Petitioner is the natural mother of Gina Marie Bennett, now an eight-year- old girl. The mother in [*544] this proceeding seeks custody of her daughter from respondent, to whom the child had been entrusted since just after birth. Family Court ruled that, although the mother had not surrendered or abandoned the child and was not unfit, the child should remain with the present custodian, a former schoolmate of the child's grandmother. The Appellate Division reversed, one Justice dissenting, and awarded custody to the mother. Respondent custodian appeals.
The issue is whether the natural mother, who has not surrendered, abandoned, or persistently neglected her child, may, nevertheless, be deprived of the custody of her child because of a prolonged separation from the child for most of its life.
There should be a reversal and a new hearing before the Family Court. The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child. In the instant case, extraordinary circumstances, namely, the prolonged separation of mother and child for most of the child's life, require inquiry into the best interest of the child. Neither court below examined sufficiently into the qualifications and backgrounds of the mother and the custodian to determine the best interest of the child. Consequently a new hearing should be held.
Some eight years ago, the mother, then 15 years old, unwed, and living with her parents, gave birth to the child. Under pressure from her mother, she reluctantly acquiesced in the transfer of the newborn infant to an older woman, Mrs. Jeffreys, a former classmate of the child's grandmother. The quality and quantity of the mother's later contacts with the child were disputed. The Family Court found, however, that there was no statutory surrender or abandonment. Pointedly, the Family Court found that the mother was not unfit. The Appellate Division agreed with this finding.
The natural mother is now 23 and will soon graduate from college. She still lives with her family, in a private home with quarters available for herself and the child. The attitude of the mother's parents, however, is changed and they are now anxious that their daughter keep her child.
Mrs. Jeffreys, on the other hand, is now separated from her husband, is employed as a domestic and, on occasion, has kept the child in a motel. It is significant that Mrs. Jeffreys once said that she was willing to surrender the child to the parent upon demand when the child reached the age of 12 or 13 years.
At the outset, it is emphasized that not involved is an attempted revocation of a voluntary surrender to an agency or private individual for adoption (see Social Services Law, § 383, subd 5; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, cert den 404 US 805; Domestic Relations Law, § 115-b, subd 3, par [d], cl [v]). Nor is abandonment involved (see, e.g., Matter of Malik M., 40 NY2d 840). Nor does the proceeding involve an attempted permanent termination of custody (Family Ct Act, § 614, subd 1; § 631; Matter of Anonymous [St. Christopher's Home], 40 NY2d 96; Matter of Orlando F., 40 NY2d 103; Matter of Ray A. M., 37 NY2d 619). Nor is there involved the temporary placement into foster care by an authorized agency which is obliged to conduct an investigation and to determine the qualification of foster parents before placement of a child in need of such care (see Social Services Law, § 383, subds 1-3; Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 NY2d 222, 224-225; State of New York ex rel. Wallace v Lhotan 51 AD2d 252, app dsmd 39 NY2d 743).
Instead, this proceeding was brought by an unwed mother to obtain custody of her daughter from a custodian to whom the child had been voluntarily, although not formally, entrusted by the mother's parents when the mother was only 15 years old. Thus, as an unsupervised private placement, no statute is directly applicable, and the analysis must proceed from common-law principles.
Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition. The State is [*546] parens patriae and always has been, but it has not displaced the parent in right or responsibility. Indeed, the courts and the law would, under existing constitutional principles, be powerless to supplant parents except for grievous cause or necessity (see Stanley v Illinois, 405 US 645, 651). Examples of cause or necessity permitting displacement of or intrusion on parental control would be fault or omission by the parent seriously affecting the welfare of a child, the preservation of the child's freedom from serious physical harm, illness or death, or the child's right to an education, and the like (cf., e.g., Wisconsin v Yoder, 406 US 205, 213-215; Pierce v Society of Sisters, 268 US 510, 535).
The parent has a "right" to rear its child, and the child has a "right" to be reared by its parent. However, there are exceptions created by extraordinary circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time. It is these exceptions which have engendered confusion, sometimes in thought but most often only in language.
The day is long past in this State, if it had ever been, when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right. Instead, in the extraordinary circumstance, when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. Indeed, analysis of the cases reveals a shifting of emphasis rather than a remaking of substance. This shifting reflects more the modern principle that a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude (cf. Goss v Lopez, 419 US 565, 574; Matter of Winship, 397 US 358, 365; Tinker v Des Moines School Dist., 393 US 503, 506; Matter of Gault, 387 US 1, 47).
Earlier cases, such as People ex rel. Kropp v Shepsky (305 NY 465, 468-469) and People ex rel. Portnoy v Strasser (303 NY 539, 542), emphasized the right of the parent, superior to all others, to the care and custody of the child. This right could be dissolved only by abandonment, surrender, or unfitness. Of course, even in these earlier cases, it was recognized that parental custody is lost or denied not as a moral sanction [*547] for parental failure, but because "the child's welfare compels awarding its custody to the nonparent" (People ex rel. Kropp v Shepsky, 305 NY 465, 469, supra.;).
Although always recognizing the parent's custodial rights, the concern in the later cases, given the extraordinary circumstances, was consciously with the best interest of the child. Thus, in People ex rel. Anonymous v Anonymous (10 NY2d 332, 335), in acknowledging the " 'primacy of parental rights' ", the court pointed out that "it has never been held or suggested that the child's welfare may ever be forgotten or disregarded" (10 NY2d, at p 335). And in People ex rel. Scarpetta v Spence- Chapin Adoption Serv. (28 NY2d 185, supra.;), the ultimate consideration, again given extraordinary circumstances, was the best interest of the child (28 NY2d, at pp 192, 193, n 10). Thus, the court held "that the record before us supports the finding by the courts below that the surrender was improvident and that the child's best interestsmoral and temporalwill be best served by its return to the natural mother" (p 194).
Finally, in Matter of Spence-Chapin Adoption Serv. v Polk (29 NY2d 196, 204), the court rejected any notion of absolute parental rights. The court restated the abiding principle that the child's rights and interests are "paramount" and are not subordinated to the right of parental custody, as important as that right is (p 204). Indeed, and this is key, the rights of the parent and the child are ordinarily compatible, for "the generally accepted view [is] that a child's best interest is that it be raised by its parent unless the parent is disqualified by gross misconduct" (p 204).
Recently enacted statute law, applicable to related areas of child custody such as adoption and permanent neglect proceedings, has explicitly required the courts to base custody decisions solely upon the best interest of the child (Social Services Law, § 383, subd 5; Domestic Relations Law, § 115-b, subd 3, par [d], cl [v]; Family Ct Act, § 614, subd 1, par [e]; § 631; see Matter of Anonymous [St. Christopher's Home], 40 NY2d 96, supra.;; Matter of Orlando F., 40 NY2d 103, supra.;; Matter of Ray A. M., 37 NY2d 619, 621, supra.;; cf. Lo Presti v Lo Presti, 40 NY2d 522). Under these statutes, there is no presumption that the best interest of the child will be promoted by any particular custodial disposition. Only to this limited extent is there a departure from the pre-existing [*548] decisional rule, which never gave more than rebuttable presumptive status, however strongly, to the parent's "right".
Such legislative changes conform, of course, to constitutional limitations. Their purpose, because they involve presumptions, or their negation, is only to implement judicial disposition of evidentiary matters in reconciling the "rights of parents" with the "rights of children" in custody dispositions.
But neither decisional rule nor statute can displace a fit parent because someone else could do a "better job" of raising the child in the view of the court (or the Legislature), so long as the parent or parents have not forfeited their "rights" by surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstance. These "rights" are not so much "rights", but responsibilities which reflect the view, noted earlier, that, except when disqualified or displaced by extraordinary circumstances, parents are generally best qualified to care for their own children and therefore entitled to do so (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204, supra.;).
Indeed, as said earlier, the courts and the law would, under existing constitutional principles, be powerless to supplant parents except for grievous cause or necessity (see Stanley v Illinois, 405 US 645, 651, supra.;, in which the principle is plainly stated and stressed as more significant than other essential constitutional rights).
But where there is warrant to consider displacement of the parent, a determination that extraordinary circumstances exist is only the beginning, not the end, of judicial inquiry. Extraordinary circumstances alone do not justify depriving a natural parent of the custody of a child. Instead, once extraordinary circumstances are found, the court must then make the disposition that is in the best interest of the child.
The child's "best interest" is not controlled by whether the natural parent or the nonparent would make a "better" parent, or by whether the parent or the nonparent would afford the child a "better" background or superior creature comforts. Nor is the child's best interest controlled alone by comparing the depth of love and affection between the child and those who vie for its custody. Instead, in ascertaining the child's best interest, the court is guided by principles which reflect a "considered social judgment in this society respecting the family and parenthood" (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204, supra.;). These principles do not, however, dictate that the child's custody be routinely awarded to the natural parent (see Matter of Benitez v Llano, 39 NY2d 758, 759).
Matter of Benitez v Llano is a particularly good example. In Benitez, there was no termination of the parental right to custody and no finding of parental unfitness or abandonment; nevertheless, the court, acting in the best interest of the child, ruled that the child should remain in the custody of a second cousin. This was because of the extended period of the nonparental custody, the attachment of the child to the custodian, and the child's imminent attainment of majority.
To recapitulate: intervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interest of the child and to order a custodial disposition on that ground.
In custody matters parties and courts may be very dependent on the auxiliary services of psychiatrists, psychologists, and trained social workers. This is good. But it may be an evil when the dependence is too obsequious or routine or the experts too casual. Particularly important is this caution where one or both parties may not have the means to retain their own experts and where publicly compensated experts or experts compensated by only one side have uncurbed leave to express opinions which may be subjective or are not narrowly controlled by the underlying facts.
The court's determination may be influenced by whether [*550] the child is in the present custody of the parent or the nonparent (see People ex rel. Grament v Free Synagogue Child Adoption Committee, 194 Misc 332, 337 [Botein, J.]). Changes in conditions which affect the relative desirability of custodians, even when the contest is between two natural parents, are not to be accorded significance unless the advantages of changing custody outweigh the essential principle of continued and stable custody of children (cf. Matter of Ebert v Ebert, 38 NY2d 700, 703-704; Obey v Degling, 37 NY2d 768, 770; Dintruff v McGreevy, 34 NY2d 887, 888).
Moreover, the child may be so long in the custody of the nonparent that, even though there has been no abandonment or persisting neglect by the parent, the psychological trauma of removal is grave enough to threaten destruction of the child. Of course, such a situation would offer no opportunity for the court, under the guise of determining the best interest of the child, to weigh the material advantages offered by the adverse parties. As noted earlier, such considerations do not determine the best interest of the child (see Matter of Gomez v Lozado, 40 NY2d 839, decided herewith, involving a motherless child in the custody of its grandmother for many years and separated from its father for still more years).
Before applying these principles to this case, a factor should be mentioned which, although not here present, often complicates custody dispositions. The resolution of cases must not provide incentives for those likely to take the law into their own hands. Thus, those who obtain custody of children unlawfully, particularly by kidnapping, violence, or flight from the jurisdiction of the courts, must be deterred. Society may not reward, except at its peril, the lawless because the passage of time has made correction inexpedient. Yet, even then, circumstances may require that, in the best interest of the child, the unlawful acts be blinked (see Matter of Lang v Lang, 9 AD2d 401, 408-410, affd 7 NY2d 1029).
In this case, there were extraordinary circumstances present, namely, the protracted separation of mother from child, combined with the mother's lack of an established household of her own, her unwed state, and the attachment of the child to the custodian. Thus, application of the principles discussed required an examination by the court into the best interest of the child.
In reaching its conclusion that the child should remain with the nonparent custodian, the Family Court relied primarily [*551] upon the seven-year period of custody by the nonparent and evidently on the related testimony of a psychologist. The court did not, however, adequately examine into the nonparent custodian's qualifications and background. Also, the court apparently failed to consider the fact that, absent a finding of abandonment or neglect by the mother, or her consent, the nonparent cannot adopt the child (see Matter of Anonymous [St. Christopher's Home], 40 NY2d 96, 101-102, supra.;). Family Court's disposition, if sustained, would therefore have left the child in legal limbo, her status indefinite until the attainment of her majority. For a single example, a question could arise as to whose consent, the parent's or the nonparent custodian's, would be necessary for the child to marry while underage (see Domestic Relations Law, § 15, subd 2 [consent of "parent" or "guardian" required]). A similar question could arise with respect to many situations affecting employment and entry into occupations, an adoption, and any other matters requiring the consent of a parent or legal guardian (e.g., General Obligations Law, § 3-105, subd 2, par c; Education Law, § 3230, subd 3, par b; Domestic Relations Law, § 111, subds 2-3).
On the other hand, the Appellate Division, in awarding custody to the mother, too automatically applied the primary principle that a parent is entitled to the custody of the child. This was not enough if there were extraordinary circumstances, as indeed there were. Other than to agree with Family Court that she was not "unfit", the court did not pursue a further analysis. Most important, no psychological or other background examination of the mother had ever been obtained. There was, therefore, no consideration of whether the mother is an adequate parent, in capacity, motivation, and efficacious planning. Nevertheless, the Appellate Division determination may well be right.
Thus, a new hearing is required because the Family Court did not examine enough into the qualifications and background of the long-time custodian, and the Appellate Division did not require further examination into the qualifications and background of the mother. Each court was excessive in applying abstract principles, a failing, however important those principles are.
At the cost of some repetition, perhaps unnecessary, it should be said, given the extraordinary circumstances present in this case, in determining the best interest of the child, the age of the child, and the fact and length of custody by the [*552] nonparent custodian are significant. Standing alone, these factors may not be sufficient to outweigh the mother's "right" to custody. However, taken together with the testimony of the psychologist that return to her mother would be "very traumatic for the child", the relatively lengthy period of nonparent custody casts the matter in sufficient doubt with respect to the best interest of the child to require a new hearing. At this hearing, the mother's adequacy may be explored and positively established, and if so, in connection with the parent's past visiting it might well weight the balance in her favor. Then too, the circumstances and environment of the custodian, the stability of her household, her inability to adopt, her age, and any other circumstances bearing upon the fitness or adequacy of a child's custodian over the whole period of childhood, are all relevant.
In all of this troublesome and troubled area there is a fundamental principle. Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless the circumstances are compelling. Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children. Again, this is not so much because it is their "right", but because it is their responsibility. The nature of human relationships suggests overall the natural workings of the child-rearing process as the most desirable alternative. But absolute generalizations do not fulfill themselves and multifold exceptions give rise to cases where the natural workings of the process fail, not so much because a legal right has been lost, but because the best interest of the child dictates a finding of failure.
Accordingly, the order of the Appellate Division should be [*553] reversed, without costs, and the proceeding remitted to Family Court for a new hearing.
I welcome the express recognition the court today gives to the concept that, under evolving child custody law in New York, circumstances other than the statutory and traditional ones of abandonment, surrender, permanent neglect and unfitness may form the basis for termination of a biological parent-child relationship, and I agree with the result it reaches. However, in concurring, the strength of my conviction that even greater movement in this area of the law is long overdue requires me to indicate the nature of some of my reservations.
Security, continuity and "long-term stability" (Matter of Ebert v Ebert, 38 NY2d 700, 704) in an on-going custodial relationship, whether maintained with a natural parent or a third party, are vital to the successful personality development of a child (see Foster, Adoption and Child Custody: Best Interests of the Child?, 22 Buffalo L Rev 1, 12-13, and authorities cited therein). Indeed, that is one of the soundest justifications for the priority which our society accords natural parents when the continuance of their status as parents is under legal attack.
The same considerations, however, it seems to me, dictate that, where a natural parent has affirmatively brought about or acquiesced in the creation of a secure, stable and continuing parent-child relationship with a third party who has become the psychological parent, there comes a point where the "rebuttable presumption" which, absent such a change, is employed to favor the natural parent, disappears, as evidentiary presumptions usually do in the face of facts. Accordingly, when that point is reached, the determination of whether the original parental relationship has terminated should proceed without such bolstering of the natural parent's position vis-�-vis that of the child, the custodial parent or any other proper parties in interest. Generally speaking, when displaced by a state of facts contraindicating their further utility in a fact-finding setting, presumptions can only get in the way of substance, and, as a practical matter, when that happens, the [*554] less they are relied upon the better. I would, therefore, that we had spelled out an evidentiary balance consistent with these principles for application in custody litigation, always bearing in mind that each custody case, dealing as it does with emotion-laden and highly sensitive human relationships, is unique.
Further, I do not agree that inquiry into the best interests of a child must await a determination that, because of surrender, abandonment, neglect or "extraordinary" circumstances, a natural parent's "rights" to a child are at an end. Willynilly, concern for the best interests of the child must play a central and unavoidable role in the resolution of such questions (cf. Matter of Gomez v Lozado, 40 NY2d 839 [decided herewith]).
I would add too that I am not completely convinced that there was not a sufficient basis for the decision of the Trial Judge, despite the unfortunate limitation on resources available to the Family Court and, often, the parties who appear before it (see Gordon, Terminal Placements of Children and Permanent Termination of Parental Rights: The New York Permanent Neglect Statute, 46 St John's L Rev 215, 256, n 204, and citations therein). Among other things, the trial court here fully heard out both Mrs. Jeffreys and Ms. Bennett, conducted an in camera interview with the child following which he concluded that she was a "happy, well-adjusted young girl" who "was most adamant about the fact that she wished to continue residing with Mrs. Jeffreys", and, in aid of his determination, sought and had the benefit of a formal psychological study. Nevertheless, since painstaking fact finding is so far superior to presumptions and assumptions, and, therefore, should be encouraged, I join in the decision to remit this case for further information-gathering, noting, in doing so, that it is clear that it should not be controlling that Ms. Bennett, the natural mother, because she is now pursuing collegiate studies may at some time in the future be more likely to afford greater creature comforts for the child than is Mrs. Jeffreys, whose modest position on the vocational social scale did not prevent her from undertaking to act as surrogate mother and thus to form psychological bonds between the child and herself. And, needless to say, any profession by Mrs. Jeffreys that she would have been willing to return the child to her biological mother when she was older if it were in the best interests of the child for her to do so would be an evidence of altruistic maternal concern that would win the approval of every sound practitioner of child psychiatry from King Solomon on.
Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur with Chief Judge Breitel; Judge Fuchsberg concurs in result in a separate opinion.
Footnote 1: The child is currently with her mother and will remain there pending final determination of this litigation, a stay of the Appellate Division order having been denied by that court.
Footnote 2: Insofar as the concurring opinion is concerned only the following comments are perhaps necessary. The court has considered the reservations and rejects them. Particularly rejected is the notion, if that it be, that third-party custodians may acquire some sort of squatter's rights in another's child. Third-party custodians acquire "rights"really the opportunity to be heardonly derivatively by virtue of the child's best interests being considered, a consideration which arises only after, as the cases have always held, the parent's rights and responsibilities have been displaced. Lastly, the problem is substantive. It is not a matter of evidentiary rules or procedural burdens of proof or going forward. It would not be good for new confusions to be introduced in the analysis of custody cases, each of which, like all cases, may be unique, but still require resolution by the application of universals.
Footnote 4: Commentators point out that presumptions and the burden to rebut them should be allocated "on the basis of pragmatic considerations of fairness, convenience, and policy" (James, Burdens of Proof, 47 Va L Rev 51, 60). Thus, where the burden of proof is allocated on policy grounds, it is most often done in order to "handicap" a party whose cause is disfavored (at p 61). That was the historical basis for casting the entire burden of rebutting the presumption in favor of natural parents on third parties in custody proceedings, the resulting substantive effect varying with the extent to which the "handicap", combined with other evidentiary strictures, rendered the nonparent's case difficult to maintain. In those jurisdictions where that policy was fully developed, it produced essentially the same results as were obtained under the old theory that children were the chattels of their parents (see Note, Alternatives to "Parental Right" in Child Custody Disputes Involving Third Parties, 73 Yale LJ 151, 154, n 18, and accompanying text).


1.1. The new Province “Österreich-Deutschland” (Provincia Austriae – Germaniae) will be erected by January 1st, 2015 out of the former provinces Austria and Germany. The province consists out of two equal ranking regions Austria and Germany. Organizational forms of the former individual provinces existing so far in the public sphere (public corporation in Austria and association in Germany) remain unaffected by this change.
1.2.1. The province is directed by the Visitor who is supported in his office by an Assistant to the Visitor and by Provincial Consultors.
1.2.2. The Visitor as Provincial Superior is a major superior and an ordinary with proper ordinary power. He represents the province in all organizational forms of the former individual provinces in public law. If legally possible (according to civil law) he gives all necessary delegation to the Assistant to the Visitor for his respective region.
1.2.3. The Visitor is at the same time Regional Superior of the region he legally belongs to. Similarly, the Assistant to the Visitor is Regional Superior of the second region, to which he must legally belong to. Therefore Visitor and Assistant to the Visitor must belong to different regions.
1.3. When the new province is erected, each confrere belongs to that region which has emerged from the previous province. A transfer to the other region by the provincial council takes place only with the consent of the concerned confrere. Such a transfer may be for a limited time or indefinitely. If such a transfer takes place, the confrere and the provincial council determine the region of the confrere. If the change is indefinitely, the provincial council has to clarify open questions concerning health and old-age provisions.
1.4. The Provincial Council, which meets regularly with the Visitor and whose advice or consent is necessary for making important decisions, consists of the Assistant to the Visitor and 4 Consultors (2 for each region). The Provincial Econome takes part in the Provincial Council.
To care for the ongoing formation of the confreres by planning common meetings, retreats, workshops, etc.
1.5. In the direction of the region the Regional Superior, that is the Visitor and the Assistant to the Visitor, is supported by the two Provincial Consultors elected from the region and by a Regional Econome appointed by the Visitor and his Council. One of the two Regional Economes is appointed by the Visitor and his Council as Provincial Econome.
1.6. The Regional Council and its responsibility.
1.6.1. The Regional Council is made up by the Regional Superior and his two Consultors. The Regional Econome takes part in the Regional Council.
1.6.2. Economic and organizational issues of the region are within the responsibility of the Regional Council.
1.6.3. The Regional Council regularly reports to the Provincial Council as its governing body on its activities. In relation to the Regional Council the Provincial Council has the power of deciding on binding guidelines.
The province Austria - Germany is committed to solidarity with other provinces of the Congregation and with the Vincentian family.
The Mission work of our province is St. Georg and the activities connected with it in in Istanbul. This work is entrusted to the interest, the prayer and the concern of all confreres.
3.1. Each house has to draw up a house plan to be presented each year to the Visitor. This house plan is to be checked by the Visitor at the time of visitation, changes must be notified to the Visitor. Each confrere of the house should receive a copy of the plan.
3.2. Each confrere takes a yearly retreat of at least five days. The province shall offer a term for a common retreat to all confreres.
3.3. The Visitor cares for the ongoing formation of the confreres. He promotes an active community life in the province by the planning of common meetings and encounters.
3.4. Confreres being accused by anyone are entitled to be heard. If the matter has found place in written files, the opinion of the concerned confrere must be filed in the records, too.
Greater Gifts and assets may be accepted and spent with the permission of the superior. The superior must ensure that no confrere is at a disadvantage. Income from pastoral activity of the confreres belongs to the community.
5.1.1. A Postulate precedes the acceptance into the Internal Seminary. The length of that Postulate is determined by the norms of formation. The legal status according to civil law of a confrere in the Postulate and the Internal Seminary is regulated by a training contract.
5.1.2. Priests who are accepted into the Internal Seminary may exercise a pastoral ministry only with the permission of the director, as far as it is compatible with the other objectives of the Internal Seminary.
5.1.3. The Good Purposes are made after a year of seminary that is to be held without interruption. On the proposal of the Director, an exception may be permitted by the Visitor.
5.1.4. The Good Purposes are valid till the taking of vows or the departure from the community.
5.1.5. Public and private scholarships and income from work is to be handed in to the community, which covers all living expenses of the trainees.
5.1.6. An adequate time frame determined by the formation team and approved by the Visitor and his council for each candidate individually and the age of 24 are a prerequisite for the acceptance of brothers to the vows.
5.2.1 If a confrere of our province dies, each priest celebrates a holy Mass for him. Each brother offers one in this intention.
5.2.2. Each incorporated confrere has the right to have two Holy masses per month celebrated without stipend.
With regard to the training of brothers as permanent deacons we adhere to the episcopal concept for deacons. The provincial Council decides in each individual case.
7.1.1. The Visitor is elected by all confreres of the province with active voice in written form by post.
7.1.2. Six months before the end of his term the Visitor with the consent of his council appoints the election commission, consisting of three confreres, and appoints one of these confreres as the chairman of the election commission.
7.1.3.The election commission sends a list of the confreres who can be elected into the office of Visitor to all confreres of the province with active voice.
7.1.4. Each confrere with active voice marks the candidate he wants to elect as Visitor on the ballot sheet.
7.1.5. For an election in the first and second round 2/3 of the valid votes are necessary to be considered elected a candidate. Blank ballots or invalid ballots are not counted. If no two-thirds majority is found in the second balloting, an absolute majority is sufficient in the third balloting. If this is not achieved, only the two candidates with the highest votes have passive right to be voted on in the fourth ballot, unless several had an equal number of votes in first or second place. In the event of a tied vote the confrere who is senior by vocation or age is elected.
7.1.6. In questions about the validity of a ballot, the election commission decides, in case of a tie by the vote of the chairman.
7.1.7. The commission presents the election result to the Superior General. The Superior General confirms the election and appoints the elected Visitor. The commission communicates the decision of the Superior General first to the outgoing Visitor and publishes the result of the election.
7.1.8. If the Superior General rejects a candidate, the appointment of a Visitor is made by the Superior General according to article 68 § 1 of the Statutes. The election results remain unpublished.
7.1.9. The elected and confirmed candidate will serve the province for four years, renewable only once.
7.1.10. In case of premature vacancy of the office of Visitor. A new election is to take place as soon as possible.
7.2.1. The Assistant to the Visitor is elected by all confreres of the province with active voice in written form by post.
7.2.2. The election of the Assistant to the Visitor takes place after the election and appointment of the Visitor by the Superior General. Only a confrere not belonging to the same region as the Visitor can be elected. This also applies in the case of an earlier election of an Assistant Provincial.
7.2.3. The Election Commission for the election of the Visitor sends a list of the confreres who can be elected into the office of Assistant to the Visitor to all confreres of the province with active voice.
7.2.4. Each confrere with active voice marks the candidate he wants to elect as Assistant to the Visitor on the ballot sheet.
7.2.5. For an election in the first round 2/3 of the valid votes are necessary Blank ballots or invalid ballots are not counted. If no two-thirds majority is found in the first balloting, an absolute majority is sufficient in the second and third balloting. If this is not achieved, only the two candidates with the highest votes have passive right to be voted on in the fourth ballot, unless several had an equal number of votes in first or second place. In the event of a tied vote the confrere who is senior by vocation or age is elected.
7.2.6. In questions about the validity of a ballot, the Election Commission decides, in case of a tie by the vote of the chairman.
7.2.7. The Commission informs the Visitor on the result of the ballot, which yielded the required majority, who informs the Superior General and notifies the provincial community.
7.2.8. The period of office of the Assistant to the Visitor is four years. An Assistant to the Visitor may be elected in the same manner and under the same conditions for a further four years. The time of office of an Assistant to the Visitor ends automatically if he no longer belongs to region different to that of the visitor.
7.3.1. The Provincial Consultors are elected by the confrères of the region with active voice for a period of 4 years.
7.3.2. Two election commissions will be appointed by the Provincial Council. They put up a list of all eligible members of the region and send it to the confreres with active voice. Each confrere has the right and the duty to choose two confreres for the Provincial Council. This is done in written form by post. Each confrere marks clearly his two candidates and sends the ballot to the chairman of the Election Commission.
7.3.4. The Visitor checks the result of the election and announces to the entire result.
7.3.5. A confrere can be elected for a second quatriennium in the same way, but not for a third one.
7.3.6. Should one of the Provincial Consultors for any reason cede from office, the Visitor co-opts a substitute for the remaining term of the ceding consultor with the consent of the Provincial Council and taking into account the result of the last election.
7.4. Appointment into other offices of the provincial and local administration.
7.4.1. Having heard the opinion of the confreres of the house and with the consent of the Provincial Council the Assistant of the house and the House Econome are appointed for the time of office of the local Superior by the Visitor.
7.4.2. All confreres shall participate in the meetings of the local community.
7.4.3. The Provincial Econome, the Regional Econome, the Director of the Internal Seminary, the Director of the Students of the province are appointed by the Visitor after consulting his Council.
8.1. The Provincial Assembly is convoked half a year before the fixed date of the meeting. A failure in meeting this deadline does not affect the legal validity of the Provincial Assembly.
8.2. If the Visitor appoints a Preparatory Commission according to Statutes art. 69 §8, the prescriptions for a Preparatory Commission for a General Assembly (Statutes article 91 § 2 and 3) are to be applied mutatis mutandis.
8.3. All confreres with active voice are obliged to participate in the Provincial Assembly. Only the Visitor can dispense them. He must notify the assembly about it. Confreres without active voice have the right to participate in the Provincial Assembly.
8.4. The Visitor presides the provincial assembly with two elected moderators.
9.1. Each Superior must make sure to meet the needs of the individual confrere.
9.2. For smaller expenses, each confrere, who has finished the Internal Seminary, receives a monthly sum, the amount of which is determined by the Provincial Assembly. According to existing regulations the same amount is also given for the feast day and for Christmas.
9.3. As the temporal goods belong to all confreres, all are also co-responsible for the proper use. Therefore, they are entitled to know the financial situation of the house, the region and the province. This happens specifically through the annual statement of accounts and the budget which is sent by the Provincial Econome to the local Superiors. It is their task to convey that information to all confreres.
9.4. In order to enable the regional economes to fulfill their task in accordance with article 77 of the Statutes, the local Economes send in their monthly statements. In each region a finance committee is erected which is composed and fulfills its functions according to the criteria established by the Regional Superior with the consent of his Council. In all important economic questions of the province the Visitor has to ask for the advice of these finance committees.
9.5. Specifically in local administration the confreres should jointly consider how and to what extent they can support the poor, keeping the principles of Statutes art.103 and the finances of the house in mind, and critically review the local spending on their necessity.
9.6. In the assets of the two regions a sufficient reserve should exist as a backup for the houses and the old age pensions of the confreres, again keeping in mind Statutes art. 103 and the fundamental statute on poverty.
9.7. For the ordinary holiday time of 28 days each confrere who has finished the Internal Seminary, receives a sum of money determined by the Provincial Assembly. Travel expenses to the next of kin are paid by the local community. A higher demand for holiday expenses is to be agreed by the Visitor.
9.8. Donations must be used in the intention of the donor.
9.9. The Regional Superior may in extraordinary cases make expenses on his own up to a sum of EUR 10,000,-, with the approval of the Regional Council up to EUR 50,000,-. The Visitor may in extraordinary cases make expenses up to EUR 20,000,- without consent of his Council and with the consent of the Provincial Council up to EUR 750,000,-.When expenses are over a sum of EUR 150,000,-, the provincial community must be informed. For expenses over a sum of EUR 750,000,- he must obtain the consent of the Superior General.
9.10. When larger objects are bought or sold the confreres should be informed at an early stage and comprehensively, without affecting the validity of legal contracts.
9.11. The local Superior may in extraordinary cases make expenses on his own up to a sum of EUR 2,500,-, with the consent of the local community up to EUR 10,000,-. For higher sums a consent of the Regional Council is required. Loans may be made only with the consent of the Visitor and of the Provincial Council. For sales the limits for extraordinary expenses are valid. In addition, a list of existing works of art and of objects valuable for the community is to be kept in each local community. Any changes of these items require the approval of the Visitor and his Council.
10.1. These provincial norms are valid for 3 years ad experimentum.


text:
Citation: Memorandum from R.G. Robertson to Mr. Carter (2 April 1975).
See the attached copy of a memorandum I have prepared for the Prime Minister to pull together a number of the things that he will want to have in mind before speaking to the Premiers as he plans to do – probably at the time of his dinner on April 9th.
You will recall that the other day I asked you to give some thought to the question the Prime Minister had raised with me as to whether there should be reference, either at the outset or early in discussions, about the “fall back” position. I gave the matter some thought over the weekend and you will see, beginning on page 5, a suggestion that I have made to the Prime Minister. There will be ample time to discuss this further and if you have any different view please let me know.
*For handwritten note on document, please consult the PDF.
(3) at least two of the Western Provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population of all the Western Provinces.
Art. 50. Amendments to the Constitution of Canada in relation to any provision that applies to one or more, but not all, of the Provinces may from time to time be made by proclamation issued by the Governor General under the Great Seal of Canada when so authorized by resolutions of the Senate and House of Commons and of the Legislative Assembly of each Province to which an amendment applies.
Art. 51. An amendment may be made by proclamation under Article 49 or 50 without a resolution of the Senate authorizing the issue of the proclamation if within ninety days of the passage of a resolution by the House of Commons authorizing its issue the Senate has not passed such a resolution and at any time after the expiration of the ninety days the House of Commons again passes the resolution, but any period when Parliament is prorogued or dissolved shall not be counted in computing the ninety days.
(2) a resolution made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.
Art. 53. The Parliament of Canada may exclusively make laws from time to time amending the Constitution of Canada, in relation to the executive Government of Canada and the Senate and House of Commons.
Art. 54. In each Province the Legislature may exclusively make laws in relation to the amendment from time to time of the Constitution of the Province.
(8) except as provided in Article 16, the requirements of this Charter respecting the use of the English or French language.
Art. 56. The procedure prescribed in Article 49 may not be used to make an amendment when there is another provision for making such amendment in the Constitution of Canada, but that procedure may nonetheless be used to amend any provision for amending the Constitution, including this Article, or in making a general consolidation and revision of the Constitution.
Art. 57. In this Part, “Atlantic Provinces” means the Provinces of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, and “Western Provinces” means the Provinces of Manitoba, British Columbia, Saskatchewan and Alberta.

matches:
Art. 50
Art. 51
Art. 53
Art. 54
Art. 56
Art. 57


text:
(3) Christopher G.St.C. Kendall, Paul Lake, Dalton H. Weathers III, V Lakshmi, John Althausen and Abdulrahman S. Alsharhan (2003). Evidence of rain shadow in the geologic record: repeated evaporite accumulation at extensional and compressional plate margins. In: A.S. Sharhan, W.W. Wood, A.S. Goudie, A. Fowler and E.M. Abdellatif (eds), The Desertification in the Third Millennium. Swets & Zeitlinger Publishers (Balkema), Lisse, The Netherlands, ISBN: 90 5809 5711, p.45-52.
(5) C.G.St.C. Kendall, V. Lakshmi, J. Althausen and A.S. Alsharhan (2003). Changes in Microclimate Tracked by the Evolving Vegetation Cover of the Holocene Beach Ridges of the United Arab Emirates. In: A.S. Sharhan, W.W. Wood, A.S. Goudie, A. Fowler and E.M. Abdellatif (eds), The Desertification in the Third Millennium. Swets & Zeitlinger Publishers (Balkema), Lisse, The Netherlands, ISBN: 90 5809 5711, p.91-98.
(6) John Althausen Jr., Christopher G.St.C. Kendall, V. Lakshmi, Abdulrahman S. Alsharhan and Gregory L. Whittle (2003). Using satellite imagery and GIS in the mapping of coastal landscapes in an arid environment: Khor Al Bazam, Western Abu Dhabi, United Arab Emirates. In: A.S. Sharhan, W.W. Wood, A.S. Goudie, A. Fowler and E.M. Abdellatif (eds), The Desertification in the Third Millennium. Swets & Zeitlinger Publishers (Balkema), Lisse, The Netherlands, ISBN: 90 5809 5711, p.415-422.
(1) Li, Shuguang and V Lakshmi, 1991, A Discussion on Time Line Interpolation for the Solution of the Dispersion Equation by J.C.Yang and E.L.Hsu (Vol. 28, No. 4, 1990), Journal of Hydraulic Research, Vol. 29, No. 4, pp 568-571.
(11) Tootle, G, T Piechota, O Aziz, W. Miller, V Lakshmi, J Dracup and C Jerla, The 2009-2010 El-Nino: Hydrologic relief to US regions? EOS Transactions of the American Geophysical Union, December 2009, pp. 481-482.
(1) Krajewski, W.F., K.P.Georgakakos, S.C.Jain and V.Lakshmi, 1988, Investigation of Rainfall Input Uncertainty for a Distributed Catchment Model, Fall Meeting, American Geophysical Union, San Francisco, CA, Dec. 6-11.
(2) Krajewski, W.F., K.P.Georgakakos, V.Lakshmi and S.C.Jain, 1989, Distributed versus Lumped Modeling of Floods in a Small Basin - A Monte Carlo Study, Spring Meeting, American Geophysical Union, Baltimore, MD, May 7-12.
(3) Lakshmi, V., 1989, Lumped versus Distributed Runoff Model for a Small Catchment, International Association for Hydraulic Research Conference, Ottawa, Canada, August 21-25.
(4) Wood, E.F. and V. Lakshmi, 1991, Comparing Modeled and Observed Water Balance Fluxes During FIFE 1987, Spring Meeting, American Geophysical Union, Baltimore, MD, May 28-June 1.
(6) Lakshmi, V., E.F.Wood and B.J.Choudhury, 1993, Simulation of SSM/I Brightness Temperatures using a Coupled Land Surface Hydrology and a Radiative Transfer Model, Fall Meeting, American Geophysical Union, San Francisco, CA, Dec 6-10.
(7) Lakshmi, V., E.F.Wood and B.J. Choudhury, 1994, Simulation of Microwave Brightness Temperatures using a Coupled Land-Surface-Canopy-Atmosphere Model, International Geoscience and Remote Sensing Symposium, Pasadena, CA, August 8-12.
(8) Lakshmi, V., E.F.Wood and B.J. Choudhury, 1994, Utilization of Passive Microwave Satellite Data for Improving Hydrological Modeling/Forecasting, Fall Meeting, American Geophysical Union, San Francisco, CA, December 5-9.
(9) Lakshmi, V., 1996, Utilization of Satellite Data and Hydrological Modeling for Soil Moisture Estimation for Climate Studies, Association of American Geographers, 92nd Annual Meeting, Charlotte, NC, April 9-13.
(10) Lakshmi, V., E.F.Wood and B.J.Choudhury, 1996, Utilization of SSM/I Data for Estimation of Soil Moisture, Invited talk, Spring Meeting, American Geophysical Union, Baltimore, MD May 20-24.
(11) Lakshmi, V., J. Susskind and B Choudhury, 1996, Determination of Land Surface Skin Temperatures, Surface Air Temperature and Humidity from TOVS HIRS2/MSU Data, Symposium of COSAPR Scientific Commission A, Birmingham, England July 14-21.
(12) Lakshmi, V., 1996, Use of Microwave Brightness Temperatures for Soil Moisture Estimation: Feasibility, Sensitivity and Simulation Results, Southern Great Plains 1997 Workshop, United States Department of Agriculture, Beltsville, MD, Aug 26-28.
(13) Susskind, Joel and V. Lakshmi, 1996, Intercomparison of Tropospheric and Stratospheric Temperature From HIRS2 and MSU Satellite Data by Different Approaches, Fall Meeting, American Geophysical Union, San Francisco, CA, Dec. 16-19.
(14) Lakshmi, V. and J.Susskind, 1996, Investigation of the Influence of the Surface on Atmospheric Water Vapor using TOVS Data, Fall Meeting, American Geophysical Union, San Francisco, CA, Dec. 16-19.
(15) Lakshmi, V. and J.Susskind, 1997, Large Scale Hydrological Studies Using TOVS Pathfinder Path A Data, 13th Conference on Hydrology, American Meteorological Society Annual Meeting, Long Beach, CA Feb 2-7.
(16) Susskind, Joel and V.Lakshmi, 1997, Assessment of Climate Forcing Using TOVS Pathfinder Path A Data, 8th Symposium on Global Change, American Meteorological Society Annual Meeting, Long Beach, CA Feb 2-7.
(17) Lakshmi, V., K. Czajkowski, R. Dubayah and J.Susskind, 1997, Surface Air Temperatures using AVHRR and TOVS: A Comparison Study, Spring Meeting, American Geophysical Union, Baltimore, MD, May 27-30.
(18) Lakshmi, V. and J Susskind, 1997, Land surface hydrological processes using satellite data, International Geoscience and Remote Sensing Symposium, Singapore, August 03-07.
(19) Lakshmi, V., and J.Susskind, 1997, Use of Satellite Data in Land Surface Hydrological Models, Fall Meeting, American Geophysical Union, San Francisco, CA, Dec. 8-12.
(20) Lakshmi, V., and J.Susskind, 1998, Surface Temperature Assimilation in a Hydrological Model, Spring Meeting, American Geophysical Union, Boston, MA, May26-29.
(21) Lakshmi, V., and J.Susskind, 1998, Climatology of the Great Plains Using TOVS Data, GCIP Mississippi River Climate Conference, St. Louis, MO, June 8-12.
(22) Lakshmi, V., Eric F. Wood, Ralph Dubayah, Dennis P. Lettenmaier and Joel Susskind, 1998, Evaluation of Surface Temperature for Updating of Surface Fluxes Using a Macroscale Hydrological Model, GCIP Mississippi River Climate Conference, St. Louis, MO, June 8-12.
(23) Katie Schaaf, Lakshmi, V., and J.Susskind, 1998, A look at the 1993 Midwestern Floods Using Remote Sensing and Ground Observations, GCIP Mississippi River Climate Conference, St. Louis, MO, June 8-12.
(168) Price, J., V Lakshmi and B Menge, From Space to the Rocky Intertidal: Measuring the Body Temperature of the Intertidal Mussel Species, Mytilus californianus using NASA MODIS Surface Temperatures, American Geophysical Fall Meeting Fall Meeting, December 15-19, 2014, San Francisco CA.
(169) Bolten, J., J Spruce, R Wilson, K Strauch, T Doyle, R Srinivasan, V Lakshmi, Enhancing Floodplain Management in the Lower Mekong River Basin Using Vegetation and Water Cycle Satellite Observations, American Geophysical Fall Meeting Fall Meeting, December 15-19, 2014, San Francisco CA.
(170) Fang B and V Lakshmi, Active-passive algorithm for downscaling soil moisture, American Geophysical Fall Meeting Fall Meeting, December 15-19, 2014, San Francisco CA.
(171) V Lakshmi, Recent advances in downscaling soil moisture from satellite to field scale, American Geophysical Fall Meeting Fall Meeting, December 15-19, 2014, San Francisco CA.
(172) Cunha, T., V Paiva, O. Rottuno, M. Claudia, M. Franklin and V Lakshmi, Use of vegetation index and surface temperature to estimate soil moisture in an un-monitored catchment in Brazil, American Geophysical Fall Meeting Fall Meeting, December 15-19, 2014, San Francisco CA.

matches: V. V. V. V. V. V. V.


Pursuant to the divorce judgment, the husband was required to pay $1,160 per month in child support. On May 14, 2014, the husband, having reason to believe that he was not the child’s natural father, filed a petition seeking to reopen the proceedings to reexamine the determination regarding paternity pursuant to Ala. Code 1975, § 26-17A-1. The husband included a DNA report indicating that he was not the father of the child. The wife filed a motion to dismiss the husband’s action based on res judicata.
The trial court granted the wife’s motion to dismiss. The husband appealed. Reversed. “In Alabama, there are two exceptions to the operation of the doctrine of res judicata with respect to paternity judgments: Rule 60 (b)(6), Ala. R. Civ. P., and § 26-17A-1.” S.C.G. v. J.G.Y., 794 So.3d 399, 404 (Ala. Civ. App. 2000)[9 ALW 37-10]. On appeal, the wife conceded that § 26-17A-1 provides an exception to the application of res judicata in paternity actions. How- ever, she contended that the husband did not present scientific evidence required for the § 26-17A01(a) exception to be applicable. “Caselaw in Alabama is scarce regarding what constitutes scientific evidence that is sufficient to re- open a paternity case under § 26-17A-1(a).” In this case, the husband presented a LabCorp report containing a DNA analysis of the husband and the child. That report indicated that the husband’s probability of paternity was 0%. This evidence was sufficient to reopen the proceedings to reexamine the previous paternity determination. The judgment of the trial court is due to be reversed.


In this role, for example, the Court docket has struck down state legal guidelines for failing to adapt to the Contract Clause (see, e.g., Dartmouth College v. Woodward ) or the Equal Safety Clause (see, e.g., Brown v. Board of Schooling ), and it has invalidated federal legal guidelines for failing to arise under the Commerce Clause of the Constitution (see, e.g., United States v. Lopez ).
The bankruptcy courts resolve the instances of the people who should not able to pay again their collectors. Congress used the Commerce Clause to create legal guidelines ordering the Individuals of the States to deal with one another in a particular method. The Fourth Amendment of the U.S. Constitution outlaws unreasonable search and seizure, which might affect how sobriety checkpoints are dealt with.
Courts make determinations in regulation and in equity. In each U.S. Supreme Court docket decision that, over the history of the American republic, that has been at odds with the right Constitutional judicial energy vested within the federal judiciary by the Framers, there have been dissenters, such as Justices Byron White and William Rehnquist who’ve fervently decried the judicial miscarriage of justice and the blatant usurping of Article III, Section II of the U.S. Constitution.
The Supreme Courtroom touched upon the rights of the individual to privateness vis-a-vis invasions by journalists in Sheela Barse v. State of Maharashtra , Prabha Dutt v. Union of India and also in State by way of Supdt., Central Jail, N.D. v. Charulata Joshi In all these circumstances journalists sought permission from the Courtroom to interview and photograph prisoners.
The federal appellate courts include eleven numbered circuit courts plus the Court of Appeals for the District of Columbia and the Court docket of Appeals for the Federal Circuit. This is the reason many people consult constitutional regulation attorneys when dealing with any constitutional challenge, regardless of how massive or small.
Legislation is a system of rules governing a people, a state, or a group and enforced via a set of institutions put in place by the identical people so as to verify excesses of citizens, establish, and protect the rights of the identical folks. Granted (Feb 27, 2008), the court docket of appeals held that “as a result of a person doesn’t have the fitting to say no to a chemical check, and indeed, is subject to felony penalties for doing so, the ‘consent’ implied by legislation is insufficiently voluntary for Fourth Amendment functions.” Unfortunately, the courtroom backtracked just a little bit in 2008 when in State v. Pernell, 2008 WL 123944 (Minn.
By adoption in 1791, this and the other nine amendments in the Bill of Rights grew to become a part of the Structure, the supreme regulation of the land. By means of this landmark constitutional law case, the Supreme Court docket used the Fourteenth Amendment to extend a proper to free counsel to state defendants accused of a felony.
The Doctrine of Comity is raised when the husband resides legally in the United States, travels to Pakistan, to obtain an Islamic divorce decree from a courtroom in that country, obtains a straightforward divorce by simply stating three times: “I divorce you”, or “I divorce my spouse”, in the presence of two male witnesses or one male and two female witnesses; pays the deferred “mahr”, information his divorce in Pakistan, authenticate the paperwork through proper channels, travels back to the United States, serves his spouse with divorce papers, and then seeks recognition and enforcement of the Pakistani divorce by a State Courtroom.
Woods argues that nullification is, and for the reason that time of Jefferson and Madison has been seen as, the “rightful remedy” for unconstitutional acts on the part of the federal authorities, and that the states, which preceded and ratified the Structure, are and should be the vehicle for the applying of that remedy.
The concept of having in place a supreme authorized order in any other case often called the constitution is of common popularity and endorsement. Both federal law and State legislation have traditionally acknowledged that searching for a pattern of breath, blood or urine is, the truth is a search because the time period is defined in constitutional regulation. The term “privacy” has been described as “the rightful claim of the person to find out the extent to which he wishes to share of himself with others and his management over the time, place and circumstances to speak with others.
The U.C.C. supplies the individual the mechanism to choose between Constitutional regulation jurisdiction and Statutory jurisdiction. 3. An agreement between Ukraine and the Russian Federation “On Parameters of the Black Sea Fleet Division” dated 28.05.1997. Consultants of the Naval Forces of Ukraine examined the rocket and concluded that the Russians had introduced armaments to the territory of Ukraine that had not been stipulated by the Russian- Ukrainian agreements.
On this mild, many of the powers delegated to the president must be seen along side the powers delegated to the coordinate branches of presidency.
The First Amendment in the Constitution ensures freedom of speech and expression to all Americans. The Twenty-First Modification repeals the Eighteenth Modification , which banned the manufacture, sale, and transportation of intoxicating liquors, otherwise referred to as Prohibition The Sixteenth Modification establishes the congressional power to put and accumulate income taxes.
These relationships embody these between the states, the states and the federal authorities, the three branches of the federal government, the federal government and international nations, people and state government, and individuals and the federal government.
As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by a two-thirds majority in each houses of Congress and ratified by three-fourths of the states as required by Article V. The Bill of Rights, which contains the first ten amendments to the Structure, incorporates both procedural and substantive protections.
Over the last days of the Constitutional Convention, one of many delegates proposed that a bill of rights be included, but this proposal was voted down by every state. In keeping with the information from UNIAN the Ministry of International Affairs of Ukraine issued a decisive protest towards systematic neglect by the Russian Black Sea Fleet of provisions of the Primary Settlement.
A authorized practitioner in India can specialize in any specific space of Indian legislation, such as labor regulation, tax law, constitutional legislation, company legislation and family laws, just to mention a number of. We cannot avoid the constitutional significance of these details on the idea that some of this speech takes place exterior the United States and is directed at international governments, for the activities also contain advocacy in this country directed to our authorities and its insurance policies.
This depravity also prolonged to over 40,000 males around the nation throughout the identical time-interval who have been adjudged by federal and state courts as having the diminished capability of siring regular wholesome kids and had been neutered, or chemically castrated, by court order.
Overruling Democracy: The Supreme Courtroom vs. The American Individuals is a controversial work by Physician Jamin B. Raskin, professor of constitutional regulation at American university. In Mapp v. Ohio, the Supreme Court used the Fourteenth Modification’s due course of clause to rule that illegally obtained proof – whether or not seized by native, state or federal governments – can’t be used in opposition to a defendant in court.
The prohibition against passing ex publish facto legal guidelines is spelled out in Article 1, Part 9 of the Structure. It is best to always assert your constitutional rights and privileges when stopped by the police and request an legal professional. 13 42 U.S.C.A. § 1983) authorizes individuals to enforce the provisions of the Fourteenth Modification against state governments.
The United States Structure provides safety for individuals accused of committing crimes. As well as, an inexpensive limit on a Constitution proper ought to infringe upon that right “as little as possible.” Finally, the government should exhibit that the advantages of the laws are adequate or proportional to the ramifications for individuals whose Constitution rights have been infringed.


text:
Once in office, the president nominated Christine Varney to be assistant attorney general for the Justice Department’s Antitrust Division. At her confirmation hearing, Varney spoke of the need to “rebalance legal and economic theories in antitrust analysis and enforcement.” The Federal Trade Commission, the other federal antitrust enforcement agency, had signaled well before November’s election its disagreement with various positions taken by the Antitrust Division during the Bush administration.
As the Obama administration begins implementing these views, however, it will find itself with little room to maneuver in some areas as a result of judicial decisions that have codified to a very significant degree the “Chicago School” approach of using traditional economic analysis to resolve antitrust questions. The Supreme Court, for example, has addressed a variety of antitrust issues over the past 15 years—arising under Sections 1 and 2 of the Sherman Antitrust Act of 1890, the landmark federal law limiting monopolies and cartels, and the Robinson-Patman Act of 1936 (which targets price discrimination). Most of the Court’s decisions relied in large part on the economic reasoning championed— both on the bench and in academic writings—by Chicago School legal theorists and judges Robert Bork, Richard Posner, and Frank Easterbrook, as well as by Supreme Court Justice Stephen Breyer. And that approach has resulted in consistent defeats for those arguing in favor of broader rules of antitrust liability—typically plaintiffs seeking to recover treble damages from defendants alleged to have engaged in anticompetitive practices. These plaintiffs have lost every Supreme Court case but one in the past 15 years.
Observers disagree about the significance of this record. Some say that the Supreme Court is correcting erroneous approaches from the pre-Chicago School era in which courts relied on legal tradition and evidence of company officials’ subjective intent—for example, an executive’s comment that he wanted to drive his competitor out of business—to declare anticompetitive, and therefore illegal under the antitrust laws, business practices that in fact are beneficial to consumers, such as selling related products in a package rather than separately. Others contend that these decisions rely too much on economic theory and ignore the practical realities of the marketplace, permitting businesses to engage in conduct that does injure consumers. What is indisputable is that the Court has taken a more restrictive approach in defining the categories of conduct that are illegal under the federal antitrust laws.
Looking back to President Obama’s criticisms, however, the Antitrust Division and FTC appear to have the tools needed to take a more aggressive approach in the merger context. The Hart-Scott-Rodino process requires companies entering into significant business combinations to provide advance notice to the federal antitrust agencies, and allows the agencies to obtain information about the combination in order to decide whether to sue to prevent its consummation. It gives the government considerable leverage in settlement negotiations. Companies typically do not want their deals held up by litigation and often are willing to make concessions so that a transaction can move forward without uncertainty. The recent decision of the federal court of appeals for the District of Columbia in FTC v. Whole Foods Markets Inc., in which the court ruled in favor of the FTC in connection with a merger challenge, may well reinforce that effect and, in addition, counterbalance the impact of the losses the government has suffered in other recent merger challenges. Moreover, none of the Supreme Court decisions involved a merger case. Indeed, the Court has not addressed a merger issue in decades.
The situation is very different with respect to President Obama’s second example—his reference to the absence of any government enforcement efforts targeting alleged monopolization. A number of Supreme Court cases have involved claims under Section 2 of the Sherman Act, which targets the illicit acquisition or abuse of monopoly power, and every decision rejected the Section 2 claim. Even the D.C. Circuit’s decision in the United States v. Microsoft case, which upheld part of the government’s claim, was far from a ringing endorsement of expansive Section 2 liability.
In light of these judicial limitations, how can the Obama administration deliver on the president’s desire for a more robust antitrust enforcement program targeting monopolization?
Restricting itself to the area delineated by the Supreme Court’s decisions will be difficult. Potential targets of government enforcement efforts are well aware of the Court’s restrictive approach in Section 2 cases, and they are likely to invoke its reasoning to challenge the legal basis for any government enforcement action, arguing that the principles announced by the Court in its recent decisions preclude the government’s claim.
Six justices joined the opinion in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., in which the Court concluded that a claim of “predatory pricing”—alleging that the defendant charged prices that were too low in order to drive a competitor out of business—requires proof that the prices are below the defendant’s costs and that the defendant can recoup its losses after the competitor exits the market, standards designed to ensure that the antitrust laws would not prohibit price cuts that result from legitimate competition and benefit consumers.
The Court was unanimous in Weyerhaeuser Co. v. Ross-Simmons Hardware Lumber, which applied the Brooke Group rule to a claim of “predatory buying” alleging that the defendant bid up the price of an input to a level that made its competitor unprofitable. Again, this was because the challenged conduct, paying increased prices for an input, benefits other marketplace participants and closely resembles behavior associated with legitimate competition.
In Pacific Bell Tel. Co. v. linkLine Communications Inc., the most recent decision in this area, all nine justices rejected the plaintiffs’ price-squeeze claim, which alleged that the defendant raised prices in the wholesale market and lowered them in the retail market in order to “squeeze” its retail competitors, again because of concern about the possible impact on legitimate competition, although the Court divided on whether to write broadly or narrowly.
These decisions, each joined by six or more justices, demonstrate the broad support for the Court’s current monopolization jurisprudence and, therefore, the difficulty of convincing the Court to change its views on the issue.
What’s more, although the Supreme Court traditionally accords less weight to considerations of stare decisis (legal precedent) in the antitrust context, Justice Breyer’s dissent in Leegin Creative Leather Products Inc. v. PSKS Inc.—which relies heavily on stare decisis considerations, and which was joined by the other justices most likely to be open to arguments for more expansive antitrust liability—would make it difficult for those justices to support a U-turn in Section 2 analysis.
Under the best of circumstances, applying the requirements of § 2 “can be difficult” because “the means of illicit exclusion, like the means of legitimate competition, are myriad.” Mistaken inferences and the resulting false condemnations “are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” The cost of false positives counsels against an undue expansion of § 2 liability.
…the costs of an erroneous finding of liability are high. “[T]he mechanism by which a firm engages in predatory pricing—lowering prices—is the same mechanism by which a firm stimulates competition; because ‘cutting prices in order to increase business often is the very essence of competition …[;]mistaken inferences . . . are especially costly because they chill the very conduct the antitrust laws are designed to protect.’” It would be ironic indeed if the standards for predatory pricing liability were so low that antitrust suits themselves became a tool for keeping prices high.
The upshot: The Court’s inclination to adopt narrow rules of liability in the monopolization context stems from its fear that a broader approach would deter legitimate competition and would have the ironic effect of transforming the very laws designed to promote and protect competition into devices for curtailing competition.
Convincing the Court to adopt a broader approach to Section 2 liability will therefore require a cogent explanation of why such a change in course will not create the very chilling effects on legitimate competition that the Court cited as the basis for rejecting broad liability standards in these cases. Even for the U.S. government—whose arguments are accorded great respect by the justices—that will be a heavy burden to overcome.
I want to suggest a third way in which the Obama administration could enhance enforcement in the monopolization context: seeking enactment of a new statute providing the Antitrust Division and the FTC with enforcement authority not tied to damages liability in private actions.
The Supreme Court’s concern about chilling pro-competitive conduct stems principally from its recognition that fear of claims for treble damages liability—which often are filed by less efficient competitors in order to deter what is in fact legitimate competition by the defendant—will cause businesses to refrain from engaging in conduct that is even close to the line demarcating impermissible acts.
The less clear that line, the larger the class of beneficial, pro-competitive conduct that will be chilled due to a company’s concern that it may be subjected to the threat of hundreds of millions of dollars of liability for conduct that is perfectly lawful. For example, if the Court in Brooke Group had concluded that a company with monopoly power violated Section 2 by charging an “unfairly” low price—even if the price recovered all of the company’s costs and generated a profit—then companies with a large market share would be afraid to lower their prices in response to competition, for fear that conduct could give rise to a treble damages lawsuit. That would deprive consumers of one of the principal benefits of a competitive market-based economy.
This quotation comes from the Court’s earlier opinion in Blue Chip Stamps v. Manor Drug Stores, a case involving private damages claims under the securities laws in which the Court adopted a narrow interpretation of the scope of liability in part because of its conclusion that “litigation under Rule 10b-5 presents a danger of vexatiousness different in degree and in kind from that which accompanies litigation in general.” The Court’s decisions construing Section 2 of the Sherman Act are motivated in significant part by the very same concerns.
Of course, private damages claims can serve useful purposes. They provide a means of compensating parties injured by wrongful conduct. And the threat of a private lawsuit can deter a company from engaging in wrongful conduct. But private claims also can produce harmful overdeterrence, a particular risk in the monopolization context for the reasons just discussed.
Most other federal agencies responsible for supervising compliance with economic regulations possess civil enforcement authority that is not tied to such private causes of actions. Thus, while the Securities and Exchange Commission can bring enforcement cases under Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5—provisions that also give rise to private damages claims—the SEC has the option of invoking authority not tied to a private cause of action. The same is true of the Federal Communications Commission, the Comptroller of the Currency, the Food and Drug Administration, the Consumer Product Safety Commission, and numerous other agencies.
In contrast, all of the enforcement authority exercised by the Antitrust Division is tied to private rights of action—and, moreover, private rights of action that carry treble damages liability. Although Section 5 of the FTC Act, which prohibits “unfair methods of competition,” in itself does not give rise to private liability, the FTC has tied its authority in antitrust cases to the Sherman Act and the other antitrust statutes that do create such liability. Moreover, a number of states have enacted so-called “little FTC” statutes creating private damages claims for harm caused by acts that violate Section 5, which means that a finding of liability under Section 5 can, and often does, trigger damages claims.
When the Supreme Court or lower courts are construing the Sherman Act, therefore, the analysis necessarily takes into account the potential effects of permitting private treble damages claims to be asserted on the theory being advanced by the plaintiff (indeed, the recent cases before the Supreme Court all have involved damages claims by private plaintiffs). And, as discussed, that factor leads the Court to adopt narrow liability standards for fear that a broader standard will transform the antitrust laws into a device for deterring pro-competitive conduct.
In an ideal world, of course, legal rules would avoid both underdeterrence and overdeterrence. In practical reality, however, such precision is often difficult to achieve. Thus, courts may need to make a trade-off between accuracy and the risks of either chilling pro-competitive, or encouraging anticompetitive, conduct.
This Hobson’s choice, and the associated unacceptable outcomes, would be tempered substantially if legal rules can be applied in a context in which the risks of overdeterrence and underdeterrence are reduced. Eliminating the threat of retrospective treble damages liability, as well as the possibility that a cause of action could be misused by a competitor for self-interested reasons, would significantly reduce the chilling effect on legitimate conduct. A business then would have no reason to fear huge monetary claims if its actions turned out to have fallen on the wrong side of a legal standard, and it would be more willing to engage in hard competition. That, in turn, opens the door to the adoption of a more precise, yet more difficult to apply standard, which in turn reduces underdeterrence.
What elements should be included in a statute granting new antimonopolization enforcement authority to address the concerns detailed above?
First, of course, there must be a standard for liability. The logical target would be techniques used by firms possessing monopoly power to try to maintain their position. After all, a principal critique of current Section 2 jurisprudence is that it supposedly provides a monopolist with too much leeway to engage in strategic behavior to preserve its monopoly power. Given the myriad of factual situations in which these concerns can arise, the standard inevitably will be general, leaving the courts to flesh out specific principles as they have under the Sherman Act.
One possible approach would be to authorize the issuance of a cease-and-desist order for conduct by a monopolist that “tends unreasonably to maintain monopoly power.” By requiring proof that the defendant’s actions are “unreasonable” it would exclude liability for legitimate competition, but by imposing liability even for conduct that “tends” to maintain monopoly power—harkening to the merger standard set out in Section 7 of the Clayton Act, which prohibits an acquisition when “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly”—the provision would reach beyond Section 2.
Second, evidence of the motivations of a defendant’s officers and employees—“subjective intent” evidence—should not be sufficient by itself to establish a violation; it should be relevant only to the extent it bolsters evidence that particular conduct is objectively unreasonable. Much of current antitrust practice, especially in private litigation, is a search for the proverbial “smoking gun” document that can be used—or misused—to convince a jury that the defendant sought to suppress competition. As courts have recognized, however, “a desire to extinguish one’s rivals is entirely consistent with, often is the motive behind, competition. . . . [S]tatements of this sort readily may be misunderstood by lawyers and jurors, whose expertise lies in fields other than economics.” Congress should make clear that such evidence will not suffice to establish a violation of the new statute.
Third, the statute should clearly prohibit any form of private cause of action for a violation of its standard, under either federal or state law, as well as the imposition of retrospective liability in government enforcement actions. As discussed, the premise of this grant of additional authority is that it would be forward-looking only, and therefore allow enforcement actions that would range beyond what may be permitted under current law.
Fourth, the authority should be available to both the Antitrust Division and to the FTC so that both federal antitrust enforcement agencies could take action when appropriate. Because the agencies would share enforcement authority, it might be appropriate to require each to institute actions in court, rather than having the division proceed in court and the commission utilize its administrative processes.
The statute would provide a new enforcement option, allowing the agencies to exercise their prosecutorial discretion to select the enforcement weapon most appropriate for the particular situation—the new statute for situations that would not fit under existing case law and their Section 2 authority for more traditional cases that would remain subject to follow-on private treble damage exposure. A statute along these lines would permit more aggressive enforcement action against monopolists with reduced spillover effects on legitimate, pro-competitive conduct.
For example, there has been much debate over the proper treatment under Section 2 of the use of bundled discounts—practices in which a company offers to sell a bundle of goods or services at a discount from the price charged if the products or services were purchased separately; indeed, the Antitrust Modernization Commission report contains a six-page discussion of this issue. That commission’s proposed test requires a complex analysis of costs and effects on competition that—because it is difficult to apply in practice— could deter legitimate discounting for fear of treble damages liability. Addressing this practice using the new statute would limit such adverse consequences.
In other words, the Modernization Commission concluded that current antitrust standards would allow consideration of all of the unique facts and circumstances exhibited by the sectors of the economy that rest on rapidly evolving technology and other unique factors.
But the Modernization Commission also recognized that it is necessary in the context of these industries to “ensure proper attention to particular market dynamics and economic characteristics that may play a role in determining likely competitive effects.” That analysis is complex, and the risk that it will be applied incorrectly could produce considerable chilling of pro-competitive conduct for fear that an erroneous judicial decision could lead to billions of dollars in treble damages liability. The availability of an enforcement tool that would not produce that result is likely to enhance the chances of both achieving effective enforcement and preserving strong competition in the industries that may be most important to our country’s economic future.
What are the possible objections to conferring this additional authority on the federal antitrust agencies?
Some may argue that this authority is unnecessary, because the FTC simply can interpret Section 5 to include antitrust standards broader than the constraints imposed by the Sherman Act. But there are several difficulties with this approach. The FTC has not pursued such standards in the past, and the courts may be reluctant to uphold them now. A congressionally specified standard is likely to receive a better judicial reception than one devised by the FTC at this late date. And the FTC’s authority does not extend to the Antitrust Division, which is at least a coequal enforcer of the antitrust laws. Granting this new authority to both agencies would put them on an equal footing with respect to antitrust enforcement.
Others may worry that the courts would be likely to carry over their interpretation of Section 2—or at least the considerations that underlie it—in construing a new grant of statutory authority. But the Supreme Court’s approach to statutory interpretation, which focuses closely on the text of the provision, would preclude such a reflexive application of existing jurisprudence to different statutory language arising in a different statutory context. That especially would be the case because Congress’s adoption of the new provision—and its decision to confer authority to sue on the government alone—will so clearly represent a decision to confer different, supplemental enforcement power on the federal antitrust agencies.
The antitrust community loves nothing more than a good debate. I hope this proposal will start one—and that it will lead to a constructive result that maximizes both appropriate antitrust enforcement and good, strong competition in the marketplace.

matches:
v.
v.
v.
v.
v.
v.
§ 2
§ 2
v.