The FTA’s success laid the groundwork for an even more ambitious trade agreement among the United States, Canada, and Mexico, the much-anticipated NAFTA, enacted in 1993.. Cancellation i
Trang 1history of retaliatory actions This hindrance stood in stark contrast to the countries’
cultural similarities and cooperation in other areas They had been allies in both world wars, and both remained key members of theNORTH ATLANTIC TREATY ORGANIZATION(NATO) But war
is an unusual circumstance; military allies can still be less than friendly in trade Then, the second half of the twentieth century unexpect-edly changed everything—domestic industrial decline, brought on by a rise in international competition, toppled the United States from a position of preeminence and made Canada more important to its plans for long-range prosperity Canada underwent a great change
in its historically isolationist outlook as it, too, suffered economically The 1984 election of a conservative Canadian government, led by Prime Minister Brian Mulroney, was a water-shed event Mulroney’s victory was based on promises of opening U.S markets to Canadian business Both sides wanted to remove the barriers of high tariffs, antidumping fees, and countervailing duties (forms of protectionism that limited the expansion of each nation’s markets) in order to create new jobs and wealth
On January 2, 1988, negotiations between the administrations of PresidentRONALD REAGAN
and Prime Minister Mulroney resulted in the signing of the FTA In succeeding where previous generations had failed or not even tried, Reagan declared that the FTA would remove an “invisible barrier of economic
SUSPICION and fear.” The pact had five broad goals: (1) eliminate barriers to trade in goods and services, (2) improve fair competition, (3) liberalize investment conditions, (4) establish procedures for a joint administration of the agreement, and (5) lay the foundation for future cooperation The FTA also relaxed U.S IMMI-GRATION rules for Canadians, allowing freer travel across the border for businesspersons
On the administrative level, it created a temporary body for resolving disputes, the binational Extraordinary Challenge Committee, which was given a seven-year commission to hear appeals Not surprisingly, this issue had been the most troublesome during the negotia-tions preceding the FTA; it proved slightly problematic in practice, too, with the United States generally losing its complaints None-theless, the FTA was seen as a boon for U.S business as a whole, removing Canadian
restrictions that had long been a sore point and emphasizing the resolution of disputes outside courtrooms
The FTA’s success laid the groundwork for
an even more ambitious trade agreement among the United States, Canada, and Mexico, the much-anticipated NAFTA, enacted in 1993 NAFTA’s changes were to be phased in over 15 years, and its purpose is to liberalize trade between the three countries in hopes of emu-lating the economic cooperation long enjoyed by European nations In practice, its broad aims have proved highly controversial
Figures suggest that NAFTA has been an unqualified success in expanding trade among the United States, Canada, and Mexico The United States has nearly doubled its trade to its NAFTA partners since the agreement was signed As for Canada, its exports to its NAFTA partners since the implementation of NAFTA increased 95 percent, from $117 billion to $229 billion
NAFTA has not resolved all trade issues between the United States and Canada One good example is a recent dispute over softwood lumber U.S lumber producers claim Canadian softwood lumber is subsidized by Canada illegally and that companies sell at prices below the cost of production Because of these complaints, the United States placed a TARIFF
of up to 29 percent on Canadian softwood lumber exports The results have costs jobs in Canada and driven up home building prices in the United States
Relationships between the United States and Canada are not only about trade Particularly in the days since September 11, 2001, they have been about security issues as well After the attacks on the United States, many Americans expressed concern about what they viewed as the lax security and border enforcement on the Canadian side At the same time, Americans recognized the immediate assistance that Canada provided the United States during the post-attack period when the area of the continental states constituted a no-fly zone, and many planes were rerouted to Canadian airports
In response to those concerns, the Canadian and United States governments signed a“smart border” accord in December 2001 The accord featured an action plan with 30 points designed
to secure the cross-border flow of goods and
238 CANADA AND THE UNITED STATES
Trang 2people, protect infrastructure, and improve
information-sharing and coordination to
en-hance these objectives Among other items, the
accord included development of a system for
pre-approving goods, factories, carriers, drivers,
and trucks for electronic pass-through clearance
at border checkpoints While the accord has not
succeeded in quieting all security complaints
from the United States, it has helped to improve
relations Later, the Western Hemisphere Travel
Initiative (WHTI) was enacted by Congress as
part of the Intelligence Reform and TERRORISM
Prevention Act of 2004 Its primary purpose was
to strengthen border security and yet facilitate
legal entry into the United States for citizens
and legitimate international visitors WHTI
directives, requiring U.S citizens to have
pass-ports when entering the United States from
Canada, Mexico, and the Caribbean by air,
became effective in January 2007, although
implementation was later delayed for several
months
Security is not the only concern regarding
cross border traffic In mid-2003 Canada was
considering the decriminalization of marijuana,
which caused American law officials to worry
about whether the drug trade would increase as
a result on the Canadian side of the border
Then-U.S Drug czar John Walters warned that
Canadian laxity on marijuana could lead to
tighter control being placed on the cross-border
flow of people and goods
Global warming has also re-ignited
SOVER-EIGNTY issues involving the Northwest Passage,
an area water route from the Atlantic to Pacific
oceans through a string of northern Canadian
islands At one time, it was not a commercially
viable route because of Arctic freezing and
impassable routes However, global climate
changes have resulted in a rapidly melting polar
ice cap, thus encouraging international shipping
routes Canada has asserted sovereignty over the
area, while the United States has taken the
position that the Northwest Passage, though
owned by Canada, is an international strait with
free passage for all, like other straits
There have been other tensions over the
Canadian government’s refusal to support the
war in Iraq Despite these problems, however, it
seems clear that Canada and the United States
have more common interests than disputes At
the beginning of the twenty-first century,
Canada and the United States continued the
economic integration that NAFTA put on the
fast track, and they seemed likely in the future
to become more interdependent than ever
FURTHER READINGS
“Dispute Resolution under Chapter 19 of the United States–
Canada Free-Trade Agreement: Did the Parties Get What They Bargained For? ” 1995 Stanford Journal of International Law (winter).
“The Effect of the United States–Canada Free Trade Agreement upon United States Immigration Law ”
1988 Practicing Law Institute (October 1).
“From Customary Law to Environmental Assessment: A New Approach to Avoiding Transboundary Environ-mental Damage between Canada and the United States ” 1995 Boston College Environmental Affairs Law Review (winter).
McKenna, Barrie February 3, 2003 “Canada Turns on the Charm to Woo the U.S ” The Globe and Mail.
“The North American Experience Managing Transboundary Water Resources: The International Joint Commission and the International Boundary and Water Commis-sion.” 1993 Natural Resources Journal (spring).
Rae, Robert K 2000 “The Politics of Cross Border Dispute Resolution ” Canada United States Law Journal.
Thomas, David, and Barbara Boyle Torrey 2007 Canada and the United States: Differences that Count 3d ed.
Aurora, Canada: Garamond Press.
“United States–Canadian Free Trade: Economic Repercus-sions of the CFTA and NAFTA on the United States, Canada, and the Great Lakes Region ” Great Lakes Symposium 1994 University of Toledo Law Review.
Zorzetto, Alicia 2006 “Canadian Sovereignty at the Northwest Passage ” ICE Case Studies, Number 185, May 2006 Text available online at http://www.american.
edu/ted/ice/northwest-passage.htm; website home page:
http://www.american.edu/ted/ice (accessed August 5, 2009).
CROSS REFERENCES General Agreement on Tariffs and Trade; North Atlantic Treaty Organization; Sovereignty.
CANALS Artificial channels for the conveyance of water, used for navigation, transportation, drainage, or irrigation of land
As a general rule, states supervise the construction and operation of canals by private canal companies The site of the canal is selected
by the state State law determines the manner of acquiring property used for construction or maintenance of canals Condemnation or ap-propriation and contract or grant are the usual methods of acquisition Additional methods include accretion—the gradual accumulation of land by natural causes—and dedication—the gift of land to the government by its owner for public use
CANALS 239
Trang 3The state has authority to supervise the construction of bridges over public canals A city may build bridges over canals within its limits, but it cannot interfere with one con-structed and managed by the state on its own property
State law can confer the power to charge tolls for use of a canal Rates can be neither discriminatory nor in excess of the amount authorized by law
CANCELLATION OF AN INSTRUMENT
An equitable remedy by which a court relieves both parties to a legal document of their obligations under it due to fraud, duress, or other grounds
Cancellation is a term often used inter-changeably with RESCISSION, but whereas only a document can be canceled, any agreement—
whether oral or written—can be rescinded
Cancellation is distinguishable from reforma-tion, which is an action by a court to enforce a document after its terms have been reframed in accordance with the intent of the parties, in that cancellation abrogates the duties of the parties under the instrument
Any instrument by which two or more parties agree to exchange designated perfor-mances, such as a contract, deed, lease, insur-ance policy, COMMERCIAL PAPER, or a MORTGAGE, may be canceled if the circumstances of the case warrant it
The judicial remedy of the cancellation of an instrument is granted by a court in its sound discretion exercising its EQUITY powers to do justice If it is apparent that no injustice will result from restoring both parties to the positions they had prior to the execution of the instrument, an instrument may beSET ASIDE
If the party seeking the cancellation has an
ADEQUATE REMEDY AT LAW, for example, and can recover damages that will give complete relief, cancellation will be denied It is available, however, if the DEFENDANT is judgment-proof
or financially unable to pay damages awarded against him or her Statutes, too, may provide this EQUITABLE REMEDY as concurrent relief, in addition to damages, in particular cases The
UNIFORM COMMERCIAL CODEpermits merchants in sales transactions to seek the cancellation of a contract, in addition to an award of damages in
a breach of contract suit
APLAINTIFFis entitled to have an instrument canceled only if he or she has acted equitably in dealings with the defendant The principles of equity apply to any case in which this equitable remedy is sought
Grounds The cancellation of an instrument must be based upon appropriate grounds, the gist of which makes the enforcement of the instrument inequitable Such grounds must be proven by a preponderance of the evidence presented in the
CIVIL ACTION A term of a document may provide for its cancellation, and courts will usually act accordingly when the facts warrant it The setting aside of an instrument that appears to record the agreement of the parties to it is considered a significantINTERVENTIONby a court, which will not be done for a trivial reason or merely because of a change of mind by one party The primary grounds for cancellation involve the validity of the instrument itself and the agreement that it embodies
Duress An instrument that was obtained by
DURESS, the use of THREATS or physical harm to compel one party to enter an agreement that he
or she would not have made otherwise, can be canceled at the request of the victimized party
If duress was present at the time the contract was entered, the agreement of the parties is a sham, as the victim was forced to act against his
or her will It would be inequitable for a court
to enforce such an agreement
Fraud An instrument may be set aside if it was induced by fraud—an intentional deception of another—to gain an advantage over him or her
To justify cancellation, it must be clearly established that the representations made to the victim were untrue and of such a material nature that without them the victim would not
A ship travels through
the Gatun Locks of
the Panama Canal.
Completed in 1914,
the Panama Canal
connects the Atlantic
and Pacific oceans.
AP IMAGES
240 CANCELLATION OF AN INSTRUMENT
Trang 4have agreed to the transaction In addition, it
must be shown that such statements were made
intentionally to defraud the victim and that the
statements were relied upon by him or her in
the decision to enter the agreement FRAUD
vitiates an agreement, which makes it unjust to
enforce a document embodying its terms
If, however, a material MISREPRESENTATIONis
made innocently by one party, the victim is still
entitled to have the instrument set aside, as it
does not reflect the mutual assent of the parties
Mental Incapacity If an agreement has been
made by one party who, at the time of its
execution, was mentally incapable of
under-standing the nature of the transaction, it may be
canceled at the request of the victim or the
victim’sLEGAL REPRESENTATIVE This is particularly
true when the other party has taken advantage
of the victim’s incompetence in drawing the
terms of the agreement
Courts frequently cancel an instrument
entered by a person so intoxicated at the time
of executing the document that he or she does
not comprehend its legal ramifications
Cancel-lation is justified particularly when the
INTOXI-CATION is brought about by the other party in
order to deceive the victim about the nature of
their agreement
Mistake When the parties have both made a
mutual MISTAKE OF FACT concerning the
agree-ment entered, an instruagree-ment may be canceled,
since there is no real agreement between them
If a unilateral mistake exists, that is, a mistake
by one party, a court may set aside the
document and restore the parties to their
position prior to its execution In order to
justify cancellation, a mistake must be material
and involve a significant part of the agreement
without which the contract would not have
been entered into If the mistake is the result of
the carelessness of one or both parties, a court
may deny a request for cancellation
Undue Influence UNDUE INFLUENCE, which is
the unfair use of pressure on the will of another
to gain an advantage over him or her, is a
ground for the cancellation of an instrument
because one party’s will is so overcome by
pressure that the person is effectively deprived
of freedom of choice Undue influence is usually
established when there is a confidential
rela-tionship between the parties and one of them
has a greater bargaining power or influence on
the other
Forgery or Alteration The cancellation of an instrument is justified when it has been forged
Moreover, if an instrument has been materially altered without the consent or knowledge of the party against whom the change is effective, the instrument may be set aside
Preclusion of Relief
A person seeking the equitable relief of the cancellation of an instrument might be
preclud-ed from it by WAIVER or ESTOPPEL The right to such relief may be waived or relinquished by a plaintiff’s conduct, such as by failing to pursue
a remedy within a REASONABLE TIME from the execution of the document, a form of LACHES The doctrine of equitable estoppel—by which a person is precluded by conduct from asserting his or her rights because another has relied on that conduct and will be injured if the relief is not precluded—may also operate in a case in which cancellation of an instrument is sought
The ratification of a document by a party prevents its subsequent ABROGATION If a party knowingly affirms or ratifies an instrument—
whether by stating so, or by using the property received under it—he or she is precluded from having it set aside
FURTHER READINGS Ames, James Barr, Lymna Denison, and Joseph Doddrige Brannan 2009 The Negotiable Instruments Law.
Charleston, SC: BiblioBazaar.
Nickles, Steve H., and Mary Beth Matthews 2005 Payments Law in a Nutshell Eagan, MN: West.
Ruff, Anne 2003 Contract Law (Nutcases) 5th ed London:
Sweet and Maxwell.
CROSS REFERENCES Duress; Fraud; Sham.
CANON LAW Any church’s or religion’s laws, rules, and regula-tions; more commonly, the written policies that guide the administration and religious ceremonies
of the Roman Catholic Church
Since the fourth century, the Roman Catholic Church has been developing regula-tions that have had some influence on secular (non-church-related) legal procedures These regulations are called canons and are codified in the Code of Canon Law (in Latin, Codex juris canonici)
The law of England, which inspired much
of the law formed in the United States, was a
CANON LAW 241
Trang 5mixture of canon law and COMMON LAW
(principles and rules of action embodied in
CASE LAW rather than legislative enactments)
Canon law and English common law borrowed heavily from each other throughout medieval times and together formed the basis for many
of the legal procedures used in the United States For example, canon law’s influence
is still visible in the concepts of the GRAND JURY, PRESENTMENT (a description of a criminal offense that is based on the jury’s own knowledge), and some characteristics of U.S
marriage law
Canon law has its origins in ancient church writings, decisions made by the general councils
of local bishops, and rulings issued by the pope
These ideas were organized in the mid–twelfth century by an Italian law teacher, Gratian He sorted the collection into religious law, penal law, sacramental law, and other categories
Along with a set of decisions by the pope called Decretals of Gregory IX, Gratian’s work formed the main body of canon law for nearly eight hundred years In 1917 Pope Benedict XV recodified (revised) the canons Pope John Paul
II reissued the Code of Canon Law in 1983—
authorizing increased participation of laity in the church, recognizing the needs of disabled people, and making other changes A related text, the Code of Canons of the Eastern Churches, was reissued by the Holy See (the seat of papal government) in 1990
In the Middle Ages, canon law was used in
ECCLESIASTICAL COURTS (church) to decide many types of cases that in modern times are decided
by civil courts, including criminal offenses This was because most English Christians did not make a great distinction between secular and spiritual offenses CRIMESthat were tried by the church included ADULTERY, BLASPHEMY, slander, heresy (opposition to official religious views), money lending, and gambling From the late fourteenth to the early sixteenth centuries church courts also heard many breach-of-faith cases concerning contracts, as well as inheri-tance and marriage-related cases
Criminal trial procedures in medieval church courts were the source of some features that found their way into common law
Although WITNESSES were considered the best source of proof of a crime under canon law, suspected offenders could also be tried because
of public fame (SUSPICIONin the community that they had committed a crime) AnINQUESTmade
up of twelve men—a forerunner of royal courts’ grand juries—said under OATHwhether public suspicion existed If none did, then a judge had
no authority to proceed After establishing public fame, the court’s next step was canonical purgation, in which the accused person swore
an oath that she or he was INNOCENT Proof of innocence was accomplished by compurgation,
in which several oath helpers would swear that they believed the oath was true People who objected to the purgation of an accused person had the chance to prove their accusation
of guilt
The use of canon law in governmental decisions is not well documented In the early fifteenth century, commissions of the English Parliament made use of canonical procedures and canon law experts to decide issues involving laws of war, diplomacy, and other questions For example, Parliament’s JUSTIFICATION for deposing King Richard II seems to have been based on papal bulls (decrees)
In modern times, the creation, INTERPRETA-TION, and use of the canons closely resemble those of secular law The Episcopal Conference
of Local Bishops and the National Conference
of Catholic Bishops are voting bodies that set policy for the church When policy has been codified, it is used by judges in Catholic tribunals in determining whether certain prac-tices or requests are acceptable according to the canons (Catholic tribunals make up the Church’s own court system, which interprets canonical policy to resolve questions of church practice.) Case law (previous rulings) is pub-lished in Roman Replies and has precedential value Judges may also request assistance from the CANON LAW SOCIETY OF AMERICA, a research organization, in interpreting the canons Catholics who appear before a tribunal may consult canon lawyers, who are not usually secular lawyers A canon lawyer typically completes at least two years’ worth of course work in the canons North American canon lawyers receive their degree in canon law from one of two institutions: the Catholic University
of America, in Washington, D.C., or St Paul University, in Ottawa, Ontario, Canada
By the end of the twentieth century secular law had eclipsed canon law in most aspects of public life Interbody disagreements within the church are now often handled administratively rather than by a tribunal, but within the
242 CANON LAW
Trang 6confines of canon law However, the tribunal is
still the only place where Catholics can secure a
marriage ANNULMENT, and each diocese must
maintain a tribunal for this purpose Divorced
Catholics who have been denied an annulment
can appeal as far as the Sacred Roman Rota,
whose international membership is selected by
the pope
In the 1990s, some dioceses—notably the
Archdiocese of Denver—have sought to reduce
involvement by civil courts in church disputes
by creating dispute resolution mechanisms and
other internal mechanisms that make use of the
written policies of canon law
FURTHER READINGS
Beal, John P., James A Coriden, and Thomas J Green, eds.
2002 New Commentary on the Code of Canon Law New
York: Paulist.
Buelt, Edward L., and Charles Goldberg 1995 “Canon Law
and Civil Law Interface: Diocesan Corporations ”
Catholic Lawyer 36.
Donahue, Charles, Jr 1992 “Ius Commune, Canon Law,
and Common Law in England ” Tulane Law Review 66
(June).
Gerosa, Libero 2002 Canon Law London, New York:
Continuum.
Helmholz, R.H 1983 “The Early History of the Grand Jury
and the Canon Law ” Univ of Chicago Law Review 50
(spring).
CANON LAW SOCIETY OF AMERICA
The Canon Law Society of America is a
nonprofit research association of canon lawyers
that helps the Roman Catholic Church to
address contemporary issues and internal
con-flicts within the framework of the church’s
system of CANON LAW The society drafts
opinions on topics at the request of bishops
and other persons within the church
Canon law is the set of rules a church or
RELIGION establishes for itself in order to make
administrative and ecclesiastical (religious)
decisions The Roman Catholic Church has an
elaborate body of canon law that has been
evolving since the fourth century and which has
played a historical role in the development of
PUBLIC LAW
The Canon Law Society of America helps
Catholic decision makers, especially bishops
and tribunal judges, to evaluate and set policy
The church’s tribunal courts were the model for
secular court systems and operate similarly
Tribunal judges decide cases such as marriage
annulments based on the facts of each case
When a tribunal judge wants more information before ruling on an unusual or difficult case the judge may request research or an ADVISORY OPINIONfrom the Canon Law Society
The society’s written opinions are advisory only and carry no authority in the church
However, the society’s position has influenced the church’s stand on such controversial topics
as whether females may serve as altar attendants (now they may) Other issues addressed by the society in the 1990s include questions about the scope of ordained ministers’ duties, the role of lay ministers, and how Mass should be celebrated
Another activity of the society is to promote the use of codes of canon law issued by the Vatican (the seat of Roman Catholic adminis-tration) in 1983 and 1990
Periodicals produced by the society include the Canon Law Digest; Proceedings, which recaps the society’s annual meeting; and Roman Replies and CLSA Advisory Opinions, which tracks tribunalCASE LAW The society also has published studies on marriage ANNULMENT, confidentiality, and due process for persons in the church, a procedural handbook for the clergy, and other materials
Established in 1939 and based at the Catholic University of America, in Washing-ton, D.C., the society is supported by annual membership dues In 1995 it consisted of 1,550 members internationally Membership
is open to non-Catholics Institutions and interested individuals may join as associate members
FURTHER READINGS Canon Law Society of America+B2542 Web site Available online at http://www.clsa.org (accessed July 11, 2009).
Cunningham, Richard G 1982 Annotated Bibliography of the Work of the Canon Law Society of America, 1965–
1980 Washington, D.C.: Canon Law Society of America.
Green, Thomas J 1993 “The Canon Law Society of America and the Revision of the Code: Historical Reflections and Continuing Concerns ” The Jurist 53 (winter).
CANONS OF CONSTRUCTION The system of basic rules and maxims applied by
a court to aid in its interpretation of a written document, such as a statute or contract
In the case of a statute, certain canons of construction can help a court ascertain what the drafters of the statute—usually Congress or a
CANONS OF CONSTRUCTION 243
Trang 7state legislature—meant by the language used in the law When a dispute involves a contract, a court will apply other canons ofINTERPRETATION,
or construction, to help determine what the parties to the agreement intended at the time they made the contract
Statutory Construction When considering a statute, a court will apply rules of construction only when the language contained in the statute is ambiguous Under the“plain-meaning” rule, if the intention of the legislature is“so apparent from the face of the statute that there can be no question as to its meaning, there is no need for the court to apply canons of construction” (Overseas Education Ass’n v Federal Labor Relations Authority, 876 F.2d 960 [D.C Cir 1989]) Thus, before even considering what canons to apply, the court must first determine whether the statute in question is ambiguous Courts have generally held that a statute is ambiguous when reason-ably well-informed persons could understand the language in either of two or more senses (State ex rel Neelen v Lucas, 24 Wis 2d 262, 128 N.W.2d 425[1964])
If a statute is found to be ambiguous, the court then applies a variety of canons, or rules,
to help it determine the meaning of the statute
Issues of statutory construction are generally decided by the judge and not by the jury In interpreting statutes, a judge tries to ascertain the intent of the legislature in enacting the law
By looking to legislative intent, the court attempts to carry out the will of the lawmaking branch of the government This philosophy has its origins in the English COMMON LAW first established over four hundred years ago As the legal philosopher SIR EDWARD COKE wrote in
1584, “[T]he office of all judges is always to make such construction as shall suppress the
MISCHIEF, advance the remedy, and to suppress subtle invention and evasions for continuance
of the mischief… according to the true intent
of the makers of the act” (Heydon’s Case, 3 Co
Rep 7a, 76 Eng Rep 637[King’s Bench 1584])
In more contemporary terms, courts con-sider the history and nature of the subject matter of the statute; the end to be attained
by the law; the“mischief,” or wrong, sought to
be remedied; and the purpose to be accom-plished by the law (Crowder v First Federal Savings & Loan Ass’n of Dallas, 567 S.W.2d
550, Tex App 1978) In determining legislative
intent courts usually turn to a variety of sources: the language of the statute itself; the
LEGISLATIVE HISTORY of prior enactments on a similar subject; the proceedings surrounding the passage of the law, including debates and committee reports; and, if they are available, interpretations of the law by administrative officials
To aid in the interpretation of an ambigu-ous law, a court may also look to more
“intrinsic” rules not related to the activities preceding the passage of the statute These rules are applied to help the court analyze the internal structure of the text and the conventional meanings of the terms used in the law In addition, intrinsic rules may be used when the court has little or no existing legislative history, such as that provided by committee reports or records of other proceedings, to draw on in interpreting the statute
Some of these canons of construction are expressed in well-known Latin phrases or maxims Under ejusdem generis (of the same kind, class, or nature), when general words follow specific words in a statute in which several items have been enumerated, the general words are construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words of the statute Ejusdem generis saves the legislature from having
to spell out in advance every contingency to which the statute could apply For example, in a statute granting a department of conservation the authority to sell“gravel, sand, earth or other material,” a court held that “other material” could only be interpreted to include materials of the same general type and did not include commercial timber (Sierra Club v Kenney, 88 Ill 2d 110, 57 Ill Dec 851, 429 N.E.2d 1214 [1981]) In the opposite situation, where specific words follow general ones, ejusdem generis is also applied; again, the general term embraces only things that are similar to those specifically enumerated
Another maxim of statutory construction is expressio unius est exclusio alterius Roughly translated, this phrase means that whatever is omitted is understood to be excluded Thus, if a statute provides for a specific SANCTION for noncompliance with the statute, other sanctions are excluded and cannot be applied (Sprague v State, 590 P.2d 410 [Alaska 1979]) The maxim
is based on the rationale that if the legislature had intended to accommodate a particular
244 CANONS OF CONSTRUCTION
Trang 8remedy or allowance, it would have done so
expressly; if the legislature did not provide for
such an allowance or event, it should be
assumed that it meant not to The maxim has
wide application and has been used by courts to
interpret constitutions, treaties, wills, and
con-tracts as well as statutes Nevertheless, expressio
unius est exclusio alterius does have its
limita-tions Courts have held that the maxim should
be disregarded in cases in which an expanded
interpretation of a statute will lead to beneficial
results or will serve the purpose for which the
statute was enacted
Contract Construction
Judges face different challenges when
interpret-ing the terms of a contract As a result, different
canons exist to aid a court in resolving a dispute
between the parties to a contract
As in statutory construction, in a contract
dispute the court gives contract terms their plain
and ordinary meaning, interpreting them as
ordinary, average, or reasonable persons would
understand them (Rains v Becton, Dickinson &
Co., 246 Neb 746, 523 N.W.2d 506 [Neb 1994])
If the language of the contract is clear and
unambiguous, there is no room for further
interpretation and the court will enforce the
contract as written By doing so, the court gives
effect to the parties’ intentions in making the
contract and avoids adding its own interpretation
to the agreement
If the contract contains ambiguous terms,
however, they are strictly construed against the
party who drafted the contract This rule of
STRICT CONSTRUCTIONis often applied in contracts
containing exculpatory clauses, or provisions
that attempt to insulate a party, usually the
party who drafted the contract, from LIABILITY
Thus, when a clause in a contract between a
health club and a member, in which the
member waived her right to bring legal action
for injuries she suffered at the health club, was
held to be ambiguous, it was construed strictly
against the health club and it was found to be
invalid (Nimis v St Paul Turners, 521 N.W.2d
54 [Minn App 1994])
A court may look to other canons of
construction or interpretation if it determines
that the terms of a contract are ambiguous In
business situations, the court may consider the
COURSE OF DEALINGorCOURSE OF PERFORMANCE, that
is, the pattern of conduct observed in previous
transactions between the parties Such evidence can help the court determine the intent of the parties at the time they entered the contract and provides additional terms that, though they are not expressly contained in the agreement, the court can use to interpret the contract Thus, where one party to the contract alleges that the other breached the contract by failing to make payment in the proper manner, and the contract contains no express provisions concerning payment, the court can consider how the parties handled the issue of payment in previous transactions to resolve the issue (AROK Con-struction Co v Indian ConCon-struction Services, 174 Ariz 291, 848 P.2d 870[Ariz App 1993])
A court can also look to usage of trade to aid its interpretation of an ambiguous agreement
A usage of trade is a commercial practice or industry custom “having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to a particular agreement” (Re-statement [Second] of Contracts § 222 [1981])
As a result, if a contract is unclear about how shipment of a specific type of goods is to be handled, the court can consider evidence
of general industry practice in the area to help determine what the parties intended with respect to shipment
FURTHER READINGS Brudney, James J., and Corey Ditslear 2005 “Canons
of Construction and the Elusive Quest for Neutral Reasoning ” Vanderbilt Law Review 58 (January) Avail-able online at http://law.vanderbilt.edu/publications/
vanderbilt-law-review/archive/volume-58-number-1-january-2005/index.aspx; website home page: http://
law.vanderbilt.edu (accessed August 29, 2009).
Ruff, Anne 2003 Contract Law (Nutcases) 5th ed London:
Sweet and Maxwell.
Spiropoulos, Andrew C 2001 “Making Laws Moral: A Defense of Substantive Canons of Construction ” Utah Law Review (fall).
CROSS REFERENCES Course of Dealing; Course of Performance; Exculpate; Strict Construction; Trade Usage.
CANONS OF ETHICS Rules that govern the practice of law
The canons of ethics have been replaced by the code of PROFESSIONAL RESPONSIBILITY, which sets forth the standards of professional conduct prescribed for lawyers in their professional dealings
CANONS OF ETHICS 245
Trang 9CANONS OF JUDICIAL ETHICS SeeCODE OF JUDICIAL CONDUCT
CAPACITY The ability, capability, or fitness to do something;
a legal right, power, or competency to perform some act An ability to comprehend both the nature and consequences of one’s acts
Capacity relates to soundness of mind and
to an intelligent understanding and perception
of one’s actions It is the power either to create
or to enter into a legal relation under the same conditions or circumstances as a person of sound mind or normal intelligence would have the power to create or to enter A person of normal intelligence and sound mind has the capacity to dispose of his or her property by will
as he or she sees fit
A capacity defense is used in both criminal and civil actions to describe a lack of funda-mental ability to be accountable for one’s action that nullifies the element of intent when intent
is essential to the action, thereby relieving a person of responsibility for it
An individual under DURESS lacks the capacity to contract; a child under the age of seven accused of committing a crime lacks criminal capacity
CAPIAS [Latin, That you take.] The name for several different kinds of writs, or court orders, all of which require an officer to take the defendant into custody
For example, a capias ad audiendum judi-cium is aWRITthat orders theDEFENDANTbrought back before the court after an appearance in which the person has been found guilty of a
MISDEMEANOR A capias ad satisfaciendum orders the sheriff to take the defendant into custody until a judgment is paid or a discharge is granted on the ground that the defendant is an insolvent debtor This is aBODY EXECUTION
CAPITAL ASSET Property held by a taxpayer, such as houses, cars, stocks, bonds, and jewelry, or a building owned by
a corporation to furnish facilities for its employees
Excluded from capital assets are certain items stated in the INTERNAL REVENUE CODE, for example (1) trade or business property subject
to DEPRECIATION allowance under the tax laws; (2) real property used in trade or business; (3) certain categories of copyrighted materials andLITERARY PROPERTY; and (4) accounts or notes receivable acquired in the ordinary course of business
The determination of what constitutes a capital asset is essential to the tax treatment of the profits from the sale of property as capital gains, which are taxed at a lower rate than ordinary income
CAPITAL PUNISHMENT Capital punishment is the lawful infliction of death as a punishment; the death penalty Capital punishment continues to be used
in the United States despite controversy sur-rounding its merits and its effectiveness as a deterrent to serious crime A sentence of death may be carried out by one of five lawful means: electrocution, hanging, lethal injection, gas chamber, and firing squad As of 2009, 36 states employed capital punishment as a sentence
In 2007 New Jersey became the first state in modern history to repeal the death penalty New Mexico followed by repealing its death penalty statute in 2009 Other jurisdictions that
do not allow the death penalty are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Ver-mont, West Virginia, and Wisconsin, as well as the District of Columbia
The first known infliction of the death penalty in the American colonies occurred in Jamestown Colony in 1608 During the period
of the Revolutionary War, capital punishment apparently was widely accepted—162 documen-ted executions took place in the eighteenth century At the end of the war, 11 colonies wrote new constitutions, and, although nine of them did not allow CRUEL AND UNUSUAL PUNISH-MENT, all authorized capital punishment In
1790, the First Congress enacted legislation that implemented capital punishment for theCRIMES
ofROBBERY,RAPE,MURDER, andFORGERYof public securities The nineteenth century saw a dra-matic increase in the use of capital punishment with 1,391 documented executions The death penalty continued as an acceptable practice in the United States for some time
In 1967 a national MORATORIUM was placed
on capital punishment while the U.S Supreme
246 CANONS OF JUDICIAL ETHICS
Trang 10Court considered its constitutionality In 1972 it
appeared that the Court had put an end to the
death penalty in the case of FURMAN V.GEORGIA,
408 U.S 238, 92 S Ct 2726, 33 L Ed 2d 346,
declaring certain capital punishment laws to be
unconstitutionally cruel and unusual because
juries were applying them arbitrarily and
capriciously It seemed as if Furman would
mark the passing into history of capital
punishment in the United States
By 1976, Georgia, Florida, and Texas had
drafted new death penalty laws, however, and
the U.S Supreme Court upheld them Of the
nine justices, only two, William J Brennan Jr
and THURGOOD MARSHALL, persisted in the belief
that capital punishment is unconstitutional per
se Capital punishment had survived, and so
had the controversies surrounding it
Although the Supreme Court has held that
the Constitution permits the use of capital
punishment, decisions on this issue have divided
the Court and have done little to convince
opponents of the death penalty that it is fair
Critics have argued that the death penalty is a
form of cruel and unusual punishment, that it
is applied in a racially discriminatory manner,
that it lacks a deterrent effect, and that it is
wrong
Cruel and Unusual Punishment
TheEIGHTH AMENDMENTof the U.S Constitution
prohibits the government from inflicting“cruel
and unusual punishments.” The controversy
over the constitutionality of the death penalty
lies in the AMBIGUITY of the phrase “cruel and
unusual.” The first meeting of Congress
addressed the phrase for only a few minutes
Congressman WILLIAM SMITH of South Carolina
anticipated the controversy to come when he
stated that the wording of the Eighth
Amend-ment was“too indefinite.”
Whereas some argue that the phrase“cruel
and unusual” refers to the type of punishment
inflicted (such punishments as the severing of
limbs, for example, would almost certainly be
considered cruel and unusual), others believe
that the phrase refers to the degree and duration
of the punishment The U.S Supreme Court has
rejected both interpretations, leaving the death
penalty a legal means of punishing certain
criminals
The FIFTH AMENDMENT seems to supply a
clearer basis for assuming the constitutionality
of the death penalty This amendment states that no one shall be“deprived of life, liberty, or property, without due process of law.” From this language, one can conclude that with DUE PROCESS OF LAW, capital punishment may be imposed
In Furman, the justices who found the death penalty to be unconstitutional pointed to the language of the Eighth Amendment as the basis
of their decision Chief JusticeWARREN E.BURGER, who filed a dissenting opinion, relied heavily upon the language of the Fifth Amendment to support his argument that the death penalty was constitutional
Evolving Standards of Decency Administration of capital punishment is not necessarily constitutional under all circum-stances, against all classes of defendants, or for all types of crimes The Supreme Court has recognized that what may have been constitu-tionally permissible when the Eighth Amend-ment was ratified in 1791 might be cruel and unusual now, if application of the death penalty in particular cases offends the “evolv-ing standards of decency” test Under this test, courts will examine prevailing opinions among state legislatures, SENTENCING juries, judges, scholars, the American public, and the inter-national community to determine whether a particular application of the death penalty is cruel and unusual For example, in Penry v
Lynaugh, 492 U.S 302, 109 S Ct 2934, 106 L
Ed 2d 256 (1989), the Court examined many
of these factors and determined that there was
The death chamber at Georgia’s state prison.
AP IMAGES CAPITAL PUNISHMENT 247