Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P30 potx

RECORDING OF LAND TITLES A process by which proof of ownership of real property is filed in the appropriate county office or court to allow purchasers, creditors, and other interested parties to determine the status of the property interests therein. The process of recording begins when a duly executed, acknowledged, and delivered docu- ment is brought to the recorder’s office for filing in the record books in the county where the property is located. The recorder’s office also keeps a set of indexes containing informa- tion about each document so that the document can be discovered by a title search. A majority of states have a GRANTOR-GRANTEE INDEX, a set of volumes containing an alphabetical reference to the surname of the grantor followed by the name of the grantee, a brief description of the document and the property, and the location of the filed document in the official record books. The same information is contained in the “grantee-grantor index,” which is organized alphabetically by surname of the grantee. A few states use a “tract index,” which organizes all of the documents accord ing to the location of the property. An individual who plans to purchase land commissions a title search, which involves examining the list of successive conveyances, from original owner to the present holder, that affect a parcel of land. The person conducting the title examination, usually a lawyer or title insurance examiner, prepares an “abstract of title,” summarizing the chain of title and listing any liens, charges, or liabilities to which the land may be subject. The ABSTRACT OF TITLE is evidence of the marketability of the record title; a purchaser of an interest in real property will take title subject to all interests constructively disclosed or implied by the record and subject to any interests of which the purchaser has actual notice. In nearly every state the validity of a conveyance, as between grantor (seller) and grantee (purchaser), is not affected by whether the deed is filed in the public records or not; the question is not who has possession of the deed but who owns title to the land. Before the enactment of state recording acts, the question of priority of title was generally a question of time. For example, if O, owner in fee simple of land, sells to A, giving A a deed to the land, but O later decides to sell the same land to B, B takes nothing because A was first to purchase the land, leaving O nothing to convey to B. Under state recording acts, however, if A fails to record the deed before B buys and B meets certain criteria with respect to B’s status and behavior, B still receives good title from O and A takes nothing. B is considered a “bona fide purchaser” or a “purchaser in good faith,” if he or she gives “valuable consideration without actual, implied or constructive notice of incon- sistent outstanding rights of others ” (Miller v. Hennen, 438 N.W.2d 366, 369 [Minn. 1989]). Three general categories of state recording acts are in use in the United States: “notice,” “race,” and “race -notice” recording statu tes, the least common of which are the race recording acts. Under a race recording statute, if A fails to record title, B must record his or her title before A records. (It is therefore a “race” to the recorder’s office such that the first person to file has title to the property.) To prevail against an unrecorded conveyance, B must have paid value, yet there is no requirement that B be without notice of A ’s conveyance at the time of B’s recording in order to prevail. Unlike the race recording statute, the notice and race-notice recording statutes prevent B from prevailing if B is first to record but does so with notice of the prior unre corded conveyance. Under a notice recording statute, if B is a bona fide purchaser and is therefore without notice of A’s prior unrecorded conveyance, B will prevail regardless of whether A records before B. On the other hand, under a race-notice recording statute, B will not prevail, despite her or his bona fide purchaser status, if B does not record before A. The recording statutes only work to the detriment of the holders of unrecorded instru- ments. A properly recorded document will prevail over subsequent claims, regardless of whether those claimants actually search for or find the recorded instrument. Courts often use the term “constructive notice” to describe this imputation of knowledge if a proper and reasonable investigation would have revealed the recorded instrument. Because the recording system was designed to encourage and protect reliance on the pu blic records, no legal protec - tion is afforded those individuals who have not significantly relied upon such records. A purchaser with actual notice of a prior unrecorded interest in the premises will take title subject to that interest even though it may GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 278 RECORDING OF LAND TITLES be unrecorded. Rumor or gossip usually are insufficient to provide notice, but if a purchaser has heard more reliable information about a possible adverse claim to the land, he or she is expected to make a reasonable investigation. In such cases, an individual might be charged with “inquiry notice” in addition to actual or constructive notice of previous claims. Inquiry notice is not applied in the same manner as constructive notice, which is applied automati- cally; it must first be shown that a suspicious fact existed to originate the duty to conduct an inquiry. One of the most litigated aspects of notice is the universally accepted rule that a purchaser of an interest in land is deemed to have actually viewed the land before buying. The purchaser is held to inquiry notice of the facts that an inspection or a conversation with those in possession of the land would disclose. The problem occurs in determining what is possession—for example, when the holder of the unrecor ded interest only uses the property for a limited purpose, such as for camping or cutting ti mber. Not every instrument that has been deliv- ered to the recorder’s office and copied into the records is held to be recorded or to have provided sufficient notice within the meaning of the recording acts. The recorder’s office makes no representation that the instruments it preserves are authentic and reliable, and in many cases one cannot detect the defects by solely examining the document itself. For example, the instrument may contain a forged signature, have a defective ACKNOWLEDGMENT, never have been delivered to the buyer, have been issued by a seller who is without capacity, and so on. Some states have enacted curative statutes which provide that after the passage of a certain numb er of years, instruments that lack seals or acknowledgments or other technical requirements are deemed to have been properly recorded. In some cases, documents can be located only with difficulty, such as with “wild deeds ”— recorded deeds not appearing in the chain of title. Most of these difficulties do not occur in tract-index systems in which all conveyances affecting a given parcel will be indexed on a single page. There are situations, however, in which the tract index shows conveyances by parties who are not in the chain of the record title. Such conveyances do not impart constructive notice of an interest. However, they may not be disregarded, and they put the purchaser to the burden of an inquiry. Themoreproblematicandcommonerror occurs when the instrument has been misin- dexed at the recorder’s office. In this situation courts generally hold that the instrument was not recorded because it was not indexed in a manner sufficient to provide constructive notice to any individual searching the record. Some states, however, provide that an instrument is deemed recorded upon its deposit in the recorder’s office. In either case, the careful purchaser or grantee should return to the recorder’sofficeafewdays after recording his or her deed to ensure that it has been properly recorded. Not all written instruments affecting real property interests are recordable. Recording statutes may explicitly provide that certain documents need not be recorded to protect the individuals in whom a property interest is created, such as with short-term leases and executory sales contracts. On the other hand, not all interests in land derive from written instruments. These types of adverse claims to title fall entirely outside the coverage of the recording acts and include the following property interests: ADVERSE POSSESSION, prescrip- tive EASEMENTS, implied easements, easements by necessity, and oral boundary line agreements. FURTHER READINGS Devlin, Robert T. 2010. A Treatise on the Law of Deeds: (Volume 2) Their Form, Requisites, Execution, Acknowl- edgment, Registration, Construction, and Effect General Books LLC. Hinkel, Daniel F. 2007. Essentials of Practical Real Estate Law. 4th ed. Clifton Park, N.Y.: Thomson/Delmar Learning/ West Legal Studies. Rawle, William Henry. 2009. A Practical Treatise on the Law of Covenants for Title. Ithaca, N.Y.: Cornell University Library. CROSS REFERENCE Registration of Land Titles. RECORDS Written accounts of acts, transactions, or instru- ments that are drawn up pursuant to legal authority by an appropriate officer and appointed to be retained as memorials or permanent evidence of matters to which they are related. A public record is a document that has been filed with, or furnished by, a governmental agency and is available to the public for GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RECORDS 279 inspection. For example, title of record to property is an ownership interest that has been duly filed in the office of public land records. The term record also applies to the formal, written account of a case, which contains the history of actions taken, papers filed, rulings made, and all written opinions. RECOUPMENT To recover a loss by a subsequent gain. In pleading, to set forth a claim against the plaintiff when an action is brought against one as a defendant. Keeping back of something that is due, because there is an equitable reason to withhold it. A right of the defenda nt to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract. In various creative industries, it is common practice for a company, such as a book publisher or record label, to issue an “advance against royalties” to an artist. This is a sum of money paid prior to the commercial release of a work, and it represents a prospective quantity of the eventual payments (per unit sold) that the company anticipates will be owed to the artist. When the work has sold enough copies that would otherwise trigger the crediting of royal- ties equal to the amount already paid out (based on the determined per-unit royalty as a fraction of the advance), the advance is said to have been “recouped.” The company has withheld paying the artist royalties up to that point, but it has thus recovered its payment, by keeping what would have been the royalties from actual sales so far, and it will no longer withhold additional royalties. From that point onward, the company is no longer out of pocket to the artist with regard to that advance payment, and the artist will begin receiving royalties beyond the value of the amount advanced because he or she has, in effect, paid the company back for the funds received in consideration of sales per unit. FURTHER READING Kohn, Al, and Bob Kohn. 2002. Kohn on Music Licensing 3rd ed. New York: Aspen Law & Business. RECOURSE The right of an individual who is holding a COMMERCIAL PAPER, such as a check or promissory note, to receive payment on it from anyone who has signed it if the individual who originally made it is unable, or refuses, to tender payment. Recourse is the right of the holder to recover against a prior endorser, who is secondarily liable. When a check is endorsed without recourse, it signifies that the endorser will not be liable to pay in the event that payment is refused. RECOVERED MEMORY The remembrance of traumatic childhood events, usually involving sexual abuse, many years after the events occurred. The heightened awareness of child SEXUAL ABUSE that developed in the 1980s brought with it the controversial topic of recovered memory. Some mental health therapists contended that children repress memories of abuse so completely that years later they have no memory of it. These therapists believed that through the use of recovered memory therapy, victims are able to recover the memories of the traumatic events and begin dealing with their psychologi- cal effects. Others in the medical community held deep reservations about the idea of repressed memory and the therapy techniques that purported to recover them. These critics argued that without established standards or procedures, a psychotherapist faced the danger of implanting false memories in a patient. By the mid-1990s these fears were justified, as patients won multimillion dollar verdicts against their therapists based on claims that they created false and destructive memories. During the 1980s many adults who recov- ered memories of child sexual abuse through therapy sought to hold their abusers account- able in a court of law. However, under STATUTE OF LIMITATIONS provisions, the time for a lawsuit had expired. Courts and legislators responded by changing these laws. Typically, these laws provide that the action must be filed within a certain number of years after the PLAINTIFF either reaches the AGE OF MAJORITY or knew or had reason to know that sexual abuse caused the injury. Once the statute of limitations problem was resolved, a number of civil lawsuits were filed alleging sexual abuse that happened many years before. Lawsuits against Catholic priests using recovered memories as evidence resulted in large damage awards in several cases. Criminal charges were also successfully brought against GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 280 RECOUPMENT alleged abusers on the basis of recovered memory. Apart from the award of damages, some therapists believe that a trial and a confrontation between the abuser and the abused is essential to restoring the victim’s mental health. In the 1980s courts allowed recovered memory testimony into evidence, despite objections by defendants that there was no scientific basis for believing memories could be recovered. In addition, defendants contended that the memories were untrue, implanted in the patient through a mixture of drug ther apy and suggestive questioning. By the early 1990s there was a backlash against recovered memory and its use in the law. The False Memory Syndrome Foundation was established as a support group by members of families who claimed they had been falsely accused of abuse by their children through recovered memory. Mental health professionals also contested the validity of recovered memory. Some argued that it is never reliable, whereas others believed it is sometimes reliable but only when elicited by a properly trained professional. In 1994 the AMERICAN MEDICAL ASSOCIATION (AMA) adopted a policy statement that pro- claimed that recovered memories of childhood sexual abuse are often unreliable and should not be assumed to be true. The AMA statement concluded that few cases in which adults make accusations of abuse can be proved or disproved using recovered memories because there is no way to distinguish the truth of memories from imagined events. That same year the American Psychiatric Association also expressed misgiv- ings about recovered memory. In 1994 a California jury awarded $500,000 in a MALPRACTICE case brought against two therapists by Gary Ramona, a father who claimed that the therapists had implanted false memories of childhood sexual abuse in his daughter. In 1996 a Minnesota jury awarded David and Lisa Carlson $2.5 million after the longest psychiatric malpractice trial in U.S. history. The Carlsons sued Lisa Carlson’s therapist, charging that she used hypnosis, drugs, coercion, and pressure to implant false memories. By 1995 a number of state courts had issued decisions that attacked the validity of recovered memories and held that these memories were insufficient to sustain a lawsuit unless supported by independent evidence. Statutes of limitations also continued to be a problem for those seeking to file lawsuits. For example, in Dalrymple v. Brown, 549 Pa. 217, 701 A. 2d 164 (1997), the Pennsylvania Supreme Court rejected a sexual assault claim based on recovered memory. The alleged victim stated that the DEFENDANT had assaulted her in 1968 and 1969 when she was a young child but she had only recovered the memories of the assaults in 1990. The defendant asked the court to dismiss the case because under Pennsylvania law the statutes of limitations required the victim to sue within two years after her eighteenth birthday. On appeal the Pennsylvania Supreme Court rejected the plaintiff’s contention that a discov- ery rule granted her an exemption from the two-year time limit. This rule holds that if the injured party does not originally know an injury, then the limitations per iod does not begin until the discovery of the injury is reasonably possible. Typical examples of the discovery rule are found in MEDICAL MALPRACTICE cases, where a doctor’s error is unknow n to the patient until its effects become physically evident. The court held that the discovery rule applies only when the nature of the injury is such that plaintiffs cannot detect it, stating that “it would be absurd to argue that a reasonable In 1994, a jury awarded Gary Ramona (left) $500,000 in a malpractice suit against two therapists whom he claimed had implanted false memories of childhood sexual abuse in his daughter. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RECOVERED MEMORY 281 person, even assuming for the sake of argument, a reasonable six year old, would repress the memory of a touching so that no amount of diligence would enable that person to know of the injury.” As of 2009, the topic of recovered memory remains controversial within the psychiatric and legal communities. In general, courts remain hostile to the introduction of testimony from individuals who claim to have recov ered memories of child and sexual abuse. FURTHER READINGS Freyd, Jennifer, and DePrince, Anne. 2001. Trauma and Cognitive Science. New York: Routledge. Lazo, Joy. 1995. “True or False: Expert Testimony on Repressed Memory.” Loyola of Los A ngeles Law Review 28. Rogers, William. 1995. “Recovered Memory” and Other Assaults upon the Mysteries of Consciousness: Hypnosis, Psychotherapy, Fraud, and the Mass Media. Jefferson, NC: McFarland. CROSS REFERENCES Child Abuse; Statute of Limitations. RECOVERY The acquisition of somethi ng of value through the judgment of a court, as the result of a lawsuit initiated for that purpose. For example, an individual might obtain recovery in the form of damages for an injury. The term recovery is also used to describe the amount ultimately collected, or the amount of the judgment itself. RECRIMINATION A charge made by an individual who is being accused of some act against the accuser. Recrimination is sometimes used as a defense in actions for DIVORCE. Traditionally, the underlying theory was that a divorce could be granted only when one individual was innocent and the other guilty, and the defense of recrimination allowed the party accused of misconduct to terminate divorce proceedings by asserting guilt against the other party. As grounds for divorce were expanded, however, recrimination is now virtually obsolete because of the onset of no-fault divorce. However, COMMON LAW countries with fault-based divorces continue to use recrimination as a defense. Recrimination has been limited or eliminated as a defense in some states, and others allow it only where one spouse accuses the other of ADULTERY, and the DEFENDANT wants to prove that the PLAINTIFF was also guilty of that offense. In some jurisdictions, the courts have attempted to counterbalance the plaintiff’s accusation with the defendant’s defense by allowing only comparable grounds to be offset by recrimination. RECUSE To disqualify or remove oneself as a judge over a particular proceeding because of one’s conflict of interest. Recusal, or the judge’s act of disqualifying himself or herself from presiding over a proceeding, is based on the MAXIM that judges are charged with a duty of impartiality in administering justice. When a judge is assigned to a case, she reviews the general facts of the case and determines whether she has any conflict of interest concerning the case. If a conflict of interest exists, the judge may recuse herself on her own initiative. In addition, any party in a case may make a motion to require the judge to recuse herself from hearing the case. The initial presiding judge usually determines whether or not the apparent conflict requires her recusal, and the judge’s decision is given considerable deference. Some jurisdictions, however, require another judge to decide whether or not the presiding judge should be disqualified. If a judge fails to recuse himself when a direct conflict of interest exists, the judge may later be reprimanded, suspended, or disciplined by the body that oversees JUDICIAL ADMINISTRATION.In addition, in some cases where a judge presides over a matter in which he has a direct conflict of interest, any criminal conviction or civil damage award in the case may be reversed or set aside. Generally, a judge must recuse himself if he has a personal bias or prejudice concerning a party to the lawsuit or has personal knowledge of the facts that are disputed in the proceeding. The CODE OF JUDICIAL CONDUCT, a judicial ethics code drafted by the AMERICAN BAR ASSOCIATION in 1972 and adopted by most states and the federal government, outlines situations in which a judge should disqualify himself from presiding over a matter. Canon 3C of the Judicial Code outlines these situations, including the judge’s personal bias or prejudice toward a matter or its participants, personal kno wledge of the facts that are disputed in a case, a professional or familial relationship with a party or an attorney, or a financial interest in the outcome of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 282 RECOVERY matter. Most interpretations of the code mandate a judge’s disqualification or recusal if any of these factors are present. In some cases t he parties to a proceeding may waive the judge’s disqualification and allow the judg e to preside over the case. The judge’s disqualification is waived when both parties agree to the waiver or when one o r more of the parties continues to participate in the proceedings. The term recusation was at one time considered an exception to jurisdiction, the effect of which was to disqualify the particular judge by reason of the judge’s interest or prejudice in the proceeding. FURTHER READINGS Abramson, Leslie W. 1992. Studies of the Justice System: Judicial Disqualification Under Canon 3 of the Code of Judicial Conduct. 2d ed. Chicago, Ill.: American Judicature Society. Comisky, Morvin, and Philip C. Patterson. 1987. The Judiciary—Selection, Compensation, Ethics and Disci- pline. New York: Quorum Books. Rotunda, Ronald D. 2006. “Propriety of a Judge’s Failure to Recuse When Being Considered for Another Position.” Georgetown Journal of Legal Ethics. 19 (fall). CROSS REFERENCES Canons of Judi cial Ethics; Judicial Conduct. RED CROSS CONVENTIONS See GENEVA CONVENTIONS, 1949. RED SCARE Throughout much of the twentieth century, the United States worried about Communist activi- ties within its borders. This concern led to sweeping federal action against ALIENS and citizens alike during periods known today as Red scares. Using the derogatory term Red for Communist, the phrase is a form of criticism: it implies overreaction resulting from excessive suspicion, unfounded accusation, and disregard for CONSTITUTIONAL LAW. The first Red scare followed the Bolshevik revolution in Russia in November 1917, and lasted until 1920. It was marked by antiradical legislation in U.S. immigration law, extensive federal probes of suspected radicals and their organizations, and mass arrests and deporta- tions of aliens. The second Red scare arose prior to World War II, and reached new heights during the Cold War years. The origins of the first Red scare lay in the Russian Rev olution and the horrendous expe- rience of WORLD WAR I. COMMUNISM was not yet perceived as the only enemy; ANARCHISM (the advocacy of violent overthrow of government and law) also caused fear. In the United State s, no great effort was made to separate these two political philosophies, for they both seemed to represent a single threat: foreign attempts to undermine the nation’s government and insti- tutions. Congress responded by putting new antiradical protections in the IMMIGRATION Act of 1918 (§§ 1–3, as ame nded, 8 U.S.C.A. § 137 [c, e–g]). Although antagonism toward differ- ent races and beliefs had marked immigration law for deca des, this change introduced politi- cal limits. It allowed for the DEPORTATION of aliens on the grounds of anarchist beliefs or membership in anarchist organizations. Riding a wave of anti-immigrant sentiment, l aw- makers frequently grumbled about “foreign troublemakers.” Early in 1919 Congress began pressuring the JUSTICE DEPARTMENT to take action against radicals. It had a receptive audience in Attorney General A. Mitchell Palmer. A self-styled enemy of foreign subversion who hoped to become president, Palmer was given to making public statements like “fully 90 percent of the commu- nist and anarchist agitation is traceable to aliens.” Then, on June 2, 1919, a bomb exploded outside Palmer’s Washington, D.C., home. Found among the remains of the dead bomber was a pamphlet signed by “the anar- chist fighters,” warning of more violence to come. The attack set in motion changes that would leave a lasting mark on federal law enforcement. Palmer created the Radical Divi- sion of the Justice Department, and assigned a promising young bureaucrat named J. Edgar Hoover to head it. Within a few months, Hoover had compiled thousands of names of suspected radicals and their organizations; later, as director of the FEDERAL BUREAU OF INVESTIGA- TION (FBI), he would compile more. Spurred by public expectations, the Justice Department acted in November 1919 and January 1920 by launching massive raids. More than 10,000 people were arrested—some for membership in Communist or left-wing groups, others on no greater pretext than that they looked or sounded foreign—and then jailed and interrogated with little regard for their right to due process. Hundreds were GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RED SCARE 283 subsequently deported, some aboard a U.S. Navy troop transport. But the raids backfired and Congress was scandalized by the disregard shown for constitutional rights. Along with the newly formed AMERICAN CIVIL LIBERTIES UNION (ACLU) and the AMERICAN BAR ASSOCIATION, lawmakers denounced the attorney general. The raids had two unforeseen consequences for Palmer: first, they ended his presidential aspirations, and second, they dashed his hopes of seeing new federal legislation that would allow for the arrest of subversive citizens, much as the 1918 Immigration Act permitted depor- tation of subversive aliens. Hoover, who had overseen the execution of the raids and some deportations, escaped reproach. The backlash against the first Red scare did nothing to prevent a recurrence. Fears of anarchism subsided, but the onset of WORLD WAR II produced new worries about fascism, Nazism, and Communism. The instigators of the second Red scare turned their gaze inward toward U.S. citizens who now seemed danger- ous. The alliance of the Soviet Union, Great Britain, and the United States came undone at the conclusion of World War II, as the Soviet Union occupied Eastern Europe and set up puppet Communist regimes. In the Unite d States, fears arose about Communists in the federal government who were committing ESPIONAGE for the Soviet Union. Once the Soviet Union detonated an atomic bomb in 1949, new fears arose about traitors grew. The conviction and execution of Julius and Ethel Rosenberg, the so-called “Atom Spies,” confirmed to many citizens that such fears were justified. House of Un-American Activities Committee The creation of the House Un-American Activities Committee (HUAC) in 1938 played a major part in fostering the second Red Scare. Lasting until 1969, this panel of the HOUSE OF REPRESENTATIVES held many hearings into alleg ed subversion by private citizens, unions, and Hollywood. The COLD WAR years also saw another dramatic manifestation of Red scare tactics. The Communist witch-hunts of Senator JOSEPH R. MCCARTHY brought unfounded accusa- tions of Communist infiltration of the STATE DEPARTMENT and the military. Both HUAC and McCarthy benefited substantially from the cooperation of the FBI, whose durable director, Hoover, fed them information. HUAC represented the last gasp of the Red scares. In the late 1960s and early 1970s, the Cold War still had important geopolitical implications; however, federal interest in hunt- ing down radicals had waned. A backlash against McCarthyism was a primary reason, as was the divisive experience of the VIETNAM WAR. Although the Cold War continued until the breakup of the Soviet Union in 1991, its effects were felt primarily in foreign policy and military expansion. As of 2009, the legacy of the Red scares to U.S. law can be measured in several ways: a greater interest in civil liberties; a decline of Congress’s role as a forum for interrogating private citizens; federal reform that has curtailed the power of the FBI; and a 1990 reform of immigration law that removed anarchism and Communism as grounds for deportation (Im- migration and Nationality Act of 1990, U.S.C.A. § 1101 et seq.). FURTHER READINGS Ackerman, Kenneth. 2008. Young J. Edgar Hoover: The Red Scare, and the Assault on Civil Liberties. New York: Da Capo. Hagedorn, Ann. 2008. Savage Peace: Hope and Fear in America, 1919. New York: Simon and Schuster. Heale, M. J. 1998. McCarthy’s Americans: Red Scare Politics in State and Nation, 1935–1965. Athens: Univ. of Georgia Press. Morgan, Ted. 2003. Reds: McCarthyism in Twentieth- Century America. New York: Random House. Powers, Richard G. 1987. Secrecy and Power: The Life of J. Edgar Hoover. New York: Free Press. CROSS REFERENCES Communism “House Un-American Activities Committee” (In Focus); Goldman, Emma; Smith Act. REDEMPTION The release of an estate in real property from a mortgage. Redemption is the process by which land that has been mortgaged or pledged is bought back or reclaimed. It is accomplished through a payment of the debt owed or a fulfillment of the other conditions. CROSS REFERENCE Mortgage. REDLINING A discriminatory practice whereby lending institu- tions refuse to make mortgage loans, regardless of an applicant’s credit history, on properties in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 284 REDEMPTION particular areas in which conditions are allegedly deteriorating. “Redlining” is known as such because some lenders use a red pencil to outline such areas. Redlining violates CIVIL RIGHTS statutes. Although redlining is traditionally seen in the context of financial lending, it can be seen in other contexts as well. For example, insurance redlining is the discriminatory unavailability of insurance. Insurance redlining impairs the ability of individuals of a particular class or group to acquire property, because procuring insurance is a prerequisite to obtaining a mortgage. REDRESS Compensation for injuries sustained; recovery or restitution for harm or injury; damages or equitable relief. Access to the courts to gain REPARATION for awrong. REDUCTIO AD ABSURDUM [Latin, Reduction to absurdity.] In logic, a method employed to disprove an argument by demonstrating that, by accep ting the argument’s premise, one is led to absurd and untenable propositions and consequences, perhaps by show- ing an inherent contradiction in the argument as formulated. A reductio ad absurdum can serve as a useful example for the discrediting of a law that seems vague or overbroad, in order to show that it would bring ridiculous, unintended consequences if followed to the letter. v REED, STANLEY FORMAN Stanley Forman Reed served as associate justice of the U.S. Supreme Court from 1938 to 1957. Before his appointment to the Court, Reed served as U.S. solicitor general. Reed was a strong supporter of congressional power to regulate the U.S. economy but was more moderate in his support of civil liberties. Reed was born on December 31, 1884, in Macon County, Kentucky. Educated at private schools, he graduated from Kentucky Wesleyan College in 1902. He earned a second bachelor’s degree at Yale University. Reed attended law school at both the University of Virginia and Columbia University but never completed his law degree. In 1908, he went to Paris and studied for a year at the Sorbonne. He returned from Europe and studied for the Kentucky bar exam. He was admitted in 1910 and began a law practice as a solo practitioner in Macon County. From 1912 to 1916, he served in the Kentucky General Assembly but left to serve in the Army during WORLD WAR I. After the war, he joined a large law firm. President HERBERT HOOVER appointed Reed general counsel of the Federal Farm Board in 1929. Though Reed was a Democrat, the Republican Hoover promoted him to general counsel of the RECONSTRUCTION Finance Corpo- ration (RFC) in 1932. The RFC was Hoover’s belated attempt to use the power of the federal government to lift the U.S. economy out of the economic depression that had begun in No- vember 1929. When FRANKLIN D. ROOSEVELT succeeded Hoover as president in 1933, he kept Reed in this position. Reed continued to impress his superiors. In 1935 he was appointed U.S. solicitor general, whose duty it is to argue cases before the U.S. Supreme Court. In this position Reed was called on to defend the constitutionality of NEW DEAL economic programs that empowered the federal government to regulate the national economy. He met a conservative Supreme Court, with the majority of the justices opposed to these new programs. The centerpiece of the New Deal was the NATIONAL INDUSTRIAL RECOVERY ACT OF 1933 (NIRA), 48 Stat. 195, which was THE UNITED STATES GRANTS TO ALL CITIZENS A RIGHT TO PARTICIPATE IN THE CHOICE OF ELECTED OFFICIALS [A] CHOICE WHICH CANNOT BE NULLIFIED BY A STATE THROUGH CASTING ITS ELECTORAL PROCESS IN A FORM WHICH PERMITS RACIAL DISCRIMINATION IN THE ELECTION . C ONSTITUTIONAL RIGHTS WOULD BE OF LITTLE VALUE IF THEY COULD BE THUS INDIRECTLY DENIED . —STANLEY F. REED Stanley F. Reed. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION REED, STANLEY FORMAN 285 designed to bolster the national economy through the enforcement of “codes of fair competition.” Reed’s arguments in the 1935 case that challenged the constitutionality of the NIRA (A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570) were unsuccessful, and the act was declared unconstitutional. Although Reed had only mixed success defending New Deal programs before the Court, he did argue and win several major cases: West Coast Hotel Co. v. Parrish (300 U.S. 379, March 29, 1937; upholding MINIMUM WAGE laws), National Labor Relation s Board v. Jones & Laughlin Steel Corporation (301 U.S. 1, April 12, 1937; upholding the National Labor Rela- tions Act), and Steward Machine Company v. Davis (301 U.S. 548, May 24, 1937; upholding the taxing power of the SOCIAL SECURITY Act). With Reed developing a reputation as one of the strongest solicitor generals since the office’s creation in 1870, President Roosevelt, confident of Reed’s belief in the New Deal, appointed him to the Supreme Court in 1938. The appoint- ment marked the decline of conservative economic thought on the Court and helped pave the way for sustaining federal programs and policies in the future. Reed consistently upheld the right of Congress, under the power of the COMMERCE CLAUSE of the U.S. Constitution, to regulate the national economy. Apart from economic issues, Reed was a moderate. He wrote the majority opinion in Smith v. Allwright (321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 [1944]), which struck down the “white primary” in the southern states. The device effectively kept African Americans from exercising their right to vote in any meaningful sense. At that time, the South was a virtual one- party system dominated by the DEMOCRATIC PARTY . State Democratic Parties excluded Afri- can Americans from party membership, and state legislatures closed the primaries to every- one but party members. African Americans were thus barred from voting in the primary. The general election was a mere formality for the primary winner because there was at most token Republican opposition. Reed declared the practice unconstitutional, because it violated the Fifteenth Amendment’s PROHIBITION against denying the right to vote to citizens because of their race. Reed also voted to end the separate- but-equal doctrine of racial SEGREGATION in Brown v. Board of Education (347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 874 [1954]). Reed was more conservative regarding civil liberties. He supported the admission of illegally obtained evidence in criminal trials in Wolf v. Colorado (338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 [1949]) and wrote the opinion in Adamson v. California (332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 [1947]), which declined to apply the Fifth Amendment’s guarantee against SELF- INCRIMINATION to state court proceedings. Reed retired from the Court in 1957. He died on April 2, 1980, in Huntington, New York. FURTHER READING Fassett, John D. 1994. New Deal Justice: The Life of Stanley Reed of Kentucky. New York: Vantage. REENTRY See RIGHT OF REENTRY. Stanley Forman Reed 1884–1980 ▼▼ ▼▼ 19251925 19501950 19751975 19001900 ❖ 1884 Born, Macon County, Ky. ◆ 1902 Graduated from Kentucky Wesleyan University 1906–08 Attended law school at Univ. of Va. and Columbia ◆ 1910 Admitted to Kentucky bar 1914–18 World War I 1912–16 Served in Kentucky General Assembly ◆ 1929 Appointed general counsel of the Federal Farm Board ◆ 1932 Appointed general counsel of the Reconstruction Finance Corporation ◆ 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ❖ 1980 Died, Huntington, N.Y. 1954 Voted with majority in Brown v. Board of Education ◆ ◆ 1938–57 Served as associate justice of U.S. Supreme Court 1944 Wrote majority opinion in Smith v. Allwright 1935 Appointed U.S. solicitor general; argued Schechter Poultry Corp. v. United States before Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 286 REENTRY REFEREE A judicial officer who presides over civil hearings but usually does not have the authority or power to render judgment. Referees are usually appointed by a judge in the district in which the judge presides. Referees aid the judge by hearing certain matters and by making recommendations concerning special or complicated issues. Judges generally delegate a portion of their judicial power to referees, who then report their recommendations to the judge concerning the issue. The English chancery master was the forerunner of the present-day referee. In eighteenth-century England, the chancellor courts used special masters to aid the chancery in handling its expanding EQUITY jurisdiction. Accordingly, the chancery master aided the chancellor only in equitable matters, such as marriage dissolutions, trust matters, and finan- cial accountings. U.S. jurisdictions adopted the use of special masters or referees modeled on the English chancery master. In most jurisdictions a referee must be an attorney. Nevertheless, in some complex prop- erty or financial matters, a judge may appoint a person who is not an attorney to preside over a dispute and to make recommendations. The term reference usually refers to the trial and determination of issues arising in a civil action by a person appointed for that purpose by the court. An order of reference, which is also called a referral order, is the court order that appoints the referee to hear and recommend action on the issues that are specified in the order. Judges generally appoint a referee to hear complicated matters, such as financial account- ings, property lien issues, or business valuation disputes. Many jurisdictions also have referees who are appointed to hear specified special- jurisdiction matters, such as FAMILY LAW, trust and probate, and pretrial discovery disputes. Parties to an action may agree to have a matter heard by a referee. In some jurisdictions the parties’ consent to the appointment of a referee to hear the matter may result in the parties’ waiver of any right to a jury trial. A referee makes recommendations to the judge or court that appoints the referee but generally does not issue enforceable orders. A referee generally cannot render judgment in a case. The referee’s general duty is to provide a report to the appointing judge on the issues of fact or law that prompted the referee’s appoint- ment. It has been said that “nothing can originate before a referee, and nothing can terminate with or by the decision of a referee.” Referees generally serve at the pleasure of the judge and accordingly hold less judicial authority than the appointing judge. As a judicial officer, a referee is subject to the CODE OF JUDICIAL CONDUCT. In some jurisdictions a referee may be called a SPECIAL MASTER, court commissioner, or a magistrate. The Federal Rules of Civil Proce- dure, for example, allow for the appointment of a “master,” who can be a referee, an auditor, an examiner, or an assessor. Generally, however, the duties of a master are the same as those of a referee, and the appointing judge may limit the master’s powers to report only on specified issues or to perform only particular acts. The federal judiciary also uses magistrate judges— judicial officers who perform a broad range of delegated or statutory duties, such as presiding over initial hearings in criminal cases, misde- meanor trials, pretrial proceedings, and the trial of civil cases. The Federal Magistrate Act of 1968 (Pub. L. No. 90-578, 82 Stat. 1107 [codified at 28 U.S.C.A. §§ 604, 631–639]) created the current system of federal magistrate judges and governs the duties of such magistrates. FURTHER READING Sinclair, Kent, Jr. 1996. Practice before Federal Magistrates. New York: Bender. REFERENCE The process by which a tribunal sends a civil action, or a particular issue in the action, to an individual who has been appointed by the tribunal to hear and decide upon it, or to obtain evidence, and make a report to the court. CROSS REFERENCE Referee. REFERENDUM Referendum is the right reserved to the people to approve or reject an act of the legislature or the right of the people to approve or reject legislation that has been referred to them by the legislature. The referendum power is created by state constitutions and is conferred on the citizens of a state or a local subdivisio n of the state. A referendum provides the people with a means of expressing their opinion on proposed legislation GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION REFERENDUM 287 . actual notice of a prior unrecorded interest in the premises will take title subject to that interest even though it may GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 2 78 RECORDING OF LAND TITLES be. had implanted false memories of childhood sexual abuse in his daughter. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RECOVERED MEMORY 281 person, even assuming for the sake of argument, a reasonable. in a case, a professional or familial relationship with a party or an attorney, or a financial interest in the outcome of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 282 RECOVERY matter.