Impleader, which was known asVOUCHING-INat common law, is governed by procedural rules on both the state and federal levels.“Vouching in” has its origins in the English common-law practi
Trang 1KENNETH STARR, theINDEPENDENT COUNSELwho was charged with investigating possible criminal activity by President Clinton and First Lady
HILLARY RODHAM CLINTON in an Arkansas real estate deal (“Whitewater”), worked with Jones’s attorneys to develop evidence that Clinton had lied about the affair with Lewinsky Starr threatened toSUBPOENAClinton to testify before
a GRAND JURY about possible PERJURY and ob-struction of justice, but Clinton voluntarily agreed to appear before the grand jury On August 17, 1998, Clinton changed his story
when Starr questioned him before the grand jury Clinton admitted that he had been alone with Lewinsky and that they had engaged in
“inappropriate intimate contact.” Much of Clinton’s grand jury testimony contradicted the sworn testimony that he had given at the Jones deposition
Starr prepared a 453-page report and sub-mitted it to the House of Representatives on September 11, 1998 He accused Clinton of betraying his constitutional duty by engaging in
a pattern of “abundant and calculating” lies
A Challenge to Impeachment
I
B
n 1989, federal judge Alcee Hastings was
re-moved from the bench by a Senate vote,
becoming the first judge in U.S history to be
impeached after being acquitted in a criminal trial
Hastings vigorously proclaimed his innocence,
challenged the proceedings in court, and alleged
that racism drove the proceedings
An appointee of President Jimmy Carter,
Hast-ings joined the U.S District Court for the Southern
District of Florida as its first African American judge
in 1979 In 1981, federal prosecutors indicted him on
conspiracy to accept a bribe from a Federal Bureau
of Investigation agent posing as a defendant in a
case before him They charged Attorney William A
Borders, president of the National Bar Association,
with offering the agent a lenient sentence from
Hastings in exchange for $150,000 Borders was
convicted in 1982 Hastings was acquitted in
February 1983
Hastings’s troubles soon deepened In April
1983, the U.S Court of Appeals for the Eleventh
Circuit set in motion a three-year investigation into
charges that Hastings had manufactured evidence
for his defense The probe concluded that he was
guilty, and in March 1987, the Judicial Conference
of the United States recommended impeachment
The House of Representatives agreed On August 3,
1988, the full House voted 413–3 to send the case to
the Senate with seventeen articles of impeachment,
including false testimony, fabrication of false
records, and improper disclosure of confidential
law enforcement information
Hastings brought suit, seeking a preliminary injunction from the U.S District Court for the District
of Columbia (Hastings v United States Senate, 716
F Supp 38 [1989]) In his three-part complaint, Hastings claimed that (1) the impeachment hearing was procedurally flawed because his trial would be conducted by committee and not by the full body of the Senate; (2) the impeachment hearings violated his Fifth Amendment double jeopardy rights against
a second prosecution for the same crime; and (3) he was being denied effective counsel and was entitled to attorneys’ fees
The suit failed U.S district judge Gerhard Gesell held that (1) rule XI of the governing Rules of Procedure and Practice in the Senate When Sitting
on Impeachment authorizes a committee format but does not prevent the full participation of the Senate;
(2) double jeopardy principles did not apply in this case because impeachment is not a criminal proceeding and because Hastings faced separate impeachment charges; and (3) no statute provides for attorneys’ fees
In August 1989, the Senate panel heard twenty-four days of testimony On October 20, it convicted Hastings on eight of the impeachment articles and removed him from office Hastings left the bench continuing to profess his innocence, attacking the Senate’s handling of evidence, and maintaining that
he was the victim of racism
CROSS REFERENCE Double Jeopardy.
368 IMPEACHMENT
Trang 2regarding his relationship with Lewinsky The
report, which contained explicit language, was
released on the INTERNET a few days later The
Republican-controlled House Judiciary
Com-mittee began deliberating the possibility of
impeaching Clinton On Dec 11, 1998, after
seven days of hearings, the Judiciary Committee
voted to recommend the impeachment of
President Clinton On a 21-to-16, straight,
party-line vote, the committee approved an
article of impeachment claiming that Clinton
had committed perjury before the grand jury
The committee passed two more articles,
alleging perjury in the Paula Jones suit and
obstruction of justice On December 12, it
passed a fourth article, alleging that Clinton had
abused his power On December 19, the full
House of Representatives impeached Clinton,
charging him with “high crimes and
misde-meanors” for lying under oath and obstructing
justice by trying to cover up his affair with
Lewinsky The House voted largely along party
lines to approve two of the four proposed
articles of impeachment
The Senate began the impeachment trial on
January 14, 1999 Thirteen House members,
acting as prosecutors, spent three days making
opening statements, laying out the case for the
Senate to convict President Clinton and to
remove him from office The team of lawyers
representing President Clinton spent the
fol-lowing three days presenting their lines of
defense After the Senate questioned both sides
for several days, it adjourned the trial until
House prosecutors could be take depositions
from Lewinsky and others who had been
involved in the alleged perjury and obstruction
of justice The Senate, on a 70-30 vote, decided
not to call Lewinsky as a witness but permitted
videotape excerpts of her testimony to be played
at the trial Both sides played excerpts that it
believed to be favorable to its position, which
were shown to the U.S public through
the televised deliberations Closing arguments
then were presented, and the Senate moved
into closed-door deliberations on February
9, 1999
On February 19, 1999, the Senate acquitted
President Clinton of the two articles of
im-peachment Rejecting the perjury charge, ten
Republicans and all 45 Democrats voted not
guilty On the obstruction-of-justice charge,
the Senate split 50-50 After the VERDICT was
announced, Clinton stated that he was “pro-foundly sorry” for the burden he had imposed
on the Congress and the citizens of the United States
Impeachment remains the ultimate check
on the abuse of power By providing this power
to Congress, the Framers drew on a long tradition of democratic skepticism about lea-ders These provisions ensure that leaders will serve the people only so long as they respect the law and their offices In this sense, the power of impeachment also stands ready to thwart tyranny Calls are occasionally made for reform that would streamline the impeachment process, but its rare invocation and tradition of service make such reform unlikely
FURTHER READINGS Aguilar, Narciso M 2001 Fundamentals on Impeachment.
Quezon City, Philippines: Central Lawbook.
Baron, Alan I 1995 “The Curious Case of Alcee Hastings.”
Nova Law Review (spring).
Shea, Pegi Deitz 2000 The Impeachment Process Philadel-phia: Chelsea House.
Smith, Alexa J 1995 “Federal Judicial Impeachment:
Defining Process Due ” Hastings Law Journal 46 (January).
Strasser, Fred 1989 “Proud, Unrepentant, Judge Hastings Exits.” The National Law Journal (November 6).
Villadolid, Oscar S., and Alice Colet Villadolid 2001 The Impeachment of a President Manila.
CROSS REFERENCES High Crimes and Misdemeanors; Chase, Samuel, “The Samuel Chase Impeachment Trial ” (Sidebar).
IMPEDIMENT
A disability or obstruction that prevents an individual from entering into a contract
Infancy, for example, is an impediment in making certain contracts Impediments to
MARRIAGEinclude such factors as CONSANGUINITY
between the parties or an earlier marriage that is still valid
IMPERSONATION The crime of pretending to be another individual
in order to deceive others and gain some advantage
The crime of false impersonation is defined
by federal statutes and by state statutes that differ from jurisdiction to jurisdiction In some states, pretending to be someone who does not actually exist can constitute false impersonation
For example, suppose Bill attempts to evade
IMPERSONATION 369
Trang 3prosecution for a crime by giving the arresting officer a fictitious name and address In Color-ado, where“[a] person who knowingly assumes
a false or fictitious identity and, under that identity, does any other act intending unlawfully
to gain a benefit for himself is guilty of criminal impersonation,” Bill could be charged with a crime (Colo Rev Stat Ann § 18-5-113(1) [West 1996]) In this situation, the benefit Bill hopes to realize is avoiding prosecution, so that element of the offense has been satisfied To be charged, theDEFENDANTdoes not need to seek a monetary benefit from the impersonation
In New York, giving only a fictitious name does not constitute false impersonation Under New York law, criminal impersonation is committed when an individual“[i]mpersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (N.Y Penal Law § 190.25 [McKinney 1996]) In other words, it is illegal to impersonate a real person, but not a fictitious one Thus, if Carol forges Ann’s name
on checks made out to Ann so that Carol can cash the checks, Carol could be guilty
of false impersonation—but only if Ann is a real person Such laws are designed to pro-tect innocent people from the losses they may incur owing to the wrongful acts of others and to restore any loss of dignity and re-putation they may have suffered as a result of impersonation
Most state laws also provide that the impersonation of a public official is a criminal act In Texas, impersonating “a public servant with intent to induce another to submit to his pretended official authority or to rely on his pretended official acts” is a crime (Tex Penal Code Ann § 37.11[West 1996]) Depending on the jurisdiction, the public servant being impersonated does not always have to actually exist For example, suppose Carl pulls over a driver, shows her a fake police badge, and reprimands her for speeding but tells her that he will not arrest her if she pays him $50 Carl’s actions constitute the crime of false impersona-tion, in addition to any other crimes, including extortion, that may apply to the situation
Thousands of criminal reports are filed every year by individuals victimized in various ways
by persons impersonating police officers
Under federal law, pretending to be “an officer or employee acting under the authority
of the United States” in order to demand or obtain “any money, paper, document, or thing
of value” can result in a fine as well
as imprisonment for up to three years (18 U.S.C.A § 912) Like state false imper-sonation statutes, the federal law also seeks to protect interests such as the dignity and prestige of individuals, especially those who hold federal office Federal statutes also prohibit other types of impersonation, including pre-tending to be a U.S citizen; prepre-tending to be
a U.S officer or employee attempting to arrest or search a person or search a building; pretending to be a creditor of the United States or a foreign official; and pretend-ing to be an agent or member of 4-H or of the Red Cross
IMPERTINENCE Irrelevancy; the flaw of bearing no reasonable relationship to the issues or proceeding at hand
An impertinent question is one that is immaterial or has no logical relation to the issue or controversy before the court
IMPLEADER
A procedural device used in a civil action whereby
a defendant brings into the lawsuit a third party who is not already a party to the action but may ultimately be liable for the plaintiff’s claim against the defendant
Impleader is most commonly used where the third party, often an insurance company, has a duty to indemnify, or contribute to the payment of, the plaintiff’s damages An insur-ance policy usually provides that if the insured
is sued, the insurance company will defend him or her in court and pay any damages owed
if he or she is found liable in the action For example, suppose a person slips and falls on
a homeowner’s property, suffers an injury, and sues the homeowner If the homeowner has a homeowner’s policy, he may implead his insurance company by filing a third-party complaint for approval by the court If the court permits the complaint, the insurer is brought into the action The homeowner is now both the DEFENDANT in the action and a third-party PLAINTIFF If he is found liable and ordered to pay damages, the insurance company will be expected to pay all or part of those damages
370 IMPERTINENCE
Trang 4Impleader, which was known asVOUCHING-IN
at common law, is governed by procedural rules
on both the state and federal levels.“Vouching
in” has its origins in the English common-law
practice of“vouching to warranty.” A defendant,
sued by a plaintiff for the recovery of a certain
piece of property, could“vouch in” another party
who may have given a warranty of title when the
property was sold to the defendant Similar types
of third-party actions began to appear in this
country and eventually, in the interests of
uniformity, a federal rule of CIVIL PROCEDURE
providing for impleader was adopted Rule 14 of
the Federal Rules of Civil Procedure provides that
“a defending party, as a third-party plaintiff, may
cause a summons and complaint to be served
upon a person not a party to the action who is or
may be liable to the third-party plaintiff for all or
part of the plaintiff’s claim against the third-party
plaintiff.”
State rules of civil procedure regulate the use
of impleader in actions commenced in state
courts In Connecticut, for instance, “a
defen-dant in anyCIVIL ACTIONmay move the court for
permission to serve a writ, summons and
complaint upon a person not a party to the
action who is or may be liable to him for all or
part of the plaintiff’s claim against him” (Conn
R Super Ct 117) Both federal and state court
impleader rules are designed to promote judicial
economy by disposing of two or more trials in
one action, thus eliminating the need for the
defendant to sue the third party at a later time
A third party who is brought into an action
through impleader is entitled to defend herself
or himself against the claims of both the
plaintiff and the defendant, raising whatever
defenses may be applicable An insurance
company may allege that the policy issued to
the defendant does not cover the acts that gave
rise to the lawsuit and thus led the defendant to
implead the company For example, suppose
Ann has been sued for allegedly assaulting Susan
and has filed an impleader to have her insurance
company defend her and pay any damages
against her The insurance company may refuse
to defend her on the ground that the policy does
not cover intentional acts, such as assaulting
another person If the court agrees, the
insur-ance company will not have to defend Susan or
pay any damages that Ann is awarded by the
court or a jury
The court has a great deal of discretion in
deciding whether a defendant may implead a
third party The court considers a number of factors, including whether joining the third party will unduly complicate the action, cause delay in deciding the main action (the original suit brought by the plaintiff against the defen-dant), adversely affect the plaintiff, or confuse the jury If any of these factors is present, the court may refuse to permit the impleader The court’s decision to grant or deny the impleader will be overturned by an appellate court only if
it appears that the lower court abused its discretion
FURTHER READINGS
“Pleadings and Motions, Rule 14.” Federal Rules of Civil Procedure Ithaca, NY: Cornell Univ Law School.
Wicks, James M., and Marie Zweig 1999 “Impleader Practice in New York: Does It Really Discourage Piecemeal Litigation? ” New York State Bar Journal 71 (February): 44.
Yeazell, Stephen C 1998 Federal Rules of Civil Procedure
2009 Statutory Supplement Frederick, MD: Aspen.
IMPLIED Inferred from circumstances; known indirectly
In its legal application, the term implied is used in contrast with express, where the intention regarding the subject matter is explicitly and directly indicated When something is implied, its meaning is derived from the words or actions of the individuals involved For example, when one individual gives another a gift, the recipient’s acceptance is implied if he or she performs acts indicating ownership, such as using the gifts
IMPLIED CONSENT Consent that is inferred from signs, actions, or facts, or by inaction or silence
Implied consent differs from express con-sent, which is communicated by the spoken or written word
Implied consent is a broadly based legal concept Whether it is as valid as express consent depends on the situation and the applicable law For example, the owner of a car generally is liable for an accident caused by someone who drove that car with his or her consent In many states, that consent can be express or implied, and implied consent may arise from seemingly innocuous actions For instance, a habit of leaving the keys in the car’s ignition may under law imply that the owner
IMPLIED CONSENT 371
Trang 5consents to anyone else’s—even a car thief’s—
driving the car
Corporations that conduct business in a foreign state—that is, any state other than the state of incorporation—impliedly consent to be bound by the laws of the foreign state and to
be subject to the foreign state’s jurisdiction The rationale supporting this application of the implied consent rule is basic: a corporation that reaps the benefits of conducting business in
a state also should be subject to the laws and the courts of that state The fact that the corpora-tion has business in the foreign state is all that is needed for a finding of implied consent
Implied consent as the result of inaction is most commonly found in litigation procedures
For instance, a party to a lawsuit may have the legal right to object to a court hearing that is scheduled to occur before the party has obtained certain crucial documents But if the party appears at the hearing and allows it to proceed without objecting, the party has waived the right
to later object or appeal By failing to take action
to cancel or reschedule the hearing, the party is said to have implied its consent to the hearing
Perhaps the best known—and most often litigated—application of implied consent involves laws prohibiting driving while intoxi-cated Most states have legislation that subjects motorists suspected of driving while under the influence of alcohol or illicit drugs to blood, breath, or urine tests These chemical tests can confirm the existence and the level of drugs or alcohol in a driver’s body, and can be used as evidence against the driver Pursuant to these
state statutes, known as implied consent laws, anyone who drives on public roads or highways has, by that action, impliedly consented to such tests Once stopped or arrested for suspicion of driving while impaired, a person must submit to
a test or face revocation or suspension of his or her driver’s license
Implied consent statutes have been attacked for a variety of constitutional reasons, usually unsuccessfully Courts have held that the statutes
do not violate a driver’s FOURTH AMENDMENT
protection from unreasonableSEARCH AND SEIZURE,
or FIFTH AMENDMENTright against SELF- INCRIMINA-TION The statutes usually are upheld on due process grounds, although courts have struck down statutes that permit the revocation of a license without a hearing Arguments that implied consent laws are an invasion of privacy
or an undue burden on interstate commerce have also been rejected by the courts
Courts generally look to one of two theories supporting the validity of implied consent laws According to the first theory, driving on public roads and highways is a privilege, not a right Only those who adhere to state laws, including laws prohibiting driving while intoxicated, are entitled to the driving privilege Under the second theory, courts consider implied consent laws to be a reasonable regulation of driving pursuant to the state’sPOLICE POWER, so long as the laws do not violate due process Courts have weighed the interests of society against the interests of individuals, and have determined that drunk or drug-impaired drivers are enough
of a danger to society that a slight infringement
on the liberty of individuals is justifiable The liberty of individuals is protected some-what by the requirement that before a law officer can request a blood, urine, or breath test, the officer must have reasonable grounds to believe that the driver is intoxicated What constitutes reasonable grounds is determined on a case-by-case basis If a driver loses her or his license after refusing to comply with a chemical test and a court later finds that reasonable grounds for the test did not exist, the court can invalidate the revocation or suspension of the license
Courts generally hold that a revocation or suspension of a license caused by a driver’s refusal to test for drugs or alcohol is separate and distinct from a prosecution for driving while intoxicated Therefore, in most states, it makes no difference whether a driver pleads
The most common
application of implied
consent is to laws
prohibiting drunk
driving By using a
public road, motorists
imply consent to
submit to tests
measuring the
existence of alcohol in
their blood.
JUSTIN SULLIVAN/GETTY
IMAGES
372 IMPLIED CONSENT
Trang 6guilty to, is convicted of, or is acquitted of the
crime: refusing to take a test for chemical
impairment may result in a revoked or
sus-pended license, and this punishment must be
paid despite a subsequent acquittal of driving
while intoxicated or in addition to any
punish-ment that comes as a result of a conviction
Many states require that a law officer warn a
driver of the consequences of refusing to take a
chemical test, and if that warning is not given,
the license cannot be revoked or suspended
Some states offer drivers a limited right to
consult an attorney before deciding whether to
take a sobriety test This right is not absolute,
since a significant delay would render ineffective
a blood, urine, or alcohol test Several states
offer drivers the opportunity for a second
opinion—the right to have an additional test
performed by the driver’s choice of physicians
States differ in their approach to implied
consent laws, but their goal is the same: keeping
dangerously impaired drivers off the roads
Courts and legislatures are reluctant to frustrate
this goal
FURTHER READINGS
Faden, Ruth R., and Tom L Beauchamp 1986 A History
and Theory of Informed Consent New York: Oxford
Univ Press.
Fuller, M Elizabeth 1985 “Implied Consent Statutes: What
Is Refusal? ” American Journal of Trial Advocacy 9
(spring).
Implied Consent.org Web site 2009 Available online at
http://www.impliedconsent.org/ (accessed September 4,
2009).
CROSS REFERENCE
Automobiles.
IMPLIED WARRANTY
A promise, arising by operation of law, that
something that is sold will be merchantable and fit
for the purpose for which it is sold
Every time goods are bought and sold, a
sales contract is created: the buyer agrees to pay,
and the seller agrees to accept, a certain price in
exchange for a certain item or number of items
Sales contracts are frequently oral, unwritten
agreements The purchase of items such as a
candy bar hardly seems worth the trouble of
drafting an agreement spelling out the buyer’s
expectation that the candy bar will be fresh and
edible Implied warranties protect the buyer
whether or not a written sales contract exists
Implied Warranty of Merchantability
Implied warranties come in two general types:
merchantability and fitness An implied war-ranty of merchantability is an unwritten and unspoken guarantee to the buyer that goods purchased conform to ordinary standards of care and that they are of the same average grade, quality, and value as similar goods sold under similar circumstances In other words, mer-chantable goods are goods fit for the ordinary purposes for which they are to be used The
UNIFORM COMMERCIAL CODE (UCC), adopted by most states, provides that courts may imply a warranty of merchantability when (1) the seller
is the merchant of such goods, and (2) the buyer uses the goods for the ordinary purposes for which such goods are sold (§ 2-314) Thus, a buyer can sue a seller for breaching the implied warranty by selling goods unfit for their ordinary purpose
There is rarely any question as to whether the seller is the merchant of the goods sold
Nevertheless, in Huprich v Bitto, 667 So.2d 685 (Ala 1995), a farmer who sold defective horse feed was found not to be a merchant of horse feed The court stated that the farmer did not hold himself out as having knowledge or skill peculiar to the sale of corn as horse feed, and therefore was not a merchant of horse feed for purposes of determining a breach of implied warranty of merchantability
The question of whether goods are fit for their ordinary purpose is much more frequently litigated Thomas Coffer sued the manufacturer
of a jar of mixed nuts after he bit down on an unshelled filbert, believing it to have been shelled, and damaged a tooth Coffer argued
in part that the presence of the unshelled nut among shelled nuts was a breach of the implied warranty of merchantability Unquestionably, Coffer was using the nuts for their ordinary purpose when he ate them, and unquestionably,
he suffered a dental injury when he bit the filbert’s hard shell But the North Carolina appellate court held that the jar of mixed nuts was nonetheless fit for the ordinary purpose for which jars of mixed nuts are used (Coffer v
Standard Brands, 30 N.C App 134, 226 S.E.2d
534 [1976]) The court consulted the state agriculture board’s regulations and noted that the peanut industry allows a small amount of unshelled nuts to be included with shelled nuts without rendering the shelled nuts inedible or
IMPLIED WARRANTY 373
Trang 7adulterated The court also noted that shells are
a natural incident to nuts
The policy behind the implied warranty of merchantability is basic: sellers are generally better suited than buyers to determine whether
a product will perform properly Holding the seller liable for a product that is not fit for its ordinary purpose shifts the costs of nonperfor-mance from the buyer to the seller This motivates the seller to ensure the product’s proper performance before placing it on the market The seller is better able to absorb the costs of a product’s nonperformance, usually by spreading the risk to consumers in the form of increased prices
The policy behind limiting the implied warranty of merchantability to the goods’ ordi-nary use is also straightforward: a seller may not have sufficient expertise or control over a product
to ensure that it will perform properly when used for nonstandard purposes
Implied Warranty of Fitness
When a buyer wishes to use goods for a particular, nonordinary purpose, the UCC provides a distinct implied warranty of fitness (§ 2-315) Unlike the implied warranty of merchantability, the implied warranty of fitness does not contain a requirement that the seller be
a merchant with respect to the goods sold It merely requires that the seller possess knowl-edge and expertise on which the buyer may rely
For example, one court found that horse buyers who indicated to the sellers their intention to use the horse for breeding were using the horse for a particular, nonordinary purpose (Whitehouse v Lange, 128 Idaho 129,
910 P.2d 801 [1996]) The buyers soon discov-ered that the horse they purchased was incapa-ble of reproducing Because the court found this use of the horse to be nonordinary, the buyers were entitled to an implied warranty of fitness
Before a court will imply a warranty of fitness, three requirements must be met: (1) the seller must have reason to know of the buyer’s particular purpose for the goods; (2) the seller must have reason to know of the buyer’s reliance on the seller’s skill and knowledge in furnishing the appropriate goods; and (3) the buyer must, in fact, rely on the seller’s skill and knowledge Even when these requirements are met, courts will not imply a warranty of fitness under certain circumstances A buyer
who specifies a particular brand of goods is not entitled to an implied warranty of fitness Also, a buyer who has greater expertise than the seller regarding the goods generally is precluded from asserting an implied warranty of fitness, as is a buyer who provides the seller with specifications, such as a blueprint or design plan, detailing the types of material to be used in the goods
FURTHER READINGS Biddle, Arthur 2009 A Treatise on the Law of Warranties in the Sale of Chattels Charleston, SC: BiblioBazaar Davidson, Charles Darwin 2006 “Often Overlooked Implied Warranties Apply to a Host of Sales ” Arkansas Business (June 27).
Gonzales, Vincent M 1987 “The Buyer’s Specifications Exception to the Implied Warranty of Fitness for a Particular Purpose: Design or Performance? ” California Law Review 61 (November).
IMPORT QUOTAS Import quotas are a form of protectionism An import quota fixes the quantity of a particular good that foreign producers may bring into a country over a specific period, usually a year The U.S government imposes quotas to protect domestic industries from foreign competition Import quotas are usually justified as a means
of protecting workers who otherwise might
be laid off They also can raise prices for the consumer by reducing the amount of cheaper, foreign-made goods imported and thus reduc-ing competition for domestic industries of the same goods
TheGENERAL AGREEMENT ON TARIFFS AND TRADE
(GATT) (61 Stat A3, T.I.A.S No 1700, 55 U.N T.S 187), which was opened for signatures
on October 30, 1947, is the principal interna-tional multilateral agreement regulating world trade GATT members were required to sign the Protocol of Provisions Application of the General Agreement on Tariffs and Trades (61 Stat A2051, T.I.A.S No 1700, 55 U.N.T.S 308) The Protocol of Provisions set forth the rules governing GATT and it also governs import quotas This agreement became effective January 1, 1948, and the United States is still bound by it GATT has been renegotiated seven times since its inception; the most recent version became effective July 1, 1995, with 123 signatories
Import quotas once played a much greater role in global trade, but the 1995 renegotiation
of GATT has made it increasingly difficult for a country to introduce them Nations can no
374 IMPORT QUOTAS
Trang 8longer impose temporary quotas to offset surges
in imports from foreign markets Furthermore,
an import quota that is introduced to protect a
domestic industry from foreign imports is
limited to at least the average import of the
same goods over the last three years In
addition, the 1995 GATT agreement identifies
the country of an import’s origin in order to
prevent countries from exporting goods to
another nation through a third nation that does
not have the same import quotas GATT also
requires that all import quota trade barriers be
converted into tariff equivalents Therefore,
although a nation cannot seek to deter trade
by imposing arbitrary import quotas, it may
increase the tariffs associated with a particular
import
In the United States, the decade from
the mid-1980s to the mid-1990s saw import
quotas placed on textiles, agricultural products,
automobiles, sugar, beef, bananas, and even
underwear—among other things In a single
session of Congress in 1985, more than 300
protectionist bills were introduced as U.S
industries began voicing concern over foreign
competition
Many U.S companies headquartered in the
United States rely on manufacturing facilities
outside of the country to produce their goods
Because of import quotas, some of these
companies cannot get their own products back
into the United States While such companies
lobby Congress to change what they consider to
be an unfair practice, their opposition argues
that this is the price to be paid for giving away
U.S jobs to foreign countries
Nearly every country restricts imports of
foreign goods For example, in 1996—even after
the new version of GATT went into effect—
Vietnam restricted the amount of cement,
fertilizer, and fuel and the number of
auto-mobiles and motorcycles it would import The
import quotas of foreign countries can adversely
affect U.S industries that try to sell their goods
abroad The U.S economy has suffered because
of foreign import quotas on canned fruit,
cigarettes, leather, insurance, and computers
In a market that has become overcrowded with
U.S entertainment, the European Communities
have chosen to enforce import quotas on
U.S.-made films and television in an effort to
encourage Europe’s own industries to become
more competitive
FURTHER READINGS Benenson, Bob 1994 “Free Trade Carries the Day As GATT Easily Passes ” Congressional Quarterly Weekly Report 52 (November 26).
Prepared testimony of Allan I Mendelowitz 1995 Fed-eral News Service, congressional hearings testimony (June 14).
“Provisions: GATT Implementing Bill.” 1994 Congressional Quarterly Weekly Report 52 (November 26).
Reinke, John J 1985 “An Analysis of the Conflicts between Congressional Import Quotas and the General Agree-ment on Tariffs and Trade.” Fordham International Law Journal 9.
IMPOSSIBILITY
A legal excuse or defense to an action for the breach of a contract; less frequently, a defense to a criminal charge of an attempted crime, such as attempted robbery or murder
Historically, a person who entered a con-tract was bound to perform according to his or her promised duties, regardless of whether
it became impossible to do so Thus, early U.S courts did not recognize the defense of impossibility of performance Courts noted that
if the parties to a contract had desired to take into account any events that may develop after they reached an agreement, then they should have accounted for such contingencies in the contract
As contract law developed over the twenti-eth century—and in response to increasing commercial activities—courts began to recog-nize impossibility as a valid defense to an action for breach of a contract This defense did not normally apply if one party found it unexpect-edly difficult or expensive to perform according
to the contract; rather, it applied only when the basis or subject matter of the contract was destroyed or no longer existed In addition, the defense of impossibility became available only if objective impossibility existed Objective im-possibility occurred when the contractual obli-gation could not actually be performed Objec-tive impossibility is often referred to by the statement “The thing cannot be done.” For example, if a musician promised to play a concert at a specific concert hall but the concert hall subsequently burned down, it would be impossible to perform according to the con-tractual agreement and the musician would be excused from performing at that particular venue Subjective impossibility exists when only one of the parties to a contract subjectively believes that she or he cannot complete the
IMPOSSIBILITY 375
Trang 9required performance For example, if a musician believed that he had not practiced sufficiently to perform a successful concert, this belief would not excuse the musician from performing the concert The statement“I cannot do it”
frequent-ly refers to the state of mind present in a case involving subjective impossibility
Modern U.S law uses the term impracticability synonymously with the term impossibility, primar-ily because some things may not be absolutely impossible to perform but are nevertheless impracticable to complete Thus, the general rule
is that a thing may be impossible to perform when
it would not be practicable to perform A contractual obligation is impracticable “when it can only be done at an excessive and unreasonable cost” (Transatlantic Financing Corp v United States, 363 F.2d 312 [D.C Cir 1966])
When a party raises the defense of imprac-ticability, courts generally determine three things: first, whether something unexpected occurred after the parties entered the contract;
second, whether the parties had assumed that this thing would not occur; and third, that the unexpected occurrence made performance of the contract impracticable Some widely recog-nized occurrences that would normally provide
a defense of impracticability are the death or illness of one of the necessary parties, the unforeseeable destruction of the subject matter
of the contract (perhaps by an“act of God”), or
a supervening illegality
Impossibility has been used as a defense to charges of attempted crimes Historically, courts recognized that a party could not be convicted of criminal attempt if the actual crime was legally impossible to accomplish For example, if a person was accused of attempting to receive stolen property but the property was not actually stolen, the defense of legal impossibility could arise Legal impossibility is distinguished from factual impossibility, where facts unknown to the person attempting to commit a crime render the crime factually impossible to complete For example, if a pickpocket attempts to steal a wallet but no wallet is present, factual impossi-bility may exist Courts generally have recognized legal impossibility as a defense to a criminal attempt, but not factual impossibility They reasoned that because a person attempting to commit a crime had formed the required intent
to commit the crime, it was irrelevant that the crime was factually impossible to complete
Impossibility as a defense to a criminal attempt has largely been rejected by modern U.S statutes and courts The Model Penal Code—which many states have adopted since its introduction in 1962—expressly rejects im-possibility as a defense to the charge of criminal attempt (§ 5.01[1995])
FURTHER READINGS Bello, Christopher 1985 “Construction and Application of State Statute Governing Impossibility of Consumma-tion as Defense to ProsecuConsumma-tion for Attempt to Commit Crime ” American Law Review 41.
Berliant, Marcus, and Paul Rothstein 2003 “Possibility, Impossibility, and History In the Origins of the Marriage Tax ” National Tax Journal 56 (June) Available online
at http://www.entrepreneur.com/tradejournals/article/ 106701001.html; website home page: http://www entrepreneur.com (accessed August 1, 2009).
“Modern Status of the Rules Regarding Impossibility of Performance as Defense in Action for Breach of Contract ” 1962 American Law Reports 84.
IMPOSTOR RULE Under Uniform Commercial Code, Article 3, Sect 404(a), a rule stating that if an impostor endorses
a negotiable instrument and receives payment in good faith, the drawer of the instrument is responsible for the loss An example would be if
an individual impersonates a person for whom a check has been cut or misrepresents himself as that person’s agent If the impostor receives the check, endorses it, and cashes it at the drawer’s bank, the drawer is responsible for the loss, because the bank accepted the endorsement in good faith The bank may be responsible for a percentage of the loss if it failed to exercise “ordinary care”; for example, if the bank did not check the impostor’s identifica-tion The imposter rule is based on the assumption that between the bank and the drawer, the drawer
is in a better position to prevent the loss Also spelled imposter rule
IMPOSTS Taxes or duties; taxes levied by the government on imported goods
Although impost is a generic term, which can
be used in reference to all taxes, it is most fre-quently used interchangeably withCUSTOMS DUTIES
IMPOUNDMENT
An action taken by the president in which he or she proposes not to spend all or part of a sum of money appropriated by Congress
376 IMPOSTOR RULE
Trang 10The current rules and procedures for
impoundment were created by the
Congressio-nal Budget and Impoundment Control Act of
1974 (2 U.S.C.A § 601 et seq.), which was
passed to reform the congressional budget
process and to resolve conflicts between
Con-gress and PresidentRICHARD M.NIXONconcerning
the power of the executive branch to impound
funds appropriated by Congress Past
presi-dents, beginning with THOMAS JEFFERSON, had
impounded funds at various times for various
reasons, without instigating any significant
conflict between the executive and the legislative
branches At times, such as when the original
purpose for the money no longer existed or
when money could be saved through more
efficient operations, Congress simply acquiesced
to the president’s wishes At other times,
Congress or the designated recipient of the
impounded funds challenged the president’s
action, and the parties negotiated until a
political settlement was reached
Changes during the Nixon
Administration
The history of accepting or resolving
impound-ments broke down during the Nixon
adminis-tration for several reasons First, President Nixon
impounded much greater sums than had
previ-ous presidents, proposing to hold back between
17 and 20 percent of controllable expenditures
between 1969 and 1972 Second, Nixon used
impoundments to try to fight policy initiatives
that he disagreed with, attempting to terminate
entire programs by impounding their
appropria-tions Third, Nixon claimed that as president, he
had the constitutional right to impound funds
appropriated by Congress, thus threatening
Congress’s greatest political strength: its power
over the purse Nixon claimed, “The
Constitu-tional right of the President of the United States
to impound funds, and that is not to spend
money, when the spending of money would
mean either increasing prices or increasing taxes
for all the people—that right is absolutely clear.”
In the face of Nixon’s claim to
impound-ment authority and his refusal to release
appropriated funds, Congress in 1974 passed
the Congressional Budget and Impoundment
Control Act, which reformed the congressional
budget process and established rules and
procedures for presidential impoundment In
general, the provisions of the act were designed
to curtail the power of the president in the
budget process, which had been steadily grow-ing throughout the twentieth century
The Impoundment Control Act divides impoundments into two categories: deferrals and rescissions In a deferral, the president asks Congress to delay the release of appropriated funds; in a rescission, the president asks Congress to cancel the appropriation of funds altogether Congress and the president must follow specific rules and procedures for each type of impoundment
Deferrals
To propose a deferral, the president must send Congress a request identifying the amount of money to be deferred, the program that will be affected, the reasons for the deferral, the
estimat-ed fiscal and program effects of the deferral, and the length of time for which the funds are to
be deferred Funds cannot be deferred beyond the end of the fiscal year, or for so long that the affected agency could no longer spend the funds prudently
In the original Impoundment Control Act, the president was allowed to defer funds for any reason, including opposition to a specific pro-gram or for general policy goals, such as curtailing federal spending Congress retained the right to review deferrals, and a deferral could
be rejected if either the House or the Senate voted
to disapprove it In 1986 several members of Congress and a number of cities successfully challenged the constitutionality of these deferral procedures in City of New Haven v United States,
809 F.2d 900 (D.C Cir 1987) New Haven was based on a 1981 case, INS v Chadha, 454 U.S
812, 102 S Ct 87, 70 L Ed 2d 80, in which the Supreme Court ruled that one-house vetoes of proposed presidential actions are
unconstitution-al The Chadha ruling invalidated Congress’s right to review and disapprove deferrals In response, Congress took away most of the president’s deferral power through provisions in the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987 (2 U.S.C.A
§ 901 et seq.) (otherwise known as Gramm-Rudman-Hollings II) These provisions allow presidential impoundment for only three reasons:
to provide for special contingencies, to achieve savings through more efficient operations, and when such deferrals are specifically provided for
by law The president can no longer defer funds for policy reasons
IMPOUNDMENT 377