Digital Commons Network^™

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

William & Mary Law Review

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …

Criminal Law As A Constitutive Strategy: The Colombian Case, Farid Samir Benavides Vanegas

Research Papers

In this text I analyze the role criminal law has played in the production of subaltern subjectivities in Colombia. Criminal law and criminological discourse have been important to control subaltern groups and to constitute their identities. Colombian elites have appealed to criminal law to solve their social problems, in a strategy that has been labeled as laws symbolic efficiency or as 'penal efficienticism'.'

The Reclassification Of Extreme Pornographic Images, Andrew D. Murray

Professor Andrew D Murray

Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government’s attempt to control the availability of such material through s.63 of …

Letter From The Editor, John Nohlgren

American University Criminal Law Brief

No abstract provided.

Bail In Australia: Legislative Introduction And Amendment Since 1970, Alex Steel

Alex Steel

This paper examines the rate of amendment of bail laws across Australian jurisdictions since the 1980’s. It examines stated justifications for those changes by Parliamentarians in a number of jurisdictions and seeks to provide insights into the increasing rate of legislative amendment in some states in recent years. The paper analyses whether Australia wide trends exist or whether the reasons for amendment are more locally based.

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability …

On Universal Jurisdiction—Birth, Life And A Near-Death Experience?, Helena Gluzman

Bocconi Legal Papers

This paper investigates the topic of universal jurisdiction, ie the supranational prosecution and repression—without the necessity of a link between the accused and the prosecuting state—of crimes of such gravity and magnitude as to collide with certain core values accepted by the international community and transcending the peculiarity of national interests. The focus of the chapter is exactly to try and discern the scope of universal jurisdiction, distinguishing between the two different versions of universality theorized by contemporary authors: ‘conditional universal jurisdiction’, which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction’, according to which …

Like Snow [Falling] On A Branch...: International Law Influences On Death Penalty Decisions And Debates In The United States, Russell G. Murphy, Eric J. Carlson

Denver Journal of International Law & Policy

No abstract provided.

A Presumption Of Guilt: The Unlawful Enemy Combatant And The U.S. War On Terror, Leila Nadya Sadat

Denver Journal of International Law & Policy

No abstract provided.

The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli

Faculty Publications

The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …

Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks

Faculty Journal Articles and Book Chapters

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Faculty Journal Articles and Book Chapters

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Failures To Punish: Command Responsibility In Domestic And International Law, Amy J. Sepinwall

Amy J. Sepinwall

Military spokespeople and upper echelon commanders routinely maintain that wartime atrocities are the acts of a few "bad apples." Yet, while disclaimers of responsibility from higher-ups in the chain of command often beg credulity, the law provides safe harbor for those holding command positions since it is frequently powerless to ensnare anyone but the atrocity's immediate perpetrators. This Article spans international and domestic law, and it addresses one of the doctrinal constraints on holding commanders criminally liable: the doctrine of command responsibility as it applies where commanders fail adequately to investigate or punish atrocities of their troops.

As a theoretical …