Race and the death penalty in Kentucky murder trials: 1976–1991

This study re-examines the effect of race of the victim on the probability that an accused murderer is charged with a capital crime and sentenced to death in Kentucky. It adds over five years of data to our original study. The results show that Blacks accused of killing Whites had a higher than average probability of being charged with a capital crime (by the prosecutor) and sentenced to die (by the jury) than other homicide offenders. This finding remains after taking into account the effects of differences in the heinousness of the murder, prior criminal record, the personal relationship between the victim and the offender, and the probability that the accused will not stand trial for a capital offense. Kentucky’s “guided discretion” system of capital sentencing has failed to eliminate race as a factor in this process. An earlier version of this article was presented at the “Variations in Capital Punishment” panel, Academy of Criminal Justice Sciences, Chicago, IL. This paper is based upon a report that was developed in response to Kentucky Senate Bill 8 —Bias Related Crime Reporting passed by the 1992 Kentucky General Assembly. The authors wish to express their appreciation to the following persons who assisted in the development of this report: Fonda Butler of the Kentucky Justice Cabinet, Dale Helton of the Kentucky Department of Public Advocacy, Kathy Black-Dennis, Colleen E. Williams, and Bill Clark of the Kentucky Department of Corrections, and James Oakes, Greg Bucholtz, and Jeanne M. Fenn, our graduate research associates at the University of Louisville.     

Interim Legality: A Mistaken Assumption?--An Analysis of Depleted Uranium Munitions under Contemporary International Humanitarian Law

Depleted Uranium (DU) munitions are the latest, and perhapsmost effective, in a long line of armour-piercing projectilesused by military powers the world over. DU is a very dense material,allowing it to pack a lot of kinetic energy into its "punch",which makes it remarkably good at puncturing (enemy) armour.However, DU is also radioactive waste. Although DU does notactually employ radiation for its primary purpose—andhas negligible radioactive output compared to the more (in)famous fissile uranium isotopes—it has been alleged, withsome scientific support, that this radiation plays an insidioussecondary role, causing superfluous injury and unnecessary sufferingamong combatants; while also indiscriminately "attacking" (i.e.seriously adversely affecting) local civilians living in ornear combat zones. The purpose of the present paper is to analyse these allegationsand to consider their effects—whether true, false, orinconclusive—within the framework of contemporary internationallaw. To this end, the allegations of proponents will be summarisedand the supporting and negating scientific data considered.Then the current rules of international humanitarian law (IHL)will be examined and applied within a systemic context intendedto highlight the implicit assumptions and theoretical misunderstandingswhich generally plague their application. The scientific data pertaining to DU illustrates the complexityof the instant problem, and perhaps more importantly, helpsto demonstrate the degree to which even a superficially obviousclaim—i.e. dumping radioactive material is bad—canin fact form the basis of protracted, and ultimately inconclusiveargument, especially if the contentions of each side shouldprove in some way incommensurate. This is a problem which can be exaggerated in internationallaw by the absence of a court of compulsory jurisdiction, andfurther exacerbated in IHL by the use of relatively imprecisevariables to construct the matrices within which decisions areto be made. These problems, however, also serve, positively,to emphasise the importance of understanding the legal realityof the interim period before definitive conclusions to suchdisputes are constructed or discovered. Elucidation of the legalregime in force in this interim period thus forms an importantfocus of the present inquiry.     

The Mass Media, Crime and Terrorism

The mass media play a large role in the public perception andacceptance of criminal behaviour by the United States of America.Public acceptance of illegal actions by the US government inthe Iraq War, as well as steps taken to combat terrorism, havebeen influenced by entertainment media content and media logicabout crime and fear. The focus of the article is on the culturaland mass communication contexts that have promoted fear of crimeon the one hand, while also justifying illegal state actionsto combat crime — and now terrorism — on the other.Propaganda and news management (e.g. the military-media complexand the failure of journalism) contribute to a discourse offear and symbolic negation of the ‘other’ —as criminal or terrorist — and, in the process, valorizecriminal conduct as necessary and heroic.     

WELFARE STANDARDS, SUBSTANTIVE TESTS, AND EFFICIENCY CONSIDERATIONS IN MERGER POLICY: DEFINING THE EFFICIENCY DEFENSE

For several years already, the efficiency defense (and its incorporationin the law) has been a much debated issue in merger policy.When discussing the introduction of an efficiency defense inmerger control, it is important to define clearly its contentand interpretation. However, different approaches to the conceptof efficiency defense exist in the literature, and it is notalways clear which jurisdictions apply an efficiency defense.Therefore, to improve communication and comparison between jurisdictions,it would be useful to reach agreement on the exact content ofan efficiency defense. This paper proposes to define the efficiencydefense along two dimensions: a conceptual one—relatedto the welfare standard—and a procedural one—relatedto the application of the substantive test. The main conclusionof this paper is that the concept of efficiency defense canonly be appropriately applied under a total welfare standardand if efficiencies can be directly balanced against the anticompetitiveeffects of mergers on a case-by-case basis. Using this definition,only in Canada and Australia (formal review process) would anefficiency defense exist.     

On the Superiority of Corrective Taxes to Quantity Regulation

The traditional view of economists has been that correctivetaxes are superior to direct regulation of harmful externalitieswhen the state's information about control costs is incomplete.In recent years, however, many economists seem to have adopteda different view—that either corrective taxes or quantityregulation could be superior to the other. We emphasize thatone argument for this newer view, identified with Weitzman (1974),holds only if the state is constrained to use a fixed tax rate(a linear tax schedule) even when harm is nonlinear. But if—asseems more plausible—the state can impose a nonlineartax equal to the schedule of harm or can adjust the tax rateupon learning that it diverges from marginal harm, then correctivetaxes are superior to quantity regulation. Another argumentfavoring quantity regulation is that it gains appeal when thestate is uncertain about the harm caused by an externality.In this case, however, a corrective tax schedule (equal to theexpected harm schedule) is superior to quantity regulation.     

The Darfur Report and Genocidal Intent

The author argues that the Commission of Inquiry on Darfur,in excluding any genocidal intent in the Government authoritiesof the Sudan, while leaving open the possibility for individualstate officials or members of militias to entertain such intent,did not duly take into account the various views on genocidalintent put forward in legal literature. In the author's opinion,genocide — typically, that is, for all practical purposes— requires a collective activity of a group, state orentity — activity in which individual perpetrators participate.As for the genocidal intent of individual perpetrators —in this typical scenario, according to the author — oneshould distinguish between (i) the view, upheld by the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) and the InternationalCriminal Tribunal for Rwanda (ICTR), as well as the Commissionof Inquiry, that such intent is the aim physically to destroya protected group, and (ii) the more correct view that suchintent consists of the individual's (a) knowledge of a genocidalcampaign and (b) at least dolus eventualis as regards the atleast partial destruction of a protected group. This legal constructionof genocidal intent does not, however, lead to conclusions substantiallydifferent from those reached by the Commission of Inquiry withregard to the mental attitude of the Sudanese Government andmilitias: as they did not act pursuant to a collective goalto destroy a protected group, no genocidal intent could materialize.However, contrary to the Commission's conclusions, it followsfrom this proposition that no genocidal intent could be foundeither if, in some instances, single individuals were held tohave acted with the desire to see the protected group destroyed.For, in this event, the two requirements for individual genocidalintent would be lacking, namely knowledge of a genocidal campaign(on the premise that no such campaign was carried out), anda fortiori dolus eventualis.     

How we collect and consider evidence of disability. Final rule

We are modifying the requirement to recontact your medical source(s) first when we need to resolve an inconsistency or insufficiency in the evidence he or she provided. Depending on the nature of the inconsistency or insufficiency, there may be other, more appropriate sources from whom we could obtain the information we need. By giving adjudicators more flexibility in determining how best to obtain this information, we will be able to make a determination or decision on disability claims more quickly and efficiently in certain situations. Eventually, our need to recontact your medical source(s) in many situations will be significantly reduced as a result of our efforts to improve the evidence collection process through the increased use of Health Information Technology (HIT).     

Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals

Although credibility determinations rest at the core of refugeeprotection, international refugee law has failed to developa body of evidentiary principles that is tailored to the uniquedimensions of the testimony of those seeking asylum. This articleexamines recent developments in assessing oral testimony ininternational criminal law. International criminal law judges,like national asylum adjudicators, must transcend geographic,linguistic, cultural, educational and psychological barriersin order to assess the credibility of testimony. As a result,these new international courts have developed a body of principlesof international evidence law for assessing the testimony ofalleged victims of, and witnesses to, human rights abuses. Currentsocial science research on the asylum procedures in severaljurisdictions reveals that asylum decision makers often failto adapt the determination process to account for the realitiesof refugees presenting their cases in legal fora, directingproceedings with a ‘presumptive skepticism’ of claims.It is argued that the nuanced and rigourous model for the assessmentof the testimonial evidence of alleged victims and witnessesof human rights abuses in war crimes trials introduces effectiveinternational norms for the assessment of credibility in asylumproceedings.     

Detecting Manipulation in Futures Markets: The Ferruzzi Soybean Episode

Manipulation—the exercise of market power in a futuresmarket—is a felony, but recent court and regulatory decisionshave made conviction of a manipulator problematic. Instead,regulators attempt to prevent manipulation. Deterrence by convictionis more efficient than prevention if manipulations can be detectedwith high probability. An analysis of the Ferruzzi soybean episodeof 1989 demonstrates how to detect manipulation with standardstatistical techniques. It is exceedingly unlikely that theprice and quantity relations observed in May and July 1989 werethe result of competition; they instead reflect market power.The ability to detect manipulation reliably suggests that existingregulation of manipulation in futures and securities marketsis inefficient because it relies on costly prevention ratherthan deterrence.     

Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act

This article argues that resistance to the Human Rights Acthas built up in the context of disputes relating to childrenand that such resistance is founded in the attachment of thecourts to the welfare or paramountcy principle as currentlyconceived—the principle that the child’s welfareautomatically prevails over the rights of other family members.It argues that the failure to take account of Convention argumentscould only be a legitimate stance if there was no conflict betweenthe demands of the welfare principle and those of the Conventionguarantees, but that in fact the approach of the European Courtof Human Rights differs considerably from that of the UK courtssince it seeks to balance the rights of different family members.The article goes on to argue that, taking account of the Strasbourgstance and of the already established domestic recognition ofthe presumptive equality of competing qualified Convention rights,it is time to accept the adoption of a new model of judicialreasoning in the context of disputes over children—the‘parallel analysis’ or ‘ultimate balancingact’.     

Law versus Morality as Regulators of Conduct

It is evident that both law and morality serve to channel ourbehavior. Law accomplishes this primarily through the threatof sanctions if we disobey legal rules. Morality too involvesincentives: bad acts may result in guilt and disapprobation,and good acts may result in virtuous feelings and praise. Thesetwo very different avenues of effect on our actions are examinedin this article from an instrumental perspective. The analysisfocuses on various social costs associated with law and morality,and on their effectiveness, as determined by the magnitude andlikelihood of sanctions and by certain informational factors.After the relative character of law and of morality as meansof control of conduct is assessed, consideration is given totheir theoretically optimal domains—to where moralityalone would appear to be best to control behavior, to wheremorality and the law would likely be advantageous to employjointly, and to where solely the law would seem desirable toutilize. The observed pattern of use of morality and of lawis discussed, and it is tentatively suggested that the observedand the optimal patterns are in rough alignment with one another.     

Fly by Night or Face the Music? Premature Dissolution and the Desirability of Extended Liability

Premature dissolution can be a rational corporate response tothe threat of future liability. Although early dissolution iscostly to a firm, liability may be more so. The way in whichliability rules can exacerbate this extreme form of liabilityavoidance is of interest, since "fly-by-night" firms generateparticularly large social costs. In particular, we explore theconsequences of liability that is extended to the business partnersof an insolvent or absent tortfeasor—a relatively commonlegal response when tortfeasors abandon obligations. Extendedliability can be desirable; however, if extended liability isanticipated, business partners themselves may choose to flyby night. We show how the preferred liability rule, includingno liability, depends on the relative costs of premature dissolutionand future obligations. The analysis also sheds light on a setof interrelated legal issues, such as the role of the trustfund doctrine and state dissolution statutes.     

Industry self-regulation,subversion of public institutions,and social control of torts

We characterize the comparative efficiency of industry self-regulation as means of social control of torts. Unlike liability, which is imposed by courts ex post, industry self-regulation, much like government regulation, acts before the harm is done. As compared to government regulators, however, the industry regulates with superior information. Furthermore, a pro-industry bias inherent to self-regulation also arises under alternative institutional arrangements when adjudicators are vulnerable to pressure by industry members. We show when industry self-regulation is socially desirable and feasible, and clarify when it could be an attractive institutional arrangement for developing and transition countries.     

Oliver Cromwell--The Grinch That Stole Christmas

Keeping track of legislative history—even within one’sown jurisdiction—is not always easy. Some sources—evenprimary sources—are obscure. One such instance is thelegislation of the English Interregnum. The English Common Lawconveniently smoothes over this disruption to legal continuityby means of a legal fiction. The restored monarchy takes effectas if the discontinuity had never taken place. Although notking de facto until 29 May 1660, Charles II is king de jurefrom the execution of Charles I on 30 January 1649. The regnalyears flow unabated for parliaments without a king, no lessthan they did for the 11 years that Charles I ruled personallywithout a parliament. Historians focus on the facts, while lawyers prescribe a greaterforcefulness to law. The Interregnum is a fact that for itsown time took precedence over law. Nevertheless, what is oneto do with the 10 years of intervening and often anomalouslyenacted legislation? The proponents of the Cromwellian Protectoratesay recognise it, while the Restoration Monarchists say ignoreit. There has already been a long drawn-out Civil War, so thecompromise is to leave the records hard to find and let thelegislation languish, thus providing one of the earliest examplesof political correctness. Under various rules of recognition, the intervening legislationof the Long and Little Parliaments, together with the Ordinancesof the Protectorate, have legislative status. As seen to satisfythe legislative protocols of their own time, such Acts and Ordinancesare arguably either statute law, or else, through subsequentparliamentary confirmation, are given the force of statute law. The fact remains that much of this extraordinary legislationremains hard to find. Rumours abound—especially in suchareas of highly disputatious, politically controversial, radicallyreformative, and otherwise outrightly pathological legislation.Until authenticated, one of the most obvious examples of apparentlyapocryphal, but obviously pathological legislation is that whichoutlawed the celebration of Christmas in England. This articletracks this legislation down to an Appendix to the Directoryfor Public Worship. According to its title, this was ‘anOrdinance for taking away the Book of Common Prayer and forestablishing and putting in execution of the Directory for thePublique Worship of God’. Although without royal assent,this was passed by the Lords and Commons assembled in the Parliamenton 4 January 1644/1645. This article is as much concerned withthe process of legislative research and legal authenticationas it is with the substantive and jurisprudential issues.     

Self-Representation versus Assignment of Defence Counsel before International Criminal Tribunals

After examining the drafting history of Article 14 of the UNCovenant on Civil and Political Rights, which lays down a defendant'sright ‘to defend himself in person or through legal assistanceof his own choosing’ — the relevant national andinternational case law and scholarly commentary — theauthor argues that the underlying purpose of the right at issueis to ensure a fair trial. This objective can best be met incases of former leaders accused of international crimes by assigningthe defendant a highly qualified attorney who is vigilantlycommitted to representing his client's interests. In his view,there are two main reasons why a court in international crimestrial should be able to require the defendant to work throughcounsel: (1) the likelihood that a defendant will act in a disruptivemanner; and (2) the unique need in a complex international crimescase for an orderly trial.     

Law-making functions of the Chinese courts: Judicial activism in a country of rapid social changes

The judicial production of law and the legislative production of law make a striking distinction between the two legal traditions. Despite of these differences, judges in both legal traditions in adjudicating cases have a common task, which is the application of legal rules to the facts of cases pending for judgments. The tension between the certainty and the “discretion” is universal for any legal system and, to a certain extent, it poses a hard dilemma for the rhetoric of rule of law. In the transitional countries such as China where rapid social changes and transformations take place, the judiciary and judges can not escape from taking more active roles in interpreting or even law making process. It arouses much controversy, particularly in continental legal traditions, for the judiciary is deemed to perform a mechanical role in adjudicating cases. This article intends to analyze the needs for judicial law-making function in China and its reasons. It reveals that judicial interpretation constitutes an important source of law despite its ambiguous legislative position. The article argues that judicial activism is inevitable against the transitional nature of current Chinese society.     

The UN Human Rights Norms for Corporations: The Private Implications of Public International Law

Though many years in the making, the UN Human Rights Norms forCorporations only registered on the radars of most states, corporationsand civil society organisations in August 2003 when they beganto move up the ladder of the United Nation's policy-making processes.Since then they have been subject to intense, and sometimesintemperate, debate, scrutiny and controversy. A particularlegal feature of the deliberations has been the focus on theclosely related questions of the legal standing of the Normsin their present format (namely, an imperfect draft, and therefore,of no direct legal force), and what they might become (possibly—thoughnot likely soon—a treaty that speaks to corporations butbinds states). A potent mix of distrust and suspicion, vestedinterests, politics and economics has given rise to a greatdeal of grand-standing and cant concerning these questions andhow they might be answered. In this article, the authors explorethe history of the Norms and the form and content of the debatethat surrounds them, in their attempt to disentangle the legalfrom the rest. That said, the article also focuses on the realpoliticking of the circumstances in which the Norms now findthemselves and it seeks to offer some guidance as to where theNorms—or at least their substance, if not their form—mightgo from here.     

Multimedia Works and Categorization in UK Copyright Law

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

Copyright Law in the Digital Society—The Challenges ofMultimedia By Tanya Aplin, 2005, Hart Publishing Price: £60,Hardback, ISBN: 1-84113-356-6, pp. 320   The protection of multimedia     

Aligning the Interests of Lawyers and Clients

The potential conflict of interest between lawyers and clientsis well known. If a lawyer is paid for his time regardless ofthe outcome of the case, the lawyer may wish to bring the caseeven when it is not in the best interest of the client, mayspend more hours working on the case than the client would want,and may reject a settlement when the client would be betteroff if it were accepted. Alternatively, if the lawyer is compensatedaccording to the conventional contingent fee arrangement—underwhich he is paid a fraction of any trial award or settlementbut bears all of the cost of litigation—the lawyer mayhave an insufficient incentive to bring the case, may spendtoo little time working on it if it is brought, and may encouragea settlement when the client would be better off going to trial.In this article we propose a method of compensating lawyersthat overcomes the conflict of interest between the lawyer andthe client. Our system is a variation of the conventional contingentfee system, but, in contrast to that system, we would have thelawyer bear only a fraction of the cost of litigation—thesame fraction that the lawyer obtains of the award or settlement.We demonstrate that when the fraction of the cost that the lawyerbears equals the fraction of the award or settlement that heobtains, he will have an incentive to do exactly what a knowledgeableclient would want him to do with respect to accepting the case,spending time on the case, and settling the case. Under ourmodified contingent fee system, a third party would compensatethe lawyer for a certain fraction of his costs, in return forwhich the lawyer would pay that party an up-front fee. In thisway, the client would not bear any costs, even if the case werelost, just as under the conventional contingent fee system.