree of blame or fault attributed to the offender) and craft a PUNISH- MENT that most appropriately fit the crime. For example, a first-time petty offender convicted of SHOPLIFTING might be sentenced to PAROLE and COMMUNITY SERVICE. Congress and state legislatures passed sen- tencing guidelines that established mandatory minimum sentencing lengths. Under these guidelines, judges no longer had the broad latitude to make the sentence fit the crime and the DEFENDANT. The effects of these guidelines in some cases were harsh. For instance, first-time offenders could be sentenced to life in prison for possession of large amounts of controlled substances. Likewise, judges frequently were required to incarcerate parole violators for minor parole violations because the guidelines specifically directed the judges to do so. A judge’s failure to abide by the sentencing guide- lines in issuing a sentence would constitute an abuse of judicial discretion. The consti tutionality of both s tate and federal sentencing guidelines came into ques- tion during th e mid-2000s. The Suprem e Court reviewed two ca ses i nvolving similar questions of whether the guidelines violated a defendant’s right to trial by jury. In Blakelyv.Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, the Court determined th at the sentenci ng guidelines in the State of Washington violated a defendant’s SIXTH AMENDMENT right. The reaso n for the court’s decis ion was that the state’s guidelines allowed a judge to consider evidence that had not been determined by a jury when making a sentencing decision. Less than a year later, the cour t reviewed the federal sentencing guidelines in a case involving issues similar to those in Blakely. The court in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2 005) invalidated provisi ons of the federal guidelines on Sixth Amendment grounds. Since the court’s decision in Booker, sen- tencing guidelines are only advisory in nature, rather than mandatory. Judges gained more discretion in sentencing, though the guidelines are highly influential when judges make sentencing decisions. Administrative Agency Discretion Legislative, executive, and judicial discretion in decision making is limited within the structure of the three branches of the U.S. government as established in the Constitution. Each branch is subject to the influence, review, and even rejection of certain decisions. Administrative agencies, granted authority by Congress to administer specific government programs and areas of concern, operate outside this tripartite system, and many decisions made by adminis- trative agencies are protected from review. For this reason, the administrative branches of federal and state governments have often been referred to as the headless fourth branch of government. The U.S. Constitution does not expressly grant administrative authority. However, Con- gress may create administrative agencies as an extension of its authority to make laws that are necessary and proper to help it execute its powers (U.S. Const. art. I). The president may appoint the heads of these agencies under a general grant of authority to appoint “public Ministers and Consuls” and “all other Officers of the United States, whose Appointments are not herein otherwise provided for” (U.S. Const. art. II). The judiciary, under its very broad grant of authority to hear all cases in law and equity, has a right, in some circumstances, to review and overturn administrative decisions (U.S. Const. art. III). Administrative agencies, such as the SOCIAL SECURITY Administration (SSA) and the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), and the Bureau of Citizen and Immigration Services (BCIS), formerly the Immigration and NATURALIZATION Service (INS), make both rules and adjudicative decisions, which means they not only promulgate regulations but also decide conflicts dealing with their area of concern. For example, the SSA promulgates regula- tions concerning the provision of income for totally disabled people and decides who is or is not disabled. The EEOC promulgates regula- tions and guidance dealing with SEXUAL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISCRETION IN DECISION MAKING 475 HARASSMENT and decides whether PROBABLE CAUSE exists to pursue a particular claim of harass- ment. (Probable cause, which is a reasonable basis to believe the facts alleged, must be established before litigation can commence.) The BCIS helps to set immigration quotas and makes individual decisions regarding DEPORTATION. To review an agency decision under the standard of abuse of discretion, courts must follow a three-part analysis. First, courts must look to the legislation passed by Congress that gave decision-making authority to the particular agency and determine if the administrator acted within the limits of that authority. Second, courts must determine if a clear error of judgment has occurred. Without clear error, a court cannot substitute its own judgment; if it did so, the court would itself commit an abuse of discretion. Third, courts must determine whether the administrator followed the proce- dural requirements. Courts reviewing administrative decisions for abuse of discretion give great deference to the administrator or agency, which not only is an expert in the area of concern but also had access to all the facts that influenced the decision. This “hands-off” approach gives administrative agencies the opportunity to execute the authority granted them by Congress efficiently and effectively. An administrative decision that is difficult to reverse or challenge is that made by the Board of Immigration Appeals to uphold an immigra- tion judge’s decision to deport an alien. Once a deportation decision is made and upheld, the alien can seek to have the attorney genera l reverse it. Should the attorney general uphold the deportation, a court reviewing this discre- tionary decision has limited opportunity to challenge it because the Board of Immigration Appeals clearly has authority to make the decision in the first place. The alien must show either failure to follow procedure or clear error of judgment on the part of the board. Deporta- tion challenges are common, but successful challenges are rare. The great discretion aff- orded to the BCIS makes an abuse of discretion extremely difficult to prove. FURTHER READINGS Berman, Douglas A. 2006. “Tweaking Booker: Advisory Guidelines in the Federal System.” Houston Law Review 84. Davis, Kenneth C. 1971. Discretionary Justice: A Preliminary Inquiry. Champaign, IL: Univ. of Illinois. Feinstein, Mary S. 1986. “American Cetacean Society v. Baldrige: Executive Agreements and the Constitutional Limits of Executive Branch Discretion in American Foreign Policy.” Brooklyn Journal of International Law 12. Goldstein, Abraham S. 1981. The Passive Judiciary: Prosecu- torial Discretion and the Guilty Plea. Baton Rouge: Louisiana State Univ. Press. Heyman, Michael G. 1994. “Judicial Review of Discretionary Immigration Decisionmaking.” San Diego Law Review 31. Koch, Charles H. 1986. “Judicial Review of Administrative Discretion.” George Washington Law Review 54. Maranville, Deborah. 1986. “Nonacquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism.” Vanderbilt Law Review 39. Mills, Linda G. 1999. A Penchant for Prejudice: Unraveling Bias in Judicial Decision Making. Ann Arbor: Univ. of Michigan Press. Neuren, Cathy S. 1984. “Addressing the Resurgence of Presidential Budgetmaking Initiative: A Proposal to Reform the Impoundment Control Act of 1974.” Texas Law Review 63. Paquette, J., and D. Allison. 1997. “Decision-Making and Discretion: The Agony and Ecstasy of Law and Adminis- tration.” Education & Law Journal 8 (September): 161–81. Shapiro, Sidney A., and Robert L. Glicksman. 1988. “Congress, the Supreme Court, and the Quiet Revolution in Admi- nistrative Law.” Duke Law Journal. Vila, Marisa Iglesias. 2001. Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited. Dordrecht, Netherlands, Boston: Kluwer Academic. CROSS REFERENCES Abuse of Discretion; Discovery. DISCRETIONARY TRUST An arrangement whereby property is set aside with directions that it be used for the benefit of another, the beneficiary, and which provides that the trustee (one appointed or required by law to administer the property) has the right to accumu- late, rather than pay out to the beneficiary, the annual income generated by the property or a portion of the property itself. Depending on the terms of the instru- ment that creates the trust, such income can be accumulated for future distributions to the income beneficiaries or added to the corpus, the main body or principal of a trust, for the benefit of the remainderman, one who is entitled to the balance of the estate after a particular estate carved out of it has expired. This is a discretionary trust because the trustee has the latitude or discretion to give or deny the BENEFICIARY some benefits under the trust. The beneficiary cannot compel the trustee to use GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 476 DISCRETIONARY TRUST any of the trust property for the beneficiary’s advantage. In this type of trust the beneficiary has no interest that can be transferred or reached by creditors unless the trustee decides to pay or apply some of the trust property for the benefit of the beneficiary. At that time, the beneficiary’s creditors can reach it unless it is protected by a SPENDTHRIFT TRUST clause. An assignee, a person who has received an interest in the trust from the beneficiary by assignment (a transfer of property), can hold the trustee liable for any future payment to the beneficiary by giving notice of the assignment. As an illustration, the SETTLOR,onewho creates a trust, delivers $10 thousand to the trustee in trust for the beneficiary, and the trustee has the discretion to make any and every payment, or no payment at all, to the beneficiary from the corpus or income. Before the trustee has decided to make any payment to the beneficiary, the beneficiary assigns a right to $50 of any payment the trustee elects to make to him or her. The assignee notifies the trustee of the assignment and demands that if the trustee decides to pay the beneficiary any amount up to $50, the trustee must pay the assignee and not the beneficiary. If the trustee decides not to pay the beneficiary, the assignee has no right to payment. If the trustee subsequently decides to pay the beneficiary $50, the trustee will be liable to the assignee for it. A person can create a discretionary trust for his or her own benefit, but creditors can reach the maximum amount that the trust can apply for or pay to the beneficiary under the trust terms, regardless of whether he or she actually received payment. DISCRIMINATION In constitutional law, discrimination is defined as the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimina- tion on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws. In the 1960s, in response to the CIVIL RIGHTS MOVEMENT and an increasing awareness of dis- crimination against minorities, several pieces of LANDMARK legislation were signed into law. Title VII of the CIVIL RIGHTS Act of 1964 (42 U.S.C.A. § 2000e et seq.), the most comprehensive civil rights legislation in U.S. history, prohibits discrimination on the basis of sex, race, religion, nationality, or color. Title VII was designed to provide for parity in the use and enjoyment of public accommodations, facilities, and educa- tion as well as i n federally assisted programs and employment. It further allows an injured party to BRING SUIT and obtain damages from any individual who illegally infringes upon the party’s civil rights. The VOTING RIGHTS ACT OF 1965 (42 U.S.C.A. § 1973 et seq.) prohibits the states and their political subdivisions from imposing VOTING qualifications or prerequisites to voting or standards, practices, or procedures that deny or curtail the right of citizens to vote, because of race, color, or membership in a language minority group. The FAIR HOUSING ACT OF 1968 (42 U.S.C.A. § 3601 et seq.) prohibits discrimi- nation based on race, color, religion, sex, and national origin, in connection with the sale or rental of residential housing. In 1988 Congress passed the Fair Housing Amendments Act, which extends the same protections to handi- capped people. Other important federal laws have been aimed at remedying discrimination against SOURCE: The U.S. Equal Employment Opportunity Commission. Charges of Discrimination Filed with the EEOC in 2008 Total number of complaints: 95,402 a Race 35.6% Sex 29.7% Age 25.8% Disability 20.4% Other 35.3% National origin 11.1% Religion 25.8% a Sum of percentages may exceed 100 due to singular claims filed in multiple categories. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISCRIMINATION 477 . COMMUNICATION between the lawyer and a client. In one of the more high-profile cases of disbarment in recent history, the U.S. Supreme GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 470 DISBAR Court. estimated. 0 20 40 60 80 100 120 140 160 180 1985 7.7 2001 7.8 2006 11.8 2007 10.9 1990 7.1 2000 7.2 1995 18.6 2002 15.6 20 03 14.0 1980 55.4 2008 56.7 1988 71.2 2004 49.5 2005 171.2 1998 27.7 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 468 DISASTER RELIEF Later laws gradually increased the scope of federal. or modification if there has been an ABUSE OF DISCRETION. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISCRETION IN DECISION MAKING 4 73 An abuse of discretion occurs when a decision is not