Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P26 ppt

history of retaliatory actions. This hindrance stood in stark contrast to the countries’ cultural similarities and cooperation in other areas. They had been allies in both world wars, and both remained key members of the NORTH ATLANTIC TREATY ORGANIZATION (NATO). But war is an unusual circumstance; military allies can still be less than friendly in trade. Then, the second half of the twentieth century unexpect- edly changed everything—domestic industrial decline, brought on by a rise in international competition, toppled the United States from a position of preeminence and made Canada more important to its plans for long-range prosperity. Canada underwent a great change in i ts historically isolationist outlook as it, too, suffered economically. The 1984 election of a conservative Canadian government, led by Prime Minister Brian Mulroney, was a water- shed event. Mulroney’s victory was based on promises of opening U.S. markets to Canadian business. Both sides wanted to remove the barriers of high tariffs, antidumping fees, and countervailing duties (forms of protectionism that limited the expansion of each nation’s markets) in order to create new jobs and wealth. On January 2, 1988, negotiations between the administrations of President RONALD REAGAN and Prime Minister Mulroney resulted in the signing of the FTA. In succeeding where previous generations had failed or not even tried, Reagan declared that the FTA woul d remove an “invisible barrier of economic SUSPICION and fear.” The pact had five broad goals: (1) eliminate barriers to trade in goods and services, (2) improve fair competition, (3) liberalize investment conditions, (4) establish procedures for a joint administration of the agreement, and (5) lay the foundation for future cooperation. The FTA also relaxed U.S. IMMI- GRATION rules for Canadians, allowing freer travel across the border for businesspersons. On the administrative level, it created a temporary body for resolving disputes, the binational Extraordinary Challenge Committee, which was given a seven-year commission to hear appeals. Not surprisingly, this issue had been the most troublesome during the negotia- tions preceding the FTA; it proved slightly problematic in practice, too, with the United States generally losing its complaints. None- theless, the FTA was seen as a boon for U.S. business as a whole, removing Canadian restrictions that had long been a sore point and emphasizing the resolution of disputes outside courtrooms. The FTA’s success laid the groundwork for an even more ambitious trade agreement among the United States, Canada, and Mexico, the much-anticipated NAFTA, enacted in 1993. NAFTA’s changes were to be phased in over 15 years, and its purpose is to liberalize trade between the three countries in hopes of emu- lating the economic cooperation long enjoyed by European nations. In practice, its broad aims have proved highly controversial. Figures suggest that NAFTA has been an unqualified success in expanding trade among the United States, Canada, and Mexico. The United States has nearly doubled its trade to its NAFTA partners since the agreement was signed. As for Canada, its export s to its NAFTA partners since the implementation of NAFTA increased 95 percent, from $117 billion to $229 billion. NAFTA has not resolved all trade issues between the United States and Can ada. One good example is a recent dispute over softwood lumber. U.S. lumber producers claim Canadian softwood lumber is subsidized by Canada illegally and that companies sell at prices below the cost of production. Because of these complaints, the United States placed a TARIFF of up to 29 percent on Canadian softwood lumber exports. The results have costs jobs in Canada and driven up home building prices in the United States. Relationships between the United States and Canada are not only about trade. Particularly in the days since September 11, 2001, they have been about security issues as well. After the attacks on the United States, many Americans expressed concern about what they viewed as the lax security and border enforcement on the Canadian side. At the same time, Americans recognized the immediate assistance that Canada provided the United States during the post-attack period when the area of the continental states constituted a no-fly zone, and many planes were rerouted to Canadian airports. In response to those concerns, the Canadian and United States governments signed a “smart border” accord in December 2001. The accord featured an action plan with 30 points designed to secure the cross-border flow of goods and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 238 CANADA AND THE UNITED STATES people, protect infrastructure, and improve information-sharing and coordination to en- hance these objectives. Among other items, the accord included development of a system for pre-approving goods, factories, carriers, drivers, and trucks for electronic pass-through clearance at border checkpoints. While the accord has not succeeded in quieting all security complaints from the United States, it has helped to improve relations. Later, the Western Hemisphere Travel Initiative (WHTI) was enacted by Congress as part of the Intelligence Reform and TERRORISM Prevention Act of 2004. Its primary purpose was to strengthen border security and yet facilitate legal entry into the United States for citizens and legitimate international visitors. WHTI directives, requiring U.S. citizens to have pass- ports when entering the United States from Canada, Mexico, and the Caribbean by air, became effective in January 2007, although implementation was later delayed for several months. Security is not the only concern regarding cross border traffic. In mid-2003 Canada was considering the decriminalization of marijuana, which caused Amer ican law officials to worry about whether the drug trade would increase as a result on the Canadian side of the border. Then-U.S. Drug czar John Walters warned that Canadian laxity on marijuana could lead to tighter control being placed on the cross-border flow of people and goods. Global warming has also re-ignited SOVER- EIGNTY issues involving the Northwest Passage, an area water route from the Atlantic to Pacific oceans through a string of northern Canadian islands. At one time, it was not a commercially viable route because of Arctic freezing and impassable routes. However, global climate changes have resulted in a rapidly melt ing polar ice cap, thus encouraging international shipping routes. Canada has asserted sovereignty over the area, while the United States has taken the position that the Northwest Passage, though owned by Canada, is an international strait with free passage for all, like other straits. There have been other tensions over the Canadian government’s refusal to support the war in Iraq. Despite these problems, however, it seems clear that Canada and the United States have more common interests than disputes. At the beginning of the twenty-first century, Canada and the United States continued the economic integration that NAFTA put on the fast track, and they seemed likely in the future to become more interdependent than ever. FURTHER READINGS “Dispute Resolution under Chapter 19 of the United States– Canada Free-Trade Agreement: Did the Parties Get What They Bargained For?” 1995. Stanford Journal of International Law (winter). “The Effect of the United States–Canada Free Trade Agreement upon United States Immigration Law.” 1988. Practicing Law Institute (October 1). “From Customary Law to Environmental Assessment: A New Approach to Avoiding Transboundary Environ- mental Damage between Canada and the United States.” 1995. Boston College Environmental Affairs Law Review (winter). McKenna, Barrie. February 3, 2003. “Canada Turns on the Charm to Woo the U.S. ” The Globe and Mail. “The North American Experience Managing Transboundary Water Resources: The International Joint Commission and the International Boundary and Water Commis- sion.” 1993. Natural Resources Journal (spring). Rae, Robert K. 2000. “The Politics of Cross Border Dispute Resolution.” Canada United States Law Journal. Thomas, David, and Barbara Boyle Torrey. 2007. Canada and the United States: Differences that Count. 3d ed. Aurora, Canada: Garamond Press. “United States–Canadian Free Trade: Economic Repercus- sions of the CFTA and NAFTA on the United States, Canada, and the Great Lakes Region.” Great Lakes Symposium 1994. University of Toledo Law Review. Zorzetto, Alicia. 2006. “Canadian Sovereignty at the Northwest Passage.” ICE Case Studies, Number 185, May 2006. Text available online at http://www.american. edu/ted/ice/northwest-passage.htm; website home page: http://www.american.edu/ted/ice (accessed August 5, 2009). CROSS REFERENCES General Agreement on Tariffs and Trade; North Atlantic Treaty Organization; Sovereignty. CANALS Artificial channels for the conveyance of water, used for navigation, transportation, drainage, or irrigation of land. As a general rule, states supervise the construction and operation of canals by private canal companies. The site of the canal is selected by the state. State law determines the manner of acquiring property used for construction or maintenance of canals. Condemnation or ap- propriation and contract or grant are the usual methods of acquisition. Additional methods include accretion—the gradual accumulation of land by natural causes—and dedication—the gift of land to the government by its owner for public use. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANALS 239 The state has authority to supervise the construction of bridges over public canals. A city may build bridges over canals within its limits, but it cannot interfere with one con- structed and managed by the state on its own property. State law can confer the power to charge tolls for use of a canal. Rates can be neither discriminatory nor in excess of the amount authorized by la w. CANCELLATION OF AN INSTRUMENT An equitable remedy by which a court relieves both parties to a legal document of their obligations under it due to fraud, duress, or other grounds. Cancellation is a term often used inter- changeably with RESCISSION, but whereas only a document can be canceled, any agreement— whether oral or written—can be rescinded. Cancellation is distinguishable from reforma- tion, which is an action by a court to enforce a document after its terms have been reframed in accordance with the intent of the parties, in that cancellation abrogates the duties of the parties under the instrument. Any instrument by which two or more parties agree to exchange designated perfor- mances, such as a contract, deed, lease, insur- ance policy, COMMERCIAL PAPER,oraMORTGAGE, may be canceled if the circumstances of the case warrant it. The judicial remedy of the cancellation of an instrument is granted by a court in its sound discretion exercising its EQUITY powers to do justice. If it is apparent that no injustice will result from restoring both parties to the positions they had prior to the execution of the instrument, an instrument may be SET ASIDE. If the party seeking the canc ellation has an ADEQUATE REMEDY AT LAW, for example, and can recover damages that will give complete relief, cancellation will be denied. It is available, however, if the DEFENDANT is judgment-proof or financially unable to pay damages awarded against him or her. Statutes, too, may provide this EQUITABLE REMEDY as concurrent relief, in addition to damages, in particular cases. The UNIFORM COMMERCIAL CODE permits merchants in sales transactions to seek the cancellation of a contract, in addition to an award of damages in a breach of contract suit. A PLAINTIFF is entitled to have an instrument canceled only if he or she has acted equitably in dealings with the defendant. The principles of equity apply to any case in which this equitable remedy is sought. Grounds The cancellation of an instrument must be based upon appropriate grounds, the gist of which makes the enforcement of the instrument inequitable. Such grounds must be proven by a preponderance of the evidence presented in the CIVIL ACTION. A term of a document may provide for its cancellation, and courts will usually act accordingly when the facts warrant it. The setting aside of an instrument that appears to record the agreem ent of the parties to it is considered a significant INTERVENTION by a court, which will not be done for a trivial reason or merely because of a change of mind by one party. The primary grounds for cancellation involve the validity of the instrument itself and the agreement that it embodies. Duress An instrument that was obtained by DURESS, the use of THREATS or physical harm to compel one party to enter an agreement that he or she would not have made otherwise, can be canceled at the request of the victimized party. If duress was present at the time the contract was entered, the agreement of the parties is a sham, as the victim was forced to act against his or her will. It would be inequitable for a court to enforce such an agreement. Fraud An instrument may be set aside if it was induced by fraud—an intentional deception of another—to gain an advantage over him or her. To justify cancellation, it must be clearly established that the representations made to the victim were untrue and of such a material nature that without them the victim would not A ship travels through the Gatun Locks of the Panama Canal. Completed in 1914, the Panama Canal connects the Atlantic and Pacific oceans. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 240 CANCELLATION OF AN INSTRUMENT have agreed to the transaction. In addition, it must be shown that such statements were made intentionally to defraud the victim and that the statements were relied upon by him or her in the decision to enter the agreement. FRAUD vitiates an agreement, which makes it unjust to enforce a document embodying its terms. If, however, a material MISREPRESENTATION is made innocently by one party, the victim is still entitled to have the instrument set aside, as it does not reflect the mutual assent of the parties. Mental Incapacity If an agreement has been made by one party who, at the time of its execution, was mentally incapable of under- standing the nature of the transaction, it may be canceled at the request of the victim or the victim’s LEGAL REPRESENTATIVE. This is particularly true when the other party has taken advantage of the victim’s incompetence in drawing the terms of the agreement. Courts frequently cancel an instrument entered by a person so intoxicated at the time of executing the document that he or she does not comprehend its legal ramifications. Cancel- lation is justified particularly when the INTOXI- CATION is brought about by the other party in order to deceive the victim about the nature of their agreement. Mistake When the parties have both made a mutual MISTAKE OF FACT concerning the agree- ment entered, an instrument may be canceled, since there is no real agreement between them. If a unilateral mistake exists, that is, a mistake by one party, a court may set aside the document and restore the parties to their position prior to its execution. In order to justify cancellation, a mistake must be material and involve a significant part of the agreement without which the contract would not have been entered into. If the mistake is the result of the carele ssness of one or both parties, a court may deny a request for cancellation. Undue Influence UNDUE INFLUENCE, which is the unfair use of pressure on the will of another to gain an advantage over him or her, is a ground for the cancellation of an instrument because one party’s will is so overcome by pressure that the person is effectively deprived of freedom of choice. Undue influence is usually established when there is a confidential rela- tionship between the parties and one of them has a greater bargaining power or influence on the other. Forgery or Alteration The cancellation of an instrument is justified when it has been forged. Moreover, if an instrument has been materially altered without the consent or knowledge of the party against whom the change is effective, the instrument may be set aside. Preclusion of Relief A person seeking the equitable relief of the cancellation of an instrument might be preclud- ed from it by WAIVER or ESTOPPEL. The right to such relief may be waived or relinquished by a plaintiff’s conduct, such as by failing to pursue a remedy within a REASONABLE TIME from the execution of the document, a form of LACHES. The doctrine of equitable estoppel—by which a person is precluded by conduct from asserting his or her rights because another has relied on that conduct and will be injured if the reli ef is not precluded—may also operate in a case in which cancellation of an instrument is sought. The ratification of a document by a party prevents its subsequent ABROGATION. If a party knowingly affirms or ratifies an instrument— whether by stating so, or by using the property received under it—he or she is precluded from having it set aside. FURTHER READINGS Ames, James Barr, Lymna Denison, and Joseph Doddrige Brannan. 2009. The Negotiable Instruments Law. Charleston, SC: BiblioBazaar. Nickles, Steve H., and Mary Beth Matthews. 2005. Payments Law in a Nutshell. Eagan, MN: West. Ruff, Anne. 2003. Contract Law (Nutcases). 5th ed. London: Sweet and Maxwell. CROSS REFERENCES Duress; Fraud; Sham. CANON LAW Any church’s or religion’s laws, rules, and regula- tions; more commonly, the written policies that guide the administration and religious ceremonies of the Roman Catholic Church. Since the fourth century, the Roman Catholic Church has been developing regula- tions that have had some influence on secular (non-church-related) legal procedures. These regulations are called canons and are codified in the Code of Canon Law (in Latin, Codex juris canonici). The law of England, which inspired much of the law formed in the United States, was a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANON LAW 241 mixture of canon law and COMMON LAW (principles and rules of action embodied in CASE LAW rather than legislative enactments). Canon law and English common law borrowed heavily from each other throughout medieval times and together formed the basis for many of the legal procedures used in the United States. For example, canon law’s influence is still visible in the concepts of the GRAND JURY , PRESENTMENT (a description of a criminal offense that is based on the jury’sown knowledge), and some characteristics of U.S. marriage law. Canon law has its origins in ancient church writings, decisions made by the general councils of local bishops, and rulings issued by the pope. These ideas were organized in the mid–twelfth century by an Italian law teacher, Gratian. He sorted the collection into religious law, penal law, sacramental law, and other categories. Along with a set of decisions by the pope called Decretals of Gregory IX, Gratian’s work formed the main body of canon law for nearly eight hundred years. In 1917 Pope Benedict XV recodified (revised) the canons. Pope John Paul II reissued the Code of Canon Law in 1983— authorizing increased participation of laity in the church, recognizing the needs of disabled people, and making other changes. A related text, the Code of Canons of the Eastern Churches, was reissued by the Holy See (the seat of papal governme nt) in 1990. In the Middle Ages, canon law was used in ECCLESIASTICAL COURTS (church) to decide many types of cases that in modern times are decided by civil courts, including criminal offenses. This was because most English Christians did not make a great distinction between secular and spiritual offenses. CRIMES that were tried by the church included ADULTERY, BLASPHEMY, slander, heresy (opposition to official religious views), money lending, and gambling. From the late fourteenth to the early sixte enth centuries church courts also heard many breach-of-faith cases concerning contracts, as well as inher i- tance and marriage-related cases. Criminal trial procedures in medieval church courts were the source of some features that found their way into common law. Although WITNESSES were considered the best source of proof of a crime under canon law, suspected offenders could also be tried because of public fame ( SUSPICION in the community that they had committed a crime). An INQUEST made up of twelve men—a forerunner of royal courts’ grand juries—said under OATH whether public suspicion existed. If none did, the n a judge had no authority to proceed. After establishing public fame, the court’s next step was canonical purgation, in which the accused person swore an oath that she or he was INNOCENT. Proof of innocence was accomplished by compurgation, in which several oath helpers would swear that they believed the oath was true. People who objected to the purgation of an accused person had the chance to prove their accusation of guilt. The use of canon law in governmental decisions is not well documented. In the early fifteenth century, commissions of the English Parliament made use of canonical procedures and canon law experts to decide issues involving laws of war, diplomacy, and other questions. For example, Parliament’s JUSTIFICATION for deposing King Richard II seems to have been based on papal bulls (decrees). In modern times, the creation, INTERPRETA- TION , and use of the canons closely resemble those of secular law. The Episcopal Conference of Local Bishops and the National Conference of Catholic Bishops are voting bodies that set policy for the church. When policy has been codified, it is used by judges in Catholic tribunals in determining whether certain prac- tices or requests are acceptable according to the canons. (Catholic tribunals make up the Church’s own court system, which interprets canonical policy to resolv e questions of church practice.) Case law (previous rulings) is pub- lished in Roman Replies and has precedential value. Judges may also request assistance from the CANON LAW SOCIETY OF AMERICA, a research organization, in interpreting the canons. Catholics who appear before a tribunal may consult canon lawyers, who are not usually secular lawyers. A canon lawyer typically completes at least two years’ worth of course work in the canons. North American canon lawyers receive their degree in canon law from one of two institutions: the Catholic University of America, in Washington, D.C., or St. Paul University, in Ottawa, Ontario, Canada. By the end of the twentieth century secular law had eclipsed canon law in most aspects of public life. Interbody disagreements within the church are now often handled administratively rather than by a tribunal, but within the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 242 CANON LAW confines of canon law. However, the tribunal is still the only place where Catholics can secure a marriage ANNULMENT, and each diocese must maintain a tribunal for this purpose. Divorced Catholics who have been denied an annulment can appeal as far as the Sacred Roman Rota, whose international membership is selected by the pope. In the 1990s, some dioceses—notably the Archdiocese of Denver—have sought to reduce involvement by civil courts in church disputes by creating dispute resolution mechanisms and other internal mechanisms that make use of the written policies of canon law. FURTHER READINGS Beal, John P., James A. Coriden, and Thomas J. Green, eds. 2002 New Commentary on the Code of Canon Law. New York: Paulist. Buelt, Edward L., and Charles Goldberg. 1995. “Canon Law and Civil Law Interface: Diocesan Corporations.” Catholic Lawyer 36. Donahue, Charles, Jr. 1992. “Ius Commune, Canon Law, and Common Law in England.” Tulane Law Review 66 (June). Gerosa, Libero. 2002. Canon Law. London, New York: Continuum. Helmholz, R.H. 1983. “The Early History of the Grand Jury and the Canon Law.” Univ. of Chicago Law Review 50 (spring). CANON LAW SOCIETY OF AMERICA The Canon Law Society of America is a nonprofit research association of canon lawyers that helps the Roman Catholic Church to address contemporary issues and internal con- flicts within the framework of the church’s system of CANON LAW. The society drafts opinions on topics at the request of bishops and other persons within the church. Canon law is the set of rules a church or RELIGION establishes for itself in order to make administrative and ecclesiastical (religious) decisions. The Roman Catholic Church has an elaborate body of canon law that has been evolving since the fourth century and which has played a historical role in the development of PUBLIC LAW. The Canon Law Society of America helps Catholic decision makers, especially bishops and tribunal judges, to evaluate and set policy. The church’s tribunal courts were the model for secular court systems and operate similarly. Tribunal judges decide cases such as marriage annulments based on the facts of each case. When a tribunal judge wants more information before ruling on an unusual or difficult case the judge may request research or an ADVISORY OPINION from the Can on Law Society. The society’s written opinions are advisory only and carry no authority in the church. However, the society’s position has influenced the church’s stand on such controversial topics as whether females may serve as altar attendants (now they may). Other issues addressed by the society in the 1990s include questions about the scope of ordained ministers’ duties, the role of lay ministers, and how Mass should be celebrated. Another activity of the society is to promote the use of codes of canon law issued by the Vatican (the seat of Roman Catholic adminis- tration) in 1983 and 1990. Periodicals produced by the so ciety include the Canon Law Digest; Proceedings, which recaps the society’s annual meeting; and Roman Replies and CLSA Advisory Opinions, which tracks tribunal CASE LAW. The society also has published studies on marriage ANNULMENT, confidentiality, and due process for persons in the church, a procedural handbook for the clergy, and other materials. Established in 1939 and based at the Catholic University of America, in W ashin g- ton, D.C., the society is supported by annual membership dues. In 1995 it consisted of 1,550 members internationally. Membership is open to non-Catholics. Institutions and interested individuals may join as associate members. FURTHER READINGS Canon Law Society of America+B2542 Web site. Available online at http://www.clsa.org (accessed July 11, 2009). Cunningham, Richard G. 1982. Annotated Bibliography of the Work of the Canon Law Society of America, 1965– 1980. Washington, D.C.: Canon Law Society of America. Green, Thomas J. 1993. “The Canon Law Society of America and the Revision of the Code: Historical Reflections and Continuing Concerns.” The Jurist 53 (winter). CANONS OF CONSTRUCTION The system of basic rules and maxims applied by a court to aid in its interpretation of a written document, such as a statute or contract. In the case of a statute, certain canons of construction can help a court ascertain what the drafters of the statute—usually Congress or a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANONS OF CONSTRUCTION 243 state legislature—meant by the language used in the law. When a dispute involves a contract, a court will apply other canons of INTERPRETATION, or construction, to help determine what the parties to the agreement intended at the time they made the contract. Statutory Construction When considering a statute, a court will apply rules of construction only when the language contained in the statute is ambiguous. Under the “plain-meaning” rule, if the intention of the legislature is “so apparent from the face of the statute that there can be no question as to its meaning, there is no need for the court to apply canons of construction” (Overseas Education Ass’n v. Federal Labor Relations Authority, 876 F.2d 960 [D.C. Cir. 1989]). Thus, before even considering what canons to apply, the court must first determine whether the statute in question is ambiguous. Courts have generally held that a statute is ambiguous when reason- ably well-informed persons could understand the language in either of two or more senses (State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 [1964]). If a statute is found to be ambiguous, the court then applies a variety of canons, or rules, to help it determine the meanin g of the statute. Issues of statutory construction are generally decided by the judge and not by the jury. In interpreting statutes, a judge tries to ascertain the intent of the l egislature in enacting the law. By looking to legislative in tent, the court attempts to carry out the will of the lawmaking branch of the government. This philosop hy has its origins in the English COMMON LAW first established over four hundred years ago. As the legal philosopher SIR EDWARD COKE wrote in 1584, “[T]heofficeofalljudgesisalwaysto make such construction as shall suppress the MISCHI EF , advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act” (Heydon’sCase,3Co. Rep. 7a, 76 Eng. Rep. 637 [King’s Bench 1584]). In more contemporary terms, courts con- sider the history and nature of the subject matter of the statute; the end to be attained by the law; the “mischief,” or wrong, sought to be remedied; and the purpose to be accom- plished by the law (Cro wder v. First Federal Savings & Loan Ass’n of Dallas, 567 S.W.2d 550, Tex. App. 1978). In determining legislative intent courts usually turn to a variety o f sources: the language of the statute itself; the LEGISLATIVE HISTORY of p rio r enactments o n a similar subject; the proceedings surrounding the passage of the law, including debates and committee reports; and, if they are available, interpretations of the law by administrative officials. To aid in the interp retation of an ambigu- ous law, a court may also look to more “intrinsic” rules not related to the activities preceding the passage of the statute. These rules are applied to help the court analyze the internal structure of the text and the conventional meanings of the terms used in the law. In addition, intrinsic rules may be used when the court has little or no existing legislative history, such as that provided by committee reports or records of other proceedings, to draw on in interpreting the statute. Some of these canons of construction are expressed in well-known Latin phrases or maxims. Under ejusdem generis (of the same kind, class, or nature), when general words follow specific words in a statute in which several items have been enumerated, the general words are construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words of the statute. Ejusdem generis saves the legislature from havi ng to spell out in advance every contingency to which the statute could apply. For example, in a statute granting a department of conservation the authority to sell “gravel, sand, earth or other material,” a court held that “other material” could only be interpreted to include materials of the same general type and did not include commercial timber (Sierra Club v. Kenney, 88 Ill. 2d 110, 57 Ill. Dec. 851, 429 N.E.2d 1214 [1981]). In the opposite situation, where specific words follow general ones, ejusdem generis is also applied; again, the general term embraces only things that are similar to those specifically enumerated. Another maxim of statutory construction is expressio unius est exclusio alterius. Roughly translated, this phrase means that whatever is omitted is understood to be excluded. Thus, if a statute provides for a specific SANCTION for noncompliance with the statute, other sanctions are excluded and cannot be applied (Sprague v. State, 590 P.2d 410 [Alaska 1979]). The maxim is based on the rationale that if the legislature had intended to accommodate a particular GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 244 CANONS OF CONSTRUCTION remedy or allowance, it would have done so expressly; if the legislature did not provide for such an allowance or event, it should be assumed that it meant not to. The maxim has wide application and has been used by courts to interpret constitutions, treaties, wills, and con- tracts as well as statutes. Nevertheless, expressio unius est exclusio alterius does have its limita- tions. Courts have held that the maxim should be disregarded in cases in which an expanded interpretation of a statute will lead to beneficial results or will serve the purpose for which the statute was enacted. Contract Construction Judges face different challenges when interpret- ing the terms of a contract. As a result, different canons exist to aid a court in resolving a dispute between the parties to a contract. As in statutory construction, in a contract dispute the court gives contract terms their plain and ordinary meaning, interpreting them as ordinary, average, or reasonable persons would understand them (Rains v. Becton, Dickinson & Co., 246 Neb. 746, 523 N.W.2d 506 [Neb. 1994]). If the language of the contract is clear and unambiguous, there is no room for further interpretation and the court will enforce the contract as written. By doing so, the court gives effect to the parties’ intentions in making the contract and avoids adding its own interpretation to the agreement. If the contract contains ambiguous terms, however, they are strictly construed against the party who drafted the contract. This rule of STRICT CONSTRUCTION is often applied in contracts containing exculpatory clauses, or provisions that attempt to insulate a party, usually the party who drafted the contract, from LIABILITY. Thus, when a clause in a contract between a health club and a member, in which the member waived her right to bring legal action for injuries she suffered at the health club, was held to be ambiguous, it was construed strictly against the health club and it was found to be invalid (Nimis v. St. Paul Turners, 521 N.W.2d 54 [ Minn. App. 1994]). A court may look to other canons of construction or interpretation if it determines that the terms of a contract are ambiguous. In business situations, the court may consider the COURSE OF DEALING or COURSE OF PERFORMANCE, that is, the pattern of conduct observed in previous transactions between the parties. Such evidence can help the court determine the intent of the parties at the time they entered the contract and provides additional terms that, though they are not expressly contained in the agreement, the court can use to interpret the contract. Thus, where one party to the contract alleges that the other breached the contract by failing to make payment in the proper manner, and the contract contains no express provisions concerning payment, the court can consider how the parties handled the issue of payment in previous transactions to resolve the issue (AROK Con- struction Co. v. Indian Construction Services, 174 Ariz. 291, 848 P.2d 870 [Ariz. App. 1993]). A court can also look to usage of trade to aid its interpretation of an ambiguous agreement. A usage of trade is a commercial practice or industry custom “having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observe d with respect to a particular agreement” (Re- statement [Second] of Contracts § 222 [1981]). As a result, if a contract is unclear about how shipment of a specific type of goods is to be handled, the court can consider evidence of general industry practice in the area to help determine what the parties intended with respect to shipment. FURTHER READINGS Brudney, James J., and Corey Ditslear. 2005. “Canons of Construction and the Elusive Quest for Neutral Reasoning.” Vanderbilt Law Review 58 (January). Avail- able online at http://law.vanderbilt.edu/publications/ vanderbilt-law-review/archive/volume-58-number-1- january-2005/index.aspx; website home page: http:// law.vanderbilt.edu (accessed August 29, 2009). Ruff, Anne. 2003. Contract Law (Nutcases). 5th ed. London: Sweet and Maxwell. Spiropoulos, Andrew C. 2001. “Making Laws Moral: A Defense of Substantive Canons of Construction.” Utah Law Review (fall). CROSS REFERENCES Course of Dealing; Course of Performance; Exculpate; Strict Construction; Trade Usage. CANONS OF ETHICS Rules that govern the practice of law. The canons of ethics have been replaced by the code of PROFESSIONAL RESPONSIBILITY, which sets forth the standards of professional conduct prescribed for la wyers in their professio nal dealings. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANONS OF ETHICS 245 CANONS OF JUDICIAL ETHICS See CODE OF JUDICIAL CONDUCT. CAPACITY The ability, capability, or fitness to do something; a legal right, power, or competency to perform some act. An ability to comprehend both the nature and consequences of one’s acts. Capacity relates to soundness of mind and to an intelligent understanding and perception of one’s actions. It is the power either to create or to enter into a legal relation under the same conditions or circumstances as a person of sound mind or normal intelligence would have the power to create or to enter. A person of normal intelligence and sound mind has the capacity to dispose of his or her property by will as he or she sees fit. A capacity defense is used in both criminal and civil actions to describe a lack of funda- mental ability to be accountable for one’s action that nullifies the element of intent when intent is essential to the action, thereby relieving a person of responsibility for it. An individual under DURESS lacks the capacity to contract; a child under the age of seven accused of committing a crime lacks criminal capacity. CAPIAS [Latin, That you take.] The name for several different kinds of writs, or court orders, all of which require an officer to take the defendant into custody. For example, a capias ad audiendum judi- cium is a WRIT that orders the DEFENDANT brought back before the court after an appearance in which the person has been found guilty of a MISDEMEANOR.Acapias ad satisfaciendum orders the sheriff to take the defendant into custody until a judgment is paid or a discharge is granted on the ground that the defendant is an insolvent debtor. This is a BODY EXECUTION. CAPITAL ASSET Property held by a taxpayer, such as houses, cars, stocks, bonds, and jewelry, or a building owned by a corporation to furnish facilities for its employees. Excluded from capital assets are certain items stated in the INTERNAL REVENUE CODE,for example (1) trade or business property subject to DEPRECIATION allowance under the tax laws; (2) real property used in trade or business; (3) certain categories of copyrighted materials and LITERARY PROPERTY; and (4) accounts or notes receivable acquired in the ordinary course of business. The determination of what constitutes a capital asse t is essential to the tax treatment of the profits from the sale of property as capital gains, which are taxed at a lower rate than ordinary income. CAPITAL PUNISHMENT Capital punishment is the lawful infliction of death as a punishment; the death penalty. Capital punishment continues to be used in the United States despite controversy sur- rounding its merits and its effectiveness as a deterrent to serious crime. A sentence of death may be carried out by one of five lawful means: electrocution, hanging , lethal injection, gas chamber, and firing squad. As of 2009, 36 states employed capital punishment as a sentence. In 2007 New Jersey became the first state in modern history to repeal the death penalty. New Mexico followed by repealing its death penalty statute in 2009. Other jurisdictions that do not allow the death penalty are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Ver- mont, West Virginia, and Wisconsin, as well as the District of Columbia. The first known inflicti on of the death penalty in the American colonies occurred in Jamestown Colony in 1608. During the period of the Revolutionary War, capital punishment apparently was widely accepted—162 documen- ted executions took place in the ei ghteenth century. At the end of the war, 11 colonies wrote new constitutions, and, although nine of them did not allow CRUEL AND UNUSUAL PUNISH- MENT , all authorized capital punishment. In 1790, the First Congress enacted legislation that implemented capital punishment for the CRIMES of ROBBERY, RAPE, MURDER, and FORGERY of public securities. The nineteenth century saw a dra- matic increase in the use of capital punishment with 1,391 documented executions. The death penalty continued as an acceptable practice in the United States for some time. In 1967 a national MORATORIUM was placed on capital punishment while the U.S. Supreme GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 246 CANONS OF JUDICIAL ETHICS Court considered its constitutionality. In 1972 it appeared that the Court had put an end to the death penalty in the case of FURMAN V. GEORGIA, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed 2d 346, declaring certain capital punishment laws to be unconstitutionally cruel and unusual becaus e juries were applying them arbitrarily and capriciously. It seemed as if Furman would mark the passing into history of capital punishment in the United States. By 1976, Georgia, Florida, and Texas had drafted new death penalty laws, however, and the U.S. Supreme Court upheld them. Of the nine justices, only two, William J. Brennan Jr. and THURGOOD MARSHALL, persisted in the belief that capital punishment is unconstitutional per se. Capital punishment had survived, and so had the controversies surrounding it. Although the Supreme Court has held that the Constitution permits the use of capital punishment, decisions on this issue have divided theCourtandhavedonelittletoconvince opponents of the death penalty that it is fair. Critics have argued that the death penalty is a form of cruel and unusual punishment, that it is applied in a racially discriminatory manner, that it lacks a deterrent effect, and that it is wrong. Cruel and Unusual Punishment The EIGHTH AMENDMENT of the U.S . Constitution prohibits the government from inflicting “cruel and unusual punishments.” The controversy over the constitutionality of the death penalty lies in the AMBIGUITY of the phrase “cruel and unusual.” The first meeting of Congress addressed the phrase for onl y a few minutes. Congressman WILLIAM SMITH of South Carolina anticipated the controversy to come when he stated that the wording of the Eighth Amend- ment was “too indefin ite. ” Whereas some argue that the phrase “cruel and unusual” refers to the type of punishment inflicted (such punishments as the severing of limbs, for example, would almost certainly be considered cruel and unusual), others believe that the phrase refers to the degree and duration of the punishment. The U.S. Supreme Court has rejected both interpretations, leaving the death penalty a legal means of punishing certain criminals. The FIFTH AMENDMENT seems to supply a clearer basis for assuming the constitutionality of the death penalty. This amendment states that no one shall be “deprived of life, liberty, or property, without due process of law.” From this language, one can conclude that with DUE PROCESS OF LAW , capital punishment may be imposed. In Furman, the justices who found the death penalty to be unconstitutional pointed to the language of the Eighth Amendment as the basis of their decision. Chief Justice WARREN E. BURGER, who filed a dissenting opinion, relied heavily upon the language of the Fifth Amendment to support his argument that the death penalty was constitutional. Evolving Standards of Decency Administration of capital punishment is not necessarily constitutional under all circum- stances, against all classes of defendants, or for all types of crimes. The Supreme Court has recognized that what may have been constitu- tionally permissible when the Eighth Amend- mentwasratifiedin1791mightbecrueland unusual now, if application of the death penalty i n particular cases offends the “evolv- ing standards of decency” test. Under this test, courts will examine prevailing opinions among state legislatures, SENTEN C I N G juries, judges, scholars, the American public, and the inter- national community to determine whether a particular application of the death penalty is cruel and unusual. For example, in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 293 4, 106 L. Ed. 2d 256 (1989), the Court examined many of these factors and determined that there was The death chamber at Georgia’s state prison. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CAPITAL PUNISHMENT 247 . Code of Canon Law (in Latin, Codex juris canonici). The law of England, which inspired much of the law formed in the United States, was a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANON LAW. conduct prescribed for la wyers in their professio nal dealings. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANONS OF ETHICS 24 5 CANONS OF JUDICIAL ETHICS See CODE OF JUDICIAL CONDUCT. CAPACITY The. certain canons of construction can help a court ascertain what the drafters of the statute—usually Congress or a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CANONS OF CONSTRUCTION 24 3 state legislature—meant