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Full-Text Articles in Law
Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma E. Marouf
Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma E. Marouf
Fatma E Marouf
A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet the Board of Immigration Appeals (BIA) has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examining of the elements of the crime with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offense are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious …
Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal
Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal
Nathan M. Crystal
The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the …
Impartiality And Independence: Misunderstood Cousins, James E. Moliterno
Impartiality And Independence: Misunderstood Cousins, James E. Moliterno
James E. Moliterno
No abstract provided.
A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling
A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling
Theodor JR Schilling
Judge-made international law (JMIL) based on a law of reason exists as well in some municipal court decisions setting a precedent as in ones building upon such a precedent. Such court decisions rely on the faculty of judicial borderline institutions to decide against normally binding customary international law (CIL). This implies for the first group that they may positivise a law of reason, and for the second group they may defer to thus positivised laws of reason, both irrespective of contrary CIL. Norms of JMIL and of CIL are determined according to different secondary rules. Therefore, court decisions which are …
Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper
Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper
Casey J Cooper
The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …
Border Searches In The Age Of Terrorism, Robert M. Bloom
Border Searches In The Age Of Terrorism, Robert M. Bloom
Robert Bloom
This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …
Transparency, Independence And Diversity: Does The United States Have It Better?-A Comparative Analysis Of The Process Of Appointment Of Judges To The Supreme Court In The United States And India., Varun Vaish
Varun Vaish
The rise of legal realism has made it manifestly clear that the background and worldview of judges influence cases.This is evidenced in the United States where the appointment of judges to the higher judiciary is believed to be, at least in some measure, predicated upon the proximity of the political ideology of the judge with that of the appointing party. This influence is acknowledged, questioned and somewhat mitigated against by the process of appointment wherein the Senate ratifies the president’s choice. However the lack of acknowledgement of this influence and its consequent securitization, in the appointment of judges is where …
Arbitration, Women Arbitrators And Sharia, Mohamed Raffa Dr.
Arbitration, Women Arbitrators And Sharia, Mohamed Raffa Dr.
Mohamed Raffa Dr.
So, can the Arbitrator be a woman? Omar, the third Khalipha in Islam after Prophet Muhammad, actually appointed a female judge. Today, across the various Muslim countries, there are female judges in almost every Muslim country except in Saudi Arabia. There are about 70 female Iraqi judges, 10 female judges in the UAE, 20 in Egypt female judges and Arbitrators, Nigeria recently appointed the first female Chief Justice in Africa as well as it has one of the largest National Associations of Women Judges; with more in other Muslim Countries including Indonesia and Malaysia.
Judicial Independence In Post-Conflict Iraq: Establishing The Rule Of Law In An Islamic Constitutional Democracy, David Pimentel, Brian Anderson
Judicial Independence In Post-Conflict Iraq: Establishing The Rule Of Law In An Islamic Constitutional Democracy, David Pimentel, Brian Anderson
David Pimentel
Contemporary Iraq is facing the full range of challenges that come with post-conflict transitional justice, including “paving the road toward peace and reconciliation” and establishing a functional state, characterized by the Rule of Law. Prospects for the establishment of an independent judiciary in Iraq are obstructed by a number of factors, including (1) how to apply the explicit recognition of the law of Islam in the Iraqi Constitution, (2) the inability to pass legislation on the Federal Courts of Iraq, leaving several provisions of the Iraqi Constitution unimplemented, and other critical elements of judicial independence unaddressed, including provisions for tenure, …
The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda
The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda
Aldo Zammit Borda
The Rome Statute (RS) of the International Criminal Court (ICC) is a milestone for the role it accords to victims in international criminal proceedings. The provisions on victims’ participation in the RS system have been applied for the first time in the case of Mr Thomas Lubanga Dylio. This paper takes the view that a number of significant interlocutory pronouncements on victims’ participation have already been made by the ICC Pre-Trial, Trial and Appeals Chambers which, as such, deserve further analysis. The paper will firstly provide a brief overview of developments with regard to victims’ participation in the area of …