Law Commons^™

Rehabilitation Of Illicit Behaviours In The Post-Rtl Era: Disputes And Proposals, Zhenjie Zhou

Zhenjie ZHOU

How to rehabilitate illicit behaviours that were subject to the re-education through labour system has been a topic of rigorous debate since the abolition of the system. Proposals brought forward so far can generally be categorised into a criminalisation approach and an administrative approach. This article asserts that the rehabilitation of these behaviours shall strictly observe principles of efficiency, transparency and fairness and proposes that the Legislature adopt the Law on Correction of Illicit Behaviour under pilot implementation to consign illicit behaviours that were subject to the re-education through labour system to a mixed decision-making procedure. This will constitute a …

Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra Prof.

Surabhi Chopra Prof.

DEALING WITH DANGEROUS WOMEN: SEXUAL ASSAULT UNDER COVER OF NATIONAL SECURITY LAWS IN INDIA

This article examines violence against women suspected of being security threats in India’s internal conflict zones, one of the very few scholarly works to do so.

I focus on two cases in particular. In 2004, Thangjam Manorama was arrested by paramilitaries on suspicion of belonging to a violent separatist group, and found raped and murdered several hours later. I look at her family’s attempts to hold the armed forces accountable for her death. I also look at the ongoing criminal prosecution of Soni Sori, an indigenous …

Designing Trial Avoidance Procedures For Post-Conflict, Civil Law Countries: Is German Absprachen An Appropriate Model For Efficient Criminal Justice In Afghanistan?, Nasiruddin Nezaami

Nasiruddin Nezaami

In Afghanistan, overflow of court dockets and lengthy trials persist despite recent reforms effected through a new Criminal Procedure Code. The new Code has solved some of the problems that existed prior to its ratification; however, it has failed to establish adequate trial avoidance procedures. This problem is further compounded by the dissatisfaction of parties with trial outcomes. This article suggests that Afghanistan could address both issues by adopting a mechanism similar to German Absprachen as an appropriate case disposing procedure, enabling party consensus, helping courts decrease their dockets, and reducing the length of trials. This analysis is not only …

Crime And Punishment, A Global Concern: Who Does It Best And Does Isolation Really Work?, Melanie M. Reid

Melanie M. Reid

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …

The Road Most Travel: Is The Executive’S Growing Preeminence Making America More Like The Authoritarian Regimes It Fights So Hard Against?, Ryan T. Williams

Ryan T. Williams

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 …

“Friend To The Martyr, A Friend To The Woman Of Shame”: Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Michael L Perlin

The need to pay attention to the law‘s capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...."

Humiliation and shaming, …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution, Jessica S. Peake

Jessica S Peake

International criminal procedure is characterized by a fundamental structural shift in the allocation of power between the actors in a criminal trial – the judges, Prosecution and defense - away from that traditionally ascribed under an adversarial system and towards the power distribution structure more common to the inquisitorial system. By looking at the Statutes and RPEs of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), it is possible to identify varying degrees of power shifts in each court: across each we see a …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins

Brenda A McKinney

Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.

Speech Along The Atrocity Spectrum, Gregory S. Gordon

Gregory S. Gordon

In the abstract, speech may have much intrinsic value with its power to facilitate democracy, self-actualization, and good will. But, in certain contexts, it can also be quite deleterious, spawning division, ignorance, and hatred. Within the crucible of atrocity, speech may be similarly Janus-faced. Its power to prevent mass violence is indubitable. But its capacity for enabling mass violence is similarly unquestionable. So the issue arises: when and how may speech work for good or ill in relation to atrocity? This Article grapples with that question. And, in doing so, it finds that the relationship between speech and atrocity should …

International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson

Michael Anderson

Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.

This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …

Mexico's Gun Control Laws: A Model For The United States?, David B. Kopel

David B Kopel

This article explicates Mexico’s constitutional right to arms and Mexico’s main gun-control statute, the Federal Law of Firearms and Explosives (Ley Federal de Armas de Fuego y Explosivos). Along the way, the article notes various proposals to move U.S. gun laws in a Mexican direction.

Part II of this article is an English translation of the Mexican constitution’s guarantee of the right to arms, as well as predecessor versions of the guarantee.

Part III explains the operation of Mexico’s gun-control system and provides some historical and statistical information about gun ownership and gun smuggling in Mexico.

Part IV describes some …

Klaus Tiedemann Business-Related Criminal Law In Europe: A Critical Inventory, Edgardo Rotman

Edgardo Rotman

An overview and critical analysis of the new developments of business related criminal law in Europe as of 2011 by the most prominent German specialist in the field.

Mexico's Crisis: When There's A Will, There's A Way, Melanie M. Reid

Melanie M. Reid

The United States under the Obama administration is committed to many of the tools being advocated in Mexican President Felipe Calderón’s holistic approach to combat drug trafficking. This Article explores the United States’ Merida Initiative policy and critiques its effectiveness. The Beyond Merida Initiative announced in 2010 revamped the prior 2007 initiatives, and provided more emphasis on additional training rather than equipment or direct financial aid to Mexico. Neither initiative corrects problems endemic to Mexico which limits the possibility of success. Corruption, anti-American resentment, and a drastically different legal system in Mexico hinder our efforts to become an effective ally …

Can We Find And Stop The "Jihad Janes"?, Diane Webber

Diane Webber

Two female American citizens, Colleen LaRose, a.k.a. “Jihad Jane” and Jamie Paulin-Ramirez, whose appearance and passports allow them to blend into Western society, currently represent “one of the worst fears” of intelligence and FBI analysts who work to identify terrorist threats. On both sides of the Atlantic, similar problems exist of homegrown terrorism and radicalization, and the internet has a huge impact on these issues. This paper examines the tools available to the U.S. and the U.K. to find and stop potential homegrown terrorists from perpetrating catastrophic acts of terror. After assessing the differences between U.S. and U.K. law, I …

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 …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

All Faculty Scholarship

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

The Moral Politics Of Social Control: Political Culture And Ordinary Crime In Cuba, Deborah M. Weissman, Marsha R. Weissman

Deborah M. Weissman

The Cuban revolution has been described as “the longest running social experiment” in history, and one not well-received in the United States. The U.S. government responded to the revolution first with suspicion, and then hostility. Even while the current administration has acknowledged the failure of U.S. policy, few substantive changes have been announced and the narrative of Cuba in the United States continues to dwell almost exclusively on political repression and economic failure. The Cuban revolution, however, is a complex process, one that defies facile explanations. This article subscribes to the perspective offered by social scientists who urge “a more …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

Economics Of Plea Bargaining, Richard Adelstein

Richard Adelstein

A short summary of earlier work for a sociological audience.

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

ExpressO

On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

ExpressO

This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted in …