Digital Commons Network^™

Is Zina Bil Jabr A Hadd, Taz‛Ir Or Siyasa Offence?: A Reappraisal Of The Protection Of Women Act 2006 In Pakistan”, Muhammad Munir Dr.

Dr. Muhammad Munir

This article briefly discusses the various laws passed by the regime of General Musharraf (1999-2008) to relieve the plight of helpless women in Pakistan and analyses the Protection of Women Act, 2006 from a legal, rather than from a political or emotional perspective. It scrutinizes the opinions of leading 'ulama, such as Justice (R) Taqi 'Uthmani, Mufti Muneebur Rahman, Moulana 'Abdul Malik, and Hasan Madani. The position of women rights' groups about the said law is discussed; the claim of the then government that the Act is compatible with the Qur'an and the Sunnah is examined; the various changes made …

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

All Faculty Scholarship

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 …

United States V. Burns: Canada's Extraterritorial Extension Of Canadian Law And Creation Of A Canadian "Safe Haven" In Capital Extradition Cases, Andrea Cortland

University of Miami Inter-American Law Review

No abstract provided.

The [Capital] Punishment Fits The Crime: A Comparative Analysis Of The Death Penalty And Proportionality In The United States Of America And The People's Republic Of China, Ryan Florio

University of Miami International and Comparative Law Review

The governments of both the United States and China maintain the death penalty as a means of punishing its most dangerous criminals, but with an astounding 68 capital offenses, China perennially remains the world leader in executions. This article examines the theory of proportionality of criminal punishment and how it relates to the respective death penalty policies in the United States and China. A comparative analysis will reveal two extremely different societies with two different perspectives on proportionality. one that recognizes and protects fundamental freedoms and another that places emphasis on collective societal welfare over individual rights. The article will …

Judicial Patronage Of 'Honor Killings' In Pakistan: The Supreme Court's Persistent Adherence To The Doctrine Of Grave And Sudden Provocation, Moeen H. Cheema

Buffalo Human Rights Law Review

No abstract provided.

Preserving The Corporate Attorney-Client Privilege: Here And Abroad, Robert J. Anello

Penn State International Law Review

No abstract provided.

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

University of Miami Inter-American Law Review

No abstract provided.

On Armed Conflict, Human Rights, And Preserving The Rule Of Law In Latin America, Luz E. Nagle

Penn State International Law Review

No abstract provided.

Retrying The Acquitted In England Part Ii: The Exception To The Rule Against Double Jeopardy For Tainted Acquittals, David S. Rudstein

San Diego International Law Journal

Parliament enacted a statute in 1996 intended to limit the double jeopardy bar in some situations in which the defendant obtained an acquittal through improper means, thereby permitting the government to retry the person for the same offense of which he previously was tried and acquitted. The statute, part of the Criminal Procedure and Investigations Act 1996, allows a retrial when an individual's acquittal was tainted, which, under the statute, means an acquittal resulting from interference with, or intimidation of, a juror, witness, or potential witness. In allowing a retrial in such circumstances, the statute creates an exception to the …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Counterfeit Pharmaceuticals In China: Could Changes Bring Stronger Protection For Intellectual Property Rights And Human Health?, Dina M. Bronshtein

Washington International Law Journal

Although China seeks to improve its image as a legitimate participant in the global intellectual property (“IP”) market, Chinese companies continue to produce more than thirty percent of the counterfeit drugs circulating in the world today. The counterfeit pharmaceutical industry profits from efficient and cost-effective production systems by producing counterfeits at an exceedingly low cost. This poses a serious problem because the production and sale of counterfeit drugs leads to negative economic and social health-related effects. China’s existing penalties for counterfeit pharmaceutical production are considered a mere cost of doing business in China, rather than a deterrent from engaging in …

New Trends In Procedural Law: New Technologies And The Civil Litigation Process, Janet Walker, Garry D. Watson

UC Law SF International Law Review

This report for the International Association of Procedural Law examines the impact of new technologies on the litigation process in six countries: The United States, Australia, Israel, Singapore, England and Wales, and Canada. Drawing on national reports from each of these countries, it considers: how new technologies are re-shaping the ways that we record and store information in the litigation process; the ways that the participants in the process communicate with one another; and the ways in which the case record or file is developed. It also considers whether new technologies are making the litigation process more efficient, more accessible …

Implementing The Prohibition Of Torture On Three Levels: The United Nations, The Council Of Europe, And Germany, Joachim Herrmann

UC Law SF International Law Review

In the fight against terrorism the United States government has tried to draw a line between proper and improper methods of interrogation and treatment of detainees. The question whether and to what extent torture and other kinds of ill-treatment might be justified is widely discussed in the United States today. To date, no satisfying answer has been found. There is doubt that a generally accepted answer could ever be found. In view of this dilemma it might be helpful to look beyond the borders of the United States to see what answers have been given elsewhere. This paper will explain …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

Fifteen Minutes Of Shame: The Growing Notoriety Of Grand Corruption, Mary Evans Webster

UC Law SF International Law Review

Today the international community is focused, like never before, on efforts to reduce corruption as an essential component of poverty eradication. Grand corruption is the payment of bribes in connection with major interactions such as large infrastructure projects or arms sales and the abuse of political power to extract and accumulate for private gain. In the last five years, the United Nations, the World Bank and the United States Agency for International Development have all launched aggressive new agendas to address the crime of grand corruption. But, these agendas are not without their shortcomings and ardent critics. This article explores …

The Illusion Of Transformative Conflict Resolution: Mediating Domestic Violence In Nicaragua, Raquel Aldana, Leticia Saucedo

McGeorge School of Law Scholarly Articles

No abstract provided.

Competing Legal Cultures And Legal Reform: The Battle Of Chile, James M. Cooper

Michigan Journal of International Law

This Article explores the competition that exists between U.S. and German legal cultures and examines Chilean legal reform efforts since the late 1990s as a case study of this competition. A country's legal culture is comprised of the self-governing rules and operations of national and regional bar associations, the format of legal education, the structure of the legal and judicial profession, the role of the judiciary, jurisprudential style, and the reputation of the legal sector according to the general public. The influence of predominant legal cultures on developing nations has been explored in a number of contexts, while the importance …

Re-Examining International Responsibility: "Complicity" In The Context Of Human Rights Violations, John Cerone

ILSA Journal of International & Comparative Law

Recent events have focused the attention of international jurists on international responsibility for complicit conduct.

Why We Should Abandon The Balance Metaphor: A New Approach To Counterterrorism Policy, Stuart Macdonald

ILSA Journal of International & Comparative Law

One of the central objectives in counterterrorism policy is commonly said to be to balance the competing demands of security and liberty.

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries. The Article shall begin by briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada. The Article will next present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing and contrast this to the Canadian s. 12 approach to …

Law V. National Security: When Lawyers Make Terrorism Policy, William G. Hyland Jr.

Richmond Journal of Global Law & Business

Are lawyers strangling our government’s ability to fight the first war of the twenty-first century? Does judicial adventurism and the fear of litigation undermine the War Against Terrorism? In essence, is our national security apparatus overlawyered? This article analyzes how some lawyers have produced a synthetic “litigation culture” over the war on terror. It argues that litigation concerning electronic surveillance, interrogation and all manners of prisoner treatment has chilled counterintelligence since 9/11.

Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto

Washington International Law Journal

Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or “hybrid court,” to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government’s primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that …

Equal By Law, Unequal By Caste: The "Untouchable" Condition In Critical Race Perspective, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Caste-based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that has long been labeled the “world's largest democracy;” a progressive and protective constitution; a system of laws designed to proscribe and punish acts of discrimination on the basis of caste; broad-based programs of affirmative action that include constitutionally mandated reservations or quotas for Dalits, or so-called “untouchables;” a plethora of caste-conscious measures designed to ensure the economic “upliftment” of Dalits; and an aggressive economic liberalization campaign to fuel India's economic growth.

This Article seeks to answer the question of how and why this …

The Co-Perpetrator Model Of Joint Criminal Enterprise, Jens David Ohlin

Cornell Law Faculty Publications

No abstract provided.

Anglo-American And Continental Systems: Marsupials And Mammals Of The Law., Richard O. Lempert

Book Chapters

When Peter Tillers invited me to participate in this festschrift for Mirjan Damaška, I proposed to write a short concluding essay reviewing the articles in this volume and drawing links between them. Perhaps I should have anticipated that this would be no easy task, and maybe even have foreseen that it was an assignment I would eventually shun. I should have known that there would not be the six to eight articles I anticipated but the 17 that have been submitted. Had I thought more, I would have realised that there would be many people, myself included, who would seek …

The Muezzin's Call And The Dow Jones Bell: On The Necessity Of Realism In The Study Of Islamic Law, Haider Ala Hamoudi

Articles

The central flaw in the current approach to shari'a in the American legal academy is the reliance on the false assumption that contemporary Islamic rules are derived from classical doctrine. This has led both admirers and detractors of the manner in which shari'a is studied to focus their energies on obsolete medieval rules that bear no relationship to the manner in which modern Muslims approach shari'a. The reality is that given the structural pluralism of the rules of the classical era, there is no sensible way that modern rules could be derived from classical doctrine, either in letter or in …

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

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

All Faculty Scholarship

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 Rise Of Spanish And Latin American Criminal Theory, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

As the contributions to this two-part special issue demonstrate, Spanish and Latin American criminal theory has attained a remarkable degree of sophistication. Regrettably, Anglo-American scholars have had limited access to this rich body of literature. With this volume, the New Criminal Law Review has taken a very important first step toward rectifying this situation.

Although the articles written for this special issue cover a vast range of subjects, they can be divided into four main categories: (i) the legitimacy of the criminal sanction, (2) the punishability of omissions, (3) the challenges that international criminal law and the fight against terrorism …

Competing Legal Cultures And Legal Reform: The Battle Of Chile, James Cooper

Faculty Scholarship

This Article explores the competition that exists between U.S. and German legal cultures and examines Chilean legal reform efforts since the late 1990s as a case study of this competition. A country's legal culture is comprised of the self-governing rules and operations of national and regional bar associations, the format of legal education, the structure of the legal and judicial profession, the role of the judiciary, jurisprudential style, and the reputation of the legal sector according to the general public. The influence of predominant legal cultures on developing nations has been explored in a number of contexts, while the importance …