Fair and Equitable Treatment and Investor’s Due Diligence Under International Investment Law

Netherlands International Law Review - The investor’s due diligence has become a significant factor in determining whether the legitimate expectations of an investor give rise to protection...     

Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies

Courts have recently clarified some aspects of the Digital Millennium Copyright Act safe harbor system, yet other aspects remain hazy. In this haze, ISPs are incentivized to over-block content, and copyright holders are allowed to give a narrow, subjective reading of a user’s fair use. Subjectively, copyright holders can, in good faith, hold objectively unreasonable views about fair use. The asymmetry between copyright holders’ rights and remedies and users’ rights and remedies threatens socially valuable speech and creates a chilling effect. And the risk of extra-judicial termination of Internet access under a vague and variable repeat infringers policies threatens fundamental First Amendment interests. Policy changes are proposed to harness fair use considerations to protect First Amendment interests in the digital sphere. The calculus and consequence for sending takedown notices should be recalibrated. By curbing copyright overreach and minimizing the chilling effect, the potential for robust exchanges over new communication technologies can be realized.     

Nozick’s Reply to the Anarchist

Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, however, cannot remedy the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist.     

Was the Dujail Trial Fair?

The Dujail trial against eight persons accused of crimes againsthumanity was intended as the first of fourteen trials; it wasseen as a quick and simple case that would enable the Tribunalto develop its skills outside the limelight. The trial was infact a missed opportunity in the search for Iraqi justice. Itfell short in three notable ways: (i) it was severely compromisedby political interference: lack of judicial independence, linkedto the absence of a culture of respect for the fairness andimpartiality of the judicial process, was the greatest failingof the trial; (ii) there were breaches in fair trial standardsat the trial and appellate level; (iii) due to evidentiary andanalytical gaps, the trial did not expose the full extent ofcrimes committed by the deposed regime; much of the judgmenthinged on inference and stretched notions of liability. TheDujail trial was better than previous (and current) Iraqi trials.But that was not enough to meet minimum fair trial guarantees.     

It’s More Than the Code: Exploring the Factors that Moderate the Street Code’s Relationship with Violence

The paper explores the conditions under which the code of the street is more likely to lead to violence. Utilizing a sample of 400 homeless youths the paper examines how anger, self-centeredness, nerve, parental warmth, physical abuse, homelessness, negative attitudes toward the police, violent peers, and violent victimization moderate the relationship between the street code and violence. Findings suggest that the street code has a stronger relationship with violence under conditions where individuals have higher levels of anger, self-centeredness and nerve, less experience of parental warmth, more experience with physical abuse, longer periods of homelessness and more negative orientations toward the police. The street code, anger, self-centeredness, nerve, physical abuse, homelessness, negative attitudes toward the police, violent peers, and violent victimization also have significant lower order relationships with violence. Avenues for future research are discussed.     

Probing the Depths of the Responsible Corporate Officer’s Duty

Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law.     

Agamben’s Grammar of the Secret Under the Sign of the Law

This paper suggests that a grammar of the secret forms a concept in Agamben’s work, a gap that grounds the enigma of sovereignty. Between the Indo-European *krei, *se, and *per themes, the secret is etymologically linked to the logics of separation and potentiality that together enable the pliant and emergent structure of sovereignty. Sovereignty’s logic of separation meets the logic of relation in the form of abandonment: the point at which division has exhausted itself and reaches an indivisible element, bare life, the exception separated from the form of life and captured in a separate sphere. The arcanum imperii of sovereignty and the cipher of bare life are held together in the relation of the ban as the twin secrets of biopower, maintained by the potentiality of law that works itself as a concealed, inscrutable force. But the ‘real’ secret of sovereignty, I suggest, is its dialectical reversibility, the point at which the concept of the secret is met by its own immanent unworking by the critic and scribe under the *krei theme, and subject to abandonment through the work of profanation; here, different species of the secret are thrown against one another, one order undoing the other. The secret founded upon the sacred is displaced by Agamben’s critical orientation toward the immanent: what is immanent is both potential and hiddenness.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Levinas’s Contribution to the Law of Hospitality

Liverpool Law Review - This article examines the ethical thinking of Levinas, from which Derrida’s Law of Hospitality is derived, to see if it is sustainable in the face of Badiou’s...     

Measuring the Tibia: Trotter’s Error Revisited

In Trotter and Gleser’s (Am J Phys Anthropol 1952;10:463) classic study of stature estimation, a definition of the tibia length measurement is given that agrees with the standard condylar-malleolar length. That Trotter did not in fact measure according to her definition, but rather omitted the malleolus, has been well documented by Jantz et al. (J Forensic Sci 1995;40:758). Both the Terry collection and the World War 2 (WW2) samples were affected, although questions remain about the latter that cannot be resolved directly because it is no longer available for examination. Trotter's data from hundreds of servicemen are especially important because the statures were measured by technicians, rather than based on cadaver lengths or forensic statures. The questions examined in this note are as follows: Was WW2 measured uniformly in the same way as Terry; are there differences between Terry and WW2 that could influence estimation of the adjustment; and is the 10 millimeter (mm) adjustment proposed by Jantz et al. (J Forensic Sci 1995;40:758) still appropriate. Our analysis relies on a measurement taken by Trotter that is clearly and uniquely defined, what she called “ordinary length”. This measurement was used to create expectations about how Trotter measured what she called maximum length of the tibia. Results provide no evidence that WW2 was measured any differently than Terry, with the exception of one small series. They also show slight morphological differences on the distal and/or proximal end of the tibia between Terry and WW2. Despite the slight difference, the adjustment to account for the malleolus is still valid.     

China’s stolen children: internal child trafficking in the People’s Republic of China

Trafficking in children has attracted worldwide attention in the last two decades primarily due to its links with global migratory movements and the role ‘transnational organised crime’ is perceived to play in these. Internal trafficking is largely ignored primarily because of a preoccupation with cross-border, transnational migratory movements. Arguably, the growth of the relevant literature has given rise to certain widespread perceptions about the uniformity in the trade characteristics and actors under the common rubric of ‘trafficking in human beings’. By capitalising on direct linguistic access to a wide range of Chinese open sources, the purpose of the article is to offer an account of the various dimensions of the issue as they present themselves in the particular Chinese context. Our main concern has been to perform a systematic presentation of this material in light of the extant wider literature. In the Chinese case the combination of socioeconomic, political and cultural factors set a complex picture that highlights the shortcomings of dominant ways of thinking about the phenomenon. This complex picture serves usefully to cast doubts with regard to how the criminal activity itself is being conceptualised as well as to perceptions of victimisation embodied in current discourses on human trafficking.     

Criminal Justice Reform and the System’s Efficiency

This article discusses key issues that affect the efficiency and credibility of criminal justice systems. It discusses the consequences of an ineffective criminal justice system, which include unnecessary delays within the court process, ‘cracked’ or ‘collapsed’ trials, and lack of public confidence. It notes that a successful system must contain strategic, integrated, and sustainable mechanisms that enhance the entire criminal justice process. The article examines a number of initiatives taken by various countries, noting the measurable and sustainable results, while also suggesting ways that these programs could be improved. Finally, the author notes the importance of measuring the outcomes and impact of the suggested initiatives in an effort to promote transparency and accountability, as well as effectively record successful strategies.     

Coase’s world and Coase’s blackboard

In this contribution I focus on a particular characteristic of Ronald Coase’s work, as exhibited in “The Problem of Social Cost”: his ability to force upon his audience a clearer grasp of reality than they previously held. More specifically, I aim to consider to what extent the “blackboard economics” that Coase himself derided have been avoided in a Coasean world, taking that expression to refer in some sense to a world where Coasean insights can flourish, and as such to be a world not simply of Coase’s own making but a world that has been developed by others in applying the Coase Theorem. My strategy is to interrogate the nature of a Coasean world through developing a framework that can look more closely at different approaches to theoretical modelling, the different worlds involved in these models, and the different positive and normative applications that can be derived from them. I shall further consider whether the understanding of the law that inhabits a Coasean world reflects a “real-world” legal environment. Finally, I shall seek to assess the impact of Coase’s work on our understanding of the relationship between law and economics, in our world.     

Exploring competency development: it’s the helping part

Restorative justice is an operating philosophy that, while used in other countries for many years, began being implemented in the United States in the early and mid 1990s. This paper takes a look at one part of the restorative justice philosophy, attempts to instill conceptual clarity, and examines one state’s process of implementing competency development programs and the effects that state has seen. In addition, five domains of competency development are explored as well as practical means of attaining the goals of each domain. The paper concludes with specific ways of measuring the outcomes of competency development, along with the progress that one commonwealth’s juvenile justice system has made.     

Lebanon’s Power-Sharing System and the Rise of Sectarianism

Power-sharing settlements intended to prevent recurring conflicts in divided societies have produced mixed outcomes. For decades, Lebanon’s power-sharing political system has been blamed for political instability, sectarian division, recurring conflicts, and foreign intervention. Lebanon today is an example of a confessional divided state where growing sectarian identity has triggered inter-community mistrust. The increasing sectarian division and conflicts since Lebanon gained its independence from France in 1943 has been attributed to the power-sharing political system.

This essay, however, demonstrates that the root of the conflicts is the manipulation of that system by the political elites, by virtue of their strategic positions in the government, and political sectarian organizations and movements are capable of influencing political processes considerably. Through manipulative schemes of the power-sharing system, political elites were successful in transferring the power from the state to the religious sects and their political representatives, and thus reinforced sectarian division, weakened the state, and delayed the transition to full democracy. This essay takes Lebanon as a case study to show that although a power-sharing agreement has the power to reduce the risk of recurring conflicts, it has the tendency to reinforce sectarian division leading to deterioration of national unity.     

Analysis of the Federal District’s Legislative Chamber in the Information Age

The study investigates the satisfaction with the work of the parliament of Brazilian Federal District. The survey was based on the competencies extracted from the institutional mission and targeted citizens who frequently use social networks. Inferential statistics were used to analyse the data. The results showed a great unsatisfaction about the institution. The most satisfied respondents are the less educated, while the most educated, older, and highest income respondents are the most unsatisfied. The results also highlighted the low interaction between respondents and the Chamber, the absence of an effective official communication channel, and actions associated with sustainable economic development will be more effective in increasing satisfaction.