Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P6 pps

whom were subject to military CONSCRIPTION.As casualties mounted, antiwar demonstrations in- creased and support in Congress decreased. The strategy of escalation did not produce the victory military leaders predicted. The cost of funding a war ended Johnson’s Great Society initiatives. More important, the Vietnam War became the focal point for the nation. Johnson’s popularity plummeted, and the nation was torn by conflict over the unpo- pular war. On March 31, 1968, Johnson announced he would not seek reelection. He spent the remainder of his term attempting to convince the South and North Vietnamese to begin a peace process. By the end of his administration, the Paris peace talks were started, which began a long negotiating process between North and South Vietnam. Johnson left office in January 1969 and returned to his ranch near Johnson City. There he wrote an account of his years in office, The Vantage Point: Perspectives of the Presidency (1971). His health deteriorated. Johnson died of a heart attack at his ranch, on January 22, 1973, less than one week before the signing of the accords that ended the Vietnam War. FURTHER READINGS Cowger, Thomas W., and Sherwin Markman, eds. 2003. Lyndon Johnson Remembered: An Intimate Portrait of a Presidency. Lanham, MD: Rowman & Littlefield. Langston, Thomas S. 2002. Lyndon Baines Johnson. Washington, D.C.: CQ Press. Unger, Irwin, and Debi Unger. 1999. LBJ: A Life. India- napolis: Wiley. CROSS REFERENCES Vietnam War; “Voting Rights Act Address” (Appendix, Primary Document). v JOHNSON, REVERDY Reverdy Johnson served as U.S. attorney general from 1849 to 1850. Johnson also served in the U.S. Senate and was an influential constitutional lawyer. He represented the defense in DRED SCOTT V . SANDFORD, 60 (19 How.) U.S. 393, 15 L. Ed. 691 (1857). Johnson was born May 21, 1796, in Annapolis, Maryland. He graduated from St. John’s College, in Annapolis, in 1811 and was admitted to the Maryland bar in 1815. After establishing a law practice in Upper Marlboro, Maryland, Johnson relocated to Baltimore in 1817 and opened a new firm that specialized in CONSTITUTIONAL LAW. After his relocation Johnson became inter- ested in politics and government service. He was deputy attorney general of Maryla nd before being elected to the Maryland Senate in 1821. In 1845 he was elected to the U.S. Senate, then resigned in 1849 to serve as U.S. attorney general in the administration of President ZACHARY TAYLOR. Johnson’s talents in constitutional law were demonstrated in the DRED SCOTT case. Dred Scott was an African American slave from Missouri who had been transported to Minnesota, then a “free” (non-slaveholding) territory. Scott sued for his freedom, arguing that he was no longer a slave because he had resided in a free territory. Missouri law had established the principle “once free, always free.” John F. A. Sandford, who controlled Scott, objected to the trial court’s declaration that Scott was free. The Missouri Supreme Court agreed with Sandford and over- turned the once-free, always-free doctrine. Scott appealed to the U.S. Supreme Court. Reverdy Johnson 1796–1876 ❖ ❖ 1796 Born, Annapolis, Md. 1817 Established constitutional law practice in Baltimore 1845–49 Represented Maryland in U.S. Senate 1861–65 U.S. Civil War ▼▼ ▼▼ 17751775 18251825 18501850 18751875 18001800 1775–83 American Revolution 1812–14 War of 1812 1821 Elected to Maryland Senate 1857 Argued defense's case in Dred Scott v. Sandford ◆◆◆ ◆ 1811 Graduated from St. John's College (Annapolis) 1849–50 Served as U.S. attorney general under President Taylor 1876 Died, Annapolis, Md. 1861–68 Represented Maryland in U.S. Senate 1868 Participated in impeachment proceedings against President Johnson 1868–69 Served as minister to Great Britain ◆ THE CONSTITUTION … ANNOUNCES A GREAT PRINCIPLE OF AMERICAN LIBERTY, … THAT AS BETWEEN A MAN AND HIS CONSCIENCE , AS RELATES TO HIS OBLIGATIONS TO GOD, IT IS NOT ONLY TYRANNICAL BUT UNCHRISTIAN TO INTERFERE . —REVERDY JOHNSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 38 JOHNSON, REVERDY When the case reached the U.S. Supreme Court, Scott’s lawyer framed it as a suit for Scott’s freedom. Johnson, one of several lawyers representing Sandford, injected into the pro- ceeding several new issues that transformed the case into a debate over the constitutionality of SLAVERY. Johnson argued that Scott had no right to sue in federal court, raising the issue of a black person’s claim to be a U.S. citizen. Johnson also attacked the constitutionality of the 1820 Missouri Compromise, which gave Congress the power to forbid slavery in the territories. Johnson claimed that slaves were private property protected by the Constitution, and therefore Congress could not abolish slavery in the territories. These arguments transformed the issue from whether Scott could be returned to slavery to whether Scott had ever been free at all. The Supreme Court adopted most of Johnson’s arguments. Chief Justice Roger B. Taney’s majority opini on concluded that at the time of the ratification of the Constitution, there were no African American citizens in the United States. Therefore, the Framers never contemplated that African Americans could be federal citizens. In practica l terms Scott’slackof citizenship meant he could not sue in federal court. In addition, the Court ruled that the Missouri Compromise was unconstitutional. The Dred Scott case helped precipitate the secession of southern states and the Civil War, yet Johnson supported the Union during the war. He waged a successful campaign to prevent Maryland from seceding, before returning to the U.S. Senate in 1861. After the Civil War, Johnson was the lone Democratic member of the U.S. Senate to support the ideas of the Radical Republicans’ Reconstruc- tion policy. He was a member of the Recon- struction committee and of a joint congressional committee that looked into these issues. In 1868, as a member of the Sen ate Rules Committee, Johnson participated in impeach- ment proceedings against President ANDREW JOHNSON . He was strongly in favor of a VERDICT of ACQUITTAL, which occurred by the slimmest of margins. Johnson entered the foreign service in 1868 as a minister to Great Britain. In 1869 he returned to his law practice. He spent much of his later years defending southerners charged with disloyalty to the federal government. He successfully argued that the FOURTEENTH AMENDMENT applied only to illegal acts commit- ted by the government, not to acts committed by private citizens, including vigilantes. Johnson died February 10, 1876, in Anna- polis, Maryland. FURTHER READINGS Bemis, George. 2009. Reverdy Johnson: The Alabama Negotiations and Their Just Repudiation by the Senate of the United States. Whitefish, MT: Kessinger. Foner, Eric, and Olivia Mahoney. 1997. America’s Recon- struction: People and Politics After the Civil War. Baton Rouge: Louisiana State Univ. Press. Steiner, Bernard C. 1999. Life of Reverdy Johnson. New York: Russell & Russell. CROSS REFERENCE Dred Scott v. Sandford. v JOHNSON, THOMAS THOMAS JOHNSON was the first governor of Maryland. He served in the Maryland House of Delegates in the early 1780s and was chief judge of the Maryland General Court from 1790 to 1791. Johnson was appointed to the U.S. Supreme Court in 1791, where he served a brief and uneventful term before resigning because of poor health. Johnson was born November 4, 1732, to Thomas Johnson and Dorcas Sedgwick Johnson, in Calvert County, Maryland. Johnson was one of twelve children, and he received no formal education as a child. His parents sent him to Annapolis, Maryland, to work as a registry clerk at the land office under Thomas Jennings. Following his apprenticeship, Johnson began to study law in the office of Stephen Bordley, an Annapolis attorney. He was admitted to the bar in 1760, and practiced law before entering politics. In 1766 Johnson married Ann Jennings, the daughter of his former instructor at the Annapolis land office. They were married for 28 years, until Ann died. They had eight children. From 1762 to 1773 Johnson was a member of the Maryland colonial assembly. In 1765 he became famous for his strong opposition to the STAMP ACT, which was the first tax imposed on the colonists by Great Britain. Johnson was named a delegate to the Maryland convention in 1774, and a Maryland representative to the First CONTINENTAL CONGRESS, in Philadelphia. He also served on a committee that drafted a AMERICA[NS] WISH … TO PRESERVE THE CONSTITUTIONAL LIBERTY … HANDED DOWN TO US BY OUR ANCESTORS .IF OUR PETITION IS REJECTED BY … OUR FRIENDS IN ENGLAND, WILL NOT OUR VERY MODERATE MEN ON THIS SIDE OF THE WATER BE COMPELLED TO OWN THE NECESSITY OF OPPOSING FORCE BY FORCE ? —THOMAS JOHNSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JOHNSON, THOMAS 39 petition of grievances to King George III. Johnson formally nominated GEORGE WASHINGTON before the Continental Congress in 1775 for the position of commander in chief of the Continental Army. Johnson supported the DECLARATION OF INDEPENDENCE , although he was not present in Philadelphia on the day it was signed. He voted for Maryland’s independence on July 6, 1776, and contributed to the new state constitution that year. During the American Revolution, he served in the Maryland MILITIA as first brigadier general. In 1777 Johnson led nearly two thousand men from Frederick, Maryland, to General Washington’s headquarters in New Jersey. Also in 1777 Johnson was elected the first governor of Maryla nd, from which position he was able to provide crucial assistance in keeping Washington’s army peopled and equipped. Johnson continued to serve as Maryland’s governor until 1779, when he declined a fourth term. He entered the Maryland House of Delegates in 1780. Johnson also pursued interests outside of politics. In 1785 he helped organize the state- chartered Potomac Company. This company grew from Johnson’s idea to improve navigation along the Potomac River and open a passageway to the West Coast. Johnson began the company with the help of his good friend Washington, who served as president of the company. In the end the enterprise proved unprofitable. In 1788 Johnson supported ratification of the U.S. Constitution at the Maryland Consti- tutional Convention. From 1790 to 1791, he served as chief judge of the Maryland General Court. In 1791 President Washington nomin- ated him to the U.S. Supreme Court. Johnson was hesitant to serve on the Supreme Court because at that time each justice was responsible for riding CIRCUIT COURT duties. Chief Justice JOHN JAY assured Johnson that every effort would be made to relieve the rigors of the circuit court duty, but Johnson was assigned to the Southern Circuit, which included all the territory south of the Potomac. Johnson sought a reassignment. When Jay refused to accommodate that request, Johnson resigned, citing poor health. He had served as an associate justice for just over one year. During his brief and uneventful Supre me Court tenure, he had authored only one opinion. Thomas Johnson. ETCHING BY ALBERT ROSENTHAL. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES Thomas Johnson 1732–1819 ❖ ❖ 1732 Born, Calvert County, Md. 1774 Attended the First Continental Congress 1819 Died, Frederick, Md. 1760 Admitted to Maryland bar ◆ ◆ 1791–93 Served on U.S. Supreme Court 1777–79 Served as first governor of Maryland 1775–83 American Revolution 1788 Maryland ratified U.S. Constitution 1790–91 Served as chief justice of the Maryland General Court ▼▼ ▼▼ 17751775 18001800 18251825 17251725 17501750 1762–73 Served in the Maryland colonial assembly ◆◆ ◆ 1780 Elected to the Maryland House of Delegates 1795 Declined nomination as secretary of state; retired to Frederick, Md. 1812–14 War of 1812 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 40 JOHNSON, THOMAS Johnson continued his public service, becoming a member of the board of commis- sioners of the federal city, appointed by President Washington to plan a new national capital on the Potomac. That commission voted to name the new city Washington and selected a design submitted by Pierre L’Enfant. Johnson was present in September 1793 when the corner- stone for the new Capitol was laid. President Washington nominated Johnson to serve as secretary of state in 1795, but Johnson declined. Instead Johnson retired to Frederick, Maryland, where he died October 26, 1819. FURTHER READINGS Abraham, Henry J. 1992. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford Univ. Press. Congressional Quarterly. 2004. Guide to the U.S. Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly. Delaplaine, Edward S. 1927. The Life of Thomas Johnson. Westminster, MD: Willow Bend. v JOHNSON, WILLIAM WILLIAM JOHNSON served in the South Carolina House of Representatives from 1794 to 1798 and as speaker of the house in 1798. He w as then elected judge of the South Carolina Court of COMMON PLEAS. In 1804 he was appointed to the U.S. Supreme Court. He served on the U.S. Supreme Court until his death in 1834, earning a reputation as a critic of Chief Justice JOHN MARSHALL , a writer of dissenting opinions, and a nationalist with regard to federal-state relations. Johnson was born December 27, 1771, in Charleston, South Carolina. He was the son of Sarah Nightingale Johnson and of William Johnson, a blacksmith, legislator, and well-known Revolutionary patriot. Durin g the Revolution- ary War, when the British captured Charlesto n, Johnson’s father was sent to detention in Florida, and the family was exiled from its home. The Johnsons returned to South Carolina after being reunited months later. Johnson graduated first in his class from Princeton in 1790. He then returned to Charleston to study law under Charles C. Pinckney, a pro- minent adviser to President GEORGE WASHINGTON. Johnson was admitted to the bar in 1793. William Johnson. GETTY IMAGES William Johnson 1771–1834 ❖ 1771 Born, Charleston, S.C. 1790 Graduated first in class from Princeton 1830 Wrote dissent in Craig v. Missouri 1834 Died, Brooklyn, N.Y. ▼▼ ▼▼ 17751775 18251825 18501850 18001800 1775–83 American Revolution 1812–14 War of 1812 ◆◆ 1826 Thomas Jefferson died July 4; Johnson wrote Eulogy of Thomas Jefferson 1794–1798 Served in S.C. House 1793 Admitted to South Carolina bar 1804–34 Served on U.S. Supreme Court ◆◆ 1824 Wrote concurring opinion in Gibbons v. Ogden ◆ 1798 Elected to judgeship on South Carolina Court of Common Pleas ❖ ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JOHNSON, WILLIAM 41 In 1794 Johnson married Sarah Bennett, sister of Thomas Bennett, a future governor of South Carolina. The couple had eight children, six of whom died in childhood. They also later adopted two refugee children from Santo Domingo. From 1794 to 1798 Johnson served in South Carolina’s house of representatives as a member of Thomas Jefferson’s new REPUBLICAN PARTY. Johnson was speaker of the house in 1798. He was then elected judge of the court of common pleas, the state’s highest court. In 1804 President Jefferson appointed Johnson to the U.S. Supreme Court. During his thirty years of service on the Court, Johnson became know n as a critic of Chief Justice John Marshall. Johnson has been called the first great Court dissenter because he established a tradi- tion of dissenting opinions. Among his most noteworthy opinions was his dissent in Craig v. Missouri, 29 U.S. (4 Pet.) 410, 7 L. Ed. 903 (1830). In Craig v. Missouri, Johnson argued in his dissent that states should be able to issue temporary BILLS OF CREDIT or loans. In general, Johnson leaned toward the nationalist position in judicial issues involving federal-state relations, as illustrated by his concurring opinion in GIBBONS V . OGDEN,22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824). Gibbons was a landmark decision that held that the COMMERCE CLAUSE gave to Congress, to the exclu- sion of the states, the power to regulate interstate commerce, which included navigation between the states. In his CIRCUIT COURT duties as well, Johnson steadfastly held that the federal gov- ernment had the right to control interstate commerce, including the commerce of slaves. This position proved so unpopular in his native state that he was forced to move to Pennsylvania in 1833. In the first part of his career as a Supreme Court justice, Johnson sought a different app- ointment. He wrote to President Jefferson that he found the Court to be no “bed of roses.” Nevertheless, he remained on the Court until his death. Johnson’s other accomplishments included the publication of Sketches of the Life and Correspondence of Nathaniel Greene, in 1822, and Eulogy of Thomas Jefferson, in 1826. Johnson also was a founder of the University of South Carolina. He died following surgery in 1834. FURTHER READINGS Congressional Quarterly. 2004. Guide to the U.S. Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly. Kolsky, Meredith. 1995. “Justice William Johnson and the History of the Supreme Court Dissent.” Georgetown Law Journal 83 (June). Mauro, Tony. 2000. Illustrated Great Decisions of the Supreme Court. Washington, D.C.: CQ Press JOINDER The union in one lawsuit of multiple parties who have the same rights or against whom rights are claimed as coplaintiffs or codefendants. The combination in one lawsuit of two or more causes of action, or grounds for relief. At common law the acceptance by opposing parties that a particular issue is in dispute. Joinder of Parties For two or more persons to join together as coplaintiffs or codefendants in a lawsuit, they generally must share similar rights or liabilities. At COMMON LAW a person could not be added as a PLAINTIFF unless that person, jointly with the other plaintiffs, was entitled to the whole recovery. A person could not be added as a DEFENDANT unless that person, jointly with the other defendants, was liable for the entire demand. To be more efficient, reduce costs, and reduce litigation, the modern practice of law does not proceed on the same principles. Permissive Joinder According to modern law, a person who has no material interest in the subject of the litigation or in the relief demanded is not a proper party and may not be part of the legal action. A proper party is o ne who may be joined in the action but whose failure to do so does not prevent the court from hearing the case and settling the controversy. A proper party m ay be added to a lawsuit through a process called permissive joinder. The statutes that govern permissive joinder generally provide that plaintiffs may unite in one action if they claim a right to relief for injuries arising from the same occurrence or transaction. Likewise, persons may join as defendants in an action if assertions made against them claim a right to relief for damages emerging from the same transaction or occurrence. Compulsory Joinder If a court is being asked to decide the rights of a person who is not named as a party to the lawsuit, that party must be joined in the lawsuit or else the court may IN A COUNTRY WHERE LAWS GOVERN , COURTS OF JUSTICE NECESSARILY ARE THE MEDIUM OF ACTION AND REACTION BETWEEN THE GOVERNMENT AND THE GOVERNED . —WILLIAM JOHNSON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 42 JOINDER not hear the case. Such persons are deemed indispensable or necessary parties, and they may be added as parties to the lawsuit through a process termed compulsory joinder. For reasons of equity and convenience, it is often best for the court not to proceed if an INDISPENSABLE PARTY is absent and cannot be joined. In some circumstances, however, a court may still hear a matter if an indispensable party is absent, but its judgment can affect only the interes ts of the parties before it. To determine whether a person is an indis- pensable party, the court must carefully examine the facts of the case, the relief sought, and the nature and extent of the absent person’s interest in the contro versy raised in the lawsuit. The Federal Rules of CIVIL PROCEDURE and many state rules give courts flexible guidelines for this determination. These rules provide that the court should look to var ious pragmatic factors and determine whether it is better to dismiss the action owing to the absence of a party, or to proceed without that party. Specifically, the court should consider whether complete relief could still be accorded the parties who are present, whether the absence of the particular party impairs that party’s ability to protect an interest, or whether the absence will leave a party that is present subject to a substantial risk of incurring multiple obligations. If the court decides, based on principles of equity and good conscience, that it is best to dismi ss the action rather than hear it without the absent party joining the lawsuit, then the absent party is an indispensable party and the case is said to be dismissed for nonjoinder. For example, if one party to a contract asks the court to determine his rights under the contract, and the other party to the contract is absent and cannot be joined, then the court will refuse to hear the case because the other party is indispensable to determining rights under the contract. Joinder of Action Under certain circumstances a plaintiff may join several causes of action, or claims for relief, in one complaint, declaration, or petition, even though each could have been the basis for a separate lawsuit. This procedure is not the same as the common one in which a plaintiff relies on more than one theory of recovery or mode of redress to correct a single wrong. To determine if the plaintiff is joining separate causes of action, as opposed to merely pursuing more than one means of redress, some courts look to whether the plaintiff is seeking to enforce more than one distinct primary right or whether the complaint addresses more than one subject of controversy. Other courts look to whether the claims emanate from a single occurrence or transaction. If the court’s inquiry shows that a plaintiff is attempting to join several causes of action into one lawsuit, the court must look to the applicable court rules and statutes to determine if such a joining is permissible. Modern statutes and rules of practice governing joinder of causes of action vary by jurisdiction. In general, however, they are liberal and encourage joinder when it promotes effi- ciency in the justice system. For example, the Federal Rules of Civil Procedure provide that a plaintiff may join in one suit as many claims as she or he has against an opposing party. Some state rules are similarly broad. Many states provide that the court, on its own motion or on the motion of a party, may consolidate similarly related cases. Joinder is not always favored by modern rules of court and statutes. Some statutes will not permit the joinder of causes of action that require different places of trial. Also, the various joinder statutes generally provide that inconsis- tent causes of action—that is, ones that disprove or defeat each other—cannot be joined in the same lawsuit. For example, a plaintiff may not in a single suit rely on a contract as valid and also treat the same contract as rescinded. However, contract and tort actions may be combined in one suit when they arise out of the same occurrence or transaction and are not inconsistent. Misjoinder Misjoinder is an objection that may be made when a plaintiff joins separate causes of action that cannot be joined according to the applicable law. Some states require the plaintiff to decide which of the misjoined claims he or she wants to pursue. Other states allow the court to sever the misjoined claims into separate actions. Joinder of Issue At common law joinder of issue occurs when one party pleads that an allegation is true and the opposing party denies it, such that both parties are accepting that the particular issue is in dispute. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JOINDER 43 FURTHER READINGS Oakley, John B. 2001. “Joinder and Jurisdiction in the Federal District Courts: The State of the Union of Rules and Statutes.” Tennessee Law Review 69 (fall). Yeazell, Stephen C. 2009. Federal Rules of Civil Procedure 2009 Statutory Supplement. Frederick, MD: Aspen. Zwolinski, Rachel Lynne. 2002. “Joinder and Severance.” Georgetown Law Journal 90 (May). CROSS REFERENCE Civil Procedure. JOINT United; coupled together in interest; shared between two or more persons; not solitary in interest or action but acting together or in unison. A combined, undivided effort or undertaking involving two or more individuals. Produced by or involving the concurring action of two or more; united in or possessing a common relation, action, or interest. To share common rights, duties, and liabilities. JOINT AND SEVERAL LIABILITY A designation of liability by which members of a group are either individually or mutually res- ponsible to a party in whose favor a judgment has been awarded. Joint and several liability is a form of liability that is used in civil cases where two or more people are found liable for damages. The winning PLAINTIFF in such a case may collect the entire judgment from any one of the parties, or from any and all of the parties in various amounts until the judgment is paid in full. In other words, if any of the defendants do not have enough money or assets to pay an equal share of the award, the other defendants must make up the difference. Defendants in a civil suit can be held jointly and severally liable only i f their concurrent acts brought about the harm to the plaintiff. The acts of the defendants do not have to be simultaneous: they must simply contribute to the same event. For example, assume that an electrician negligently installs an electrical line. Years later, another electrician inspects the line and approves it. When the plaintiff is subse- quently injured by a short circuit in the line, the plaintiff may sue both electricians and hold them jointly and severally liable. Joint and several liability can also arise where a husband and wife or members of an organization ow e the government income taxes. In such cases, the revenue agency may collect on the debt from any and all of the debtors. In a contractual situation, where two or more persons are responsible for the same performance and default on their obligations, a nondefaul- ting party may hold any and all parties liable for damages resulting from the breach of performance. A small number of states do not strictly follow the doctrine of joint and several liability. In such jurisdictions, called comparative NEGLI- GENCE jurisdictions, liability is prorated accord- ing to the percentage of the total damages attributable to each defendant’s conduct. JOINT ESTATE Property owned by two or more people at the same time, under the same title, with the same interest, and with the same right of possession. Although joint estate is sometimes used interchangeably with JOINT TENANCY, the two terms are not synonymous. Joint estate denotes a broad category of ownership that includes joint tenancy, TENANCY IN COMMON , and TENANCY BY THE ENTIRETY . A more apt synonym for joint estate is concurrent estate, which depicts the simultaneous ownership of property by more than one person. Joint Tenancy Joint tenants acquire the same interest in the same property through the same CONVEYANCE, commencing at the same time, and each holds the property under the same individual posses- sion. Each owner possesses the entire property by the appropriate designated fraction as well as by the whole, and has the right to enjoy both the fraction and the whole, but shares that right with all other joint tenants. A joint tenancy is created through a simple and straightforward process—for example, through a deed or will. The principal difference between joint tenancy and other forms of co-ownership is that upon the death of a joint tenant, the surviving tenants have the right to the sole ownership of the property. This right, known as the RIGHT OF SURVIVORSHIP , exists without regard to the rela- tionship between the tenants. In other words, two people who are not related in any way can be joint tenants, and either will, upon the death of the other, possess all of the deceased’s rights of ownership in that parcel of property. The property does not become part of the decede nt’s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 JOINT estate, and the disposition of the property cannot be changed by will. When one joint tenant dies, the remaining tenants take an increased share of the property, and this process continues until the last survivor owns the entire parcel. That survivor then ceases to be a joint tenant and may do with the property what she wishes, as its sole owner. Joint tenancy has enjoyed great popularity because it provides a simple mechanism for holding title to property without that title having to pass through probate. The cumber- some nature of certain probate proceedings and the cost and time that they entail provide ample motivation for many people to seek a joint tenancy arrangement. Joint tenancy is often used by a husband and wife who wish, for example, to have their HOMESTEAD remain under the sole ownership of the surviving spouse when one dies. The property becomes part of a probated estate only when the second spouse dies. Four UNITIES are necessary for the establish- ment of a joint tenancy: time, title, interest, and possession. This means that the interests of the joint owners must come into existence at the same time and by the same conveying document, the interests of all tenants must be identical, and each tenant must have an equal right to enjoy the property. Formerly, if any of these unities did not exist or ceased to exist, a joint tenancy was disallowed or extinguished, and a tenancy in common was created. In the early 2000s, courts tend not to examine the technical existence of the four unities in considering a joint tenancy case. Where it was the clear intention of the parties to create a joint tenancy and where the requirements have generally been met, most courts will find that a joint tenancy exists. It is still a well-accepted principle of the unities that if a joint tenant conveys his interest in a property to a THIRD PARTY, the third party becomes a tenant in common, while the remain- ing tenant continues as a joint tenant but no longer enjoys the right of survivorship. The right of survivorship is lost whether or not the conveyor seeks its loss. Thus, because any joint tenant has the INALIENABLE right to sever the joint tenancy by conveying her property to another party, the existence of a joint tenancy is not a complete protection of the right of survivorship. Other problems may arise owing to the joint tenants’ inability to control the distribution of the property through a will. In addition, a federal gift tax may be imposed if the joint tenancy was created primarily from the funds of only one joint tenant. Many states have tended to favor tenancies in common over joint tenancies because a joint tenant may not clearly understand that the property goes to the surviving tenants. Courts differ on the language required to create a joint tenancy. Where a desire to create a joint tenancy is not clearly expressed, courts will often find in favor of a tenancy in common rather than a joint tenancy. Tenancy in Common Tenancy in common provides ownership of an undivided interest of the whole but not of the whole itself. It bestows no right of survivorship, and the interest of the tenant in common is freely ALIENABLE and will pass to the heirs of the tenant upon the tenant’s death. When a sole owner dies without having specified the dispo- sition of the property, the heirs will inherit as tenants in common. Tenancy by the Entirety Tenancy by the entirety is similar to joint tenancy in providing the right of survivorship and requiring the four unities. But it is a more restricted type of joint estate that may exist only between a husband and a wife. Each spouse owns the undivided whole of the property so that upon the death of one spouse, the surviving spouse is entitled to the decedent ’s full share. Neither spouse can voluntarily dispose of his interest in the property, and the tenancy can be created only by will or by deed. If a conveyance specified a tenancy by the entirety but the grantees were other than husband and wife, some courts have declared that a joint tenancy resulted, whereas others have found a tenancy in common. FURTHER READINGS Dukeminier, Jesse, et al., eds. 2005. Wills, Trusts, and Estates. Frederick, MD: Aspen. Ritchie, John, Neill H. Alford, Richard W. Effland, and Joel C. Dobris. 1993. Cases on Decedents’ Estates and Trusts. Westbury, NY: Foundation. JOINT OPERATING AGREEMENT Any contract, agreement, joint venture, or other arrangement entered into by two or more businesses GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JOINT OPERATING AGREEMENT 45 in which the operations and the physical facilities of a failing business are merged, although each business retains its status as a separate entity in terms of profits and individual mission. The purpose of a joint operating agreement (JOA) is to protect a business from failure, yet prevent monopolization within an industry by allowing each party to retain some form of separate operation. JOAs are used in the newspaper, health care, gas and oil, and other industries. JOAs have been questioned as providing a means of avoiding antitrust problems. With International Shoe Co. v. FTC, 280 U.S. 291, 50 S. Ct. 89, 74 L. Ed. 431 (1930), the Supreme Court created the “failing-company” defense, by which mergers that would ordinarily violate antitrust laws are permitted where one of the businesses faces certain failure if no other action is taken. It was argued that a MERGER between two competitors, one of which is failing, cannot adversely affect competition because, either way, the failing company will disappear as a competitive entity. In the newspaper business, JOAs are used so that a failing newspaper can be paired with a parent newspaper and still retain separate editorial and reporting functions. In 1965 the JUSTICE DEPARTMENT questioned the legality of JOAs by issuing charges of antitrust violations to two publishers of daily newspapers operated under a JOA in Tucson, Arizona. In Citizens Publishing Co. v. United States, 394 U.S. 131, 89 S. Ct. 927, 22 L. Ed. 2d 148 (1969), even though the newspapers used the failing-company defense, the Supreme Court upheld findings of antitrust violations. Its decision narrowed the scope of the failing-company defense. The Court set three strict conditions for claiming failing-company IMMUNITY: (1) the failing company must be about to liquidate, and the JOA must be its last chance to survive; (2) the acquiring company must be the only available purchaser; and (3) reorganization prospects in BANKRUPTCY must be dim or nonexistent. Congress responded to Citizens Publishing by passing the Newspaper Preservation Act (NPA) (15 U.S.C.A. § 1802 et seq.) in 1970. The NPA lets newspapers form a JOA if they pass a less strict test. Under the NPA the attorney general may grant limited exemption from antitrust laws by approving a JOA. In the health care industry, hospitals may form a JOA to provide a stronger financial structure. The JOA, also known in this industry as a virtual merger, allows the hospitals to retain separate boards of directors but turns over management to a separate company. The hospi- tals coordinate services, construction needs, and the purchase of major equipment, yet maintain some of their own policies. Religious hospitals gain the benefits of a hospital network and still retain their religious affiliation. For example, a Catholic hospital entering into a JOA can maintain its stand against ABORTION and continue its individual programs for treating people who are poor. Two or more gas and oil operators can enter into a JOA to share the risk and expense of gas and oil exploration. One party is given respon- sibility for day-to-day operations, often charg- ing back expenses to the other participants in the JOA. The operator is able to keep costs down, and the other participants still retain rights to their share of the gas and oil, which they can use at their own discretion. The parties are seldom considered to be in a partnership unless the agreement specifically states that they are. In all JOAs the parties retain some aspect of their original organization, whether it is edito- rial voice, religious affiliation, mission state- ment, or the ability to use the resources of the business as they choose. All the parties share in the financial risks of the joint operation and gain the potential for an increased market presence and thus increased profits. FURTHER READINGS Fink, Mark H. 1990. “The Newspaper Preservation Act of 1970: Help for the Needy or the Greedy?” Michigan State Law-D.C.L Review 1990 (spring). Painter, William S. 1993. “Recent Legislation, Cases, and Other Developments Affecting Healthcare Providers and Integrated Delivery Systems.” American Law Institute–American Bar Association SB51 (February). Steel, Robbie. 1989. “Joint Operating Agreements in the Newspaper Industry: A Threat to First Amendment Freedoms.” Univ. of Pennsylvania Law Review 138, no. 1 (November). Wall, Guy E. 1992. “Joint Oil and Gas Operations in Louisiana.” Louisiana Law Review 53 (September). Available online at http://www.wallbullington.com/ articles/joint_oil_and_gas _operations. html; website h ome page: http://www.wallbullington.com ( accessed August 3, 2009). CROSS REFERENCES Mergers and Acquisitions; Monopoly. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 46 JOINT OPERATING AGREEMENT JOINT RESOLUTION A type of measure that Congress may consider and act upon, the other types being bills, concurrent resolutions, and simple resolutions, in addition to treaties in the Senate. Like a bill, a joint resolution must be approved, in identical form, by both the House and the Senate, and signed by the president. Like a bill, it has the force of law if approved. A joint resolution is distinguished from a bill by the circumstances in which it is generally used. Although no rules stipulate whether a proposed law must be drafted as a bill or a joint resolution, certain traditions are generally followed. A joint resolution is often used when Congress needs to pass legislation to solve a limited or temporary problem. For example, it is used as a temporary measure to provide continuing appropriations for government programs when annual appropriations bills have not yet been enacted. This type of joint resolution is called a continuing resolution. Joint resolutions are also often used to address a single important issue. For example, between 1955 and January 1991, on six occa- sions Congress passed joint resolutions autho- rizing or approving presidential requests to use armed forces to defend specific foreign coun- tries, such as Taiwan, or to prote ct U.S. interests in specific regions, such as the Middle East. Two of these resolutions—the TONKIN GULF RESOLUTION of 1964 (78 Stat. 384) and the Persian Gulf Resolution of 1991 (105 Stat. 3)— were used, in part, to justify U.S. participation in a full-scale war. Another use of joint resolutions is to propose amendments to the U.S. Constitution. Resolutions proposing constitutional amend- ments must be approved by two-thirds of both houses. They do not require the president’s signature, but instead become law when they are ratified by three-fourths of the states. Finally, joint resolutions are commonly used to establish commemorative days. Of the 99 joint resolutions that became law in the 103d Congress, for example, 83 were items of commemorative legislation. FURTHER READINGS Bacon, Donald C., Roger H. Davidson, and Morton Keller, eds. 1995. The Encyclopedia of the United States Congress. New York: Macmillan. Congressional Quarterly. 2007. Congressional Quarterly’s Guide to Congress. 6th ed. Washington, D.C.: Congres- sional Quarterly. Dickson, Paul, and Paul Clancy, eds. 1993. The Congress Dictionary: The Ways and Meanings of Capitol Hill. Indianapolis: Wiley. “Only Bills and Joint Resolutions Can Become Law.” 1994. Congressional Quarterly News (December 19). Tarr, David R. 2008. Congress A to Z. 5th ed. Washington, D.C.: Congressional Quarterly. CROSS REFERENCE Congress of the United States. JOINT STOCK COMPANY An association engaged in a business for profit with ownership interests represented by shares of stock. A joint stock company is financed with capital invested by the members or stockholders who receive transferable shares, or stock. It is under the control of certain selected managers called directors. A joint stock company is a form of partner- ship, possessing the element of personal liability where each member remains financially res- ponsible for the acts of the company. It is not a legal entity separate from its stockholders. A joint stock company differs from a partnership in that the latter is composed of a few persons brought together by shared confi- dence. Partners are not free to retire from the firm or to substitute other persons in their place without prior assent of all the partners. A partner’s death causes the dissolution of the firm. In contrast, a joint stock company consists of a large number of stockholders who are unac- quainted with each other. A change in member- ship or a transfer of stock has no effect on the continued existence of the company and the death of a stockholder does not result in its dissolution. Unlike partners in a partnership, a stockholder in a joint stock company has no agency relationship to the company or any of its members. A joint stock company is similar to a corporation in that both are characterized by perpetual succession where a member is allowe d to freely transfer stock and introduce a stranger in the membership. The transfer has no effect on the continuation of the organization since both a joint stock company and a corporation act through a central management, board of directors, trustees, or governors. Individual stockholders have no authority to act on behalf of the company or its members. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JOINT STOCK COMPANY 47 . death of the other, possess all of the deceased’s rights of ownership in that parcel of property. The property does not become part of the decede nt’s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E. Md. 1812–14 War of 1812 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 40 JOHNSON, THOMAS Johnson continued his public service, becoming a member of the board of commis- sioners of the federal city,. South Carolina Court of Common Pleas ❖ ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION JOHNSON, WILLIAM 41 In 1794 Johnson married Sarah Bennett, sister of Thomas Bennett, a future governor of South Carolina.