KENNETH STARR,theINDEPENDENT COUNSEL who 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 to SUBPOENA Clinton 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-pag e report and sub- mitted it to the Hou se 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, fed eral 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 ch arged Attorney William A. Borders, p resident 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 i mpeachment. 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 he aring 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 doub le 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 R ules 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 con victed 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 raci sm. CROSS REFERENCE Double Jeopardy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 368 IMPEACHMENT regarding 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 Representative s 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 Senat e, 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 MARRIAGE include 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 exa mple, suppose Bill attempts to evade GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IMPERSONATION 369 prosecution 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, the DEFENDANT does 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; pretending 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 370 IMPERTINENCE Impleader, which was known as VOUCHING-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 any CIVIL ACTION may 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 damag es 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IMPLIED CONSENT 371 consents 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 co nsent 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 commo nly 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 revoc ation 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 unreasonable SEARCH AND SEIZURE, or FIFTH AMENDMENT right 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 valid ity 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’s POLICE 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 372 IMPLIED CONSENT guilty 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 kno wledge 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.2 d 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IMPLIED WARRANTY 373 adulterated. 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 buy er 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 fo reign 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. The GENERAL 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 374 IMPORT QUOTAS longer 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 imp ort quota trade barriers be converted into tariff equivalents. Therefore, although a nation cannot seek to deter trade by imposing arbitrary imp ort 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—amon g 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 manufa cturing facilities outside of the co untry 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 mu sician 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IMPOSSIBILITY 375 required 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 m ay not be a bsolutely impossible to perform but are nevertheless impracticable to complete. Thus, the general rule is that a thing may be impossible to perform w hen it would n ot be practicable to perfo rm. A contractual obligation is impracticable “when it canonlybedoneatanexcessiveandunreasonable 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 det ermine three things: first, whether some thing 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 Prosecution 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 h ttp://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 with CUSTOMS 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 376 IMPOSTOR RULE The curr ent 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 President RICHARD M. NIXON concerning 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 challen ged 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 f unds 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IMPOUNDMENT 377 . attacking the Senate’s handling of evidence, and maintaining that he was the victim of raci sm. CROSS REFERENCE Double Jeopardy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 368 IMPEACHMENT regarding. expected to pay all or part of those damages. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 370 IMPERTINENCE Impleader, which was known as VOUCHING-IN at common law, is governed by procedural. innocuous actions. For instance, a habit of leaving the keys in the car’s ignition may under law imply that the owner GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION IMPLIED CONSENT 371 consents