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Judges Talking To Jurors In Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else, Paul Marcus

Paul Marcus

No abstract provided.

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Paul Marcus

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …

A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo

Laurent Mayali

This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks vy ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired vy leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist groups before …

Plead Guilty, Without Bargaining: Learning From China’S “Summary Procedure” Before Enacting Indonesia’S “Special Procedure” In Criminal Procedure., Choky Risda Ramadhan Mr.

Choky Risda Ramadhan Mr.

Because Indonesian courts are increasingly overrun with criminal cases, Indonesian lawmakers recently introduced a criminal procedure bill to include “special procedure” (jalur khusus), a procedure that allows defendants to plead guilty in order to increase efficiency. Unlike plea-bargaining in the U.S., this procedure more resembles China’s “summary procedure,” which is solely conducted by a judge, not negotiated independently by prosecutors and defendants. Before enacting the provision of special procedure, however, Indonesian lawmakers should learn from China’s successes and failures implementing summary procedure. While this procedure resulted in increased efficiency in China, it did not provide for defense counsel, and …

Uganda’S New Sentencing Guidelines: Introduction, Initial Assessment And Early Recommendations, David B. Dennison

David Brian Dennison

In April of 2013 the Chief Justice of Uganda issued the Constitution (Sentencing Guidelines for the Courts of (Practice). In doing so Uganda joined a movement of criminal justice reform that cuts across anglophone jurisdictions. This article includes a general background on the emergence of sentencing guidelines and the two primary structural approaches to sentencing guidelines design.

This article’s primary purpose is to offer a preliminary critical assessment of Uganda’s Sentencing Guidelines. An overview of key features in the Sentencing Guidelines serves as a prelude to the analytical content.

Uganda’s Sentencing Guidelines are a commendable effort. They are more than …

Courtroom Drama With Chinese Characteristics: A Comparative Approach To Legal Process In Chinese Cinema, Stephen J. Mcintyre

Stephen J McIntyre

While previous “law and film” scholarship has concentrated mainly on Hollywood films, this Essay examines legal themes in Chinese cinema. It argues that Chinese films do not simply mimic Western conventions when portraying the courtroom, but draw upon a centuries-old, indigenous tradition of “court case” (gong’an) melodrama. Like Hollywood cinema, gong’an drama seizes upon the dramatic and narrative potential of legal trials. Yet whereas Hollywood trial films turn viewers into jurors, pushing them back and forth between the competing stories that emerge from the adversarial process, gong’an drama eschews any recognition of opposing narratives, centering instead on the punishment of …

The Aftermath Of Abusive Adoption Practices In The Lives Of Adoption Triad Members: Responding To Adoption Triad Members Victimized By Abusive Adoption Practices, David M. Smolin, Desiree L. Smolin

David M. Smolin

The above-titled presentation was given as a plenary presentation at the Annual Symposium of the Joint Council on International Children’s Services (JCICS) on April 18, 2012. Herein is a slightly modified version of the Power Point used at the presentation. We corrected some typos and made some editorial adjustments, but this is 99% the same as what was used at the presentation. Unfortunately the event itself was not taped.

It is important to note that the original context for this presentation is Intercountry Adoption to the United States. However, some of you may find some of these points relevant to …

The Origins And Efficacy Of Private Enforcement Of Animal Cruelty Law In Britain, Jerry L. Anderson

Jerry L. Anderson

In 1822, the British Parliament enacted a landmark statute to punish the abuse of animals, known as Martin’s Act, named after Richard Martin, MP, who championed the bill. The Act provided a criminal penalty of up to £5 for the cruel treatment of cattle, a term which included horses, oxen, and sheep. Because the Act was the first national statute aimed at animal cruelty, scholars have naturally focused on its substance, which established an important new norm governing the relationship between humans and other animals. However, the Act would not have been successful without vigorous prosecution, which helped define the …

Cравнительное Избирательное Право: Обзор Исследований, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

Sovereignty In Theory And Practice, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

This article deals with the theory and practice of sovereignty from the perspective of a trend in theoretical perspectives as well as the relevant trend in practice. The article provides a survey of the leading thinkers and philosophers views on the nature and importance of sovereignty. The concept of sovereignty is exceeding the complex. Unpacking its meanings and uses over time is challenging. An aspect of this challenge is that the discourse about sovereignty is vibrant in diverse policy, academic and political constituencies. At times its narratives are relatively discrete and at other times the narratives overlap with the discourses …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Hui (Robin) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

Towards A Synthesis Between Islamic And Western Jus In Bello, Jacob Turner

Jacob Turner

In the body of international humanitarian law (‘IHL’), there is a lacuna regarding the status of combatants engaged in asymmetric warfare. This has arisen, at least in part, out of a failure to establish a satisfactory distinction between civilians and combatants reflecting the nature of such conflicts and commanding the respect of parties to them. The recent killing of Osama Bin Laden by US Special Forces Operatives has provided publicity to the debates regarding the legal status of irregular combatants. Some have claimed that Bin Laden ought to have been captured alive and tried in a court. The US administration …

Reorienting Feminist Strategies Relating To Adult Transactional Sex, Suzanne Bouclin

suzanne bouclin

Feminist-informed policies around transactional sex continue to highlight and reinforce the ontological, epistemological and aesthetic disagreements between abolitionists and sex workers’ rights advocates. In this paper, I examine the Canadian context to provide some geographic and social specificity to such debates occurring through the global West. I review the anchoring concepts of feminist perspectives on the sale of sexual services by adults. I then suggest an intersectional understanding of sex work and deploy it to provide guidelines for addressing feminist concerns around commercial sex that avoid checkmated arguments and binary distinctions that do little to reduce the conditions of oppression …

"Cost Savings" As Proceeds Of Crime: A Comparative Study Of The United States And The United Kingdom, Richard C. Alexander

Richard C Alexander

The article begins by comparing and contrasting the provisions relating both to asset forfeiture and money laundering under U.S. Federal law and the law of the United Kingdom (in this area, the differences between the provisions of the three jurisdictions making up the United Kingdom are not significant). Some reference is also made to Florida state law, but principally by way of example rather than analysis. It then analyzes the U.S. case law relating to costs saved through the commission of a criminal offense and considers the possible effect of the amendment, made in 2009, to 18 U.S.C. §1956, before …

Strengthening The Rule Of Virtue And Finding Chinese Law In "Other" Places: Gods, Kin, Guilds And Gifts, Mary Szto

Mary Szto

Discussions about the rule of law in China today often do not consider the role of virtue or ritual. At the same time, many bemoan slow or no legal reform. Before the tumultuous events of the 20th century, traditional Chinese law (TCL) was remarkably continuous and stable for centuries. It was a blend of ritual and law focused on flourishing and virtue formation. Ritual was communion with, and law accountability to, the invisible spirit world. This inseparable blend spanned multiple jurisdictions, from state codes and courts to divine petitions and courts, to ancestral rites and family codes, to merchant codes …

Torture, Customary International Law, Promulgative Articulation, And Jus Cogens: Why And How Some United States Government Conduct Violates International And United States Law, Christopher L. Blakesley

Christopher L. Blakesley

This essay exposes the confusion over the meaning of customary international law and jus cogens that infests the writing of many international jurists, including scholars, and judges, especially those from the Common Law world. The essay shows how the essential idea behind customary international law, especially jus cogens in relation to crime is basic and easy to grasp, although some scholars claim that it is impenetrable. On the edges, of course, there is valuable disputation over nuance and the breath of the concepts. At bottom, however, the essence of the concepts is as basic as the deepest and most dearly …

Peacemaking And Constitution-Drafting, A Dysfunctional Marriage, Hallie Ludsin

Hallie Ludsin

This article seeks to challenge a potentially dangerous assumption that constitution-drafting is an appropriate peacemaking tool in countries suffering from on-going violent conflict. A recent trend in conflict resolution is to use constitution-drafting as a form of peace negotiation and the resultant constitution as a peace treaty, such as in Iraq, Afghanistan and Nepal. Policy-makers simply assume that the goals and needs of constitution-drafting and peacemaking are compatible. On closer examination, however, while theoretically the goals and needs of the two processes can be harmonized, in practice, a combined constitution-drafting/peacemaking process causes deep, inherent tensions to erupt that make it …

The Concept Of Evil In American And German Criminal Punishment, Joshua Kleinfeld

Joshua Kleinfeld

If we are adequately to explain the gap in harshness between American and German criminal punishment, we must lift the lid on a disquieting moral concept usually left under the surface of criminal theory—the concept of human evil. American criminal punishment represents a belief in the concept of human evil, while German criminal punishment represents a denial of that belief. This paper first takes up the concept of evil philosophically, locating in Hannah Arendt’s work a version of the concept that is both secular and intellectually nuanced. The paper then presents three lines of argument demonstrating the concept’s implicit role …

The Principle Of Complementarity In The Origins Of Federal Civil Rights Enforcement, 1866-1871, Matthew A. Smith

Matthew A Smith

When the Rome Statute of the International Criminal Court was adopted in 1998, it was praised for its potential to ensure the punishment of international crimes without subjecting states to overzealous international prosecution. The Statute’s careful balance of individual security and sovereign autonomy—achieved by employing a legal concept known as complementarity—is credited as one of its core innovations. However, complementarity’s historical roots run deeper than commentators on the Rome Statute have recognized: complementarity also played a central role over a hundred years earlier in the United States Congress’s efforts to enforce the civil rights of United States citizens. This article …

Foreign Law As Legislative Fact In Constitutional Cases, Aaron Christopher Bryant

Aaron Christopher Bryant

Do we really need another law review article about foreign law in constitutional interpretation? In fact we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism, in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

The Role Of The Apprenticeship And Clinics In Legal Education And Legal Culture In The Netherlands, Richard J. Wilson

Richard J. Wilson

Interpreting Judicial Interpretations Of The Criminal Statutes Of The Trafficking Victims Protection Act: Ten Years Later, Mohamed Mattar

Mohammad Mattar

The Trafficking Victims Protection Act (TVPA) established for the first time the crime of trafficking in persons. This article will analyze court cases that have been decided under the TVPA. The article will show that American courts, relying upon the text of the criminal statutes of the TVPA, as well as the findings of Congress, have broadened the interpretation of the offenses recognized under the Act to expand criminal liability, whether in cases of sex trafficking or labor trafficking. The article will also address cases in which the TVPA was challenged on constitutional grounds and whether it may apply on …

Exporting U.S. Criminal Justice, Allegra M. Mcleod

Allegra M. McLeod

In the years leading up to and following the end of the Cold War, the U.S. government embarked on a new legal transplant project, carried out through the foreign promotion of U.S. criminal justice techniques, procedures, and transnational crime priorities. Over the course of the 1990s, U.S. foreign criminal justice development initiatives rapidly expanded. This Article addresses a set of questions, which to date remain largely unaddressed in the relevant scholarly literatures: Why, in the Cold War’s wake, when the U.S. criminal justice system had come to be viewed in significant respects in terms of failure, did U.S. criminal law …

Legal Pluralism In Post-Colonial Africa: Linking Statutory And Customary Adjudication In Mozambique, David Pimentel

David Pimentel

Legal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state. The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many—colonists in the past, and political opportunists today—who have exploited …

A Comparative Analysis Of The Right To Appeal, Peter D. Marshall

Peter D Marshall

This article focuses on the origins and contemporary understandings of the right to appeal against conviction and sentence. Adopting a comparative approach, the article first argues that, despite very different historical foundations and institutional structures, the past century has seen considerable convergence in how criminal appeals are conceptualized in common law and civil law jurisdictions. A number of reasons for this convergence are identified. The article’s focus then turns to the substance of the right, particularly the scope of review. It is argued that, although certain differences remain, a shared understanding of the right’s essential features is emerging. States, it …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber

Diane Webber

The paper examines current methods of preventive detention in the United States, that is the detaining of a suspect on home soil to prevent a terrorist attack. This paper looks at two recent events: the Fort Hood shootings and a preventive arrest in France, to consider problems in combating terrorist crimes on U.S. soil. I demonstrate that U.S. law as it now stands, with some limited exceptions, does not permit detention to forestall an anticipated domestic terrorist crime. After reviewing and evaluating the way in which France, Israel and the United Kingdom use forms of preventive detention to thwart possible …

Iran’S “New Constitutionalism”: Constitutional Politics In Post-Revolutionary Iran, Kambiz Behi

Kambiz Behi

This Article argues that the Iranian constitutional system, although distinctive in application and in jurisprudence, is structurally and functionally similar to a set of rapidly globalizing forms of constitutional arrangement. These similarities include, in the main, legal institutions, legal thought, and methods of jurisprudence. In particular, I argue that the post-1989 constitutional reforms in Iran incorporate a globalizing constitutional mode of legal arrangement marked by proportionality analysis and judicial interventionism at the expense of representative politics. The Article also aims to make a contribution to the methodology of legal analysis by applying a Critical approach to the study of a …