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Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson

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This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized norms that …

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

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This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible …

The Global Diffusion Of Law: Transnational Crime And The Case Of Human Trafficking, Beth A. Simmons, Paulette Lloyd, Brandon M. Steward

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The past few decades have seen the proliferation of new laws criminalizing certain transnational activities, from money laundering to corruption; from insider trading to trafficking in weapons and drugs. Human trafficking is one example. We argue criminalization of trafficking in persons has diffused in large part because of the way the issue has been framed: primarily as a problem of organized crime rather than predominantly an egregious human rights abuse. Framing human trafficking as an organized crime practice empowers states to confront cross border human movements viewed as potentially threatening. We show that the diffusion of criminalization is explained by …

Local Human Rights Lawyering, Lauren Bartlett

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International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.

Law, Society, And Setsuo: Miyazawa’S Influence On Socio-Legal Studies, Eric A. Feldman

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What Setsuo has accomplished over these past 30 years is nothing short of remarkable. I can think of no other scholar within or outside of Japan who has had a greater impact on both the legal academic community and society more generally. Indeed, when Setsuo was still quite young he had already written a number of influential articles. But they turn out to represent only a fraction of his extraordinary output over the next years. In reflecting on Setsuo’s many achievements, I am particularly drawn to comment on three of them. First, his empirical and comparative law and society scholarship, …

Freedom From Violence And The Law: A Global Perspective In Light Of Chinese Domestic Violence Law, 2015, Rangita De Silva De Alwis, Jeni Klugman

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No abstract provided.

Migrant Workers' Access To Justice At Home: Nepal, Sarah Paoletti, Eleanor Taylor-Nicholson, Bandita Sijapati, Bassina Farbenblum

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Nepal’s citizens engage in foreign employment at the highest per capita rate of any other country in Asia, and their remittances account for 25 percent of the country’s GDP. The Middle East is now the most popular destination for Nepalis--nearly 700,000 were working in the Middle East in 2011 on temporary labor contracts. For some Nepalis, working abroad provides much-needed household wealth. For others, their contributions to Nepal come at great personal cost. Migrant workers in the Gulf, for example, routinely report wage theft, lack of time off and unsafe and unhealthy working conditions. Some migrant workers report psychological and …

Marxist And Soviet Law, Stephen C. Thaman

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This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.

Migrant Workers’ Access To Justice At Home: Indonesia, Bassina Farbenblum, Eleanor Taylor-Nicholson, Sarah Paoletti

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Each year, around half a million Indonesians travel abroad to work, half of those to the Middle East. They are typically women from small cities or villages with primary education and limited work experience, hired to perform domestic work. Many suffer abuse and exploitation but have virtually no access to recourse within their host country’s legal system.

The vulnerability of migrant workers abroad makes it crucial for them to be able to seek redress in their own countries. Access to justice at home also allows for redress when home governments and private recruitment businesses breach their legal responsibilities to migrant …

Report On Usa, Stephen C. Thaman

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This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks of 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

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This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Criminal Courts And Procedure, Stephen C. Thaman

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This chapter provides both a historical and modern perspective on criminal procedure around the world.

An Introduction To Comparative Jury Systems (Symposium Editor), Nancy S. Marder

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The jury is experiencing a renaissance worldwide. Countries that have never had a jury system, or have had one in the past, have turned to citizens to decide criminal cases. Countries, especially those that aspire to be more democratic, have begun to recognize the importance of having ordinary citizens participate in the criminal justice system. Meanwhile, countries with a longstanding jury tradition continue to maintain that tradition. As some countries consider how best to introduce the jury, or some variation of it such as a mixed court of laypersons and professional judges, and other countries consider how best to improve …

Two Weeks At The Old Bailey: Jury Lessons From England (Symposium Editor), Nancy S. Marder

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As deeply-rooted as the jury is in the United States, it is not beyond improvement. There is no better starting place for ideas than England, which provided the model for our jury system. To learn firsthand about current jury practices in England, I spent two weeks observing criminal jury trials at the Old Bailey in London. My goal was to examine jury practices at the Old Bailey and to consider which ones could work well in the United States. I observed some jury practices that I thought we should adopt immediately, and others that would work well in the long …

Should Juries Give Reasons For Their Verdicts?: The Spanish Experience And The Implications Of The European Court Of Human Rights Decision In Taxquet V. Belgium, Stephen C. Thaman

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This article discusses the Belgian jury system and the decision in Taxquet v. Belgium and then explores to what extent a requirement of reasoned judgments will affect the survival of European juries. It focuses on Spain, where the jury is required to give reasons for its verdicts, and where a lively high-court jurisprudence has developed addressing the quality and sufficiency of jury reasons. This article suggests that it might be appropriate for jury courts in the United States to in some way justify their decision of guilt, in order to minimize the amount of completely innocent persons who have been …

Constitutional Rights In The Balance: Modern Exclusionary Rules And The Toleration Of Police Lawlessness In The Search For Truth, Stephen C. Thaman

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This article explores the tension in modern criminal procedure between the goal of ascertaining the material truth of the criminal charge and the respect for important human rights of criminal suspects during the investigation of the alleged criminal responsibility. It examines two major areas where police run the risk of violating and often do violate the constitutional rights of criminal suspects during interrogations and during invasions of privacy in the form of dwelling searches and interception of confidential communications. The approaches of modern democracies to this dilemma run from the strict exclusion of all direct and indirect evidence (fruits of …

[A Brief Comparative Summary Of The Criminal Law Of The] United States, Paul H. Robinson

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This chapter provides a very brief summary of the central features of American criminal law. Section II describes its source and current form, which is almost exclusively statutory, embodied in the criminal codes of each of the fifty American states and (to a lesser extent) the federal criminal code. Section III sketches the typical process by which a case moves through an American criminal justice system, from the report of a crime through trial and appellate review. Section IV summarizes the most basic objective and culpability requirements necessary to establish liability for an offense and the doctrines that sometimes impute …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

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Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

A Typology Of Consensual Criminal Procedures: An Historical And Comparative Perspective On The Theory And Practice Of Avoiding The Full Trial, Stephen C. Thaman

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In the words of Clifford Geertz, this chapter engages in “an exercise of intercultural translation” in order to understand the reality of plea bargaining and other forms of consensual resolution of criminal cases. It provides a history of consensual and alternative forms of criminal procedure around the world. It also provides a comprehensive discussion on alternatives to a full trial in modern penal systems and issues that arise with those alternatives.

Truth Or Legality: The Limits On The Laundering Of Illegally Gathered Evidence In A State Under The Rule Of Law (Verdad O Legalidad: Los Límites Del Blanqueo De Pruebas Ilegalmente Recogidas En Un Estado De Derecho) (Spanish), Stephen C. Thaman

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This paper discusses the tension between the constitutional rights to silence and to privacy and the important goal of criminal procedure to ascertain the truth. It traces exclusionary rules from the inquisitorial rules relating to nullities, to modern constitutional, statutory and jurisprudential rules for excluding illegally gathered evidence.

Note: downloadable document is in Spanish

Law Across Borders: What Can The United States Learn From Japan?, Eric Feldman

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No abstract provided.

Some Realism About Legal Certainty In The Globalization Of The Rule Of Law, James Maxeiner

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The rule of law is at the heart of globalization. It promises both international and domestic routes to peace, security, democracy, human rights and sustainable development worldwide. A central tenet of the rule of law is legal certainty. For most modern jurists, it is a matter of course that legal certainty is a systemic goal, even if that goal is not always fully realized. But for American jurists who count themselves legal realists, legal certainty is not even a flawed goal; it is a childish myth. This address seeks to raise awareness of this fundamental difference and to show its …

Jury Trial And Adversary Procedure In Russia: Reform Of Soviet Inquisitorial Procedure Or Democratic Window-Dressing?, Stephen C. Thaman

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A new adversary system of jury trial was introduced in 1993-1994, and the rights to jury trial, adversary procedure, the presumption of innocence, and the mandatory exclusion of illegally gathered evidence were incorporated into the new Constitution of the Russian Federation in December of 1993. The new Criminal Procedure Code of the Russian Federation, passed in December 2001, led to the extension of jury trial to the entire country with the exception of the Republic of Chechnia in 2003-2004.

This chapter explores the extent to which the Russian jury system and adversary procedure have humanized criminal procedure, and concludes that …

The Two Faces Of Justice In The Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining And The Inquisitorial Legacy, Stephen C. Thaman

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This essay focuses on adversary procedure, plea-bargaining, and jury trial in the 1991 Concept of Judicial Reform of the Russian Republic. It discusses the impact of these reforms and assesses whether they have led to an improvement in the quality of evidence presented to the trier of fact, liberation of the trial and appellate judges from the juggernaut of hierarchical Soviet ‘crime control’ policies, and the development of a culture where acquittals of guilty and innocent will be tolerated when the evidence lacks credibility or is insufficient to constitute proof beyond a reasonable doubt.

Of Neocolonialism, Common Law And Uncodifiable Shari’A: A Reply To Professor An-Na’Im, Paul H. Robinson, Adnan Zulfiqar

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In an earlier article -- Robinson et al., Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms, http://ssrn.com/abstract=941443 -- the authors report the challenges and opportunities that arose during their commission by the United Nations Development Programme and the Government of the Maldives to produce the first modern comprehensive criminal code based upon Shari'a. In this brief essay they respond to published criticisms of that project, which asserted, among other things, that Shari'a cannot be codified, that it should not be codified, that the project was a shameful exercise in neocolonialism, that the project was an act …

Law, Culture, And Conflict: Dispute Resolution In Postwar Japan, Eric Feldman

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The 1963 publication of Takeyoshi Kawashima’s “Dispute Resolution in Contemporary Japan” has indelibly influenced the study of law and conflict in postwar Japan. A mere nineteen text pages of Arthur Taylor von Mehren’s seven hundred–page volume, Law in Japan: The Legal Order in a Changing Society, Kawashima’s observations about the infrequency of litigation in Japan, and his emphasis on the sociocultural context of conflict, continue to resonate. As a noted scholar of Japanese law has succinctly written, “Virtually every scholarly work [about Japanese law] in the last thirty-five years has been framed in some way or another by the conceptual …

The Nullification Of The Russian Jury: Lessons For Jury-Inspired Reform In Eurasia And Beyond, Stephen C. Thaman

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This article explores the extent to which the Russian jury system has achieved goals crucial to the reformation of inquisitorial Soviet practices.

The Good, The Bad, Or The Indifferent: '12 Angry Men' In Russia, Part Of Symposium: The 50th Anniversary Of '12 Angry Men', Stephen C. Thaman

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Sidney Lumet’s 1957 film, 12 Angry Men, based on the screenplay by Reginald Rose, has become the emblem of the American jury trial as an anti-authoritarian institution based on democratic consensus building. This essay discusses the interplay of literature and criminal justice in pre-Revolution Russia, for this is the cultural soil upon which the film 12 Angry Men was received in Soviet Russia, when it was first screened in 1961. It discusses the reception of 12 Angry Men in Soviet Russia in 1961 and the impact it had on Soviet-era citizens in their understanding of American and Soviet criminal justice, …

Plea-Bargaining, Negotiating Confessions And Consensual Resolution Of Criminal Cases, Stephen C. Thaman

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This report explores the various types of consensual procedures that make up the procedural arsenals of modern criminal justice systems and if and how they have contributed to procedural economy in the respective country. It discusses whether or not important procedural principles have been compromised, undermining the legitimacy of the criminal justice system.

Legal Reform In Contemporary Japan, Eric Feldman

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In this chapter I offer a preliminary assessment of a quickly moving target—legal reform and its impact on rights in Japan. Although a broad consensus has emerged among interested parties that at least some degree of reform is desirable, there is significant disagreement about the goals of reform, and also about the likelihood that it will achieve certain objectives. Some commentators believe that the Japanese legal system is on the cusp of a “revolution” that will shore up long-neglected rights and create new entitlements. Others predict that the consequences of reform will be modest; and they despair that aggrieved individuals …