Law Commons^™

An Excuse-Centered Approach To Transitional Justice, David Gray

David C. Gray

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …

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 …

What's To Know? The New Cartel Offence, Alex Steel

Alex Steel

This article examines the mental elements of the new cartel offence in the Australian Trade Practices Act 1974. it compares the wording of the offence to the interpretation of mental elements under the Commonwealth Criminal Code in R v Tang, a High Court decision on the mental elements of sexual servitude (sex slavery) offence. It concludes that there is no practical difference between the mental elements of the cartel criminal offence and parallel civil penalty provisions and argues that additional mental elements are needed to justify the criminalisation of cartel activity.

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 …

Hydraulic Pressures And Slight Deviations, Erik Luna

Erik Luna

No abstract provided.

In Support Of Restorative Justice And Reply, Erik Luna

Erik Luna

No abstract provided.

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 …

Incorporating The Criminal Law In Sport Studies, Adam Epstein

Adam Epstein

The purpose of this article is to provide an outline for teaching the criminal law in a sport studies (or related) course. The article discusses the differences among various crimes and whether physical violence involves legitimate or illegitimate force during a sports contest. Even non-violent (white collar) crimes such as the incident at the University of Toledo demonstrate how the criminal law can weave its way into the legal environment of sport. The article also notes how crimes can be committed in all environments and at all levels: youth sport, recreational activities and leagues, amateur competition and in the professional …