Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P31 pot

before it becomes operative as a law. The power
of referendum does not permit the people to
invalidate a la w that is already operative but
suspends or annuls a law that has not yet gone
into effect. In this sense, referendum is similar
to a governor’s
VETO powe r. By referendum, the
people may also reinstate an act that the
legislature has expressly repealed.
The referendum, along with the initiative,
are the two forms of direct legislation adopted
by many states during the direct democracy
movement of the early twentieth century.
Referendum allows the people to voice their
opinion on laws that have been enacted by the
legislature, and the initiative allows the people
to propose their own laws. Thus, in the states
that have adopted the initiative and referendum,
the people essentially form another branch of
the legislature, having the ability both to enact
laws and to overturn laws passed by the elected
legislature but not yet in effect. An initiative or a
referendum passed by the people has the same
force and effect as any act of the legislature. A
referendum may be challenged on constitu-
tional grounds, on grounds that proper proce-
dures were not followed in the referendum
process and election, or on grounds that the
referendum or initiative was outside the scope
of authority granted by the state constitution.
Also, in some states the governor may veto an

initiative or referendum.
The general initiative and referendum were
first adopted in the United States in South
Dakota in 1898, and many states soon followed.
The movement toward direct legislation did not
grow from a desire of the people to exercise the
legislative function directly. Rather, many
people distrusted their legislative bodies, believ-
ing that large corporations and powerful groups
of individuals were corrupting legislation. The
power of referendum made most legislation
subject to the will of the people.
The referendum power is derived solely
from a state’s constitution and applies to that
state’s laws; people do not have the right to
challenge federal legislation by referendum. The
right of referendum and the procedure to be
followed in exercising the referendum right are
set forth in the state’s constitution and statutes.
The referendum process is essentially the same
in every state. First, there must be a pet ition for
referendum that states, among other things, the
title and nature of the legislative act the petition
seeks to have submitted fo r referendum. The
petition is then circulated for signatures.
Generally, anyone eligible to vote may sign a
petition for referendum, even if the individual is
not registered to vote. When the required
number of signatures is collected, the petition
is filed. If the petition is certified as sufficient,

the referendum measure is placed on the
election ballot for approval or rejection by the
people. If the required number of voters
(usually a majority of the votes cast) approve
the referendum, it passes. Usually, the people
vote on a referendum measure during the
general election, but special referendum elec-
tions also may be held.
In some states there is no limit on the
referendum power, and any law may be
challenged by referendum. In many states,
however, the constitution creates exceptions to
the referendum power for certain types of
legislation. Commonly, constitutional provi-
sions regarding referendums create an exception
for laws necessary for the support of the state
government and state or public institutions,
because a referendum on any such measure
might cause a branch of the government to cease
to function. This exception applies mainly to tax
and
APPROPRIATION measures. Also, most states
create an exception to the referendum power for
laws necessary for the immediate preservation of
the public peace, health, or safety, thereby
allowing the legislature to exercise the
POLICE
POWER
unimpaired. Finally, measures declared
by the legislature to be emergency measures are

usually not subject to referendum.
In
INTERNATIONAL LAW, an ambassador can
request a referendum to seek instructions on
subject matter that the ambassador does not
have sufficient power to address through other
means.
FURTHER READINGS
Coury, Christopher A. 1994. “Direct Democracy through
Initiative and Referendum.” Notre Dame Journal of
Law, Ethics and Public Policy 8.
Oberholtzen, Ellis Paxson. 1997. The Referendum in
America: A Discussion of Law-Making by Popular Vote.
Holmes Beach, Fla.: Gaunt.
Warner, Daniel M. 1995. “Direct Democracy: The Right of
the People to Make Fools of Themselves: The Use and
Abuse of Initiative and Referendum, A Local Govern-
ment Perspective.” Seattle Law Review 19 (fall).
REFORM PARTY
H. Ross Perot, founder of Electronic Data
Systems, Inc., ran for president in 1992 as an
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
288 REFORM PARTY
independent candidate and received 19 percent
of the popular vote. In September 1995 Perot
organized the Reform Party and was the party’s
1996 presidential candidate. The Reform Party’s
ticket, which included Perot’s running mate, Pat
Choate, appeared on the ballot in every state
and won eight percent of the vote.

H. Ross Perot entered the 1992 presidential
race in February 1992 and gradually gained
substantial widespread support with his well-
financed campaign and frank talk about gov-
ernment. Perot made campaign finance reform,
national trade deficits, and the balancing of the
federal budget the main issues in his campaign.
In July of that year, Perot withdrew from the
race when he received critical media coverage
and lost his campaign manager, Edward J.
Rollins. However, public support for his
candidacy persisted, and Perot re-entered the
race in October with former navy admiral James
B. Stockdale as his running mate.
In 1996 the Reform Party fielded several
candidates in elections across the country. At
the party’s national convention, University of
Denver professor and former Colorado gover-
nor Richard D. Lamm challenged Perot’s
nomination, but Perot won handily.
The Reform Party experienced some success
in the late 1990s. In 1998 former professional
wrestler Jesse Ventura was elected as the
governor of Minnesota on the Reform Party
ticket. A year later, conservative commentator
Pat Buchanan quit the
REPUBLICAN PARTY to join
the Reform Party.
Despite these gains, the party engaged in
internal disputes in 2000 that continued to have

negative implications. Ventura quit the party in
February 2000, calling it “dysfunctional.” A
month later, Choate and Jack Gargan, who had
become chairman of the party on January 1,
2000, but was later voted out of office, asked a
federal court to determine which of them
should be named as the proper chairman. A
federal district court in Virginia named Choate
as chairman, but the strife continued. Buchanan
and his supporters clashed with Perot loyalists
over the nomination for the party’s candidate
for the 2000 presidential election. Buchanan
was eventually nominated, but the problems
with the party were evident in the election.
Despite spending more than $38 million for
the election, Buchanan received only 448,895
total votes.
The party fared little better in the 2004
presidential election, when it supported
consumer-protection advocate
RALPH NADER,who
won 465,650 votes. Over the next four years, the
Reform Party slowly descended into disarray at
the national level. For the 2008 presidential
election, the party supported a ticket with two
obscure politicians, Ted Weill of Mississippi
for president and Frank McEnulty of California
for
VICE PRESIDENT. The Weill-McEnulty ticket
appeared on the ballot in only one state,

Mississippi, in which it received 481 votes.
FURTHER READINGS
Andryszewski, Tricia. 2000. The Reform Party: Ross Perot and
Pat Buchanan. Brookfield, Conn.: Millbrook Press.
Herrnson, Paul S., and John C. Green, eds. 1998.
Multiparty Politics in America. Lanham, Md.: Row-
man & Littlefield.
Williams, Victor, and Alison M. Macdonald. 1994. “Re-
thinking Article II, Section 1 and Its Twelfth Amend-
ment Restatement: Challenging Our Nation’s Ma-
lapportioned, Undemocratic Presidential Election
Systems.” Marquette Law Review 77.
CROSS REFERENCES
Election Campaign Financing; Independent Parties.
REFORMATION
A remedy utilized by the courts to correct a written
instrument so that it conforms to the original
intent of the parties to such an instrument.
Legal documents, such a s contracts, deeds,
mortgages, and trusts, are all proper subjects
for reformation. Because the
ORIGINAL INTENT of
the parties must control, however, a totally
new a greement cannot be created through
reformation.
The court, in the exercise of its equity
powers to do justice, will reform a document
only in the event that
FRAUD or MUTUAL MISTAKE
occurred in its execution. But courts are

generally reluctant to reform contracts by
supplying terms omitted from a written instru-
ment, unless the evidence clearly justifies the
modification.
Reformation is a remedy that is granted at
the discretion of the court only where the facts
and circumstances of a particular case warrant
it. It will not be granted where an entirely new
agreement would result between the parties or
where unwarra nted hardships would be im-
posed upon them. Only an individual who has
acted in
GOOD FAITH can apply to the court to
have an instrument reformed.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
REFORMATION 289
Reformation is not available as a remedy to
correct every minor error, such as a typograph-
ical error; rather, it is granted where there
has been a mutual mistake that substantially
affects the parties’ rights and obligations. The
mistake must have been in existence at the time
the instrument was drawn up. A mistake in
the description of land and its boundaries
ordinarily justifies reformation of an agreement
where the purchaser and seller intended that all
the seller’s property be sold to the purchaser. In
addition, a
MISTAKE OF LAW by which both parties
to the instrument have incorrectly compre-

hended the legal effect of the facts and the
document might also result in reformation.
REFORMATORIES
State institutions for the confinement of juvenile
delinquents.
Any minor under a certain specified age,
generally 16, who is gui lty of having violated
the law or has failed to obey the reasonable
directive of his or her parent, guardian, or the
court is ordinarily treated as a delinquent under
state statute. The purpose of reformatories is to
impose punishment for crimes committed by
juveniles while concurrently rehabilitating the
offenders through educational and vocational
training so that they will become law-abiding
citizens.
The powers of a state to establish and
maintain reformatories, as well as the authority
of its agencies to do so, are ordinarily contained
in constitutional or statutory provisions. Such
authority is based upon the sovereign power of
the state as
PARENS PATRIAE to safeguard the
WELFARE of children within its borders by
removing them from harmful environments
and putting them in institutions where their
development will be supervised.
Reformatories—which are also known as
“houses of refuge,”“state vocational institu-
tions,”“reform schools,”“juvenile correction

centers,”“industrial schools” or “training
schools”—are generally not considered prisons.
In some states, however, they are part of the
prison system with adult inmates.
The Society for the Prevention of Pauper-
ism, which later became the Society for the
Reformation of Juvenile Delinquents, founded
one of the first reformatories in 1825 in the state
of New York. The group voiced concerns over
the prevailing practice of placing children in
adult jails and workhouses and objected to the
punitive nature of the sentences meted out to
children. The Society for the Prevention of
Pauperism issued a “Report on the
PENITENTIARY
System in the United States in 1822,” calling for
separate prisons for juvenile offenders. It noted
that “these prisons should be rather schools for
instruction, than places of punishment, like our
present State Prisons where the young and the
old are confined indiscriminately. The youth
confined there should be placed under a course
of discipline, severe and unchanging, but alike
calculated to subdue and conciliate. A system
should be adopted that would [provide] a
mental and moral regimen.”
Despite the increased use of reformatories
for the rest of the nineteenth century, the
notion that juvenile delinquents could be
reformed and rehabilitated became hotly de-

bated across the United States in the twentieth
century. This debate continues today at the
national, state, and local levels.
CROSS REFERENCE
Juvenile Law.
REFRESHING MEMORY
The process of aiding a witness’s recollection of
certain details during a trial by allowing him or
her to consult documents, memoranda, or books in
order to better remember once-familiar transac-
tions or events about which he or she is testifying,
in case he or she is not otherwise readily able to
do so. The item used for such aiding is typically
marked as an exhibit. Once memory has thus been
refreshed, examination continues.
A witness is not pe rmitted to rely completely
upon materials to help him or he remember a
relevant detail, nor may the witness read from
them directly while giving testimony. The witness
must be capable of testifying to the facts from a
present, independent recollection. An adverse
party is entitled to have the writing produced at
the hearing, to inspect it, to cross examine the
witness thereon, and to introduce into evidence
those portions which relate to the testimony of
the witness. In the federal system, the refreshing
of a witness’s recollection is governed by Rule
622 of the
FEDERAL RULES OF EVIDENCE.
FURTHER READING

Rothstein, Paul F, Myrna S. Raeder, and Donald Crump.
2007. Evidence in a Nutshell. 5th ed. St. Paul, Minn.:
Thomson West.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
290 REFORMATORIES
REFUGEES
Individuals who leave their native country for
social, political, or religious reasons, or who are
forced to leave as a result of any type of disaster,
including war, political upheaval, and famine.
Refugees are often unwilling to return to
their country of citizenship because they fear
political, social, or cultural persecution. The
refugees turn to other countries for protection
and support. A related problem is statele ssness,
which occurs when one’s country of citizenship
has been absorbed by another nation through
war or political change. The United States
has promulgated policies to aid refugees and
stateless persons both internationally, throu gh
various international organizations and treatie s,
and domestically, through national
IMMIGRATION
policies.
International Refugee Policies
There have always been refugees, but their
plight was first recognized as a major interna-
tional problem after
WORLD WAR I, when the
number of refugees in Europe and Asia Minor

totaled in the millions. The first world institu-
tion to come to the aid of refugees was the
LEAGUE OF N ATI ONS Office of the High C ommis-
sioner for Refugees, established in 1921.
Although U.S . p resident Woo dro w Wilson
was a principal founder of the League of
Nations, the U .S.
SENATE refused to ratify the
treaty on which it was based, and the United
States never j oined the L eague. This office was
later called the Nansen Office in honor of the
Norwegian scholar who first headed it.
The Nansen Office provided assistance to
500,000 Greeks who were resettling from Asia
Minor to Greece and to 5 00,000 Turks
resettling from Greec e to Turkey.
The ri se of Nazi Germany led to another
flood of international refugees in 1933. Because
Germany would not permit the Nansen Office
to assist those individuals, the League of Nations
created the Office of the High Commissioner
for the Refugees from Germany. By 1938 the
office was expanded to help Austrian refugees
fleeing the Nazis as well. The two League of
Nations offices were later combined into the
Office of the High Commissioner for Refugees.
In 1938, 32 countries met to establish the
Intergovernmental Committee for Refugee s, at
the urging of U.S. president
FRANKLIN D.

ROOSEVELT. This time, the United States was a
member of the organization. These organizations
helped European political and social refugees in
a variety of ways, for example by giving them
identity and travel documents.
By 1944 all of the functions of the Office of
the High Commissioner for Refugees and the
Intergovernmental Committee for Refuge es
were assumed by the
UNITED NATIONS (UN) in
an office that was later called the International
Refugees Organization (IRO). The United States
was a member of the United Nations and
participated in this international front as well.
The IRO helped 1.5 million European and
Asian refugees. It was dismantled in 1951, and
its duties were taken over by the Office of the
United Nations High Commissioner for Refu-
gees (UNHCR).
The UNHCR is responsible for protecting
international refugees and assisting with the
problems created by mass movements of people
resulting from civil disturbance or military
conflict. The high commissio ner follows policy
directives handed down by the UN General
Assembly. The United Nations encourages
countries to admit refugees and stateless
persons and to provide resettlement opportu-
nities for them. It also seeks to help refugees
achieve self-sufficiency and family security

in their new homes. Members of the United
Nations agree to help refugees and stateless
persons by giving them the same civil liberties
afforded their nationals and the same economic
rights afforded other foreign nationals.
In 1948 the United Nations also addressed
the Palestinian refugee situation in the Middle
Number of Refugees and Asylum Seekers in
2007
Americas and
the Caribbean
787,800
Europe
527,900
East Asia and
the Pacific
934,700
Africa
2,799,500
Middle East
and North Africa
6,380,200
South and
Central Asia
2,617,200
SOURCE: U.S. Committee for Refugees and
Immi
g
rants, World Refugee Survey 2008.
ILLUSTRATION BY GGS

CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
REFUGEES 291
East by creating a new organization, the United
Nations Relief for Palestinian Refugees, later
called the United Nations Relief and Works
Agency for Palestine Refugees in the Near East
(UNRWA). The UNRWA assisted more than
1.5 million Palestinian refugees through the
early 1970s.
In 1982 the UNHCR turned its attention to
the 1.2 million African refugees in Somalia,
Sudan, Djibouti, Kenya, and the horn of Africa.
The majority of refugees were escaping condi-
tions of famine in the underdeveloped African
countries. Also in the early 1980s, the UNHCR
assisted more than 36,000 Vietnamese boat
people in the South China Sea. During the
1980s, the UNHCR helped 2.9 million refugees
leave Afghanistan and resettle in Pakistan.
Since the start of a civil war in 2003 in the
Darfur region of Sudan, two million people
have been driven from their home s and into
refugee camps in Sudan and Chad. The
UNCHR has worked to feed and house the

refugees, but the UN has been unable to provide
security to those in the camps. The 2002 U.S.
invasion of Iraq and the subsequent civil unrest
and violence drove many Iraqis to neighboring
Iran, Syria, and Jordan. The United States
admitted very few Iraqi refugees; in 2007 only
202 were admitted. The civil war in Somalia in
the 1990s resu lted in the loss of a stable national
government, and many Somalis came to the
United States as refugees.
The United Nations also helps refugees by
assisting in their voluntary repatriation, or
return to their home country. By 1988 the
UNHCR helped at least 150,000 refugees return
to their countries of origin, mostly in Africa and
Central America. The UN General Assembly
declared in 1988 that voluntary repatriation is
the ideal solution to the problems faced by
refugees.
In the late 1980s and early 1990s, the
UNHCR began to study the particular problems
faced by women and children refugees and
called for further efforts to protect these special
groups.
In addition to the United Nations and the
League of Nations, various international chari-
table organizations, such as
AMNESTY INTERNA-
TIONAL
, strive to aid refugees and stateless

persons. Religious relief organizations also have
aided refugees by providing food, clothing,
shelter, and resettlement assistance.
Domestic Refugee Policies
In the early years of the United States, the states
were responsible for the
NATURALIZATION of
ALIENS, and the only requirement for being
naturalized was taking a pledge of loyalty. Now
the federal government closely regulates the
entry of all aliens, including refugees, through
the Bureau of Citizenship and Immigration
Services (BCIS), formerly the Immigration and
Naturalization Service (INS). The standards for
naturalization have become more demanding
and exacting, especially after terrorist attacks on
SEPTEMBER 11, 2001.
Before the twentieth century, the U.S.
approach to admitting refugees was no different
from the admission of general immigrants,
which was based on quotas for each country.
During
WORLD WAR II, the insensitivity of this
policy became evident as the United States
turned away Jewish refugees because its quota
for German immigrants had been met, and
the refugees were forced to return to Nazi
Germany.
In 1945 President
HARRY S. TRUMAN signed an

EXECUTIVE ORDER that gave displaced persons, or
refugees, priority over other immigrants. Con-
gress passed the War Brides Act, 59 Stat. 659, in
1945 and the Displaced Persons Act, 62 Stat.
1009, in 1948 to make the United States more
responsive to international imm igration and
refugee situations. The War Brides Act permit-
ted the immigration of 120,000 alien wives and
children of U.S. soldiers. The Displaced Persons
Act allowed for more than the previously
established quotas of refugees from Poland,
Germany, Lat via, Russia, and Yugoslavia to be
admitted.
The Refugee Relief Act of 1953, 67 Stat. 400,
allowed for the entry of 214,000 refugees during
a limited period on a non-quota basis. Many
Hungarian “freedom fighters” were admitted
under the act in 1956. President
DWIGHT D.
EISENHOWER invited another 30,000 Hungarian
refugees to the United States following their
country’s revolution. This invitation was on a
“parole” status, meaning these refugees were
not granted immigrant visas.
The Fair-Share Refugee Act of 1960, 74 Stat.
504, permitted the
JUSTICE DEPARTMENT to admit
even more refugees under parole status. Under
this act, many refugees from Communist and
Middle Eastern countries resettled in the United

States.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
292 REFUGEES
In the late 1970s and early 1980s, a flood
of Hmong refugees from Vietnam, Cambodia,
and Laos came to the United States. In 1975,
200,000 Indo-Chinese refugees arrived, and by
1985 nearly 400,000 Southeast Asians came to
the United States. Throughout this period,
Jewish refugees from Russia continued to be
admitted to the United States.
The Refugee Act of 1980, 8 U.S.C.A. § 1525,
raised the number of annual immigrants
permitted from 290,000 to 320,000, of whom
50,000 could be refugees. Mass admittance of
refugees pursuant to the president’s parole
authority was not permitted, but the president
was allowed to admit refugees over the 50,000
annual limit with congressional consultation.
Cuban and Haitian refugees in the early
1980s tested the ability of the United States
to accommodate and assimilate refugees. The
Cubans were seen as fleeing from the Commu-
nist regime of Fidel Castro and therefore were
permitted entry into the United States. Flight
from a Communist country was a long-standing
accepted qualifying basis for refugee status. The
sheer numbers of Cuban refugees who came to
the United States by boat, however, made their
entry difficult, but not impossible, to process.

Unlike the Cubans, the Haitian refugees
claimed that they were fleeing poverty, a
condition not recognized by the United State s
as qualifying individuals for refugee status.
However, the Haitians asserted that once they
left Haiti, they could not return, or else they
would face political persecution for having left.
The U.S. government did not accept the
Haitians’ fear of persecution as sufficient to
admit them as refugees and concluded that they
were economic immigrants. The Haitians were
detained in large relocation camps and then
deported. In 1981, President
RONALD REAGAN
signed an executiv e order authoriz ing the U.S.
Coast Guard to stop boats leaving Haiti, and
turn them around if they were transporting
economic immigrants.
FURTHER READINGS
Fritz, Mark. 1999. Lost on Earth: Nomads of the New World.
New York: Little, Brown.
Helton, Arthur C., and Dessie P. Zaborcheva. 2002.
“Globalization, Terror, and the Movements of People.”
International Lawyer 36 (spring).
Holbrook, Dane. 2003. “Protecting Immigrant Child
Victims of Domestic Violence through U.S. Asylum
Law.” Kansas Journal of Law & Public Policy 12
(winter).
Lischer, Sarah Kenyon. 2006. Dangerous Sanctuaries: Refugee
Camps, Civil War, And the Dilemmas of Humanitarian

Aid. Ithaca, New York: Cornell Univ. Press.
Marfleet, Phillip. 2005. Refugees in a Global Era. New York:
Palgrave Macmillan.
The Office of the United Nations High Commissioner for
Refugees. The State of the World’s Refugees: Human
Displacement in the New Millennium. New York:
Oxford Univ. Press.
Osmanczyk, Edmund Jan. 2002. Encyclopedia of the United
Nations and International Agreements. 3d ed. New York:
Routledge.
CROSS REFERENCES
Human Rights; Immigration and Naturalization; Interna-
tional Law.
REFUNDING
Reimbursing funds in restitution or repayment.
The process of refinancing or borrowing money,
ordinarily through the sale of bonds, to pay off an
existing debt with the proceeds derived therefrom.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA V. BAKKE
A 1978 decision by the SUPREME COURT, Regents of
the University of California v. Bakke, 438 U.S.
265, 98 S. Ct. 2733, 57 L. Ed. 2d 750, commonly
referred to as Bakke, held that although the
university unlawfully discriminated against a
white applicant by denying him admission to its
medical school solely on the basis of his race,
the university may consider the race of an
applicant in its admission procedure in order to
attain ethnic diversity in its student body.

In 1972 Allan Bakke, a 33-year-old white
male engineer, applied for admission to the
medical school of the University of California at
Davis and was not accepted. Bakke was one of
2,664 applicants that year for 100 place s. He
applied again the next year and was again
rejected. This secon d year, minority applicants
with grade point averages, Medical College
Admission Test (MCAT) scores, and other
qualifications that were lower than Bakke’s
were accepted under a special minority admis-
sion program. This program set aside 16 of the
100 places in the entering class for minority
groups titled bla cks, Chicanos, Asians, and
American Indians.
Following his second rejection, in 1974,
Bakke instituted a lawsuit in the Superior Court
of California against the university on the
grounds that his rights had been violated under
the
EQUAL PROTECTION Clause of the FOURTEENTH
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE 293
AMENDMENT of the U.S. Constitution; the
California Constitution; and Title VI of the
CIVIL RIGHTS Act of 1964 (42 U.S.C.A. § 2000d et
seq.), which proscribed the exclusion of any
person from a federally funded program on the
basis of race.
The California lowe r court ruled that the

school’s admission program was in violation of
the state and federal constitutions and Title VI,
but it would not order the university to admit
Bakke to the medical school because Bakke had
not shown that he would have won admission
had there been no special minority program.
Bakke then appealed to the California Supreme
Court, which ruled that it was
INCUMBENT upon
the university, not Bakke, to prove that he
would not have been admitted if the special
program had not been in effect. The school
acknowledged that it could not satisfy the
requirement, and the court ordered the univer-
sity to admit Bakke. The university appealed to
the U.S. Supreme Court, which granted
CERTIO-
RARI
(agreed to review the case), and the court
order requiring Bakke’s admission was sus-
pended pending a decision by the High Court.
The Bakke case aroused intense controversy.
Civil rights supporters feared that the court
might hold that specific policies could not be
employed to remedy past
DISCRIMINATION. On the
other side of the issue stood Bakke and his
supporters, charging that Bakke’s civil rights
were being violated simply because of his race,
which happened to be white. A great deal of

weight hung over the Bakke case as it moved
through the courts, and, with enormous public-
ity surrounding their decision, the Supreme
Court justices were keenly aware of the case’s
importance.
On June 27, 1978, the court divided sharply
in its decision, presenting six separate opinions.
Four justices chose to address only the statutory
issue of Title VI and found for Bakke, including
his admission to the medical school, because the
quota in the university’s admission plan had
clearly excluded Bakke on the basis of his race.
Four justices addressed the larger constitutional
issue of the Equal Protection Clause and found
for the medical school because its intent was not
to exclude Bakke but only to include individuals
of other races for compelling government
reasons. The deciding swing vote was cast by
Justice Lewis F. Powell Jr., who found for both.
Powell’s contention was that the Title VI
plurality was correct in that the university had
violated the “plain meaning” of the Civil Rights
Act, which proscribed discrimination based on
race, and ordered Bakke be admitted to the
medical school. But Powell also found that the
university could use “race-conscious” factors in
selecting its applicants in order to achieve the
benefits of a “diverse student body.”
This divided decision settled the Bakke case,
but it left the legal issue muddled: What actions,

if any, could the state take to protect minorities
in the marketplace? Subsequent court decisions
struggled repeatedly over this primary civil
rights question.
In 2003 the
AFFIRMATIVE ACTION issue
returned to the Supreme Court. A group of
unsuccessful white applicants to the University
of Michigan’s undergraduate program and law
school filed a lawsuit challen ging the univer-
sity’s admission policies. The school uses a
point scale to rate applicants, with grades and
academics counting for more than two-thirds of
the points. However, members of “underrepre-
sented” racial and ethnic groups receive extra
points, as do children of alumni and people
from underrepresented geographic areas. The
applicants and the Bush administration argued
that giving points for race amounted to a quota,
while the university contended that race was
just one factor in promoting a diverse student
body. The Supreme Court, in
GRATZ V. BOLLINGER,
539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257
(2003), reaffirmed Bakke. The court held that
higher education institutions may use race as
one factor in evaluating applicants but, as in
Bakke, warned against the use of racial quotas or
Allan Bakke on his
first day of medical

school at the
University of
California, Davis, in
September 1978. The
Supreme Court’s
ruling that the
university’s admission
plan had excluded
Bakke on the basis of
race allowed for
Bakke’s admittance
but left questions of
the use of race in
college admissions
muddled.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
294 REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE
policies that give race too prominent a role in
the selection process.
Though Bakke and Bollinger de alt with
higher education, the Supreme Court applied
the same reasoning to K-12 education in Parents
Involved in Community Schools v. Seattle School
District No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168
L.Ed.2d 508 (2007). The court struck down
desegregation guidelines used by the Seattle,
Washington, and Louisville, Kentucky, school
districts, finding that such plans violated the

Equal Protection Clause of the Fourteenth
Amendment. Chief Justice
JOHN ROBERTS stated
that the plans were “directed only to racial
balance, pure and simple.” Roberts concluded
that the “way to stop discrimination on the
basis of race is to stop discriminating on
the basis of race.” It made no difference if the
school districts had worthy goals in mind if they
were “free to discriminate on the basis of race to
achieve it.”
FURTHER READINGS
Anderson, Terry H. 2005. The Pursuit of Fairness: A History
of Affirmative Action. New York: Oxford Univ. Press.
Ball, Howard. 2000. The Bakke Case: Race, Education, and
Affirmative Action. Lawrence: Univ. Press of Kansas.
Daniel, T.K. Philip. 2003. “Diversity in University Admis-
sions Decisions: The Continued Support of Bakke.”
Journal of Law and Education 32 (January).
Kirkelie, Stephen M. 2002. “Higher Education Admissions
and Diversity: The Continuing Vitality of Bakke v.
Regents of the University of California and an Attempt
to Reconcile Powell’s and Brennan’s Opinions.” Will-
amette Law Review 38 (fall).
CROSS REFERENCES
Affirmative Action; Colleges and Universities; Equal
Protection; Strict Scr utiny; United Steelworkers v. Weber.
REGISTER
To record, or enter precisely in a designated place,
certain information in the public records as is

mandated by statute. A book of public records.
A register contains various types of infor-
mation that is available to the public, such as
births, dates, and marriages.
The term register is also used as a designa-
tion for the public official charged with the duty
of maintaining such records.
REGISTER OF DEEDS
The designation, in certain jurisdictions, of the
public officers who record documents that establish
ownership of property, mortgages, and other
instruments that relate to real property in official
record books provided and maintained for such
purpose.
Registers o f d eeds are also k nown as recorders
of deeds. The office of the Recorder of deeds
might also be known as the Registrar-General,
Register of Deeds, Reg i strar o f D eeds , R egistra r of
Titles,DeedsRegistry,DeedsOffice,orCounty
Recorder, d epending on the j urisdiction and
custom in the area serviced by the recorder of
deeds. In some U. S. states, the function of
recorder of deeds is part of the county clerk’s
responsibilities.
The purpose of a recorder of deeds is to
provide a single location where information
about real rights can be recorded and searched
by interested parties. The principals of statutory,
case, and
COMMON LAW are given effect by the

recorder of deeds, insofar as it relates to vested
ownership in land and other real rights. Because
estate in la nd can be held in so many complex
ways, a single deeds registry provides some
stability, even though it cannot guarantee those
real rights.
CROSS REFERENCE
Recording of Land Titles.
REGISTRAR
The public official charged with the duty of
making and maintaining public records.
Common examples are the registrars of
voters and deeds.
REGISTRATION
Enrollment; the process of recording entries in an
official book.
For example, the names of stockholders
might be registered in the official books of a
corporation. Similarly motor vehicles are ordi-
narily registered with the state motor vehicle
department, and voters are registered so that
they may participate in elections. In some
jurisdictions, statutes establish systems by which
land titles can be registered so that the
ownership of real property can always be readily
ascertained through a consultation of public
records.
CROSS REFERENCE
Registration of Land Titles.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

REGISTRATION 295
REGISTRATION OF LAND TITLES
A system by which ownership of real property is
established through the issuance of an official
certificate indicating the name of the individual in
whom such ownership is vested.
Land titles are registered through a statutory
process called the Torrens title system, in
somewhat the same way that automobile titles
are now registered in most states. Under current
Torrens acts, land ownership can be readily
ascertained without any need for repeated
examinations of voluminous public records,
and the resulting titles are generally secure and
marketable.
The
TORRENS TITLE SYSTEM takes its name from
Sir Robert R. Torrens, a native of Ireland who
later became the first premier of South
Australia. It is said that in 1850 Torrens first
thought of applying to land the same method of
registering and transferring ownership used for
ships. In 1858 the first Torrens Title Act went
into effect in South Australia, largely through
Torrens’s efforts. Although the system is known
by his name, Tor rens was by no means the
inventor of the statutory system for land
registration now in place in the United States.
Under Torrens statutes, an individual who
registers title to land is required to first file an

application with the appropriate court. All those
who have or claim to have any interest in the
property must be given notice of the proceed-
ings so that they have an opportunity to make
their claims to the land. Anyone seeking to be
the registered owner of the land must show that
he or she has good title “as against the world.”
The person need not be in actual possession of
the land, however.
When title to land is established to the
satisfaction of the court, it will issue a decree to
settle and declare title. The decree must be
entered on the records of the court and is
conclusive of the rights of the parties, such as
the fact of ownership and the area and
boundary lines of the land. Upon registration
of the decree, a designated officer, ordinarily
called the registrar of titles, makes and files the
original certificate of title in the proper register.
A duplicate of the certificate must be delivered
to the registered owner. Once this procedure
has been completed, the land becomes regis-
tered land. Any subsequent transfers and deal-
ings regarding it must be made according to
statute.
Torrens acts were adopted in 20 states and
territories between 1895 and 1917, but only
eleven states now have title registration statutes
in effect. Moreover, in those eleven states, the
use of the Torrens title system remains optional

and is confined to certain localities wherein only
a relatively small proportion of the land is
registered. Among several factors that may
account for the lack of widespread acceptance
of a title registration system are structural
defects in some of the acts that have left
numerous interests unaccounted for on the title
certificate and have resulted in procedural
problems in filing claims. Some people in states
in which the system remains optional also have
cited the high cost of initial registration as being
prohibitive. Finally, title insurance companies,
abstract companies, and title lawyers in general
have vigorously opposed the Torrens title
system because universal adoption of the system
would decrease the demand for title insurance
and would in effect render the need for these
services obsolete.
FURTHER READINGS
Browder, Olin L., et al. 1989. Basic Property Law. 5th ed.
St. Paul, Minn.: West Publishing.
CROSS REFERENCE
Recording of Land Titles.
REGRESSIVE TAX
A tax with a rate that decreases as the taxpayer’s
income increases.
The resu lt of a regressive tax is that the
lower-income taxpayer pays a larger percentage
of his or her income in taxes than does
the higher-income taxpayer. The opposite of

the regressive tax is the progressive tax. With
progressive tax es, such as the federal
INCOME
TAX
, the effective tax rates increase as the
taxpayer’s income inc reases. The proportionate
tax rate, also referred to as a flat tax rate,
remains constant as income rises. Under a
proportionate tax system, higher-income indi-
viduals pay a greater amount of taxes than
lower-income individuals pay, but the ratio is
identical.
Consumption taxes, which are taxes on
consumer goods and services, are usually
regressive because individuals with lower
incomes spend a larger portion of their income
on these goods and service s than higher-income
individuals do. Some examples of these
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
296 REGISTRATION OF LAND TITLES
consumption taxes are the taxes on alcohol and
tobacco, also referred to as “sin taxes.”
Some taxes can be a combination of the
different tax rates. For example, the
SOCIAL
SECURITY
tax is proportional until the taxpayer
reaches the maximum income level. However,
once the taxpayer’s income reaches the ma xi-
mum cap, all income earned over the cap is not

taxed. The result is a regressive tax because the
individual earning in excess of the maximum
income level is paying a lower percentage of her
or his income in taxes than the lower-income
individual is paying.
FURTHER READINGS
Howard, Jay M. 1992. “When Two Tax Theories Collide: A
Look at the History and Future of Progressive and
Proportionate Personal Income Taxation. Washburn
Law Journal 32.
Kiefer, Donald W. 1990. Would a Social Security Tax Cut
Increase Progressivity? CRS 90-235 RCO. Washington,
D.C.: Congressional Research Service.
Samuels, Leslie B. 1995. “Remarks of Leslie B. Samuels.”
Federal Bar Association Section of Taxation Report 11.
CROSS REFERENCE
Taxation.
REGULAR
Customary; usual; with no unexpected or unusual
variations; in conformity with ordinary practice.
An individual’s regular course of business,
for example, is the occupati on in which that
person is normally engaged to gain a livelihood.
REGULATION
A regulation is a rule or order having the force of
law, usually prescribed by an administrative
agency, relating to the actions of those under the
agency’s control.
Regulations are issued by various federal
government departments and agencies to carry

out the intent of legislation enacted by Con-
gress. Administrative agencies, often called “the
bureaucracy,” perform a number of different
government functions, including rule making.
The rules issued by these agencies are called
regulations and are designed to guide the
activity of those regulated by the agency and
also the activity of the agency’s employees.
Regulations also function to ensure uniform
application of the law.
As a general matter, legislatures create
administrative agencies through the enactment
of enabling legislation. In the federal govern-
ment, many agencies exist within the
EXECUTIVE
BRANCH
of government. An executiv e ADMINIS-
TRATIVE AGENCY
is designed to carry out the law
and the president’s policies. Congress, however,
retains primary control over the organization of
the
BUREAUCRACY, including the power to create
and eliminate agencies and co nfirm presidential
nominations for staffing the agencies. Congress
has also created administrative agencies that
exist outside the executive branch and are
independent of presidential control. President
FRANKLIN D. ROOSEVELT and the NEW DEAL plan he
implemented created many new administrative

agencies. Over the years administrative agencies
have become more powerful participants in the
overall federal government structure as Con-
gress and the president have delegated more
legislative and executive duties to them. Ad-
ministrative agencies have also become respo n-
sible for many judicial functions.
The judicial and legislative functions of
administrative agencies are not exactly like
those of the courts or the legislature, but they
are similar. Because regulations are not the
work of the legislature, they do not have the
effect of law in theory; but in practice,
regulations can have an important effect in
determining the outcome of cases involving
regulatory activity. Much of the legislative
power vested in administrative agencies comes
from the fact that Congress can only go so far in
enacting legislation or establishing guidelines
for the agencies to follow. Language that is
intrinsically vague and cannot speak for every
factual situation to which it is applied, as well as
political factors, dictate that the agencies have
much to interpret and decide in enforcing
legislation. For example,
SECURITIES laws prohibit
insiders from profiting against the PUBLIC
INTEREST
, but it is left to the applicable
administrative agency, the

SECURITIES AND EX-
CHANGE COMMISSION
, to define “public interest.”
The
FOOD AND DRUG ADMINISTRATION, another
administrative agency, must keep unsafe food
and ineffective drug products off the mark et,
but further administrative refinement and
interpretation is nece ssary for the agency to
determine what products are “unsafe” or
“ineffective.” The
FEDERAL COMMUNICATIONS COM-
MISSION
must interpret laws regulating broad-
casting; the
TREASURY DEPARTMENT issues regula-
tions interpreting the
INTERNAL REVENUE CODE;
and the Board of Governors of the
FEDERAL
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
REGULATION 297