Law Commons^™

Decision-Making Patterns At The First Trial Of International Criminal Court: A Perspective On The Icc, Aldo Zammit Borda

Aldo Zammit Borda

The first trials of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) resulted in convictions of the accused. This Article seeks to understand this observation by applying new institutionalist perspectives to decision-making processes of international criminal courts and tribunals. This Article argues that the first trials of such courts are affected by a learning curve and should be differentiated from other trials because of, inter alia, the novelty of the proceedings, the absence of previous jurisprudence, and the need to develop modi operandi, often from scratch. It then discusses decision-making patterns …

Risk Regulation And Regulatory Litigation, Patrick A. Luff

Patrick A. Luff

Since at least the 1960s, when Congress enacted civil rights statutes that provided for private enforcement, courts have been hotbeds of public policy. Only recently, however, has this phenomenon been recognized for what it is: courts have become essential actors in the regulatory state. What little scholarship there is on the use of courts to achieve regulatory ends is often heavy on rhetoric, but short on theory. While commentators have been quick to criticize the phenomenon of regulatory litigation, they have done little to determine what it actually is. As a result, the young field of regulatory litigation lacks fundamental …

Tangled Up In Knots: How Continued Federal Jurisdiction Over Sexual Predators On Indian Reservations Hobbles Effective Law Enforcement To The Detriment Of Indian Women, Suzianne D. Painter-Thorne

Suzianne D. Painter-Thorne

An Indian woman is two-and-a-half times more likely than any other American woman to be sexually assaulted in her lifetime. Nevertheless, because of a confusing tangle of jurisdictional rules, she is four times less likely to see her assailant arrested. She is even less likely to see him stand trial. Because jurisdiction over most sexual assaults is vested in the federal government, Indian tribes are not allowed to arrest or prosecute most of the suspects who commit sexual assaults on tribal lands. Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with impunity and …

Juvenile Justice Reform 2.0, Tamar R. Birckhead

Tamar R Birckhead

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting …

Painting Black Spaces Red, Black, And Green: The Constitutionality Of The Mural Movement, Jesse R. Merriam

Jesse R Merriam

“We live by symbols,” Justice Oliver Wendell Holmes wrote. This aphorism certainly rings true in many American inner cities, where murals depicting racial images, such as African symbols and portraits of famous African Americans, pervade the urban landscape. Indeed, the “by” in Holmes’s statement applies to inner-city residents with special force because these residents not only live close to murals, but also according to the symbols contained therein. Pablo Neruda, the Chilean writer and politician, is reported to have described this relationship in more populist language, claiming: “Murals are the people’s blackboard.” But Neruda’s statement obscures the fact that murals …

Originalism As An Anchor For The Sixth Amendment, Jeffrey L. Fisher

Jeffrey L Fisher

Originalism is sometimes criticized as merely a means to justify conservative results. And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term’s decision in District of Columbia v. Heller, interpreting the Second Amendment as including an individual right to bear arms, is a recent example.

When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the …