Comparative and Foreign 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 …

A Tale Of Two Countries' Engagement With The Fair Cross Section Right: Aboriginal Underrepresentation On Ontario Juries And The Boston Marathon Bomber's Jury Wheel Challenge, Marie Comiskey

Chicago-Kent Law Review

In both Canada and the United States, the constitutional right to a jury trial includes the right to select a jury from a representative cross-section of the jury-eligible population. This article compares and contrasts how this right has been interpreted in the two countries through the lens of recent controversies. In Part I, the article examines how the Supreme Court of Canada and the United States Supreme Court have defined the representative cross-section component of the right to a jury trial in the two respective countries. In Part II, the article focuses on the crisis of Aboriginal underrepresentation on coroner …

Ears Of The Deaf: The Theory And Reality Of Lay Judges In Mixed Tribunals, Sanja Kutnjak Ivković

Chicago-Kent Law Review

This paper explores mixed tribunals, a unique form of lay participation in which lay and professional judges make legal decisions jointly. A short overview of different types and sizes of mixed tribunals around the world will be discussed first. Then, the paper will elaborate on the theoretical arguments that hypothesize about the nature and extent of interaction in mixed tribunals. These theoretical arguments, developed using the status characteristics theory, will be assessed using the evidence obtained in empirical studies of mixed tribunals. In addition, the paper will discuss other potential challenges faced by mixed tribunals. In the end, the paper …

Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder

Chicago-Kent Law Review

In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir dire. This article challenges the assumption that prospective jurors enter the courtroom as either impartial or partial and that voir dire will reveal the impartial ones. Though voir dire fails as an “impartiality detector,” this article explores how voir dire contributes to the trial process in two …

Preventing Juror Misconduct In A Digital World, Thaddeus Hoffmeister

Chicago-Kent Law Review

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

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

Valerie P. Hans

No abstract provided.

Patching Old Wineskins: Heightened Deference Towards Saiban-In Findings Of Fact On Koso Appeals Is Not Enough, Caleb Jon F. Vandenbos

Washington International Law Journal

The successful introduction of the saiban-in seido—the Japanese lay assessor system—was a tremendous step towards creating meaningful exchange between the public and the judiciary and democratizing the criminal justice system in Japan. To preserve the quality of this exchange, judges must conscientiously solicit and respect lay assessor input during deliberations, and saiban-in decisions must retain their force on appeal. Under current appellate procedure, however, saiban-in findings of fact may be replaced on koso appeal. Koso appeals threaten to eviscerate lay participants’ contributions in the individual case being reviewed and, in the long term, will discourage judges from taking lay …

Forensic Evidence And The Court Of Appeal For England And Wales, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The Criminal Division of the Court of Appeal has extensively analyzed the role of forensic evidence. In doing so, the court has grappled with the admissibility and reliability of a broad range of forensic evidence, from DNA and computer forensics to medical and psychological proof, to more outlying subjects like facial mapping, fiber analysis, or voice identification. The court has analyzed these subjects from two perspectives: the admissibility of such evidence in the lower courts and the admissibility of such evidence as fresh evidence on appeal. In both contexts, the court has taken a practical approach to admitting forensic proof …

Restorative Justice For Multinational Corporations, Andrew B. Spalding

Law Faculty Publications

Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries. The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address …

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 …