The Recovery Of ‘Criminal’ Assets In New Zealand, Ireland And England: Fighting Organised Crime In The Civil Realm, 2009 University of Aberdeen
The Recovery Of ‘Criminal’ Assets In New Zealand, Ireland And England: Fighting Organised Crime In The Civil Realm, Liz Campbell
This article considers the recent introduction of the Criminal Proceeds (Recovery) Act 2009 in New Zealand, and compares it with the established processes of civil asset recovery in Ireland, England and Wales. Salient differences between the models are examined, including the more expansive definitions in Ireland. The paper posits that the recovery process in these three jurisdictions in fact is a criminal one which merits the adoption of due process rights, given the promotion of the aims of punishment, the centrality of the targeted individual’s culpability, and the powers of the agencies involved. However, the extant jurisprudence in Ireland ...
Islamic Financial System Rescue To The Global Financial Crisis A Study On The Origin Of Subprime Mortgage Crisis And Rescue Offered By Islamic Financial System, Shafaq Khan
The severity of the Subprime mortgage crisis has traumatised the foundations of the conventional financial system and has led to the search for cure of losses suffered and reforms against such crisis in future. During this crisis we have witnessed the impacts of irregularities done and insufficient monitoring of the complex financial products in the financial market. Standard regulations in the loan industry under conventional financial system proved to be insufficient to tackle the crisis. During the Subprime mortgage crisis, when the hot real estate markets were converting into foreclosure capitals, Islamic financial market was impervious from its impacts. This ...
Criminal Law In Ireland: Cases And Commentary, 2009 University of Aberdeen
Criminal Law In Ireland: Cases And Commentary, Liz Campbell
Criminal Law: Cases and Commentary is a new book from Clarus Press designed to help law students to understand the fundamental rules, principles and policy considerations that govern the criminal law in Ireland. It attempts to address a comprehensive range of issues including, the definition of a crime, its various classifications, the imposition of liability, the range of substantive criminal law offences, the procedural rules that shape the pre-trial and trial processes and the possible defences that may arise. It provides students with a broad range of perspectives including formal case law, statutory and constitutional provisions, academic commentaries and Law ...
Foreword: Why "The Child Witness" Now?, 2009 Widener Law School, Delaware
Foreword: Why "The Child Witness" Now?, Jules Epstein
No abstract provided.
My Doctor Made Me Crazy: Can A Medical Malpractice Plaintiff Allege Psychological Damages Without Making Credibility The Issue?, 2009 Thomas M Cooley Law School
My Doctor Made Me Crazy: Can A Medical Malpractice Plaintiff Allege Psychological Damages Without Making Credibility The Issue?, Brendan Beery
Brendan T Beery
This article explores the issue of psychological damages and challenges the pervasive notion among defense lawyers in medical malpractice cases that medical and psychological evidence obtained in discovery can be used to embarrass a medical malpractice plaintiff in front of a jury.
A Note On The Nonclass Aggregation Trilogy, 2009 University of Georgia School of Law
A Note On The Nonclass Aggregation Trilogy, Elizabeth Burch
Elizabeth Chamblee Burch
Litigating Together: Social, Moral, and Legal Obligations I have posted a draft of the last in a trilogy of articles on nonclass aggregation (on SSRN) and thought I would provide a brief retrospective for the interested reader. The first article in the trilogy is Procedural Justice in Nonclass Aggregation, which explains in-depth the problems and risks presented by nonclass aggregation. It observes that systemic legitimacy and compliance with judicial decisions hinges on ensuring procedural justice, but that our current system for handling large-scale litigation fails to provide a number of key procedural-justice components including the preference for adversarial litigation, participation ...
Struck By Lightning: Walker V. Georgia And Louisiana's Proportionality Review Of Death Sentences, 2009 University of North Carolina at Chapel Hill
Struck By Lightning: Walker V. Georgia And Louisiana's Proportionality Review Of Death Sentences, Robert Smith, Bidish Sarma, G. Cohen
Robert J Smith
The Louisiana Supreme Court conducts a comparative case proportionality review of each Louisiana death sentence to ensure that the punishment is not excessive considering both the crime and the criminal. The Court underscores that the federal constitution does not compel its practice. This article questions the Louisiana Supreme Court’s understanding of the Constitution and demonstrates that its proportionality review is constitutionally insufficient.
Hearings, 2009 Northwestern University
Hearings, Mark Spottswood
This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were ...
Just The Facts: Solving The Corporate Privilege Waiver Dilemma, 2009 Columbia Law School at Catholic University
Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don Berthiaume
Don R Berthiaume
How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.” Why should we look to Fed ...
Welfare As Happiness (With J. Bronsteen & J. Masur), 2009 Chicago-Kent College of Law
Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher Buccafusco
Christopher J. Buccafusco
Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article argues against ...
Can Criminal Law Be Controlled?, 2009 University of Virginia School of Law
Can Criminal Law Be Controlled?, Darryl Brown
Darryl K. Brown
This review of Douglas Husak's 2008 book, Overcriminalization: The Limits of the Criminal Law, summarizes and largely endorses Husak's normative argument about the indefensible expansiveness of much contemporary criminal liability. It then offers a skeptical (or pessimistic) argument about the possibilities for a normative theory such as Husak's to have much effect on criminal justice policy in light of the political barriers to reform.
Procedural Adequacy, 2009 University of Georgia School of Law
Procedural Adequacy, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do ...
Retribution And The Experience Of Punishment, 2009 Chicago-Kent College of Law
Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur
Christopher J. Buccafusco
In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does - must ...
Voodoo Information: Authenticating Web Pages In Federal Court, 2009 Selected Works
Voodoo Information: Authenticating Web Pages In Federal Court, M. Anderson Berry, David Kiernan
M. Anderson Berry
For many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites and the party’s websites. And during the life of the case, there will likely be other valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a “screen shot” of the webpage, which was either downloaded as a .pdf or printed directly from the website. If proper steps are not taken to admit the evidence, the value of this information may be lost ...
Valuing Intellectual Property: An Experiment, 2009 Chicago-Kent College of Law
Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman
Christopher J. Buccafusco
In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions ...
Will History Be Servitude?: The Nas Report On Forensic Science And The Rule Of The Judiciary, 2009 Duquesne University School of Law
Will History Be Servitude?: The Nas Report On Forensic Science And The Rule Of The Judiciary, Jane Moriarty
Jane Campbell Moriarty
For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, “individualization evidence”). Not only can they match it, they claim, they can do so often without any error rate. In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack ...
The Rise, Fall And Rise Again Of The Genetic Foundation For Legal Parentage Determination, 2009 Netanya Academic College
The Rise, Fall And Rise Again Of The Genetic Foundation For Legal Parentage Determination, Yehezkel Margalit
Recently, we have witnessed dramatic changes in the formation of the family and parenthood. One of the results of those shifts is a growing number of children growing up outside of the traditional marriage framework. Therefore, the dilemma of determining a child's parentage, which was usually resolved by a legal fiction as to the child's legal parents, is becoming increasingly problematic. It is appropriate that any discussion of the establishment of legal parentage should start with a study of the rise of the most popular modern model, the genetic model.
It is relevant to point out that from ...
Régimen De Prisión Preventiva En América Latina: La Pena Anticipada, La Lógica Cautelar Y La Contrarreforma / Pre-Trial Detention Regime In Latin America: The Pre-Trial Punishment, Flight Risk And The Counter Reform, 2009 Universidad Diego Portales
Régimen De Prisión Preventiva En América Latina: La Pena Anticipada, La Lógica Cautelar Y La Contrarreforma / Pre-Trial Detention Regime In Latin America: The Pre-Trial Punishment, Flight Risk And The Counter Reform, Claudio Fuentes Maureira
Claudio Fuentes Maureira
One of the main reasons that justified the criminal procedure reform in Latin America was the possibility to overcome and changed different practices that were very problematic. One of these complex situations was the excessive use of pre-trial detention in the context of criminal investigations; in particular, the abuse of this institution had a dangerous outcome when it comes to the protection of the human rights of the detainees.
From the mid 90’s onwards, most of the Latin American countries started a reform of their criminal institutions and proceedings. A considerable portion of the legal framework was heavily modified ...
Barack Obama, Sir Walter Raleigh And Forensics (Or The 2008 Election And The Future Of The Right Of Confrontation), 2009 Widener Law School, Delaware
Barack Obama, Sir Walter Raleigh And Forensics (Or The 2008 Election And The Future Of The Right Of Confrontation), Jules Epstein
For the Court in Crawford v. Washington, the historic roots of the right of Confrontation were a rejection of such procedures, and a mandate that “testimonial” hearsay be inadmissible unless the original declarant was now in court or was now unavailable to testify and there had been the opportunity for cross-examination when the statement was made. The relevance of Crawford (and Raleigh’s travails) to forensics can be found in the 2009 Melendez-Diaz decision ...
What does this, and Sir Walter Raleigh, have to do with Barack Obama?