Joachim 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- TION of 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’sreign 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 numb er of or ders” 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, Jod l 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 318 NUREMBERG TRIALS Julius 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 proce ss 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 lynchpi n 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 under INTERNATIONAL 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 Vienna and leader of the Hitler Youth, was 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 were simply following orders issued by a superior GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NUREMBERG TRIALS 319 in 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 defensive) 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 w ere 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’sjustice.” Historians have observed that the Allied nations that tried and convicted the leading Nazis at Nuremberg did not come to the table with c lean 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 the RIGHT 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 thre e 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. “ANewDealfortheNuremberg 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 320 NUREMBERG TRIALS OATH An 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 leg ally 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 for PERJURY if 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 PLAINTIFF in testifying to the value of something; and a promissory oath, which binds the party to specific conduct in the future. v OBAMA, 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 Senator JOHN 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 321 family 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 LAW at the University of Chicago Barack Hussein Obama Jr. 1961– ▼▼ ▼▼ ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 322 OBAMA, BARACK HUSSEIN, JR. Law 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 stop RACIAL PROFILING and 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 admi tting 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 since RECONSTRUCTION. 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 w as 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 relativ ely 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 drop ped 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- maries and caucuses held after that date. Obama 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 nomina tion 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 fo reign 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 info mercial on October 29, 2008. Playing on seven networks, the program had more than thirty-three millio n 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 for change in some detail and allowed voters to Barack Obama. COURTESY OF THE WHITE HOUSE CHANGE WILL NOT COME IF WE WAIT FOR SOME OTHER PERSON OR SOME OTHER TIME .WE ARE THE ONES WE ’VE BEEN WAITING FOR .WE ARE THE CHANGE THAT WE SEEK . —BARACK OBAMA GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OBAMA, BARACK HUSSEIN, JR. 323 become 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 insuran ce 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 324 OBITER DICTUM before 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 in OPEN 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 of CIVIL PROCEDURE, and the Federa l 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 long as the judge permits it. There are several 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 the COMMON LAW, CHR ISTOPHER COLUMBUS LANGDELL and Oliver Wendell Holmes. Langdell, a respected legal schola r 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 the undisclosed intentions of two parties are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OBJECTIVE THEORY OF CONTRACT 325 proven 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 summ arized 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 object ive theory of con- 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 as FRAUD or 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 to MUTUAL 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 326 OBLIGATION In 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 obligat ion 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 mo ney if t he 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 debt or duty. 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 ob scene is applied to written, verbal, or vis ual works or conduct that treat sex in an objectionable or lewd or lascivious manner. Although the FIRST AMENDMENT guaran- tees fr eedom 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 Freedom of Speech; Pornography. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OBSCENE 327 . question GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 324 OBITER DICTUM before the court or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration,. contracts enforceable only when the undisclosed intentions of two parties are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OBJECTIVE THEORY OF CONTRACT 325 proven to be the same. Instead, Langdell. political, or scientific value. CROSS REFERENCES Freedom of Speech; Pornography. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION OBSCENE 3 27