Comparative and Foreign Law Commons^™

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.

The Icc And The Security Council: How Much Support Is There For Ending Impunity?, 26 Ind. Int'l & Comp. L. Rev. 33 (2016), Stuart Ford

Stuart Ford

No abstract provided.

All In The Family: The Influence Of Social Networks On Dispute Processing, Manuel A. Gómez

Manuel A. Gómez

No abstract provided.

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 …

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Valerie P. Hans

No abstract provided.

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

Reconstructing Constitutional Punishment, Paulo D. Barrozo

Paulo Barrozo

Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political …

“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 …

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 …

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. …

Uprooting The Cell-Plant: Comparing United States And Canadian Constitutional Approaches To Surreptitious Interrogations In The Detention Context, Amar Khoday

Dr. Amar Khoday

No abstract provided.

Los Derechos De La Personalidad De Los Menores De Edad, Leysser L. Leon

Leysser L. León

Entrevista sobre los derechos de la personalidad de los menores de edad, a propósito de la divulgación mediática de la imagen y vida privada de los niños y adolescentes homicidas o infractores de leyes penales en general.

The Proscription Of Incorporated Law Practices (Ilps) In Nigeria: The Legal And Constitutional Issues Arising, Abdullahi Saliu Ishola

Abdullahi Saliu Ishola

This paper critically examines the legality and constitutionality of the provision of Rule 5 sub-rule (5) of the Rules of Professional Conduct for Legal Practitioners, 2007 (the Rules), prohibiting the practice of law in Nigeria as a corporation. The appraisal is done on the scales of the provisions of Sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the Constitution), providing for rights to freedom of association and peaceful assembly and freedom from discrimination, respectively; on one hand, and, Section 18 of the Companies and Allied Matters Act (CAMA), allowing any two or …

Judicial Review Of Administrative Action/ Decision As The Primary Vehicle For Constitutionalism: Law And Procedures In Tanzania, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

This paper examines the discretionary powers of the High Court of Tanzania to review decisions and actions of other public bodies as a means to uphold the spirit of the Constitution on checks and balances between the three organs of the state. The writer examines the procedures for judicial review, the legal and procedural requirements and the remedies available under the laws of Tanzania, however, the writer further examines experiences from other countries particularly from case laws.

Diversion Of Offenders With Mental Disorders: Mental Health Courts, Sarah Ryan, Darius Whelan

Darius Whelan

At present, if people with mental disorders appear before the criminal courts in Ireland, unless they are unfit for trial or not guilty by reason of insanity, the system governing their case will be the general one which applies to all criminal cases. In recent decades, a number of other common law jurisdictions have begun to set up mental health courts as a means of diverting some people with mental disorders from the criminal justice system and into more appropriate treatment. This article begins with a review of the background to mental health courts, focusing on the concept of diversion …

The Basics Of Us Criminal Justice System, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

The criminal justice system is complex. It is also bureaucratic by design and has evolved over the years from simple unstructured peacekeeping units to the large complex crime-fighting system that it is today. Many of those who work within it find it challenging and unwieldy. Many of those who are accused of an offense find it confusing and intimidating. This goes for citizens and foreigners whether they are competent in the English language or not. For most members of ethnic minority groups, the experience can be harrowing and often fatal.

Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler

Christopher J. Truxler

Historically, crime victims served as policemen, investigators, and private prosecutors, and were regarded as law enforcement’s most dependable catalyst. The Crime Victim’s Rights Act of 2004 grants crime victims eight substantive and procedural rights and breathes new life into the common law idea that crime is both a public wrong and a private injury. The Act has, however, elicited ardent criticism. Opponents contend that the Act is both bad policy and, most likely, unconstitutional. Without commenting on the Act’s policy or constitutionality, this Note places the Crime Victims’ Rights Act within a broader historical context where victims’ needs can be …

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 …

Historia, Maendeleo Na Mabadiliko Ya Katiba Tanzania Tangu Uhuru Hadi Miaka Hamsini Ya Uhuru 9 Desemba 2011., Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

Jamhuri ya Muungano wa Tanzania ni nchi iliyotokana na nchi mbili za Tanganyika na Zanzibari mwaka 1964, tangu uhuru wa Tanganyika 1961 na uhuru wa Zanzibari 1963 pamekuwapo na maendeleo ya kikatiba kwa upande wa Muungano na kwa Zanzibari ambayo hatuna budi kuyatazama kwa mapana yake hasa juu ya ushirikishwaji wa watu katika kuzipata katiba hizi.

Electronic Contracts In Tanzania: An Appraisal Of The Legal Framework, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The concern of our study was to examine the legal basis for electronic contracts in Tanzania. The major problems that were being examined are; the ascertainment of e-contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. With the first problem, e-commerce involves e-contracts and the business community in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment is not suitable in Tanzania in terms of the laws and the technology. Messages sent via internet may be garbled …

Justicia Militar Y Derechos Humanos, Claudio Fuentes Maureira

Claudio Fuentes Maureira

En diciembre de 2010 se publicó una reforma a la justicia militar que excluyó a los civiles de su jurisdicción, lo que fue celebrado por el Gobierno como un significativo paso hacia la democratización de esta jurisdicción, la misma que le valió a Chile una condena internacional en 2005. No obstante, mantuvo la competencia de tribunales militares para conocer delitos cometidos por miembros de las Fuerzas Armadas y de Orden, lo cual sigue estando por debajo de los estándares que obligan a Chile. A ello se suma que aún está pendiente la reforma orgánica y procedimental de la justicia militar, …

El Manejo De La Incertidumbre Judicial: La Construcción De La Duda Razonable En El Sistema Procesal Penal / Management Of Judicial Uncertainty: The Construction Of The Reasonable Doubt Standard Under The Criminal Procedure System, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The Chilean criminal procedure reform introduced to the Chilean legal culture many foreign institutions. In every case the idea behind it was to change specific behaviours of the old system. One of these institutions was the concept or idea of the standard of proof, mainly the introduction in article 340 of the current Code of Criminal Procedure of the beyond reasonable doubt standard.

The paper explores, ten years after the adoption of the new system, how the the tribunals have understood and incorporated this concept, and specifically the beyond reasonable doubt standard. In terms of methodology the paper focuses, in …

Comentario Del Fallo De La Corte De Apelaciones De Concepción Sobre Exclusión Probatoria En Juicios De Familia: ¿Realidad O Ficción?, Claudio Fuentes Maureira

Claudio Fuentes Maureira

El presente documento destaca la relevancia de una reciente sentencia de la Corte de Apelaciones de Concepción en materia de derecho procesal de Familia. En ella la Corte establece una sana línea jurisprudencial que fija una expectativa de conducta por parte del juez de familia respecto de cómo deben encarar el incidente de exclusión probatoria que se da en el contexto de la audiencia preparatoria. Asimismo, qué tipo de razonamiento deben llevar a cabo para resolver la solicitud de exclusión planteada y cuáles son los mínimos argumentos que su decisión de exclusión debe considerar.

A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

The concept of a perverse verdict is one that pervades the Criminal justice system of nearly all common law jurisdictions. The English Criminal Justice system is no exception and the concept has become institutionalised as if it were a true occurrence. This paper challenges the idea and argues that it is, technically, a legal non-event given the system of trial by jury. The theory is that besides the jury, no one else is invested with the power and authority to declare a verdict and this position is supported both by legal custom and the mechanism of the criminal justice system. …

Curtains, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

This is the story of life in all its glory and eternal ramifications. This is the story of us.

I Wept, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

It is not always what we expect to find in love but sometimes, we look in the worng places. We fail to notice that what we always wanted and sought was always in front of us.