Law Commons^™

The Post-Ongwen Case Period And The Reconciliation Process In Northern Uganda: Local Communities As A Site Of Knowledge, Christelle Molima Bameka

Scholarly Articles

By providing victims with more space in the Ongwen case, the International Criminal Court (icc) has significantly contributed to the healing of the trauma and community reconciliation in northern Uganda. That said, this court has also raised issues that could affect local efforts to achieve peace, namely the positioning of victims of child soldiers vis-à-vis criminal child soldiers. Drawing on qualitative data collected through focus group discussions with some community members from locations under investigation by the icc, this sociolegal study examines the victims’ narratives about child soldiers and the different ideas of human rights that emerge. Then, it explores …

Writing And Resisting Colonial Genocide, Heidi Matthews, Luann Good Gingrich, Joel Ong

Articles & Book Chapters

Canada has pursued policies of Indigenous assimilation and annihilation, many of which continue today. Among others, these include ‘Indian residential schools’, the Indian Act, welfare-state child removals, the Sixties Scoop, the prohibition of cultural practices, forced sterilization and environmental destruction. We are scholars co-leading a large interdisciplinary programme of research studying ‘colonial genocide’. Our research seeks to understand how historic colonialism and its contemporary manifestations rely on genocidal logic for power and profit. While we begin in Turtle Island, our work has global application. The act of naming is a powerful analytical and political tool, and ‘genocide’ is one of …

Post-Conflict Reconciliation In Ukraine, Elena Baylis

Articles

Reconciliation mechanisms should be a core component of transitional justice in Ukraine. The nature of this conflict as a war justified by claims about history, identity, and legitimacy suggests that there will be a need for post-war reconciliation initiatives. Such reconciliation measures would be intended to enable Ukraine’s Russian, Ukrainian, and other communities to live together constructively within the same state. The goals of social reconciliation also converge with Ukraine’s long-term, political aims vis-à-vis both Russia and the European Union. This paper addresses three types of reconciliation measures that are important for post-conflict Ukraine. Instrumental mechanisms to engage post-conflict social …

A Mixed Bag: Critical Reflections On The Revised Ethical Principles For Judges, Richard Devlin, Jula Hughes, Pooja Parmar, Stephen Ga Pitel, Amy Salyzyn

Articles, Book Chapters, & Popular Press

In 2021 the Canadian Judicial Council completed a multi-year review and update of Ethical Principles for Judges (EPJ), the ethical and professional guidance for all federally-appointed judges in Canada. The revisions address issues such as case management and settlement conferences, technological competence and the use of social media, interactions with self-represented litigants, professional development for judges, confidentiality, and the return of former judges to the practice of law. In this article, five directors of the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique analyze the revised EPJ and offer their observations.

The article covers five important topics. On impartiality, …

The Power Of Reciprocity: How The Confederated Salish & Kootenai Water Compact Illuminates A Path Toward Natural Resources Reconciliation, Michelle Bryan

Faculty Law Review Articles

This article chronicles the negotiation and passage of the Confederated Salish & Kootenai Tribes Water Compact, ratified in 2020, which has created one of the most innovative water management regimes envisioned among sovereigns. The Compact’s journey toward ratification is extraordinary, as the parties over the span of three decades worked to overcome historically entrenched racism and political opposition to craft a model that would provide enough water for all peoples and the fishery. Compounding the challenge, the Flathead Reservation itself contains vast swaths of checkerboard land held by non-Indians and a major federal irrigation project that has permanently altered the …

Aboriginal Rights, Legislative Reconciliation And Constitutionalism, Naiomi Metallic

Articles, Book Chapters, & Popular Press

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to …

Baton Rouge Collective Healing Initiative: Final Report, Jada Thomas-Smith, Judith F. Rhodes, Kristie Perry

Reports

In response to recent and historic traumatic events that caused distrust and strained relationships between law enforcement and their communities, the U. S. Department of Justice, Office of Victims of Crime (OVC), selected five demonstration sites to invest in restorative and healing activities to repair community-police relationships.

The International Association of Chiefs of Police (IACP) worked closely with the sites over the three-year grant period to improve relations through evidence-based interventions, technical assistance, and peer learning. The program, Law Enforcement and the Communities They Serve: Supporting Collective Healing in the Wake of Harm began in the selected cities, which included …

Law School News: Remembering John Lewis 07-18-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Recognition And Positive Freedom, David Ingram

Philosophy: Faculty Publications and Other Works

A number of well-known Hegel-inspired theorists have recently defended a distinctive type of social freedom that, while bearing some resemblance to Isaiah Berlin’s famous description of positive freedom, takes its bearings from a theory of social recognition rather than a theory of moral self-determination. Berlin himself argued that recognition-based theories of freedom are really not about freedom at all (negatively or positively construed) but about solidarity, More strongly, he argued that recognition-based theories of freedom, like most accounts of solidarity, oppose what Kant originally understood to be the essence of positive freedom, namely the setting of volitional ends in accordance …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

Ending Piecemeal Recognition Of Indigenous Nationhood And Jurisdiction: Returning To Rcap’S Aboriginal Nation Recognition And Government Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Most Indigenous groups in Canada are not self-governing. While the last two decades have seen an increase in laws and policies that provide some Indigenous groups greater control over their territories and citizens, overall these have been ineffective in achieving transformative change. What has transpired in Canada over the last twenty years can be characterized as ‘piecemeal recognition’—discrete recognition of Indigenous control here and there in a case, policy or statute—and implemented in a patchwork fashion. In 1996 the Royal Commission on Aboriginal Peoples report advanced a very reasonable proposal for national legislation recognizing the right of Indigenous peoples to …

Book Review, Jamie Rowen, Searching For Truth In The Transitional Justice Movement (2017) & Leonie Steinl, Child Soldiers As Agents Of War And Peace: A Restorative Transitional Justice Approach To Accountability For Crimes Under International Law (2017), Mark A. Drumbl

Scholarly Articles

Why do truth commissions emerge following some conflicts but not others? Jamie Rowen tackles this question in Searching for Truth in the Transitional Justice Movement. Rowen approaches this topic through a detailed study of three jurisdictions: the former Yugoslavia, Colombia, and the United States. Although truth commissions did progress in Colombia, they stalled in both the former Yugoslavia in the wake of the Balkan Wars as well as in the United States in regard to the conduct of US officials after the events on 11 September 2001. Rowen unpacks what happened and what failed to happen — and why …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Finding A Path To Reconciliation: Mandatory Indigenous Law, Anishinaabe Pedagogy, And Academic Freedom, Karen Drake

Articles & Book Chapters

The Truth and Reconciliation Commission has called on law schools in Canada to make Indigenous law a mandatory component of legal education. In its final report, the Commission provides the outline of a rationale in support of this call to action. This paper builds on that outline by grounding the Commission’s rationale in the jurisprudence on section 35(1) of the Constitution Act, 1982. Articulating a comprehensive rationale is useful for at least three reasons. First, such a rationale can underpin a response to the claim that a required Indigenous law course lacks value for those students who do not intend …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

Articles, Book Chapters, & Popular Press

In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

Cross-Fertilization: Family Adr To Civil Adr, Sharon Press, Andrew Schepard

Hofstra Law Faculty Scholarship

The article discusses the cross-fertilization of the processes in family and civil alternative dispute resolution (ADR). It provides overview of the history of the civil procedures in both the family and civil ADR, and offers insights from two academic practitioners and public policy advocates who have participated in the development of the practices. It also presents comments on the substantive areas of civil law, which illustrate similar characteristics of family law.

The Filibuster And Reconciliation: The Future Of Majoritarian Lawmaking In The U.S. Senate, Tonja Jacobi, Jeff Vandam

Faculty Articles

Passing legislation in the United States Senate has become a de facto super-majoritarian undertaking, due to the gradual institutionalization of the filibuster — the practice of unending debate in the Senate. The filibuster is responsible for stymieing many legislative policies, and was the cause of decades of delay in the development of civil rights protection. Attempts at reforming the filibuster have only exacerbated the problem. However, reconciliation, a once obscure budgetary procedure, has created a mechanism of avoiding filibusters. Consequently, reconciliation is one of the primary means by which significant controversial legislation has been passed in recent years — including …

From Oblivion To Memory: A Blueprint For The Amnesty, Mark A. Drumbl

Scholarly Articles

This Review Essay examines Mark Freeman’s thoughtful book, Necessary Evils: Amnesties and the Search for Justice. One of the book’s core arguments is that amnesties from criminal prosecution, however unpalatable to liberal legalist sensibilities, should not be entirely purged from the toolbox of post-conflict transitions. Although advancing this argument, Freeman also struggles with it, and ultimately builds a very restrained and heavily technocratic defense of the amnesty. This Review Essay weighs this argument, among others, on its own terms and also within the context of recent events that post-date the book’s publication. The result is a vibrant exposition of …

Moral Judgments & International Crimes: The Disutility Of Desert, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms—that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the "utility of desert," a theory about the usefulness of appealing to people's retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this …

Taliban Perspectives On Reconciliation, Michael Semple, Theo G. Farrell, Anatol Lieven, Rudra Chaudhuri

Faculty of Law, Humanities and the Arts - Papers (Archive)

With the Western military draw-down in Afghanistan drawing closer, attention now turns to the shape of the post-2014 political settlement. Some form of accommodation with the Taliban will be required for a stable and secure Afghanistan. This paper presents the findings of discussions with senior Taliban figures, suggesting that the Taliban and the international community may in fact have reconcilable positions. This paper works to draw out the Taliban's views on three key issues.

Fostering Race-Related Dialogue: Lessons From A Small Seminar, Jonathan R. Cohen

UF Law Faculty Publications

People frequently shy away from discussing race. Yet, for many reasons, discussing race is extremely important. Drawing upon my experience of teaching a small seminar that addressed race through the lens of reconciliation, in this essay I offer several suggestions for fostering constructive race-related dialogue. I begin by identifying some factors that can make race-related dialogue difficult. I then suggest five steps that may facilitate constructive dialogue: (1) establish trust and good conversational dynamics before discussing race, (2) prompt the discussion with a reading or other informative stimulus, (3) listen to others with the goal of understanding their thoughts, (4) …

Reconciliation Financing: An Innovative Approach To Poverty, Inequality, And Social Conflict, Daniel D. Bradlow

Working Papers

This paper focuses on the problem of addressing historical injustices and raising finance for small scale revenue generating projects that benefit those victims of these past injustices who still lack access to jobs, services and opportunities. These projects always experience funding problems. They are considered both "too rich" for grant funding because they generate a stream of revenues but "too poor" for commercial funding because either they are too small or they generate an insufficient income stream to be attractive to commercial funders. In proposing a debt-based solution to these funding problems, the paper proposes 3 principles of "reconciliation financing".

The Mediation Metamodel: Understanding Practice, Nadja Alexander

Research Collection Yong Pung How School Of Law

The mediation metamodel provides a systematic framework for understanding mediation as it is practiced in a variety of professional and cultural contexts. Six mediation practices are introduced within the framework of the metamodel: settlement mediation, facilitative mediation, transformative mediation, expert advisory mediation, wise counsel mediation, and tradition-based mediation. The relationships of these different practices to one another are explored and the assumptions underlying them are examined with reference to the literature. The metamodel provides orientation in the dispute resolution field not only for mediators, parties, and their lawyers, but also for regulators, referring bodies, researchers, and students of mediation.

Bridging The Gap Between Truth And Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

As suggested by the title Bridging the Gap between Truth and Reconciliation: Restorative Justice and the Indian Residential Schools Truth and Reconciliation Commission, this essay examines the potential gap between truth and reconciliation and suggests that the principles underlying restorative justice provide the necessary bridge. With respect to the goal of reconciling relationships, the author makes it clear that she is speaking of social relationships, not personal relationships. Restorative justice “is not about getting parties to hug and make up; rather, it strives to create the conditions of social relationships in which all parties might achieve meaningful, just, and peaceful …

Bridging The Gap Between Truth And Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

As suggested by the title Bridging the Gap between Truth and Reconciliation: Restorative Justice and the Indian Residential Schools Truth and Reconciliation Commission, this essay examines the potential gap between truth and reconciliation and suggests that the principles underlying restorative justice provide the necessary bridge. With respect to the goal of reconciling relationships, the author makes it clear that she is speaking of social relationships, not personal relationships. Restorative justice “is not about getting parties to hug and make up; rather, it strives to create the conditions of social relationships in which all parties might achieve meaningful, just, and peaceful …

Kin-Fused Reconciliation: Bringing Them Home, Bringing Us Home, Fiona Probyn-Rapsey

Faculty of Law, Humanities and the Arts - Papers (Archive)

At the height of the 1965 Freedom Rides through New South Wales, a violent demonstration of angry whites confronted students and local Aboriginal people as they tried to gain entry to the racially segregated pool in Moree. It occurred to one of the local organisers of the protest (Alderman Bob Brown) that the absurd thing about the violent demonstration was that most of those participating (on opposite sides) were in fact related to one another: a huge number of people in Moree are related, they may not be registered down at the registry office. the stupidity of it was that …

Beyond Juba: Does Uganda Need A National Truth And Reconciliation Process?, Makau Mutua

Journal Articles

Virtually every African State, including Uganda, is a product of the rape of the continent by imperial European powers. Even though it is true that Africans cannot blame every ill on colonialism, the imperial conquests of European powers have had severely debilitating consequences. Yet, we cannot despair, and for beautiful Uganda, the genesis for recovery may lie in Juba. However - it can most certainly only be realized by looking beyond Juba. Ultimately, the reform of the Ugandan state lies in the full democratization of political society. President Museveni must understand that he will not live forever, and therefore he …

Restorative Justice: What Is It And Does It Work?, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced — criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews — by examining empirical studies of the processes in different settings — how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual …

Of A 'Contested Ground' And An 'Indelible Stain': A Difficult Reconciliation Between Australia And Its Aboriginal History During The 1990s And 2000s, Lorenzo Veracini

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article proposes an interpretative narrative of the evolution of Aboriginal history as a scholarly enterprise during the 1990s and in more recent years. The 1990s were characterised by attempts to synthesise the interpretative traditions resulting from previous decades of scholarly activity. In more recent years, the debate has shifted dramatically, dealing specifically with the genocidal nature of white Australia's policy towards Aboriginal peoples. The most important passages in this process are associated with the 1992 Mabo decision by the Australian High Court and the publication of the Bringing them home report of 1997.

For Reconciliation, Andrew W. Mcthenia, Thomas L. Shaffer

Journal Articles

The Alternative Dispute Resolution (“ADR”) movement has garnished much debate with scholars arguing on both sides—for or against—its further implementation into our adversarial system. This Article critiques the arguments against the movement focusing on Professor Owen Fiss’ work. From a theological reconciliation point of view, the Authors argue in favor of its further implementation because the ADR system promotes justice, community values, and the reconciliation of problems rather than resolution.