The establishment in 1998 of a permanent INTERNATIONAL CRIMINAL COURT, located in The Hague, that prosecutes crimes against humanity and war crimes owed much to the Nuremberg trials.. In
Trang 1Joachim von Ribbentrop, Germany’s foreign minister during World War II, was convicted on all four counts and sentenced to death When he took the WITNESS STAND, the prosecution asked him if he considered Germany’s invasions of Poland, Denmark, Norway, Greece, France, and the Soviet Union “acts of aggression.” In each case Ribbentrop answered in the negative, arguing that such invasions were more properly described as acts of war Confronted with evidence that he had urged the German regent
of Hungary to exterminate the Jews in that country, Ribbentrop responded only by saying that he did not use those words exactly
Ernst Kaltenbrunner was the head of the Reich Central Security Office, the Nazi organi-zation in charge of the Gestapo and the SD (Sicherheitsdienst, Security Service, the German intelligence agency) and was second in command
to Himmler at the SS Kaltenbrunner faced a mountain of evidence demonstrating that he visited a number of concentration camps and had personally witnessed prisoners being gassed and incinerated One letter signed by Kalten-brunner authorized the execution of Allied prisoners of war, and another letter authorized the conscription and deportation of foreign laborers Laborers who were too weak to contrib-ute, Kaltenbrunner wrote, should be executed, regardless of their age or gender Kaltenbrunner received a death sentence after being convicted under counts III and IV
Alfred Rosenberg was the Nazi minister for the occupied Eastern European territories
Rosenberg told Axis troops that the accepted rules of land warfare could be disregarded in areas under his control He ordered the SEGREGA-TIONof Jews into ghettos where his subordinates murdered them His signature was found at the bottom of a directive approving the deportation
of 45,000 youths to German labor camps
Cross-examined about his role in the unlawful confiscation of Jewish property, Rosenberg claimed that all such property was seized to protect it from Allied bombing raids Rosenberg was found guilty on all four counts and sentenced
to death by hanging
Hans Frank, the governor-general of Poland during German occupation, was sentenced to hang after being convicted on counts III and IV
Frank described his administration’s policy by stating that Poland was“treated like a colony”
in which the Polish people became“the slaves of
the Greater German World Empire.” The tribunal found that this policy entailed the destruction of Poland as a national entity, the evisceration of all political opposition, and the ruthless exploitation
of human resources to promote Hitler’s reign
of terror While on the witness stand, Frank confessed to participating in the Nazis’ systematic attempt to annihilate the Jewish race
Wilhelm Frick, the German minister of interior, was found guilty on counts I, II, and III and sentenced to be hanged Frick had signed decrees sanctioning the execution of Jews and other persons held in so-called PROTECTIVE CUSTODY at the concentration camps and had given Himmler a blank check to take any so-called security measures necessary to ensure the German foothold in the occupied territories The tribunal also determined that Frick exer-cised supreme authority over Bohemia and Moravia and was responsible for implementing Hitler’s policies of enslavement, deportation, torture, and extermination in these territories Wilhelm Keitel, field marshall for the High Command of the armed forces, was sentenced
to die after being found guilty on every count
On DIRECT EXAMINATION Keitel admitted that there were “a large number of orders” bearing his signature that “contained deviations from existing international law.” He also conceded that a number of atrocities had been committed under his command during Germany’s invasion
of the Soviet Union As a defense to these charges, Keitel asserted that he had been following the orders of his superiors when committing these crimes Yet some witnesses testifying on behalf of the defense tended to undermine this assertion
Alfred Jodl, chief of the operations staff for the armed forces, also received the death sentence after being convicted on every count During the early stages of World War II, Jodl had been asked to review an order drafted by Hitler authorizing German troops to execute all Soviet military commissars captured during the Nazi invasion of Russia Aware that this order was a violation of the customs, practices, and laws governing the treatment of prisoners during times of war, Jodl made no attempt to dissuade Hitler from issuing it Jodl was also found responsible for distributing an order that authorized the execution of Allied commandos caught by the Axis powers and for mobilizing the German army against its European foes
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
318 NUREMBERG TRIALS
Trang 2Julius Streicher, an anti-Semitic
propagan-dist, was found guilty of count IV and sentenced
to death Author, editor, and publisher of Der
Stuermer, a privately owned Jew-baiting
news-paper, Streicher held no meaningful
govern-ment position with the Axis powers during
World War II Yet the tribunal determined that
circulation of Streicher’s racist newspaper had
fueled the Nazis’ maniacal hatred of Jews and
fomented an atmosphere in which genocide was
acceptable and desirable The prosecution
introduced an article Streicher had published
during 1942 in which he described Jewish
procreation as a curse of God that could only
be lifted through a process of political and
ethnic emasculation
Albert Speer, Nazi minister of armaments,
received a prison term of 20 years after being
convicted on counts III and IV Speer had
fascinated Hitler long before the war with his
architectural prowess, designing buildings that
were both immense and imposing After the war
began, however, Speer’s primary obligation was
to supply the German armed forces with military
supplies, equipment, and weapons Thus, Speer
became a lynchpin in the Nazi military empire
In an effort to maintain this empire, the
pro-secution demonstrated, Speer had repeatedly
cajoled Hitler to procure foreign labor to work
in his weapons factories
Arthur Seyss-Inquart, an Austrian who was
appointed by Hitler to govern Austria and the
Netherlands during German occupation, was
found guilty on counts II, III, and IV and
sentenced to death for his confessed mistreatment
of racial minorities in those territories, including
the deportation of more than 250,000 Jews to
Germany Seyss-Inquart also assisted Hitler’s
takeover of Austria, Poland, and Czechoslovakia
Baron Konstantin von Neurath, Reich
protector of Czechoslovakia, was convicted on
all four counts and sentenced to 15 years in
prison for participating in the Nazi
militariza-tion campaign Hoping to immunize the Nazi
regime from its obligations underINTERNATIONAL
LAW, Neurath had advocated Germany’s
with-drawal from the LEAGUE OF NATIONS and
de-nounced the Versailles Treaty that had formally
concluded WORLD WAR I Neurath was also
implicated in various brutalities committed
against the Czechoslovakian civilian population
Baldur von Schirach, governor of occupied
convicted on count IV and sentenced to a
20 year prison term The IMT determined that Schirach had provided the visceral foundations for the militarization of Germany’s youngest Nazis through psychological and educational indoctrination and had conspired with Hitler
to deport Viennese Jews to Poland where most
of them met their death Fritz Sauckel, the plenipotentiary general for the allocation of labor, was convicted on counts III and IV and sentenced to death for his central role in the Nazi forced labor program that enslaved more than 11 million Europeans
Erich Raeder served as Germany’s naval commander and chief until 1943 when he resigned due to a disagreement with Hitler, and he was succeeded by Karl Doenitz Both Raeder and Doenitz were indicted under counts
I, II, and III for war crimes committed on the high seas, and both were convicted based in part
on evidence that they had authorized German submarines to fire on Allied commercial ships without warning in contravention of interna-tional law Doenitz was sentenced to a ten-year prison term, and Raeder received a life sentence
Walther Funk, Nazi minister of economics, also received a life sentence for financing Germany’s aggressive warfare and for exploiting foreign laborers in German industry
The IMT declared four Nazi organizations
to be criminal: the SS, the SD, the Gestapo, and the Nazi Party A team of Allied attorneys, including American Telford Taylor, subsequently prosecuted individual members of these organi-zations Three Nazi organizations were acquitted:
the SA (Sturmabteilung, the paramilitary orga-nization also known as the Brownshirts or Stormtroopers), and the general staff and High Command of the German armed forces
The Nuremberg trials made three important contributions to international law First, they established a precedent that all persons, regard-less of their station or occupation in life, can be held individually accountable for their behavior during times of war Defendants cannot insulate themselves from personal responsibility by blaming the country, government, or military branch for which they committed the particular war crime
Second, the Nuremberg trials established that individuals cannot shield themselves from liability for war crimes by asserting that they
NUREMBERG TRIALS 319
Trang 3in the chain of command Subordinates in the military or government are now bound by their obligations under international law, obligations that transcend their duty to obey an order issued by a superior Orders to initiate aggres-sive (as opposed to defenaggres-sive) warfare, to violate recognized rules and customs of warfare, or to persecute civilians and prisoners are considered illegal under the Nuremberg principles
Third, the Nuremberg trials clearly estab-lished three discrete substantive war crimes that are punishable under international law: crimes against peace, crimes against humanity, and crimes in violation of transnational obligations embodied in treaties and other agreements
Before the Nuremberg trials, these crimes were not well defined, and persons who committed such crimes had never been punished by a multinational tribunal For these reasons the Nuremberg convictions have sometimes been criticized as ex post facto justice
The Nuremberg trials have also been criti-cized as “victor’s justice.” Historians have observed that the Allied nations that tried and convicted the leading Nazis at Nuremberg did not come to the table with clean hands The Soviet Union had participated in Germany’s invasion and occupation of Poland and had been implicated in the massacre of more than one thousand Poles in the Katyn forest Bombing raids conducted by the United States and Great Britain during World War II left thousands of civilians dead in such cities as Dresden, Germany, and Nagasaki and Hiroshima, Japan President Roosevelt had implemented a relocation pro-gram for more than 100,000 Americans of Japanese descent that confined them to concen-tration camps around the United States
The Nuremberg trials were not typical partisan trials, though The defendants were afforded theRIGHT TO COUNSEL, plus a panoply of evidentiary and procedural protections The Nuremberg verdicts demonstrate that these protections were taken seriously by the tribunal
The IMT completely exonerated three defen-dants of war crimes and acquitted most of the remaining defendants of at least some charges
Thus, the Nuremberg trials, while not perfect,
changed the face of international law, both procedurally and substantively
The Nuremberg trials had both an immedi-ate and enduring effect on international law
In 1950 the United Nations International Law Commission adopted a document that set out the Principles of International Law Recognized
in the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal These core principles include the responsibility of indivi-duals for international crimes, the right of each accused to a fair trial; and the pronounce-ment that one’s position as a head of state or responsible government official does not relieve the person of criminal responsibility These principles have remained at the center of inter-national CRIMINAL LAW The Nuremberg trials have influenced development of the law of war, including the Geneva Conventions, and inter-national HUMAN RIGHTS law The establishment
in 1998 of a permanent INTERNATIONAL CRIMINAL COURT, located in The Hague, that prosecutes crimes against humanity and war crimes owed much to the Nuremberg trials However, the United States has declined to sign the statute
FURTHER READINGS Annas, George J 2009 “The Legacy of the Nurembert Doctors’ Trial to American Bioethics and Human Rights ” Minnesota Journal of Law, Science, and Technology Winter.
Borgwardt, Elizabeth 2008 “A New Deal for the Nuremberg Trial: The Limits of Law in Generating Human Rights Norms.” Law and History Review Fall.
Conot, Robert 1983 Justice at Nuremberg New York: Carrol & Graf.
Davidson, Eugene 1997 The Trial of the Germans Columbia: Univ of Missouri Press.
Gilbert, G M 1995 Nuremberg Diary New York: Da Capo Press.
Green, L C 1995 “Command Responsibility in Interna-tional Humanitarian Law ” Transnational Law and Contemporary Problems 5.
Lippman, Matthew 1991 “Nuremberg: Forty-five Years Later ” Connecticut Journal of International Law 7 Schiff, Benjamin 2008 Building the International Criminal Court New York: Cambridge Univ Press.
Taylor, Telford 1992 The Anatomy of the Nuremberg Trials New York: Little, Brown.
CROSS REFERENCE Tokyo Trial.
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
320 NUREMBERG TRIALS
Trang 4An individual’s appeal to God or a sacred person
or thing to witness the truth of what he or she is
saying or a pledge to do something enforced by the
individual’s responsibility to answer to God or the
sacred person or thing
Similarly, an affirmation is a solemn and
formal declaration that a statement is true;
however, an affirmation includes no reference
to God or a sacred person or thing, so it can be
made by someone who does not believe in God
or by an individual who has conscientious
objections against swearing to God or a sacred
person or thing Provisions in state statutes or
constitutions ordinarily allow affirmations to be
made as alternatives to oaths
In order for an oath to be legally effective, it
must be administered by a public official The
law creating each public office and describing
the duties of the official ordinarily indicates who
is authorized to administer the oath of office If
an oath is legally effective, the person making
the oath could be punished through penalties
forPERJURYif the statement made under oath is
found to be false A spoken oath is generally
sufficient; however, a written and signed oath
can be required by law
The most famous oath prescribed by law in
the United States is the oath repeated by the
president-elect upon taking the office of the
presidency Other examples of oaths include a
judicial oath, taken during a court proceeding;
an oath in litem, taken by a in
testifying to the value of something; and a promissory oath, which binds the party to specific conduct in the future
vOBAMA, BARACK HUSSEIN, JR
In 2008, Barack Obama was elected as the forty-fourth president of the United States, the first African American to hold that office A Democratic senator from Illinois at the time
of his election in November 2008, Obama prevailed in two hard-fought campaigns against Senator HILLARY RODHAM CLINTON (D-N.Y.) for the Democratic nomination and against Re-publican SenatorJOHN MCCAIN (R-Ariz.) for the presidency
Obama was born on August 4, 1961, in Honolulu, Hawaii He was named after his father, a Kenyan exchange student Obama’s mother, Ann, was a white American who had moved to Honolulu from Kansas with her parents Obama’s family dissolved when he was two; his father won a scholarship to Harvard that was not sufficient to support a family, and
he moved to Massachusetts alone After finish-ing his degree, the elder Obama went back to Kenya and took a job as an economic planner for the country’s government He continued to write letters to his son and visited him once when the boy was ten, but his marriage to Obama’s mother ended in 1964 Ann then met Indonesian oil company executive Lolo Soetoro
in Hawaii, and they were married in 1967 The
O
Trang 5family left Hawaii and moved to Indonesia when Obama was six His half-sister, Maya, was born in Indonesia in 1970
In 1971, the ten-year-old Obama was sent back to Hawaii to live with his maternal grandparents and attend Punahou, an elite college preparatory school to which he had attained a scholarship with his grandparents’ help These adolescent years brought difficulties for Obama Although other students appre-ciated Obama’s winning personality and ability
on the basketball court, he was still teased for his unusual name and discriminated against by other black students for having a white family
Obama himself struggled with his mixed-race identity and sought to figure out how he fit in with the rest of the world As he grew into his teenage years, his inner conflicts and journey of self-discovery led him to experiment with
marijuana and cocaine, and his commitment
to bodysurfing and basketball seemed stronger than his interest in school Despite his obvious intelligence, his grades were inconsistent at times Nonetheless, Obama graduated with honors from Punahou in 1979
After his high school graduation, Obama left Hawaii for Los Angeles to attend Occidental College, a small suburban liberal arts school Obama felt out of place at Occidental, and by his sophomore year he decided to transfer to Columbia University in New York City He hoped that the school’s urban location would provide a more diverse environment Entering Columbia in his junior year, Obama enjoyed New York but found that racial tension infected even “the stalls of Columbia’s bathrooms,“he wrote in Dreams from My Father, “where, no matter how many times the administration tried
to paint them over, the walls remained scratched with blunt correspondence” between African American and Jewish students
After graduating in 1983, Obama moved to Chicago to spend three years as a community organizer on the city’s poverty-stricken South Side Obama’s intellect, drive, and social conscience led to his decision to become a lawyer He went to Harvard Law School, where
he became the first African American president
of the prestigious Harvard Law Review Upon his graduation magna cum laude in 1991, Obama shunned offers of prominent law firms and impressive clerkships in order to practice
CIVIL RIGHTS law in Chicago and write a book about his life He also took a position teaching
CONSTITUTIONAL LAWat the University of Chicago
1961 Born,
Honolulu, Hawaii
2001 September 11 terrorist attacks;
PATRIOT Act signed into law 1961–73
Vietnam War
2000 1975
1960
◆
1967 Family moved to Indonesia
1971 Obama returned to Hawaii
1979 Enrolled at Occidental College,
a liberal arts school
1981 Transferred
to Columbia University; earned B.A in 1983
1991 Graduated magna
cum laude from
Harvard Law School;
first African American president of the
Harvard Law Review
1995 Published Dreams from My Father, a memoir
1996–2004 Served
in Illinois Senate
2004 Elected to U.S Senate
◆ ◆ ◆
2006 The Audacity of
Hope published
2007 Announced intent to run for president
2008 Won Democratic nomination; elected
44 th president of the United States
◆ ◆
2009 Signed the Lilly Ledbetter Fair Pay Act; received Nobel Peace Prize
2003 U.S troops invaded Iraq
2009 Dreams named
Biography of the Year at the Galaxy British Book Awards
President Barack
Obama takes the
presidential oath of
office during his
inauguration
ceremony in
Washington D.C.
TIM SLOAN/AFP/GETTY
IMAGES
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
322 OBAMA, BARACK HUSSEIN, JR.
Trang 6Law School Soon the idealistic young attorney
became involved in politics
Obama was elected to the Illinois Senate in
1996, representing the Thirteenth District as a
Democrat His work there included writing
landmark legislation to stopRACIAL PROFILINGand
sponsoring a bill to expand medical coverage for
uninsured children He also developed a
reputation for an inclusive style that eschewed
mud-slinging and gained the admiration of his
opponents
In March 2004 Obama took his efforts to
connect with all kinds of people to the
Democratic primary for the U.S Senate His
message apparently resounded with voters, as he
won a surprising 53 percent of the vote,
including support from white blue-collar
work-ers Obama explained his appeal across
demo-graphic lines to Bob Herbert of the New York
Times While admitting there are differences
among people, Obama said there is also“a set of
core values that bind us together as Americans.”
His message continued to resonate with voters,
and Obama became only the third African
American U.S senator sinceRECONSTRUCTION
Obama continued to attract attention while
serving in the Senate, in no part due to his
charisma, drive, and desire to find common
ground with political opposites From
practi-cally the moment he entered the office, he was
asked if he would run for president in 2008
Obama did not commit right away, but served
his constituents and let all voters better
understand him and his philosophy with his
memoir Dreams from My Father (originally
published in 1995, but republished in 2004) and
his 2006 bestseller The Audacity of Hope
After announcing his candidacy for the
Democratic nomination for president in
Febru-ary 2007, Obama immediately began
campaign-ing in Iowa Though he was still relatively
unknown compared to HILLARY CLINTON and
John Edwards, Obama made inroads and his
campaign gained momentum throughout the
year and into primary and caucus season
Obama won the Iowa caucuses, and though he
lost in New Hampshire, he made steady gains
throughout January 2008 By February 2008,
Edwards had dropped out of the race, and
Obama continued to win key primaries and
caucuses over Clinton He did well on Super
Tuesday, then won at least ten straight
pri-succeeded on the fundraising front as well, averaging one million dollars in donations per day Whereas Obama had emerged as the frontrunner and was beating Clinton in the delegate count after February 19 primaries in Wisconsin and Hawaii, he had not yet sewn up the nomination and continued to campaign vigorously
In early June 2008 Obama clinched the Democratic nomination for president by secur-ing more than the 2,118 delegates needed, becoming the first African American candidate
to lead a major party ticket As his running mate, Obama chose Senator Joe Biden of Delaware, a leading authority on foreign policy
The Obama/Biden team billed themselves as
“Change We Need,” while their Republican opponents, Senator John McCain and Governor Sarah Palin of Alaska, presented themselves as proven“mavericks” who could more effectively bring change to Washington
In addition to engaging McCain in a series
of debates, Obama addressed the nation in a half-hour infomercial on October 29, 2008
Playing on seven networks, the program had more than thirty-three million viewers, which was larger than that of the final game of the World Series This exposure provided an opportunity for Obama to lay out his agenda
Barack Obama.
COURTESY OF THE WHITE HOUSE
C HANGE WILL NOT COME IF WE WAIT FOR SOME OTHER PERSON
OR SOME OTHER TIME W E ARE THE ONES WE ’ VE BEEN WAITING FOR W E ARE THE CHANGE THAT WE SEEK
—B ARACK O BAMA
OBAMA, BARACK HUSSEIN, JR 323
Trang 7become familiar with a candidate, painted by his opponents as an inexperienced radical who was quite possibly dangerous He made his case effectively, and on November 4, 2008, Obama decisively defeated McCain to become the president of the United States He was inaugu-rated on January 20, 2009
On the campaign trail, Obama supported a foreign policy based on mutual respect and understanding, and observers around the world hoped that the United States would move away from the unilateral foreign policies of the
GEORGE W BUSH administration, which many perceived as riding roughshod over the wishes
of allies and the sovereignty of enemies At home, Obama was seen as a personification of the American dream, in which any child, regardless of his or her circumstances, can grow
up to become president by means of ability and hard work
Though as a candidate Obama capitalized
on having voted against the U.S invasion of Iraq, once he took office the national economy was the most pressing issue Obama signed a
$787 billion spending plan intended to stimu-late the U.S economy, and he announced a
$500,000 salary limit on top executives from companies that had requested federal bailouts
He also introduced a $75 billion plan that he said would help as many as 9 million Americans with mortgage problems Automakers General Motors and Chrysler spiraled into BANKRUPTCY Obama forced the resignation of GM chief executive Rick Wagoner as part of the federal government’s auto bailout
Obama also placed high priority on passing
a health reform initiative During the summer
2009, he pressed Congress to pass a massive bill that would overhaul the health care system in the United States Although Congress did not act during the summer, Obama continued to advocate for the bill, which included an option
to allow for public health insurance Conserva-tives rallied against the bill, leading Obama in September 2009 to speak before a joint session
of Congress to address concerns over the proposal
In other domestic matters, Obama signed his first bill, the equal-pay Lilly Ledbetter Fair Pay Act He also signed a measure intended to curb excessive fees by credit-card companies
He made news with his commencement address
at the University of Notre Dame, amid
protesters at the Catholic school who opposed his pro-abortion stance In addition, he ex-tended health insurance benefits to low-income children Elsewhere, his book, Dreams from My Father: A Story of Race and Inheritance won the Biography of the Year prize at the Galaxy British Book Awards
On the international front, Obama pledged
to end combat in Iraq by August 31, 2010 However, he announced an increase in troops
in Afghanistan in an effort to provide stability to that region The Obama administration was also faced with the continued nuclear threat posed
by Iran
In March 2009 Obama made his first judicial appointment, nominating U.S District Judge David F Hamilton to the U.S Court of Appeals for the 7th Circuit Two months later, he made his first Supreme Court choice, nominating federal appellate Judge SONIA SOTOMAYOR, 54, who in August 2009 became first Hispanic U.S Supreme Court justice and the third woman to serve on the high court Obama, in a statement quoted on the CNN.com Web site, called Sotomayor “an inspiring woman who I believe will make a great justice.”
Obama is the author of two books: Dreams from My Father: A Story of Race and Inheritance and The Audacity of Hope He has won numerous awards, the most prestigious of which was the Nobel Peace Prize in 2009 Obama is the fourth U.S president to receive this award
Obama married Michelle LeVaughn Robin-son in October 1992 The couple have two daughters: Malia Ann (born 1998) and Natasha (called Sasha, born 2001)
FURTHER READINGS Manheim, James M 2005 Contemporary Black Biographies Farmington Hills, Mich.: Thomson Gale.
Obama, Barack H., Jr 1995 Dreams from My Father: A Story
of Race and Inheritance New York: Times Books Olive, David, ed An American Story: The Speeches of Barack Obama Toronto, Ontario: ECW Press.
Wolffe, Richard 2008 “Inside Obama’s Dream Machine.” Newsweek January 14, 30.
OBITER DICTUM
[Latin, By the way.] Words of an opinion entirely unnecessary for the decision of the case A remark made or opinion expressed by a judge in a decision upon a cause, “by the way,” that is, incidentally or collaterally, and not directly upon the question
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
324 OBITER DICTUM
Trang 8before the court or upon a point not necessarily
involved in the determination of the cause, or
introduced by way of illustration, or analogy or
argument Such are not binding as precedent
CROSS REFERENCE
Court Opinion.
OBJECT
As a verb, to take exception to something; to
declare or express the belief that something is
improper or illegal
As a noun, the thing sought to be
accom-plished or attained; aim; purpose; intention
One might, for example, object to the
admission of particular evidence at a trial
The object of a civil suit, for example, might
be to be compensated in the form of damages
for an injury incurred
OBJECTION
A formal attestation or declaration of disapproval
concerning a specific point of law or procedure
during the course of a trial; a statement indicating
disagreement with a judge’s ruling
Some laws provide that an appeal to a
higher tribunal can be based only upon errors
objected to during the course of a trial
conducted in a lower court An error that
initially slips by without any objection by the
party’s counsel cannot subsequently be set forth
as a reason for the appeals court to overturn
the original decision in a particular case The
making of objections inOPEN COURT during the
course of a proceeding is important so that on
appeal, the appellate court can evaluate the
record of the lower court action
The FEDERAL RULES OF EVIDENCE, the Federal
Rules ofCIVIL PROCEDURE, and the Federal Rules
of Criminal Procedure govern the making of
objections in federal actions Comparable state
provisions apply to state proceedings
When an attorney makes a court objection,
the judge then makes a ruling of either sustained
or overruled If the objection is sustained, the
judge agrees with the objection and disallows
the question, testimony, or evidence If an
objection is overruled, the judge disagrees with
the objection and allows the question,
testi-mony, or evidence An attorney may choose to
rephrase a question that has been objected to, as
reasons a judge may object, including ambiguity (not phrasing a clear question), HEARSAY (the answer would be what someone told the witness rather than what he/she knew first-hand), leading (putting words in the mouth of one’s own witness), and calls for a conclusion (asking for one’s opinion, not facts) An objection may also be raised against a judge’s ruling, in order to preserve the right to appeal the ruling
CROSS REFERENCE Civil Procedure; Evidence.
OBJECTIVE THEORY OF CONTRACT
A principle in U.S law that the existence of a contract is determined by the legal significance of the external acts of the parties to a purported agreement, rather than by the actual intent of the parties
According to the subjective theory of con-tracts, a binding legal agreement is formed by two parties only when both parties understand the agreement to embody the same thing Under this theory, then, if one party agrees to sell the other party a black horse for $1,000, but upon delivery of the horse, the buyer tells the seller that
he thought he was buying a white horse, the contract would not be enforceable Under the objective theory of contracts, the express terms of the parties’ agreement, whether written or oral, would determine the enforceability of the con-tract, and thus if the seller expressed in words or
in print an offer to sell a white horse for $1,000, and the buyer manifested acceptance of that offer, then the parties entered a legally binding contract that would be enforceable by the courts
The nineteenth century began with most American courts applying a subjective theory of contract law, but ended with most American courts applying an objective theory of contract law Two men were largely responsible for this transformation of theCOMMON LAW,CHRISTOPHER COLUMBUS LANGDELLand Oliver Wendell Holmes
Langdell, a respected legal scholar and law professor at Harvard Law School, began advo-cating for the development of an objective theory of contracts in the 1870s, while Holmes expanded on Langdell’s insights in Holmes’
groundbreaking 1881 book, The Common Law
Businesses expect contract law to be reliable and predictable, Langdell and Holmes observed, and yet there is nothing reliable or predictable about making contracts enforceable only when
OBJECTIVE THEORY OF CONTRACT 325
Trang 9proven to be the same Instead, Langdell and Holmes argued, contracting parties must be held to their observable behavior and their formally expressed words If two parties reach agreement on the terms of a business deal, then courts should not expend resources attempting
to discern their private intentions By the early twentieth century, the objective theory of contracts had been widely accepted in the United States SAMUEL WILLISTON incorporated the objective theory of contacts in his popular treatise The Law of Contracts In 1911 Judge Learned Hand of New York summarized the objective theory of contracts as follows (Hotch-kiss v National City Bank, 200 F 287 [S.D.N.Y
1911]):
A contract has, strictly speaking, nothing to
do with the personal, or individual, intent of the parties A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent If, however, it were proved by twenty bishops that either party when he used the words intended something else than the usual meaning which the law imposes on them, he would still be held [liable].
In applying the objective theory of tracts, American courts often review the con-tract from the perspective of an ordinary, reasonable person For example, party A owns
an automobile valued at $20,000 His neighbor, party B, asks party A for a price at which party A would be willing to sell the car Party A, who has no intention of selling the car, and who knows that party B cannot afford to pay
$20,000, says “I’d sell it to you for $1,000.”
Party B replies,“OK, it’s a deal.” Party A states that his offer was not serious, and that he never intended to sell the car for that amount of money Nevertheless, a court could find that parties A and B had entered into a binding agreement—selling the car for $1,000—if a reasonable person in party B’s position would have believed that party A intended to enter into such an agreement However, if party A were to tell party B that he would sell the car for $5, then a court may be more likely to find that a reasonable person would not have believed that party A intended to be bound Under a subjective theory of contract, party A could dispute the formation of a contract by intro-ducing evidence that he did not actually intend
to be bound by his statement (of either the
$1,000 or the $5 sales price)
Although the objective theory of contracts applies in virtually all jurisdictions in the United States, some aspects of subjectivity are never-theless present in American law For instance, many of the grounds by which a party or parties may avoid a contract, such asFRAUDor duress, are based upon the subjective beliefs or intentions of the parties Likewise, if the two parties testify that they did not agree to be bound by an agreement due toMUTUAL MISTAKE, then a court will not recognize the agreement as enforceable The court would similarly refuse to find the existence of a contract if one party did not intend to be bound, and the other party knew, or should have known, that the first party did not intend to enter into a binding agreement
Courts may also review the subjective or actual behavior of parties when the manner of communicating acceptance of an offer is ambiguous For example, in 2002 a court ruled that the plaintiffs had not entered into an agreement to arbitrate simply by clicking“Yes”
to download the defendant’s software from the Internet, despite the fact that the license agreement that accompanied the “Yes” click provided for mandatory ARBITRATION Specht v Netscape Communications Corp., 306 F.3d 17 (2d Cir 2002) The plaintiffs could not have reasonably been expected to read the license agreement, the court reasoned, and merely clicking “Yes” to download the software did not signify ASSENT to the terms of the license agreement Under California’s objective theory
of assent, the court emphasized, apparent assent
to an offer will not operate as assent to inconspicuous contractual terms
FURTHER READINGS Barnes, Wayne 2008 “The Objective Theory of Contracts.” University of Cincinnati Law Review 76 (Summer) Farnsworth, E Allan 1999 Contracts New York: Aspen Law
& Business.
Perillo, Joseph M 2000 “The Origins of the Objective Theory of Contract Formation and Interpretation ” Fordham Law Review 69 (November).
CROSS REFERENCES Contracts; Common Law; Hand, Learned; Holmes, Oliver Wendell; Langdell, Christopher Columbus.
OBLIGATION
A generic term for any type of legal duty or liability
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
326 OBLIGATION
Trang 10In its original sense, the term obligation was
very technical in nature and applied to the
responsibility to pay money owed on certain
written documents that were executed under
seal Currently obligation is used in reference to
anything that an individual is required to do
because of a promise, vow, oath, contract, or
law It refers to a legal or moral duty that an
individual can be forced to perform or
penal-ized for neglecting to perform
An absolute obligation is one for which no
legal alternative exists since it is an
uncondi-tional duty
A contractual obligation arises as a result of
an enforceable promise, agreement, or contract
An express obligation is spelled out in direct
and actual terms of a document, while an
implied obligation is inferred indirectly from the
surrounding circumstances or from the actions
of the individuals involved
A joint obligation is one that binds two or
more people to fulfill whatever is required, and
a several obligation requires each of two or more
individuals to fulfill the obligation in its entirety
by himself or herself
A moral obligation is binding upon the
conscience and is fair but is not necessarily
enforceable in law
A primary obligation is one that must be
performed, since it is the main purpose of the
contract that contains it, whereas a secondary
obligation is only incidental to another principal
duty or arises only in the event that the main
obligation cannot be fulfilled
A penal obligation is a penalty, such as the
obligation to pay extra money if the terms
or conditions of an agreement cannot be
satisfied
OBLIGEE
The individual to whom a particular duty or
obligation is owed
The obligation might be to pay a debt or
involve the performance or nonperformance of
a particular act
The term obligee is often used synonymously
with creditor
OBLIGOR
The individual who owes another person a certain
The term obligor is often used interchange-ably with debtor
OBLITERATION
A destruction; an eradication of written words
Obliteration is a method of revoking a will
or a clause therein Lines drawn through the signatures of witnesses to a will constitute an obliteration of the will even if the names are still decipherable The testator’s act must clearly indicate an intention to obliterate the word, clause, paragraph, or section so that it no longer constitutes a part of the will
Notwithstanding the fact that a will is written in ink, it may be effectively canceled
or obliterated in pencil Consequently, the testator’s act in drawing a line or lines in pencil through a particular word or clause or operative portion of a will constitutes a cancellation of the will Running a line through a testator’s signature at the end of a will is an act of obliteration that justifies the conclusion that the testator intended to revoke the will in its entirety and it will be so treated
OBSCENE
Offensive to recognized standards of decency
The term obscene is applied to written, verbal, or visual works or conduct that treat sex in an objectionable or lewd or lascivious manner Although theFIRST AMENDMENT guaran-tees freedom of expression, such constitutional protection is not extended to obscene works
To determine whether a work is obscene, the trier of fact applies the three-pronged guide-lines established by the U.S Supreme Court in
MILLER V.CALIFORNIA, 413 U.S 15, 93 S Ct 2607,
37 L Ed 2d 419 (1973):
(a) whether the “average person, applying contemporary community standards ” would find that the work depicting or describing sexual conduct when taken as a whole, appeals to the prurient interest , (b) whether the work depicts or describes, in a patently offensive way, sexual conduct spe-cifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
CROSS REFERENCES
OBSCENE 327