A check is a specific kind of draft, which is drawn on a bank and payable on demand to a particular individual or to the bearer, in which case it can be written payable to“cash.” An indi
Trang 1also serves as a certificate of title to the goods, which is ordinarily in the seller’s name
Upon shipment, the seller draws a draft against the buyer-drawee, who is required to pay the draft The seller’s bank is named as the payee The seller endorses the bill of lading to the payee and attaches the bill to the draft The seller can eitherNEGOTIATEthese instruments to the payee at a discount or use them as security for a loan Subsequently, the papers are endorsed by the seller’s bank and delivered to
a correspondent bank in the community where the buyer is located The correspondent bank seeks payment of the draft from the buyer and when payment is made, the bank transfers ownership of the goods from seller to buyer by endorsing the bill of lading to the buyer The buyer can then obtain the goods from the carrier upon presentation of the bill of lading, which demonstrates his or her title to the shipped goods
A check is a specific kind of draft, which is drawn on a bank and payable on demand to a
particular individual or to the bearer, in which case it can be written payable to“cash.”
An individual who opens a checking account
is engaged in a contractual relationship with a bank The individual agrees to deposit money therein, whereas the bank agrees that it is indebted to the depositor for the amount in the account, in addition to promising to honor checks written for payment against the account when there are sufficient funds on hand to do so
A CERTIFICATE OF DEPOSIT, frequently referred
to as a CD, is a written recognition by a bank of the acquisition of a sum of money from a depositor for a designated period of time at a specified interest rate, coupled with a promise
of repayment The bank is both the maker and the drawee, and the individual making the deposit is the payee
Ordinarily, certificates of deposit come in specific denominations that vary according to the length of the term that the bank will hold the funds and are available only for large sums
of money They are used mainly by corpora-tions and individuals as savings devices since they generally bear higher interest rates than ordinary savings accounts They must, however,
be left on deposit for the designated time period Ordinarily, a CD can be cashed in prior
to the date of maturity, but some interest will be forfeited Depending upon the provisions of the
CD, however, a bank may have theLEGAL RIGHT
to refuse to close an account before the expiration of the designated date of maturity
Negotiability
There are basic requirements for the negotiabil-ity of commercial paper The instrument must
be in writing and signed by either its maker or its drawer In addition, it must be either an unconditional promise, as in the case of a promissory note, or an order to pay a specific amount of money, such as a draft It must be payable either on demand or at a fixed time to order or to bearer
The requirement that the instrument must
be in writing can be met in various ways The paper can be printed, typed, engraved, or written in longhand, either in ink, pencil,
or both Ordinarily, specimens of commercial paper can be obtained from banks or stationery stores
Similarly, there are a number of ways to comply with the signature requirement The
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Commercial Paper Outstanding, 2004 to 2007
663.9
142.4
730.7
167.1
816.7
162.7
589.5
129.9
0 200 400 600 800 1,000 1,200
2004 2005 2006 2007
Year
a Public utilities and firms engaged primarily in activities involving communications, construction, manufacturing, mining, wholesale and retail trade, transportation, and services.
b Institutions engaged primarily in commercial, savings, and mortgage banking; sales, personal, and mortgage financing;
factoring, finance leasing, and other business lending;
insurance underwriting; and other investment activities.
SOURCE: The Federal Reserve Board, Statistical Supplement to the Federal Reserve Bulletin,
December 2008.
Trang 2signature may legally be either handwritten,
typed, printed, or stamped by a machine
Individuals who are unable to write their names
can sign with a simple mark, such as an X Also
permissible are initials, a symbol, a business or
TRADE NAME, or an assumed name The pledge or
order for payment must be unconditional to
insure certainty that the instrument will be paid,
since it is used in place of money and as a means
of obtaining credit
When the paper includes an unconditional
promise or order, supplementary facts can be
mentioned that will not defeat its negotiability
For example, the paper can indicate the
transaction was secured by a mortgage It might
mention a specific account or fund out of which
payment is expected, although not required
Ordinarily, such a collateral statement is made
for purposes of accounting and does not create
a conditional promise or order to pay Payment
can, however, be limited to the total assets
of a partnership, unincorporated association,
or trust
A promise to pay is conditional when it
indicates that it is either subject to or governed
by another agreement When payment is
conditional, negotiability is terminated and the
instrument is not commercial paper The holder
of the paper cannot rely upon the face of the
document to establish and fix his or her right to
payment A paper does not qualify for treatment
as a negotiable instrument if payment of it is to
be made exclusively from a particular fund,
unless such instrument is issued by a
govern-ment or division thereof
In dealing with a promissory note,
practi-cally any terms that state a definite promise will
suffice to make the instrument legally
enforce-able The phrase “I promise to pay” clearly
demonstrates an unconditional pledge of
pay-ment; whereas an IOU is not deemed definite
enough to warrant payment and, therefore, is
not a negotiable instrument There must be an
order to pay in a check or a draft A mere
request, as in “I wish you would pay,” is
insufficient Language used for courtesy, such as
“please pay,” does not, however, defeat the
order Suitable language to instruct payment
would be“pay to the order of” followed by the
name of the payee
The holder of the negotiable instrument
must be able to ascertain the precise value of the
paper by looking at its face In certain instances,
it might be necessary to compute interest, as
in the case of a promissory note that bears a certain annual rate A provision for interest does not impair the determination of the actual sum
In addition, certainty regarding the amount is not altered by the fact that the interest rate can differ before or after default or before or after a particular date
The amount payable remains a fixed sum even in the event that it is paid in installments
or reduced by agreement of payment prior to a set time or increased following the date of payment In addition, the certainty of the sum is not affected by a provision for collection of expenses and lawyer’s fees The sum must be payable in money, which is a medium of exchange adopted by governments; otherwise, the document is not considered commercial paper
An instrument must be payable either on demand or at a set time in order to have negotiability Papers that are payable on demand are payable upon presentation, such as checks
When a note or a draft is payable on, or prior to, a fixed date or for a set period thereafter, it is considered to be negotiable at a definite time When an instrument is payable on
or before a certain date, payment is required no later than the date indicated, although it can be made prior to that date Similarly, a paper made payable at an established time after sight is payable at a definite time After sight means that upon presentation of the instrument to the maker by the holder, payment will occur after the expiration of the time designated on the note The payee of a note due one week after sight must be paid by the maker within a week
of the date it is presented for payment It need not be paid immediately upon presentation, since the terms of the note do not make it a demand instrument
If the time provided for payment of an instrument is definite except for the presence of
an ACCELERATION CLAUSE, the time of payment of the instrument is still considered definite That
is, a note can provide that the time for payment will be accelerated if a certain event takes place
or at the option of one of the parties to the agreement without destroying its negotiability
Also acceptable are extensions of the payment period, which can be made at the choice of the holder, maker, or acceptor, or immediately when a particular act occurs
Trang 3An instrument retains its negotiable quality even if it is updated, antedated, or postdated An undated instrument takes effect immediately upon delivery to the payee An antedated paper
is given a date that has passed, and a postdated instrument is given a future date In the event that an instrument is either antedated or postdated, the determination of the date on which it becomes legally operative is contingent upon the date that appears on its face and upon whether it is payable on demand or on a certain date A postdated check cannot be cashed prior
to the date appearing on its face, in spite of the fact that a check is ordinarily payable on demand An instrument is not negotiable if it is payable upon an occurrence of indefinite timing, even when the event is certain to happen, such as death
The requirement that an instrument be made payable either to order or to bearer is met when the paper is made available to the bearer
or to an individual specifically designated or to the order of that person, as in“X, or his order.”
An estate, trust, corporation, partnership, or unincorporated association may be designated
as a payee of a commercial paper
An instrument can be made payable to two
or more people, either together or in the alternative If the paper is made out to two parties together, as in“to X and Y,” then both payees must endorse it before payment will be made An instrument made out in the alterna-tive, however, as in “To X or Y,” requires endorsement by only one payee in order to be paid
Checks and drafts are ordinarily written on printed forms, made payable both to order and bearer An empty space is left between the words “pay to the order of” and “or bearer.”
When the name of the payee is inserted by the drawer, the paper is regarded as an order instrument in spite of the fact that the phrase
“or bearer” is not deleted In such instances, the presumption is that the drawer merely neglected
to eliminate this language An instrument is bearer paper, however, when it is made payable
to a specific payee and the words“or bearer” are either typed or handwritten on the document as additions to it
Bearer paper is made payable either to the holder, a specific individual, the bearer, or to cash It is common for such an instrument to
read“pay to the order of bearer.” This occurs in the case where a printed form is used and the term bearer is written in following “pay to the order of.” The word bearer serves to make the instrument bearer paper in such an instance Bearer instruments are tantamount to cash because they are freely transferable from one person to another without requiring an en-dorsement They are thereby not as secure as order instruments since if they are stolen, their terms permit payment to be made to whoever possesses them at the time they are presented for payment Many banks require customers to endorse bearer paper prior to payment as a safety measure This step provides both the drawer and the bank with the name of the individual who is given payment
Endorsements
An endorsement is the process of signing the back of a paper, thereby imparting the rights that the signer had in the paper to another person The number of times an instrument may be endorsed is unlimited There is no requirement that the word“order” be embodied
in the endorsement Four principal kinds of endorsements exist: special, blank, restrictive, and qualified
An endorsement that clearly indicates the individual to whom the instrument is payable is
a special endorsement
A paper containing a BLANK ENDORSEMENT is one that has the signature of the payee but no specific endorsee is designated A check that is made payable to the order of X is endorsed in the blank when X signs it Once endorsed, it becomes bearer paper and is negotiable by anyone who physically holds it A blank endorsement is changed into a special endorse-ment if certain words are written above the endorsee’s signature, such as “pay to the order
of Y.”
A qualified endorsement is one wherein liability is disclaimed by the endorser through inclusion of a phrase preceding his or her signature Ordinarily, an unqualified endorser’s liability may be either secondary, whereby the endorser is bound to pay if the individual expected to pay defaults and certain conditions are met or by warranty, by which the endorser incurs liability upon alteration of the instru-ment To disclaim secondary liability, the endorser can include the words “without
Trang 4recourse,” thereby relieving himself or herself of
any responsibility to pay it
Attorneys who are the recipients of checks
drawn in settlement of the claims of their clients
commonly sign their clients’ checks with
qualified endorsements This type of check is
ordinarily made payable to the lawyer and client
jointly It is generally endorsed by the lawyer
WITHOUT RECOURSEand given to the client The
attorney then is not liable if the client does not
receive the money promised by the terms of the
check
A restrictive endorsement is conditional and
attempts to prevent subsequent transfer of the
document The language of the endorsement
indicates that the instrument is intended for
limited use, such as “for deposit only,” or
specifies that the paper is meant for the benefit
of the endorser or another individual, as in“Pay
X in trust for Y.” The condition imposed by a
restrictive endorsement must be satisfied before
payment can be properly made
However, an endorsement that tries to
prohibit further transfer of an instrument will
not succeed If a check says“Pay X only,” it is
still completely negotiable upon its
endorse-ment by X
Liability of Parties
An individual who signs an instrument is either
primarily or secondarily liable for payment
Primary liability is extended to the person who
is expected to pay first, and the individual who
is legally responsible to pay upon the failure of
the first party to do so is secondarily liable
The maker of a promissory note is primarily
liable, since that person is the individual who
has originally promised to pay He or she must
meet this obligation when payment becomes
due unless he or she has a valid defense or has
been discharged of the debt
The drawer of a check or draft is secondarily
liable, since that individual does not make an
unconditional promise to pay the instrument
He or she expects the bank to pay and promises
to pay the amount of the instrument only upon
notification of dishonor, a refusal by the drawee
to accept the paper when properly presented for
payment This might occur, for example, if the
bank refuses to pay a check due to insufficient
funds in the drawer’s checking account or
because he or she has notified the drawee to
stop payment
The drawee of a draft or check has primary liability to the holder, an individual who has lawfully acquired possession and is entitled to payment, upon acceptance of the instrument by the drawee A draft is accepted for payment when the acceptance is indicated by the drawee
on the face of the document Certification of an instrument, such as a check, is its acceptance by
a bank guaranteeing that payment will be forthcoming A drawee is liable to the drawer
if the drawee refuses to pay a draft or check that is properly drawn and presented because such action constitutes a noncompliance of the drawee’s contractual obligation to the drawer
Any person who places his or her unquali-fied endorsement on a commercial paper incurs secondary liability for its payment Such liability occurs when the individual who has the primary duty to pay defaults on his or her obligation
A maker or drawer is not relieved from payment of an instrument endorsed with the payee’s name when an imposter manages to have a paper issued to himself or herself by the maker or drawer; when an individual signing on the behalf of the maker or drawer plans that the payee shall have no interest in the paper, for example, the case of a check being made out to
a fictitious payee; and when the agent or employee of the maker or drawer designates the name of a payee with the intent that the named party will actually have no interest in the instrument In the last two instances, the failure
of the employer to use reasonable care in choosing and supervising employees makes the employer personally responsible for all losses that arise from his or her NEGLIGENCE Many employers guard against such risks by taking out FIDELITY INSURANCE policies to cover losses that might occur through employee misconduct
Secondary Liability
Individuals who are secondarily liable on a negotiable instrument are not obliged to pay unless it has been presented for payment and dishonored The commercial paper must first
be given to the person who is primarily liable for payment In the event that the instrument clearly notes the date of payment, the instru-ment must be presented on the date indicated
If payment is unjustifiably refused by the individual who has primary liability, the secon-dary party must be given notice of the dishonor and the presentation of the instrument for
Trang 5payment must be made within a reasonable period of time What constitutes a REASONABLE TIMEis contingent upon what type of instrument
is involved If the paper is a check, the drawer has primary liability for thirty days following the date on the check or the day it was given
or sent to the payee, with the later date prevailing An endorser is secondarily liable for seven days following his or her endorse-ment When presentation does not occur within these time periods, either the drawer or the endorser may escape liability
Individuals who are secondarily liable must receive notice of the dishonor of a commercial paper in order to be held liable for its payment
Such notice must be given by a bank prior to midnight on the date following the dishonor
Notice can be oral or in writing, as long as the language identifies the paper and indicates that it has been dishonored If more than one person is eligible to obtain payment, only one
of them needs to notify those parties who are secondarily liable
Holders
A holder is an individual who is in possession of
an instrument that is either payable to him or her as the payee, endorsed to him or her, or payable to the bearer Those who obtain instruments after the payee are holders if such instrument is either payable to the bearer or endorsed properly to their order The party in possession is not considered to be the holder in
a case in which a necessary endorsement has been forged
According to law, a holder may either be an ordinary holder or aHOLDER IN DUE COURSE, who has preemptive rights to payment An ordinary holder becomes a holder in due course upon taking an instrument subject to the reasonable belief that it will be paid and that there are no legal reasons why payment will not occur
In more technical terms, to be a holder in due course, the party must take the paper for value, inGOOD FAITH, and absent the notice that
it is overdue, has been dishonored, or is subject
to an adverse claim Such notice of problems affecting the validity of the instrument exists if the party either is specifically informed about something or otherwise has reason to believe in the existence of a problem
A holder takes a paper for value when the holder has imparted something of value, such as
property or services, in exchange for the value
of the paper, as evidenced by its terms In such a case, the individual becomes the holder for value
If a paper is used in satisfaction of or as security for the repayment of a debt, even though the debt might not be due when the paper is taken, the instrument is taken for value
In addition, value is given when one commer-cial paper is traded for another
A person who receives a check or other type
of negotiable instrument as a gift is an ordinary holder as opposed to a holder in due course, since no consideration that is bargained-for value has been exchanged by the parties
A holder in due course has greater legal rights concerning protection for enforcement of the provisions for payment of a negotiable instru-ment than does an ordinary holder
For an individual to be a holder in due course, the negotiable instrument must be taken
in good faith that it represents a valuable legal right There must be honesty in the transaction, but the determination of whether good faith is present is totally subjective
Frequently, a due date is clearly specified on the face of the document A holder is presumed
to have knowledge of the terms appearing on the paper If an individual is presented with a note on May 15 that is payable on May 1, he or she is regarded as having knowledge that it is overdue A person is legally considered to have knowledge that a demand instrument is overdue
if he or she accepts it after being informed that a demand for payment has previously been made and refused or if a reasonable period of time has elapsed since its issuance Ordinarily, 30 days after the date on which a check was issued is a reasonable time period within which its presen-tation to a bank for payment should occur An individual who accepts a check that is more than 30 days old is assumed to be doing so with the knowledge that it is overdue
An instrument that has been dishonored ordinarily has that fact indicated on its face For example, a check might be stamped“insufficient funds,” “account closed,” or “payment stopped.”
An individual who accepts such a document possessing knowledge of its dishonor cannot be
a holder in due course A person cannot be a holder in due course if he or she takes an instrument subject to his or her knowledge that
a claim exists against it, such as when it has been stolen or transferred as a result ofFRAUD
Trang 6A holder of a negotiable instrument who has
been refused payment when payment was due
has aCAUSE OF ACTIONagainst the party or parties
liable for payment Ordinarily, when an
indi-vidual is sued on a negotiable paper, he or she
will try to defend his or her right to refuse
payment Certain defenses, known as real defenses,
are valid against ordinary holders as well as
holders in due course, whereas personal defenses
are only valid against ordinary holders
Normally, any defense that can be asserted
in an action concerning a contract may also be
used in an action brought to enforce payment of
a negotiable instrument The legal incapacity
of the maker, drawer, or endorser, a signature
effected by duress, illegality, or fraud, and
alteration of the instrument qualify as real
defenses
One of the most prevalent legal incapacity
defenses asserted is infancy The law affords
protection to infants by permitting them to
evade their contractual obligations, even when,
in some instances, they have reaped the benefits
A holder is usually excluded from receiving
payment on a note from a minor
Another incapacity defense is legal insanity
or incompetency A party who has been legally
declared insane or incompetent is not liable for
any contractual obligations entered during that
time so that if such a person signs or endorses a
negotiable instrument, the transaction is
nulli-fied Intoxication is not a valid defense to
dishonor of a commercial paper
Duress may be used as a defense in the event
that the individual against whom a suit is
brought can prove that he or she was subject to
extreme pressure caused by another at the time
of the execution of the paper If theDEFENDANT
signed the instrument subject to a threat of
immediate physical violence or death, he or she
is not legally bound to honor its terms since he
or she had not freely entered into the
transac-tion Certain types of duress, such as a threat to
report a wrongdoing to the police or to bring a
civil lawsuit, are not valid against a holder in
due course, although they can be used as valid
personal defenses against an ordinary holder
Certain jurisdictions deem a paper that has
been negotiated to pay a usurious loan or
gambling debt null and void An individual can
legally avoid payment to the holder in due
course of such an instrument based on the illegal nature of the debt it was meant to pay
Two basic types of fraud exist: fraud in the essence and fraud in the inducement Fraud in the essence occurs when an individual is inten-tionally lied to about the nature of the instrument or its terms It is a defense that is valid against both an ordinary holder and a holder in due course Fraud in the inducement takes place when the party signing the paper is cognizant of its nature and terms but is misled into believing that the reasons for its creation have been satisfied when in actuality they have not For example, an individual might be induced to issue a check for a certain amount
to a mechanic who claims to have repaired a car If the individual subsequently discovers that the car was not repaired, fraud may be used as a personal defense against the mechanic who has not performed his or her part of the contract to repair the car Fraud in the inducement is only valid against an ordinary holder, not a holder in due course
A material alteration is an addition or deletion of the language of an instrument, which changes the obligations of any party to it
A defendant may avoid liability for payment of a commercial paper if its terms have been materially altered Examples of such alterations are a change in the date of payment or amount
to be paid When an individual’s own negli-gence is a contributing factor to a material alteration, that negligence may not be asserted
by him or her as a defense against someone who pays the instrument in good faith or against a holder in due course
An alteration made by a holder that is both material and FRAUDULENT can be used as a defense against enforcing the payment of the document by all those people whose agreements were changed If these two conditions of materiality and fraud are not met, the instru-ment is ordinarily enforceable according to the way it was initially written, and none of those involved can use the alteration as a defense against payment
When a holder in due course takes a paper following its fraudulent alteration by the previ-ous holder, he or she is entitled to receive payment according to the original terms of the instrument prior to its alteration None of the parties responsible for payment can use the alteration as a defense against a holder in due
Trang 7course, but it may be used against an ordinary holder
Discharge from Liability
The most common way to be discharged from liability on a commercial paper is through payment The intentional CANCELLATION OF AN INSTRUMENTby the holder by either marking the instrument paid or by destroying it discharges all liability
The holder may also discharge an individual from liability for payment through renunciation
This can be accomplished when a document is signed and delivered by the holder or when a paper is relinquished to the party who is being discharged A stop-payment order put on a check by its drawer has the effect of discharging the bank from liability for refusing to honor the check when presented for payment It cannot, however, discharge the drawer from liability in cases where the drawer was contractually or otherwise obligated to pay the payee
Credit Freeze of 2008
In 2008 the collapse of the global financial-services firm Lehman Brothers and subsequent government bailout of American International Group, Inc (AIG), one of the world’s largest insurers, prompted a credit freeze Investors became increasingly reluctant to buy commer-cial paper, thereby terminating a major source
of funding for large corporations This freeze resulted in the Federal Reserve’s creation of the Commercial Paper Funding Facility (CPFF), which purchases commercial paper from issuers and, acting through special purpose vehicles, provides liquidity to its customers The goal of the CPFF is thus to unfreeze the credit markets, prompting investors to lend again in the com-mercial paper market
FURTHER READINGS Bamford, Janet 1992 The Consumer Reports Money Book.
New York: Consumers Reports.
Blue, Ron 1993 Master Your Money: A Step-by-Step Plan for Financial Freedom Nashville, TN: Thomas Nelson.
Liuzzo, Anthony 2010 Essentials of Business Law 7th ed.
New York, NY: McGraw-Hill Higher Education.
Milling, Bryan E 1993 How to Get a Loan or Line of Credit for Your Business: A Banker Shows You Exactly What You Need to Do to Get a Loan Naperville, TN: Sourcebooks.
Nickles, Steve H 2010 Payments LAw and Commercial Paper: Learning and Teaching Materials St Paul: Minn.:
West.
Weber, Charles M 1982 Commercial Paper in a Nutshell.
3d ed West Group.
CROSS REFERENCES Bonds; Documentary Evidence.
COMMERCIAL SPEECH SeeFIRST AMENDMENT;FREEDOM OF SPEECH
COMMINGLING Combining things into one body
The term commingling is most often applied
to funds or assets When a FIDUCIARY, a person entrusted with the management of funds other than his or her own in trust, mixes trust money with that of others, the fiduciary is commingling funds and thereby breaching his or her fiduciary duty
A member of a corporation’s board of directors commingles funds when he or she mixes personal funds with the funds of the corporation An attorney who commingles his
or her money with money belonging to a client
is violating the ethics of the legal profession
COMMISSION ON CIVIL RIGHTS The federalCOMMISSION ON CIVIL RIGHTSevaluates
CIVIL RIGHTS laws and policies of the U.S government, follows legal developments regard-ing discrimination, investigates allegations that U.S citizens are being denied their civil rights, and evaluates equal opportunity programs It collects and monitors information on discrimi-nation or the denial ofEQUAL PROTECTIONof the laws on the basis of race, color, RELIGION, sex, age, handicap, or national origin It also investigates equality of opportunity in voting, education, employment, transportation, hous-ing, and the administration of justice
The commission holds public hearings, publishes findings and reports, and maintains
a toll-free phone line by which people may make complaints regarding civil rights The commission disseminates the information it gathers but cannot enforce existing civil rights laws It offers its findings and makes recom-mendations to the president and to Congress Many of the commission’s recommendations have been incorporated into laws, executive orders, and regulations The commission also collects and stores civil rights information gathered from around the United States The Commission on Civil Rights was created
by the Civil Rights Act of 1957, and it was later
Trang 8reestablished by the U.S Commission on Civil
Rights Act of 1983 (42 U.S.C.A § 1975 et seq.)
It maintains six regional offices and is headed by
eight members, or commissioners, of whom no
more than four shall come from any one political
party Members serve for three or six years Four
members of the commission are appointed by
the president, two by the president pro tempore
of the Senate, and two by the Speaker of the
House of Representatives The president
desig-nates a chairperson and vice chairperson from
among the commission’s members
From the beginning, the Commission on
Civil Rights has interjected itself in controversy
It has investigated activities ranging from
dis-crimination to hate crimes Because
appoint-ments to the commission are political, its tone
often swings from the right to the left,
depend-ing on who is president Durdepend-ing the 1980s, it
issued opinions that were so conservative some
congressional Democrats wanted to shut it
down In contrast, during the 1990s, under the
leadership of its outspoken chairwoman, Mary
Frances Berry, it tilted toward the left
One of the commission’s most controversial
actions was its investigation into the 2000
presidential election in Florida After a six-month
investigation, the commission issued a report
claiming that Florida’s conduct of this election
was marked by “injustice, ineptitude and
inefficiency.” The report claimed that minority
voters were disenfranchised through unequal
access to voting equipment and overzealous
efforts to purge state voter lists of felons and
other ineligible voters The commission
recom-mended that the JUSTICE DEPARTMENT initiate
LITIGATIONto correct this discrimination
The four commissioners who backed the
report were Democrats or otherwise considered
liberal Two Republican commissioners issued
a dissenting report, stating that the Florida
election problems were hampered by
uninten-tional and unanticipated problems that were
not motivated by racial bias and that did not
disenfranchise minority voters The DISSENT
cited a study that low income and literacy rates
were more likely than race to explain the
number of ballots rejected in certain
neighbor-hoods In addition to the dissenters, Florida’s
Republican governor and SECRETARY OF STATE
denounced the commission’s findings
Lost in the controversy over whether the
commission’s finding of bias in the Florida 2000
presidential election was itself biased were some non-controversial recommendations of the commission These included better training for poll-workers, upgraded voting equipment that would be consistently used, and better resource allocation for voting education Some of the commission’s recommendations were later adopted by Florida for the 2002 election cycle
The fact that appointees to the commission are political has meant that the appointment process to the commission itself has become political at times For example, in 1993 Repub-licans refused to confirm a Democratic appoin-tee for the chair of the commission In 2002, a Republican appointee to the commission had to
go to court before he could take his seat on the commission
Nevertheless, the commission has remained
in existence for more than 50 years, and has made valuable contributions to America’s civil rights debate in that period Its web site, www
usccr.gov, gives important information on how
to enforce federal civil rights laws, and different state civil rights organizations As long as it exists, the commission will probably stir up controversy, but ideally it will continue to educate and enlighten about civil rights issues
The commission had a relatively low profile during most of the 2000s In 2005 and 2006, the commission released a series of reports about such issues as the Justice Department’s record with regard to enforcement of voting rights and the funding of civil rights enforcement initiatives
FURTHER READINGS Carlson, Peter 2002 “Uncivil Fights; The Commissioners Have a Job to Do But First, They Have to Agree to Meet ” Washington Post (October 30).
U.S Commission on Civil Rights 2005 Funding Federal Civil Rights Enforcement: The President’s 2006 Request http://www.usccr.gov/pubs/crfund06/crfund06.pdf; web-site home page: http://www.usccr.gov (accessed May
13, 2009).
U.S Commission on Civil Rights June 2001 Voting Irregularities In Florida During the 2000 Presidential Election Available online at www.usccr.gov/pubs/
vote2000/report/main.htm; website home page: http://
www.usccr.gov (accessed June 15, 2009).
U.S Government Manual Website Available online at http://
www.gpoaccess.gov (accessed May 13, 2009).
COMMISSIONER
A person charged with the management or direction
of a board, a court, or a government agency
A commissioner has the power and respon-sibility to administer laws or rules that relate to
Trang 9a specific subject matter over which he or she has authority Generally, he or she is appointed specially, as in the case of a commissioner of court
COMMISSIONERS ON UNIFORM LAWS The United States has a central federal govern-ment, the authority of which is restricted to those powers given to it by the Constitution
Each state has its own system of legislative and judicial functions that operate in areas not within the exclusive control of the federal government
Attempts have been made to provide an organized system of uniform legislation throughout the states The COMMISSIONERS ON UNIFORM LAWS, properly known as the National Conference of Commissioners on Uniform States Laws and also referred to as the Uniform Law Commissioners, was established in 1890 to draft uniform and model laws on subjects where uniformity is desirable The organization con-sists of more than 300 lawyers, judges, and law professors, each selected by the state govern-ments The acts approved by the organization
do not become“law” in the states until they are adopted by legislatures of those states, and the Commissioners on Uniform Laws work with the legislatures to promote such enactments
The organization has been most instrumen-tal in persuading the states to adopt commercial laws approved by the commissioners, most notably the UNIFORM COMMERCIAL CODE (UCC)
It has also drafted a number of laws relating in such areas asCHILD CUSTODY, business organiza-tions, and consumer law The commissioners often work in conjunction with such organiza-tions as the AMERICAN BAR ASSOCIATION and the American Law Institute when drafting the uniform and model laws
The web site of the Commissioners on Uni-form Laws is located at http://www.nccusl.org
COMMITMENT Commitment refers to those proceedings directing the confinement of a mentally ill or incompetent person for treatment
Pursuant to statutory and CASE LAW, due process protections are afforded to persons who have been involuntarily committed, including
periodicJUDICIAL REVIEW Commitment has often raised difficult issues of balancing the civil liberties of the person who is subject to com-mitment against competing interests, including the rights of society to be protected from individuals who might prove dangerous as a result of their mental illness or incompetence and the community’s interest in ensuring that these individuals receive proper treatment Each state has its own detailed statutory scheme providing for the involuntary commit-ment of individuals who might be commit-mentally ill
or incompetent These statutes usually contain language defining the types of mental illnesses and conditions covered by the law, as well as certain conditions that are excluded from coverage—generally mental retardation, epilepsy, developmental disabilities, and drug or alcohol addiction In addition, most state commitment statutes set forth specific criteria or standards that link these conditions to justifications for involuntary commitment
Most jurisdictions have at least one criterion that is based on a person’s posing a danger to himself or herself, or others Some states require that other criteria which are closely related to dangerousness be met, such as the presence of a grave disability or an inability to provide for one’s basic human needs or that some medical
or psychological treatment is essential to the person’s welfare Since the 1980s, some states have moved significantly away from a strict dangerousness standard for involuntary com-mitment In Arizona, for example, a person who
is “persistently or acutely disabled” because of mental illness may be subject to commitment (Ariz Rev Stat Ann § 36-540 (A)[1995]), and
in Delaware, an individual who cannot make
“responsible decisions” about inpatient care and treatment may be committed (Del Code Ann tit 16, § 5001 [1995]) An even broader standard has been enacted in Iowa, where the law provides that a person may be committed if
he or she is likely to inflict serious emotional injury on family or others who“lack reasonable opportunity” to avoid contact with that person (Iowa Code Ann § 229.1[West 1995])
In most jurisdictions, commitment requires
a showing that inpatient hospitalization is the least restrictive treatment alternative for the person, in addition to a showing of dangerous-ness This requirement is based on the principle, established by the U.S Supreme Court, that
Trang 10even though a government purpose might be
legitimate and substantial, the purpose“cannot
be pursued by means that broadly stifle
fundamental personal liberties when the end
can be more narrowly achieved.” Shelton v
Tucker, 364 U.S 479, 81 S Ct 247, 5 L Ed 2d
231 (1960) As a result, most states, through
either statutes or case law, recognize a patient’s
right to be treated in the least restrictive setting
Despite the difficult legal issues relating to
the restriction of liberty that results from
involuntary treatment, the U.S Supreme Court
has considered the constitutionality of civil
commitment on relatively few occasions In
1975, in perhaps its most significant decision on
the issue, the Court held that a state “cannot
constitutionally confine … a non-dangerous
individual who is capable of surviving safely in
freedom by himself or with the help of willing
and responsible family members or friends.”
O’Connor v Donaldson, 422 U.S 563, 95 S Ct
2486, 45 L Ed 2d 396 The Court further stated
that a“mere finding” of mental illness “cannot
justify a state’s locking a person up against his
will and keeping him indefinitely in simple
custodial confinement.” Although the Court
appeared to establish the right of a
nondanger-ous individual not to be involuntarily
commit-ted, it left unresolved the issue of whether a
mentally ill person has a constitutional right to
treatment
In a later decision, Zinermon v Burch, 494
U.S 113, 110 S Ct 975, 108 L Ed 2d 100
(1990), the Court further addressed
dangerous-ness as a justification for civil commitment
It stated that involuntary commitment
proce-dures“guard against the confinement of a person
who, though mentally ill, is harmless and can live
safely outside an institution.” Confinement of
such a person would be unconstitutional, the
Court held
The involuntary commitment of individuals
who previously have been convicted of a crime
has presented an entirely new set of
constitu-tional considerations The most significant issue
has concerned whether a prisoner, following
completion of her or his sentence, may be
committed to a psychiatric facility without
receiving the same due process protections
afforded to other individuals who are subjected
to civil commitment
The high court addressed the issue in Jones v
United States, 463 U.S 354, 103 S Ct 3043, 77
L Ed 2d 694 (1983) In Jones, theDEFENDANTwas acquitted of a crime by reason of insanity but was confined to a psychiatric hospital for longer than his sentence would have been, had he been convicted Michael Jones challenged the consti-tutionality of his commitment A 5–4 majority of the U.S Supreme Court affirmed the commit-ment The Court reasoned that punishment of
an insanity acquittee is inappropriate; therefore, the length of the criminal sentence that would have been imposed, had the patient been found sane, was not relevant Instead, the Court held, the duration of the commitment should depend
on the patient’s recovery Thus, if the patient’s condition warrants further treatment, the com-mitment could continue, regardless of the length
of the sentence that otherwise would have been imposed
The commitment of individuals who have been convicted of sex-related crimes has sparked even more intense debate Courts in many states have had to address difficult questions involving so-called sexual predators: Should these indivi-duals be allowed to re-enter society after they have served their prison terms? May a state detain them indefinitely without violating their constitutional rights?
These questions went before the U.S
Supreme Court in Kansas v Hendricks, 521 U.S 346, 117 S Ct 2072, 138 L Ed 2d 501 (1997)
In that case, the Court reviewed the constitution-ality of the Kansas Sexually Violent Predator Act (Kan Stat §§ 59-29a01 et seq.), which estab-lishes procedures for the civil commitment of persons who, due to a mental abnormality or
Kenneth Donaldson, respondent in O’Connor v Donaldson, displays the Supreme Court’s opinion, which said that a state cannot hold a non-dangerous individual against his will if the person is capable of “surviving safely” on his own or with the help of friends or family.
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