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Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …

Clinical Case Management; A Strategy To Coordinate Detection, Reporting, And Prosecution Of Elder Abuse, Arlene D. Luu, Bryan A. Liang

Cornell Journal of Law and Public Policy

Despite civil and criminal sanctions, elder abuse is a prevalent, underreported, and underprosecuted event in the United States. Traditional reporting legislation and common law remedies have had minimal effect on the incidence and prevalence of elder abuse. The epidemic nature of elder abuse is projected to increase exponentially as the elderly population grows disproportionately over the next several decades. The fragmented system of detecting, reporting, and prosecuting this abuse across a wide range of medical and legal settings creates a poor structure to effectively allow a potentially abused patient to have his/her abuse circumstance communicated to the relevant parties to …

The Chair, The Needle, And The Damage Done: What The Electric Chair And The Rebirth Of The Method-Of-Execution Challenge Could Mean For The Future Of The Eighth Amendment, Timothy S. Kearns

Cornell Journal of Law and Public Policy

No abstract provided.

Oxford: A Haven For Sabbaticals And Other Visits, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin

Cornell Law Faculty Publications

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide …

Exporting U.S. Anti-Terrorism Legislation And Policies To The International Law Arena, A Comparative Study: The Effect On Other Countries' Legal Systems, Olga Kallergi

Cornell Law School Inter-University Graduate Student Conference Papers

The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and beliefs of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place now that we are all fighting the same enemy? Did we learn from our past …

The Power Of Law And Women's Presence In The Thaksin Era, Virada Somswasdi

Cornell Law School Berger International Speaker Papers

The term "law" as used here depicts consistency in ideology, intent, presumption and the imposition of definitions on day-to-day human relations, including male-female relations. The power of law is the process of definition, which takes precedence over experiences, and also takes precedence over the meaning that women give to their own lives.

This paper refutes a rigid division of issues within law and adopts a feminist perspective, rather than that of the mainstream structure. Issues identified as significant by the women’s movement are thus emphasized. I do not refer to law as the only tool feminists need to resort to …

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Cornell Law Faculty Publications

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

Book Reviews, Thomas Mills, Ali Adnan Al-Feel, Daniel Boyer, Jean M. Callihan, Dana Neacsu, Radu D. Popa, Dragomir Cosanici, Jonathan Franklin, Heidi L. Kuehl, Douglas M. Johnston, Karin Johnsrud, Lyonette Louis-Jacques, Peter Roudik, Mary Rumsey, Stephen Good, Joan Sherer, Tracy L. Thompson, Louise Tsang, Scott Rasmussen, Dean C. Rowan

International Journal of Legal Information

No abstract provided.

Book Reviews, Thomas Mills, Elisa Mason, Gail A. Partin, Marylin J. Raisch, Mary Rumsey, Teresa Stanton, Daniel C. Turack, Dana Neacsu, Scott Rasmussen, Dean C. Rowan, Karin Johnsrud, Herb Somers, Lucy Cox

International Journal of Legal Information

No abstract provided.

In Defense Of Hybridity: Towards A Representational Theory Of International Criminal Justice, Frederic Megret

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author proposes a critical & normative "representational theory" of what international criminals should be tried by in a hybrid tribunal framework that surpasses complementarity & primacy, & mitigates the lack of dimension in purely international or domestic trials. A discussion of universality issues regarding sovereignty & complementarity, & the complications of "ownership" in international crimes supports the assertion that the hybrid nature of the theory as a representation of crimes & acknowledgement of the affected communities. Comparative analysis between complementarity & hybridity are applied to the cases …

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author argues that the creation of the Iraq Special Tribunal (IST) is warranted under the existing structure of international law, & accords the highest aspirations of those who purport to believe in the rule of law. The legal authorities for the creation of the Special Iraqi Tribunal in Articles 64 & 43 of the Hague regulations regarding occupation, legal authority through the UN Security Council Resolution 1483, & the Coalitional Provisional Authority are defined. The structure of the IST is described in terms of jurisdictional reach, procedural …

Milosevic And Hussein On Trial, Alfred P. Rubin

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author discusses the difficulties of trying Saddam in the International Court of Justice (ICJ) at the Hague to argue that previous cases of genocide have resulted in the political strategy of exile or extermination. Four points that limit the possibilities for an ICJ trial are discussed, & the probable unjustness of the Iraqi Special Tribunal (IST) is related to the treatment of historical cases of Napoleon & Milosevic, & genocide criminals in the Rwanda & Nuremberg criminal trials. The author argues that the current position on genocide …

Economic Authority And The Limits Of Expertise In Antitrust Cases, John E. Lopatka, William H. Page

Cornell Law Review

No abstract provided.

Cabining The Discretion Of The Federal Bureau Of Prisons And The Federal Courts: Interpretive Rules, Statutory Interpretation, And The Debate Over Community Confinement Centers, Yana Dobkin

Cornell Law Review

No abstract provided.

Assessing Human Rights In China: Why The Double Standard, Randall Peerenboom

Cornell International Law Journal

No abstract provided.

Post-Conflict Justice In Iraq: An Appraisal Of The Iraq Special Tribunal, M. Cherif Bassiouni

Cornell International Law Journal

Argues that post-conflict justice is desperately needed in Iraq. The desire of the Iraqi people for post-conflict justice against Saddam Hussein's regime has been overshadowed by the 2003 invasion by coalition forces, post-occupation internal violence, & Abu Ghraib torture by American forces. The goals of post-conflict justice include enhancing social reconciliation while avoiding individual acts of vengeance; restoring an independent judiciary; holding officials responsible for systematic repression; & prosecuting Saddam. The evolution of post-conflict justice proposals over the last decade is traced. It is acknowledged that the establishment of the Iraq Special Tribunal was an important first step on the …

Ending Impunity: How International Criminal Law Can Put Tyrants On Trial, Geoffrey Robertson

Cornell International Law Journal

In this keynote address to the Symposium on Milosevic & Hussein on Trial, the author argues that the two trials demonstrate that the historical immunity problem of tyrants has been solved, & have ushered in a period when international justice will have its own momentum. Historical analysis of the denial of impunity to tyrants relates the evolution of sovereign immunity in the Treaty of Westphalia, & the trials of Charles I, Louis XVI, & Napoleon. Head of state immunity was further removed in the Nuremberg Tribunals, & international accountability for international crimes was established with the trial of Prime Minister …

Emasculating The Philosophy Of International Criminal Justice In The Iraqi Special Tribunal, Farhad Malekian

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author argues that the principle of international tribunality of jurisdiction is a form of globalization of international criminal justice that has the purpose of preventing the problems seen in the Iraqi Special Tribunal (IST) & the monopolization of international law by the United Nations Charter. Examination of historical, contemporary, & prospective approaches to the system of international law concerning the prosecution & punishment of individuals questions whether the laws of the IST reflect the basic foundations of international criminal justice. The principles of the Criminal Justice System …

Global Criminal Justice: An Idea Whose Time Has Passed, Jeremy Rabkin

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author argues that not only is global justice brain dead as a possible reality, but the concept was always an unreachable dream in a world with no global authority to be held accountable for the world's misery. Explanation of the author's assertions locates the source of the dream in the International Criminal Tribunal for the former Yugoslavia (ICTY), since it was the only truly international tribunal in history. The advantage of local or national justice over issues of moral hazard, challenges to justice, the political responsibility of …

Address To The Cornell International Law Journal Symposium: Milosevic & (And) Hussein On Trial, Ruth Wedgwood

Cornell International Law Journal

In this essay in the Symposium on Milosevic & Hussein on Trial, the author questions the critiques of the Iraqi Special Tribunal (IST) to argue that the tribunal offers advantages of availability to citizens in location, language, & differences in legal categories that were not available to people in the former Yugoslavia & Rwanda trials. Language issues that have emerged in fact finding, establishing culpability, & barriers in witness interviews are described. The meaning of moral responsibility in terms of exculpatory evidence, & command responsibility are difficult to communicate or interpret. The advantages of local trials are the increased possibility …

Tyranny On Trial: Personality And Courtroom Conduct Of Defendants Slobodan Milosevic And Saddam Hussein, Jerrold M. Post, Lara K. Panis

Cornell International Law Journal

In this essay in the Symposium on Milosevic & Hussein on Trial, the author explores the impacts of personality & courtroom conduct in trial outcome to argue that the likenesses between the two defendants will result in Saddam's projection of grand defiance. Biographical narratives of the two leaders trace the psychological development of each personality through childhood to their political careers characterized by defiant resistance & compensatory grandiosity that may be the source of the similarities of behaviors in the courtroom. Asserting that Saddam is following the Milosevic model of courtroom behavior by derailment of the proceeding, exploitation of the …

Prosecuting Saddam: The Coalition Provisional Authority And The Evolution Of The Iraqi Special Tribunal, Tom Parker

Cornell International Law Journal

No abstract provided.

Modes Of Participation In Mass Atrocity, Mark J. Osiel

Cornell International Law Journal

In this essay in the Symposium on Milosevic & Hussein on Trial, the author addresses the choice between "command responsibility" & "participation in a joint criminal enterprise" in mass atrocity to argue that the International Criminal Tribunal on the former Yugoslavia (ICTY) makes liability under command responsibility too difficult to prosecute. Analysis of the incentives of prosecutors & the limitations of the binary character of liability delineates the difficulties of linking perpetrators & accessories. The US posture toward enterprise participation is discussed in terms of national versus international prosecutors & superior responsibility. A discussion of the domestic politics of international …

Errors And Missteps: Key Lessons The Iraqi Special Tribunal Can Learn From The Icty, Ictr, And Scsl, Michael P. Scharf, Ahran Kang

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author argues that the Iraqi Special Tribunal (IST) can learn much from the successes & missteps of previous international criminal tribunals. Key lessons from the International Criminal Tribunal on the Former Yugoslavia (ICTY), The International Criminal Tribunal for Rwanda (ICTR), & the Special Court for Sierra Leone (SCSL) are comparatively discussed with statutes of the IST regarding issues of credibility, building prosecutorial strategy, challenges to legitimacy, limitations to the right of self representation, television presence, the role of observers, the Quoque defense, protection of court witnesses, judicial …

The Law And Politics Of Contemporary Transitional Justice, Ruti Teitel

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author continues a project of tracing the genealogy of "transitional justice" in an analysis of the trials of the two Presidents. The author argues that an intellectual genealogy of "transitional justice" is defined in terms of periods of political change, & the relation of legal development to distinct political phases in world history & various political purposes are contextualized in the history of responses to political conflict. Three historical phases of the genealogy place the trials in Phase III of transitional justice seeking responses associated with post-Cold …

Justice, Power, And The Realities Of Interdependence: Lessons From The Milosevic And Hussein Trials, Payam Akhavan

Cornell International Law Journal

In this essay in the Symposium on Milosevic & Hussein on Trial, the author discusses issues of interdependence to argue that, although military power can eliminate threats in the short term, in an inextricably interdependent world long term peace can only be sustained by legitimacy. The author's personal experiences at a meeting on the "ethnic cleansing" in the Balkans prior to the creation of the International Criminal Tribunal on the former Yugoslavia (ICTY) are related to the success of "soft power" in judicial disguise, & the relationship between justice for others & political identity in liberal democracies. A historical narrative …

The Tricky Nature Of Proving Genocide Against Saddam Hussein Before The Iraqi Special Tribunal, Michael J. Kelly

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author discusses procedural challenges to proving genocide in the trial of Saddam Hussein to argue that the legitimacy of the Iraqi Special Tribunal (IST) & the proof of genocide rest on a sense of fairness, transparency, & completion of trials on a reasonable schedule. The Geneva Convention definition of genocide is discussed in terms of the impact of general verses specific intent in the International Criminal Tribunal for the former Yugoslavia (ICTY). A historical analysis of the colonial creation of Iraq relates Saddam's style of government control …

Death Sentence Rates And County Demographics: An Empirical Study, Theodore Eisenberg

Cornell Law Review

No abstract provided.

African Americans And Aboriginal Peoples: Similarities And Differences In Historical Experiences, David E. Wilkins

Cornell Law Review

No abstract provided.