Law Commons^™

Constrained Choice: Mothers, The State, And Domestic Violence, Rona Kaufman Kitchen

Rona Kaufman Kitchen

Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers …

Holistic Pregnancy: Rejecting The Theory Of The Adversarial Mother, Rona Kaufman Kitchen

Rona Kaufman Kitchen

In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, …

Rudolf Kjellén: Nordic Biopolitics Before The Welfare State, Markus Gunneflo

Markus Gunneflo

Evidence Summarized In Attorney’S Closing Arguments Predicts Acquittals In Criminal Trials Of Child Sexual Abuse, Stacia N. Stolzenberg, Thomas D. Lyon

Stacia N. Stolzenberg

Evidence summarized in attorney’s closing arguments of criminal child sexual abuse cases (N = 189) was coded to predict acquittal rates. Ten variables were significant bivariate predictors; five variables significant at p < .01 were entered into a multivariate model. Cases were likely to result in an acquittal when the defendant was not charged with force, the child maintained contact with the defendant after the abuse occurred, the defense presented a hearsay witness regarding the victim’s statements, a witness regarding the victim’s character, or a witness regarding another witnesses’ character (usually the mother). The findings suggest that jurors might believe that child molestation is akin to a stereotype of violent rape, and that they may be swayed by defense challenges to the victim’s credibility and the credibility of those close to the victim.

Evidence Summarized In Attorney’S Closing Arguments Predicts Acquittals In Criminal Trials Of Child Sexual Abuse, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

Evidence summarized in attorney’s closing arguments of criminal child sexual abuse cases (N = 189) was coded to predict acquittal rates. Ten variables were significant bivariate predictors; five variables significant at p < .01 were entered into a multivariate model. Cases were likely to result in an acquittal when the defendant was not charged with force, the child maintained contact with the defendant after the abuse occurred, the defense presented a hearsay witness regarding the victim’s statements, a witness regarding the victim’s character, or a witness regarding another witnesses’ character (usually the mother). The findings suggest that jurors might believe that …

Developmental Trends In The Process Of Constructing Own- And Other-Race Facial Composites, Narina Nunez

Narina Nunez

The current study examined developmental differences from the age of 5 to 18 in the creation process of own- and other-race facial composites. In addition, it considered how differences in the creation process affect similarity ratings. Participants created two composites (one own- and one other-race) from memory. The complexity of the composite creation process was recorded during Phase One. In Phase Two, a separate group of participants rated the composites for similarity to the corresponding target face. Results support the cross-race effect, developmental differences (based on composite creators) in similarity ratings, and the importance of the creation process for own- …

Young Children’S Difficulty With Indirect Speech Acts: Implications For Questioning Child Witnesses, Angela D. Evans, Stacia Stolzenberg, Kang Lee, Thomas D. Lyon

Stacia N. Stolzenberg

Prior research suggests that infelicitous choice of questions can significantly underestimate children’s actual abilities, independently of suggestiveness. One possibly difficult question type is indirect speech acts such as “Do you know…” questions (DYK, e.g., “Do you know where it happened?”). These questions directly ask if respondents know, while indirectly asking what respondents know. If respondents answer “yes,” but fail to elaborate, they are either ignoring or failing to recognize the indirect question (known as pragmatic failure). Two studies examined the effect of indirect speech acts on maltreated and non-maltreated 2- to 7-year-olds’ post-event interview responses. Children were read a story …

Children's Memory For Conversations About Sexual Abuse: Legal And Psychological Implications, Thomas D. Lyon, Stacia N. Stolzenberg

Stacia N. Stolzenberg

No abstract provided.

Self-Determination, Subordination, And Semantics: Rhetorical And Real-World Conflicts Over The Human Rights Of Indigenous Women, Sam Grey

Sam Grey

Indigenous women have long been engaged in unambiguous advocacy for a human rights-based approach to gender injustice in their communities and nations. Indigenous nations, for their part, have repeatedly and passionately posited collective human rights as necessary for the protection of cultural distinction. These projects should be reconcilable – but this reconciliation requires the political will to critically engage with historical and contemporary colonialism, and to address the internalization of patriarchy and sexism in Indigenous societies today. With such a will in place, it becomes possible to operationalize a single Indigenous ‘self-determination’ project grounded in human rights, one that sees …

Governance Approaches That Can Be Used To Implement Sustainability Criteria, Evgenia Pavlovskaia

Evgenia Pavlovskaia

Implementation of sustainability criteria, both in legal frameworks and voluntary sustainability standards, is an urgent and important issue. In the article, three less state-centric governance approaches and their capacity to be used to implement sustainability criteria have been investigated. The chosen approaches are good governance, multi-level governance and selfgovernance. Their potential strengths and weaknesses have been pointed out. The research indicates that sustainability criteria can be implemented in different ways, which have the potential to highlight, strengthen or weaken different aspects of their function. The use of different governance approaches, or their combinations, can lead to different implementation results for …

Rtop's Second Pillar: The Responsibility To Assist In Theory And Practice In Solomon Islands, Charles Hawksley, Nichole Georgeou

Nichole Georgeou

This paper explores the implementation of a regional capacity-building program in Solomon Islands, a state that experienced significant violence and political tension between 1998 and 2003. The July 2003 intervention of the Regional Assistance Mission to Solomon Islands (RAMSI) is a useful and relevant case study for understanding the operationalization of Pillar II of RtoP, which the authors have termed the “Responsibility to Assist” (RtoA). While RAMSI has not consciously adopted RtoP language in its operations, the rationale for the intervention included humanitarian as well as wider regional security concerns. The mission’s emphasis on developing the state’s capacities in policing …

Is Negligence A First Cousin To Intentionality? Lay Conceptions Of Negligence And Its Relationship To Intentionality, Narina Nunez

Narina Nunez

In three studies, we examined lay conceptions of negligence and how they are used when making judgments about actors’ intentions, negligence, and blame. Study 1 examined the extent to which participants agreed about what constitutes negligence and accidents. After finding a high level of agreement between participants, Study 2 explored the features that defined participants’ folk understanding of negligence. Additionally, we examined if definitions of negligence overlapped with key features of definitions of intentionality proposed in the literature. Study 2 suggested there were some key overlapping features and differences between negligence and intentionality. Finally, Study 3 examined how two key …

Children's Memory For Conversations About Sexual Abuse: Legal And Psychological Implications, Thomas D. Lyon, Stacia N. Stolzenberg

Thomas D. Lyon

No abstract provided.

Young Children’S Difficulty With Indirect Speech Acts: Implications For Questioning Child Witnesses, Angela D. Evans, Stacia Stolzenberg, Kang Lee, Thomas D. Lyon

Thomas D. Lyon

Prior research suggests that infelicitous choice of questions can significantly underestimate children’s actual abilities, independently of suggestiveness. One possibly difficult question type is indirect speech acts such as “Do you know…” questions (DYK, e.g., “Do you know where it happened?”). These questions directly ask if respondents know, while indirectly asking what respondents know. If respondents answer “yes,” but fail to elaborate, they are either ignoring or failing to recognize the indirect question (known as pragmatic failure). Two studies examined the effect of indirect speech acts on maltreated and non-maltreated 2- to 7-year-olds’ post-event interview responses. Children were read a story …

The Limits Of Debate Or What We Talk About When We Talk About Gender Imbalance On The Bench, Keith Bybee

Keith J. Bybee

What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically …

Gay Parenthood And The Revolution Of The Modern Family: An Examination Of The Unique Barriers Confronting Gay Adoptive Parents, Nicholas Arntsen

Nicholas Benedict Arntsen

Abstract: In recent decades, the structure of the American family has been revolutionized to incorporate families of diverse and unconventional compositions. Gay and lesbian couples have undoubtedly played a crucial role in this revolution by establishing families through the tool of adoption. Eleven adoptive parents from the state of Connecticut were interviewed to better conceptualize the unique barriers gay couples encounter in the process adoption. Both the scholarly research and the interview data illustrate that although gay couples face enormous legal barriers, the majority of their hardship comes through social interactions. As a result, the cultural myths and legal restrictions …

Editorial: Social Implications Of Technology- “Il Buono, Il Brutto, Il Cattivo”, Katina Michael

Professor Katina Michael

Late last year, IEEE SSIT was invited to put together a paper for the centennial edition of Proceedings of the IEEE that was published in May 2012. The paper titled, “Social Implications of Technology: The Past, the Present, and the Future,” brought together five members of SSIT with varying backgrounds, and two intense months of collaboration and exchange of ideas. I personally felt privileged to be working with Karl D. Stephan, Emily Anesta, Laura Jacobs and M.G. Michael on this project.

Freedom To Achieve: The Future Of Student-Led Organizations Within The Public School System, Braden W. Johnson

Braden W Johnson

On-campus religious organizations have received special protections according to their First Amendment rights and the Equal Access Act of 1984. As more controversial organizations have been incorporated within the public school system, school administrators have found it increasingly hard to control the effects of these groups. This article argues for a revision to the Equal Access Act which strengthen's a school's ability to place restrictions on the formation of controversial clubs.

From Usages Of Merchants To Default Rules: Practices Of Trade, Ius Commune And Urban Law In Early Modern Antwerp, Dave De Ruysscher

Dave De ruysscher

In sixteenth-century Antwerp, commercial contracts were supported with refined government-made rules that brought techniques, usages and customs practised by merchants to the level of sophisticated law. Because no body of unwritten substantive law on commerce existed and because commercial practices were often too rudimentary from a legal perspective, in the 1500s detailed and balanced normative precepts on contracts of trade came to be crafted. When in the first decades of the sixteenth century more and more foreign merchants visited Antwerp, its rulers gradually started supplementing and upgrading practices of merchants to default rules regarding contracts, with materials and concepts drawn …

Befriar Leken Från Ansvar? Om Bdsm, Samtycke Och Social Adekvans, Linnéa Wegerstad

Linnéa Wegerstad

Våren 2012 arrangerade Juridisk Publikation i Lund en paneldebatt på temat ”BDSM och samtycke” som jag fick förmånen att moderera. Debatten utgick från det så kallade Malmöfallet som rör åtal för misshandel i samband med BDSM-utövning. Denna artikel tar avstamp i den fråga som fick avsluta debatten, nämligen om detta uppmärksammade fall har diskuterats klart. Min ståndpunkt är att genom fallet väcktes flera principiellt viktiga frågor som bör dryftas vidare. Dessa spörsmål, som rör hur sexuella praktiker som kan utgöra straffrättsligt relevant våld hanteras i straffrätten, vill jag synliggöra genom den här artikeln. Inledningsvis ges en redogörelse för samtyckes ansvarsbefriande …

International Soft Law, Andrew T. Guzman, Timothy L. Meyer

Timothy Meyer

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a meaningful analytic category. In part, this confusion reflects a deep diversity both in the types of international agreements that states employ, and in the strategic situations that produce these agreements. In this paper, we advance four complementary explanations for why states use soft law. Our explanations account for a much broader range of state behavior than the existing literature is able to explain.

First, and least significantly, states may use soft law …

Labour Trafficking: Prosecutions And Other Proceedings, Fiona M. David Ms

Fiona David

In Australia, three defendants in two cases have been charged and prosecuted for ‘slavery’ or ’trafficking in persons’ under the Criminal Code (Cth), in circumstances where the crimes have allegedly occurred in contexts other than the sex industry. These cases tend to be described as instances of ‘labour trafficking’, even though the parameters of this phrase are far from settled (see further AIC 2009). This brief describes the progression of these two cases through the Australian court system, with varying outcomes.

Building The Infrastructure Of Anti-Trafficking: Information, Funding, Responses, Fiona M. David Ms

Fiona David

No abstract provided.

Labour Trafficking: Key Concepts And Issues, Fiona M. David Ms

Fiona David

At the international level, there is no single, clear definition of ‘labour trafficking’. Arguably, the expression can be used to describe those forms of trafficking in persons of which the exploitative purpose relates to a person’s labour. There are, however, debates over the scope and meaning of these terms. This brief provides an introduction to key terms and notes some of the issues that remain less settled.

Newspaper Theft, Self-Preservation And The Dimensions Of Censorship, Erik Ugland, Jennifer Lambe

Erik Ugland

One of the most common yet understudied means of suppressing free expression on college and university campuses is the theft of freely-distributed student publications, particularly newspapers. This study examines news accounts of nearly 300 newspaper theft incidents at colleges and universities between 1995 and 2008 in order to identify the manifestations and consequences of this peculiar form of censorship, and to augment existing research on censorship and tolerance by looking not at what people say about free expression but at what they do when they have the power of censorship in their own hands. Among the key findings is that …

Power, Exit Costs, And Renegotiation In International Law, Timothy L. Meyer

Timothy Meyer

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs – which promote the stability of legal rules – have distributional …

Soft Law As Delegation, Timothy L. Meyer

Timothy Meyer

This article examines one of the most important trends in international legal governance since the end of the Cold War: the rise of “soft law,” or legally non-binding instruments that are given legal effect through domestic law or internationally binding agreements such as treaties. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as …

Prosecuting Trafficking In Persons: Known Issues, Emerging Responses, Fiona M. David Ms

Fiona David

This paper is the second in a series that examines the different components of the criminal justice response to trafficking in persons. Specifically, this paper seeks to identify some of the practical issues that may affect trafficking prosecutions, such as unclear legal frameworks, the transnational nature of trafficking, and reliance on often traumatised victims as witnesses who may also be unwilling or unable to participate in prosecutions. Proposed strategies to support or improve prosecution practice include legal reform, protection of witnesses and specialist training for prosecution units.

The Christian At War, Marc A. Clauson

Marc A. Clauson, J.D., Ph.D.

No abstract provided.

Demarcating The Right To Gather News: A Sequential Interpretation Of The First Amendment, Erik Ugland

Erik Ugland

The recent spate of cases in which reporters have been subpoenaed, fined, jailed, or otherwise disciplined has laid bare the divisions among the courts over the existence and scope of the “reporter’s privilege.” The cases have also exposed the doctrinal, historical, and theoretical infirmities of the broader legal framework that governs newsgathering. Resolving these conflicts has grown more urgent with the democratization of media and the emergence of bloggers and other news providers who have challenged traditional conceptions of “journalists” and “the press.” To settle these controversies, this Article moves past the courts’ desultory analyses, focuses on core principles, and …