Digital Commons Network^™

Narrowing From Below: How Lower Courts Can Limit Castro-Huerta, Michaela B. Parks

Arkansas Law Review

This Note will offer a plan for how Indian country can move forward in the wake of what anti-tribal sovereignty entities want to be a devasting decision. This Note advocates for a judicial remedy plan. Specifically, it calls upon lower courts to narrow Castro-Huerta from below to limit the effects of the decision. Part II provides a brief introduction to federal Indian law, a general overview of criminal jurisdiction in Indian country, and concludes with a summary of Castro-Huerta. Part III outlines two approaches to limiting that lower courts can use to narrow Castro-Huerta from below: textual limiting and fact-to-fact …

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Two Countries In Crisis: Man Camps And The Nightmare Of Non-Indigenous Criminal Jurisdiction In The United States And Canada, Justin E. Brooks

Vanderbilt Journal of Transnational Law

Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous …

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

A False Messiah? The Icc In Israel/Palestine And The Limits Of International Criminal Justice, Jeremie Bracka

Vanderbilt Journal of Transnational Law

This Article challenges the International Criminal Court’s (ICC) quasi-messianic mandate in the Middle-East. It casts doubt over the legal basis and desirability of an ICC intervention in the situation of Palestine. Despite the prosecutor’s formal opening of an investigation in 2021, there exist formidable obstacles to exercising jurisdiction over Gaza and the Israeli settlements. The Office of the Prosecutor (OTP) faces an uphill battle based on complex territorial and temporal dimensions. Indeed, the admissibility hurdles at the ICC of Palestinian statehood, complementarity, gravity and the interests of justice merit close inquiry. This Article also challenges the ICC as an ideal …

The Important Contributions Of The Special Court For Sierra Leone On Amnesties And Immunities: Reinforcing Foundational Principles Of International Criminal Law, Leila Nadya Sadat

Scholarship@WashULaw

The book that is the centerpiece of this Micro-Symposium, The Legal Legacy of the Special Court for Sierra Leone, is an important contribution to international law and practice. Authored by Charles Jalloh, a distinguished practitioner of international criminal law, the book is essential reading for anyone who wishes to understand the legal ramifications of the Special Court and its work. It is comprehensive, without being overwhelming, and analyzes many of the most important elements of the Court’s legal work. It is a perfect companion to his equally excellent edited book on the subject, The Sierra Leone Special Court and Its …

The Icc Should Not Encourage Occupation, Uri Weiss

Touro Law Review

No abstract provided.

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

Faculty Scholarship

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Gamble, Dual Sovereignty, And Due Process, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast. What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls. At the center is the so-called “dual sovereignty” doctrine. This principle holds that separate sovereigns may prosecute for what looks like the same “offence”—to use the Constitution’s language—because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play. As a doctrine that relates to …

Extraterritorial Human Trafficking Prosecutions: Eliminating Zones Of Impunity Within The Limits Of International Law And Due Process, Caroline A. Fish

St. John's Law Review

(Excerpt)

This Note argues that the Baston court was incorrect both in finding the Amendment consistent with the protective principle and in its analysis of the defendant’s nexus with the United States. This Note asserts, instead, that (1) the Amendment is not valid under any traditional bases of prescriptive jurisdiction but is consistent with the United States’ international obligations to “extradite or prosecute,” and (2) the Amendment may be applied under the international anti-trafficking conventions to foreign defendants present in the United States, regardless of nexus, without violating due process.

Part I of this Note describes the complex nature of …

Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Context At The International Criminal Court, Hassan Ahmad

Pace International Law Review

In this article, I propose a contextual approach to ICC jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Procedurally, …

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

For The Sake Of Consistency: Distinguishing Combatant Terrorists From Non-Combatant Terrorists In Modern Warfare, Alexander Fraser

University of Richmond Law Review

No abstract provided.

Cross-Border Evidence Gathering In Transnational Criminal Investigation: Is The Microsoft Ireland Case The 'Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material which the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri

Articles

Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …

Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe

Georgia Journal of International & Comparative Law

No abstract provided.

Closing Impunity Gaps For The Crime Of Aggression, Jocelyn Getgen Kestenbaum

Faculty Articles

As stated at Nuremberg, the crime of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” International instruments clearly and repeatedly have outlawed initiating wars of aggression and other illegal uses of armed force. States parties recently have defined and codified the crime in the Rome Statute of the International Criminal Court (ICC) and delineated the scope of the ICC’s jurisdiction over aggression. Although the ICC is an important mechanism for accountability and justice, it is not certain when it will be able to adjudicate …

Prosecuting Child Soldiers: The Call For An International Minimum Age Of Criminal Responsibility, Brittany Ursini

St. John's Law Review

(Excerpt)

This Note discusses the current state of international law on the MACR and proposes a solution that balances the protection of child soldiers with the rights of the victims harmed by their unlawful conduct. Part I of this Note provides a brief background of child soldiers and closely examines the relevant international law addressing the criminal responsibility of child soldiers. Part II illustrates the deficiencies of current international law and describes how the deficiencies affect and contribute to the competing arguments regarding a MACR. Part III discusses the need for an international MACR. Finally, Part IV proposes an international …

Ukraine And The International Criminal Court: Implications Of The Ad Hoc Jurisdiction Acceptance And Beyond, Dr. Iryna Marchuk

Vanderbilt Journal of Transnational Law

The Article examines an array of important legal issues that arise out of the acceptance of the jurisdiction of the International Criminal Court by Ukraine, a non-State Party to the Rome Statute, within the framework of Article 12(3) with respect to the alleged crimes against humanity committed during the 2014 Maydan protests (Declaration I) and the alleged war crimes committed in eastern Ukraine and Crimea (Declaration II). It provides an in-depth analysis of constitutional law issues linked to the acceptance of the jurisdiction by Ukraine and discusses its possible implications on the proceedings before the ICC. The Article criticizes the …

How The International Criminal Court Threatens Treaty Norms, Michael A. Newton

Vanderbilt Journal of Transnational Law

This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim "nemo plus iuris transfer …

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …