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In Brief

In Brief

Table of Contents:

• Sparking an Energy Revolution
• Can Humans Survive Evolutionary Engineering?
• Transnational Litigation and Institutional Choice
• The Controversial Decision in Citizens United
• Reflections on Justice Stevens
• School of Law Signs Three Exchange and Collaboration Agreements with Renowned Chinese Law Schools
• Profile (Prof. Shanker)
• International Criminal Court Review Conference Adds Crime of Aggression to Court's Jurisdiction
• Briefs (Faculty Briefs)
• School of Law Students Excel in Moot Court and Mock Trial Tournaments
• Alumna and United States Chief of Protocol Speaks to the 2010 Graduating Class
• Alumni Spotlight
• Appearing Before the Highest Court
• Lawyers & Professional Athletes
• Class Notes
• Academic Center Events

Does Terrorism Constitute A Crime Under International Law And, If So, What Is Its Definition. Specifically Addressing The Argument That A Limited Definition Of Terrorism Has Emerged In Customary International Law That Provides For International Criminal Liability For Individual Non-State Actors., Avrum Jacobson

War Crimes Memoranda

No abstract provided.

Statutory Interpretation Regarding Joint Criminal Enterprise And Roots In Codes Of Superior Responsibility Doctrine. Does Article 3(1)(B) Of The Stl Statute Refer To The Joint Criminal Enterprise Doctrine (Jce) Or To Another Mode Of Liability? If This Provision Does Not Refer To Jce, What Was The Intent Of The Drafters Of The Statute Regarding The Meaning Of This Provision? What Support Is There For The Proposition That The Doctrine Of Superior Responsibility Is Rooted In National Criminal And Military Codes? Which Ones? Is It Possible To Find Concordant Law-Cases Issued Before February 14 2005 By National Courts From Different Legal Systems Which Establishes That Superior Responsibility As Set Out In Article 3 Of The Stl Statute Is Applicable To Terrorists Acts, Murder Or Other Crimes Within The Jurisdiction Of The Stl?, Jacqueline C. Greene

War Crimes Memoranda

No abstract provided.

What Is The Practice/Policy At The International Tribunals With Regard To Providing Witnesses Copies Of Their Statements? Do International Tribunals Have Blanket Policies, Or Is It On A Case-By-Case Basis (E.G., If The Witness Asks For It)? What Is The Practice In National Jurisdictions?, Yedga Sikod

War Crimes Memoranda

No abstract provided.

Concurrent Jurisdiction And Primacy. What Do The Concepts Of “Concurrent Jurisdiction” And “Primacy” Mean Concretely For The Stl And The Lebanese National Courts? ..., Helena Traner

War Crimes Memoranda

Concurrent Jurisdiction and Primacy. What do the concepts of “concurrent jurisdiction” and “primacy” mean concretely for the STL and the Lebanese national courts? What are the effects on the STL and Lebanese authorities of the deferral of the Hariri case

Head Of State Immunity And Immunity Claims Against Witness Subpoena Requests. Specifically Addressing The Scope Of Head Of State And State Official Immunity, And Whether Claims Of Immunity May Successfully Prevent Witness Subpoena Requests At International And Hybrid Tribunals., Iskra Miralem

War Crimes Memoranda

No abstract provided.

Under What Conditions Would The Involvement Of A Judge In The Adoption Of A Piece Of Legislation Warrant His Recusal (Or Removal) From The Bench On Grounds Of Lack Of Impartiality Or Appearance Thereof?, Brandon J. Wheeler

War Crimes Memoranda

No abstract provided.

Potential Procedural Problems With Applying International Standards In Domestic Kenyan Courts, Kimberly M. Brown

War Crimes Memoranda

No abstract provided.

The Care, Custody, And Control Of Incarcerated Women In Ecuador, Jill Harrison, Maureen Norton-Hawk

Societies Without Borders

This paper presents findings on the custody, care and control of incarcerated women in Ecuador. Although the interrelationship of abuse, poverty, drugs and incarceration is often perceived as a U.S. phenomenon, this paper presents data on a group of structurally and institutionally vulnerable women who are serving mandatory sentences of 6 to 8 years for drug possession and trafficking. Our mixed methodology of survey data, personal interviews, and secondary source materials uncovers some disturbing human rights violations and documents the challenges these incarcerated women face as mothers and inmates.

Notes From The Field: The Criminalization Of Undocumented Migrants: Legalities And Realities, Tanya Golash-Boza

Societies Without Borders

Undocumented migrants are not criminals. Detention is not prison. Deportation is not punishment. These are truths in the legal system of the United States. However, undocumented migrants are treated like criminals; detainees feel as if they are in prison; and deportees experience their exclusion as punishment. This article examines the contradictions between legal arguments which indicate that immigration proceedings are not criminal proceedings and the experiences of deportees who often feel as if they were treated like criminals and that banishment from the country in which they have lived most of their lives is a cruel punishment.

The Contested Terrains Of Public Sociology: Theoretical And Practical Lessons From The Movement To Defend Public Housing In Pre- And Post-Katrina New Orleans, John Arena

Societies Without Borders

In this article I argue professional and policy sociology are antagonistic, rather than compatible with the theory and practice of a critical, organic, public sociology in de- fense of human rights and social justice. Drawing upon my graduate school experi- ence and relationship with New Orleans public housing movement, I show how prac- ticing public sociology in various terrains required unmasking and opposing the apo- litical pretenses of professional sociology and the agenda-setting of neoliberal govern- ment and corporate patrons of policy sociology. The current global economic crisis and assault on university budgets is strengthening the policy and professional sociolo- …

Proceeding In The Physical Absence Of The Accused, And The Use Of Technology, Jon-Paul Mcconnell

War Crimes Memoranda

No abstract provided.

Accused’S Right To Document Translation..., John K. Sawyer

War Crimes Memoranda

Specifically addressing what the rights are of the accused to the translation of documents (in his or her own language and/or in the language of his or her counsel) and the concomitant obligations of the parties. Also, the issues were examined with reference to the 20 February 2009 Pre-Trial Chamber decision in Khieu Samphan’s appeal.

International Human Rights Law In Japan: The View At Thirty, Timothy Webster

Faculty Publications

Japanese courts have become increasingly open to the use of international human rights law in the past two decades. This paper examines several of the key decisions that reflect the judiciary's embrace of international law, particularly in the areas of criminal procedure and minority rights. I argue that the judiciary has eclipsed the other branches of government as the primary disseminator of human rights norms in Japan.

Defense Counsel And Plea Bargain Perjury, Kevin C. Mcmunigal

Faculty Publications

No abstract provided.

On The Use And Abuse Of Standards For Law: Global Governance And Offshore Financial Centers, Richard K. Gordon

Faculty Publications

Current trends in international legal scholarship have shifted from a paradigm of state actors working within recognized sources of international law to one that includes networks of domestic regulators that develop and implement best practices or standards on a global basis. The new paradigm can be seen in operation in the efforts by onshore jurisdictions (most of which are financial centers themselves) to restrict the activities of offshore financial centers. Onshore jurisdictions enlisted these regulatory networks, as well as key international organizations, such as the Organization for Economic Co-operation and Development and the International Monetary Fund, to advance new standards …

Do Two Wrongs Protect A Prosecutor?, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

May a former criminal defendant bring a civil rights action against a prosecutor who fabricated evidence during an investigation and then introduced that evidence against the defendant at trial? The Seventh and Second Circuits have divided in answering this question. On November 4, 29, the Supreme Court heard oral argument in an Eighth Circuit case raising this question, Pottawattamie County v. Harrington, 547 F.3d 922 (8th Cir. 28), cert. granted, 129 S. Ct. 22 (April 2, 29), and many expected the Court to resolve the circuit split later this term. But on January 4, 21, the Court dismissed the case …

Aba Explains Prosecutor's Ethical Disclosure Duty, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

The ABA Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion explaining that the ethical duty of the prosecutor under Model Rule 3.8(d) to disclose exculpatory evidence and information to the defendant is separate from, and more expansive than, the disclosure obligations under the Constitution. This column reviews the opinion and its implications for discovery in criminal cases.

Deceit In Defense Investigations, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

Prosecutors and police routinely employ misrepresentation and deceit in undercover investigations. In cases ranging from drug distribution, prostitution, and sexual misconduct with minors to organized crime and terrorism, police and those cooperating with police deceive suspects and their cohorts about their identities and their intentions in order to gain information to help uncover past crimes and thwart future crimes. Frequently, such deceit helps reveal the truth about what criminals do and think.

May defense lawyers and investigators working for them employ similar tactics? Or should prosecutors be the only lawyers allowed to direct and supervise investigatory deception? In recent years, …

Corporate 'Miranda' Warnings, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

Administrative agencies and prosecutors have adopted formal and informal measures to push corporations to establish compliance programs, to disclose wrongdoing voluntarily, and to cooperate with government investigations, creating what some commentators refer to as a culture of cooperation. Key to internal investigations are employee interviews by counsel.

Employees, especially senior employees, may assume that the lawyers representing their organizational employers represent them as well in matters relating to their work. To avoid this misunderstanding, both in-house and outside counsel now use “corporate Miranda warnings” or “Upjohn warnings.” In law enforcement interrogation, the Miranda warning is an antidote to the coercive …

The (Lack Of) Enforcement Of Prosecutor Disclosure Rules, Kevin C. Mcmunigal

Faculty Publications

In this Article, I assess the apparent prospects for increased disciplinary enforcement of state ethics rules based on Rule 3.8(d) of the American Bar Association's (“ABA”) Model Rules of Professional Conduct that mandates prosecutorial disclosure of exculpatory information. In particular, I focus on whether it makes sense to view recent ABA Formal Opinion 09-454, in which the ABA gave an expansive reading to Model Rule 3.8(d), as the bellwether of an era of increased enforcement of ethical disclosure rules for prosecutors.

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli

Faculty Publications

No abstract provided.

Foreword: Lawfare!, Michael P. Scharf, Shannon Pagano

Faculty Publications

Forward to the Case Western Reserve Journal of International Law's symposium "Lawfare!" 2012, Cleveland, OH.

Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli

Faculty Publications

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 22, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s …

Equal Protection From Execution: Expanding Atkins To Include Mentally Impaired Offenders, Corena G. Larimer

Case Western Reserve Law Review

No abstract provided.

Lawfare: A Rhetorical Analysis, Tawia Ansah

Case Western Reserve Journal of International Law

No abstract provided.

Is Lawfare Worth Defining - Report Of The Cleveland Experts Meeting - September 11, 2010, Michael P. Scharf, Elizabeth Andersen

Case Western Reserve Journal of International Law

This is the report of the Cleveland Experts Meeting.

Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance

Faculty Publications

For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct …

Innocence After Death, Samuel Wiseman

Case Western Reserve Law Review

No abstract provided.