“Complete Labelling” and Domestic Prosecutions for Crimes Against Humanity

Criminal Law Forum - Fair labelling is an established principle of criminal justice that scrutinises the way that States use language in labelling criminal defendants and their conduct. I argue...     

On the Limits of Social Control: Structural Deterrence and the Policing of “Suppressible” Crimes

The present study examined the relationships between patterns of police arrests and subsequent variations in robbery, burglary, and aggravated assault in New York City police precincts from 1989 to 1998. Grounded in the structural deterrence theoretical perspective, and using a two‐stage fixed‐effects statistical framework, the study found that while controlling for indicators of social disorganization, increases in arrest vigor (i.e., arrests per officer for violent crimes in each precinct and raw arrest counts) predicted decreases in robbery and burglary, but that the relationships were non‐linear: as arrest vigor increased, robbery and burglary crime decreased; when arrest thresholds were reached, however, both robbery and burglary crime rates became positively associated with arrest aggressiveness. Conversely, variations in aggressive arrest patterns had no significant effect on aggravated assault, supporting the suppressible crimes arguments that primarily economically motivated crimes, and those that tend to occur in public settings, are most likely deterred by aggressive police practices.     

“The Right to Self-determination”: Right and Laws Between Means of Oppression and Means of Liberation in the Discourse of the Indigenous Movement of Ecuador

The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational state with wide degrees of autonomy and participation for indigenous nationalities. A part of those demands was the double strategy to fight for legal pluralism while already installing it at the local level. Even if some degrees of legal pluralism have been recognized in Ecuador since the mid-1990s, in practice, the local de facto practice prevails until today. Another central part of the demand for plurinationality is the representation of indigenous peoples in the legislative organs of the state, developing since their first appearance in the 1940s in a complex way. This article will analyze the development of right-based demands within the discourse of the indigenous movement in Ecuador, the visions of the implied state-reform and the organizational and political background and implication they have. Based on an analysis of the central texts of the indigenous organizations, conceptualizations of rights and laws and their appropriation within an autonomist discourse and a local practice will be highlighted.     

“Moral Panics” Deflected: The Failed Legislative Response to Canada’s Safety Crimes and Markets Fraud Legislation

This paper critically examines the enforcement, or lack thereof, of criminal laws relating to corporate crime. Using Canada's recently enacted corporate criminal liability (safety crimes) and markets fraud legislation as its empirical focus, it seeks to explain why these laws were introduced, only to fall into a state of virtual disuse. The authors explain how, in the wake of yet another crisis in capitalism, the state felt compelled to enact criminal laws to offset the abuses of corporate power in these two arenas. However, despite promises to 'get tough' on corporate crime, the enforcement of both laws has been sporadic and, in many respects, non-existent. The authors argue that both the passage and the ineffectiveness of Canada's safety crimes and markets fraud legislation can be traced to their shared Keynesian origins as responses to a crisis in neoclassical economics. In essence, both laws are caught-up in a tug-of-war between two opposing yet not incompatible visions of how best to regulate the capitalist marketplace. As a result, even if some corporations and corporate actors are held to legal account, the underlying causes of corporate crime, including the class-based exploitation that is fundamental to capitalism, remain untouched. The authors conclude by arguing for enforcement of corporate crime laws that recognizes the limits of this struggle and the necessity to stave-off capitalism's endemic harms.     

The Hazards of Investigating Internet Crimes Against Children: Digital Evidence Handlers’ Experiences with Vicarious Trauma and Coping Behaviors

Over the last two decades there has been a substantive increase in the number of cybercrime and digital forensic units in local and state police agencies across the US. There is, however, little research on the occupational responses of individuals serving in specialized roles within criminal justice agencies. Individuals tasked to these units are likely to encounter psychologically harmful materials on a regular basis due to the number of child pornography and sexual exploitation cases they are assigned. As a result, this study examined the experiences of vicarious trauma and coping behaviors of digital forensic examiners in a sample culled from across the country. The findings suggest that exposure to content involving crimes against children directly and indirectly increases the likelihood of trauma and incidence of coping strategies employed.     

The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”     

Citizens’ knowledge and perceptions of legislatures in Canada,Britain and the United States

This study has two major parts. The first uses survey data to reveal what citizens in Britain, Canada and the United States know about their national legislatures and what factors ‐ including cognitive ability, opportunity, motivation and media exposure ‐ affect that knowledge. We find that US citizens are the least knowledgeable. The second part of the study looks at whether the level of knowledge in each country has any importance for understanding levels of public support for the national legislature. In the United States, the more knowledgeable citizens are less likely to support Congress, in sharp contrast to the tendency of knowledgeable Canadian citizens to be more supportive of their parliament. Knowledge is not a significant predictor of support in the British model. Some implications of the findings are discussed.     

Corporate Groups under Italian Law: A Comparative Approach and the Brand-New “Crisis Code”

This paper provides an overview of the evolution of the harmonization process of European law in the field of group of companies, referring to the development of a national “group of companies law” — from the company law reform to the crisis and insolvency code — with the purpose of examining the main aspects of the regulation in force, considering mainly the possible interaction with the rules on the crisis of the groups of companies introduced by the Legislative Decree No. 14/2019, and with the aim of analyzing its suitability for being devoted to the prospect of harmonization across countries.     

The Changing Face of Corporate Liability – New Hard Law and the Increasing Influence of Soft Law

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.     

The Impact of State Laws Protecting Abortion Clinics and Reproductive Rights on Crimes Against Abortion Providers: Deterrence, Backlash, or Neither?

Since Roe v. Wade, most states have passed laws either restricting or further protecting reproductive rights. During a wave of anti-abortion violence in the early 1990s, several states also enacted legislation protecting abortion clinics, staff, and patients. One hypothesis drawn from the theoretical literature predicts that these laws provide a deterrent effect and thus fewer anti-abortion crimes in states that protect clinics and reproductive rights. An alternative hypothesis drawn from the literature expects a backlash effect from radical members of the movement and thus more crimes in states with protective legislation. We tested these competing hypotheses by taking advantage of unique data sets that gauge the strength of laws protecting clinics and reproductive rights and that provide self-report victimization data from clinics. Employing logistic regression and controlling for several potential covariates, we found null effects and thus no support for either hypothesis. The null findings were consistent across a number of different types of victimization. Our discussion contextualizes these results in terms of previous research on crimes against abortion providers, discusses alternative explanations for the null findings, and considers the implications for future policy development and research.     

From Calculated Cruelty to Casual Violence – The United Nations War Crimes Commission and the Prosecution of Torture and Ill-Treatment

The article looks at the records of both the United Nations War Crimes Commission (UNWCC) and national courts with respect to the post-World War II prosecution of the crimes of torture and ill-treatment. It illustrates how the UNWCC and national courts dealt with the relevant legal questions, applicable laws, crimes at hand, as well as issues of retroactivity and defenses. The article also discusses the UNWCC’s contribution to the development of relevant international law, both in terms of state practice and precedent. Finally, it acknowledges the legacy of the UNWCC and post-World War II prosecutions, which constituted a collaborative effort to bring perpetrators of international crimes to justice.     

Positive obligations under the African Charter on Human and Peoples’ Rights: the duty of the Nigerian Government to enact a Freedom of Information Act

Beginning with the Independence Constitution of 1960, the right to freedom of information and other civil and political rights have been guaranteed by successive Nigerian Constitutions as fundamental human rights. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which incorporated the provisions of the African Charter on Human and People’s Right into Nigerian law in 1983 consolidated these and a plethora of other social, economic and cultural rights and imposed a positive duty on the government to adopt legislative and other measures to give them effect. This article develops this potentially revolutionary principle of positive obligations, which amazingly remains unsung and unused more than a quarter of a century after it became an integral part of Nigerian law. The first part of the article proposes the principle as the most effective basis to compel the enactment of a Freedom of Information legislation, which successive governments have refused to enact despite overwhelming public support and sustained lobbying for a Freedom of Information Bill first introduced in the National Assembly in 1997. The second part critically analyses the latest (2007) version of the Bill. It concludes that its provisions are inadequate to give effect to the right to freedom of information in view of the legal and bureaucratic environment under which it will operate, and suggests remedial measures.     

Exploring the “Lost and Found” of Justice Theory and Research

Scientific interest in the nature of how people think about justice and fairness began approximately 70 years ago with Stouffer’s classic study on the American soldier. Since then there have been numerous theoretical frameworks and thousands of research studies conducted on what people perceive as fair and the consequences of making a fairness judgment. The goal of this article is to dig through the “lost and found” box of justice research in an attempt to re-examine where we have been, issues and ideas we may have forgotten, and to gain insight on directions we may want to go in the future. The key rediscovery of this review is that perspective matters. Specifically, how people interpret fairness depends critically on whether they are viewing a situation in terms of their material, social, or moral needs and goals. The implications of adopting a contingent theory of how people reason about fairness are discussed.

Christian Wolff and the classics of“scientific socialis”

The paper analyses the reception of Christian Wolff in the work of the founders of scientific socialism. It is discussed how Marx, Engels and Lenin thought about a leading representative of German Enlightenment. The author argues that the classics of scientific socialism knew about Wolff in an off-handed and secondary way. As the case of Wolff shows their studies regarding philosophical, legal, sociological and economic theories and those who represented them were strongly influenced by thinking with the logic and in the categories of class antagonism and struggle. The Wolff treatment by Marx, Engels and Lenin determined his reception in the philosophy and economics of the state socialism.