Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial

This article develops an interpretative framework to examine when incentives to plead guilty should be found to constrain defendant choice to waive fair trial rights under the European Convention on Human Rights. This framework is informed by existing jurisprudence, specifically the judgments of the European Court of Human Rights in Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and socio‐legal literature. According to the framework, an incentive to plead guilty should be found to violate fair trial rights where it makes it unreasonable to expect defendants to exercise their right to a full trial, is independent of the projected outcome at trial, and causes the defendant to plead guilty. An empirical analysis of guilty‐plea practice in England and Wales informed by this new framework identifies problematic incentives and suggests such incentives may disproportionately influence vulnerable defendants.     

Political Embeddedness and its Impact on Chinese Lawyers’ Practices in Criminal Defense Cases

Based on survey data of 348 lawyers in Fujian, this study empirically tests how lawyers' political embeddedness (i.e., lawyers' bureaucratic, instrumental, and/or affective ties to the courts and prosecutors) has impacted upon their defense practices in criminal trials and their pursuit of liberal values. Our data reveal that politically embedded lawyers report more (not fewer) difficulties in practice (e.g., in requesting witness testimony in court, requesting new evidence, and requesting new evaluations and investigations of the case). Clients are more satisfied with representation by politically non-embedded lawyers than lawyers who are embedded. Using statistical evidence, this paper analyzes potential reasons and draws out the implications.     

New Challenges Posed by Robots to China’s Civil Code in the Age of Artificial Intelligence

In the age of artificial intelligence (AI), robots have profoundly impacted our life and work, and have challenged our civil legal system. In the course of AI development, robots need to be designed to protect our personal privacy, data privacy, intellectual property rights, and tort liability identification and determination. In addition, China needs an updated Civil Code in line with the growth of AI. All measures should aim to address AI challenges and also to provide the needed institutional space for the development of AI and other emerging technologies.     

Vulnerabilities in China’s Legal System

Social Justice Research -     

In Defense of His Guru: Dratsepa’s Rebuttal to the Challenges Articulated by the Proponents of the Other-Emptiness Doctrine

The buddha-nature literature has a significant place within the Indian Mahāyāna tradition and Tibetan Buddhism. While it is usually included in the so-called Last Wheel of the Buddha’s teachings, many Tibetan thinkers began to cast doubts about the textual significance of buddha-nature discourse in fourteenth-century Tibet. In this article, I will examine one particular case where there is apparent tension between multiple Tibetan masters over the importance of buddha-nature teachings. This paper primarily analyzes Dratsepa’s commentary to the Ornament (mdzes rgyan) written by his teacher, Buton. Dratsepa construes the Ornament as a work critiquing Dolpopa’s interpretation of the buddha-nature literature. He levels a barrage of criticisms against Dolpopa by referring to Indian śāstras and sūtras that are equally important to both of them, and also by tracing his own assessment of the tathāgata-essence teachings to early Tibetan scholars. In contradistinction to Dolpopa’s claims, Dratsepa offers several nuanced readings of the buddha-nature literature and complicates the notion of what it means to have tathāgata-essence, what a definitive or provisional meaning entails, and the relationship between the Middle Wheel and the Last Wheel teachings. In brief, Dratsepa’s text sheds light on one of the earliest discourses on the tension between self-emptiness and other-emptiness presentations.     

Promoting the Modernization of China’s Governance System and Capacity in Line with the Rule of Law

Since the 18th National Congress of the Communist Party of China (CPC) held in 2012, XI Jinping, General Secretary of the CPC Central Committee, has made a series of vital expositions on the promotion of modernization of the national governance system and capacity in line with the rule of law. The law is the most important tool for governing a country, and the rule of law supports the national governance process and capacity. Promoting the rule of law on all fronts is an essential requirement for developing socialism with Chinese characteristics and promoting the modernization of the national governance system and capacity. Comprehensive law-based governance in all areas should be promoted to advance the modernization of national governance. Furthermore, law-based thinking and methods should be used to address difficulties and challenges faced in this modernization process.     

The Investigation and Trial of Criminal Offences in the New Century – The Need for a Radical Change

This is the text of the Liverpool Law Review Annual Lecture 1999. Mr. Justice Hooper speaks about the need for a radical reform of the practices and procedures and rules of evidence in the Criminal Courts in England and Wales. Radical reform is needed at all stages of the process including the investigation stage, the pre-trial stage and at the trial itself. Substantive law reform is also long overdue and there is a real need to consider a new approach by the adoption of a comprehensive criminal code. This revised version was published online in August 2006 with corrections to the Cover Date.     

Liberating Discretion: The Effect of Rape Myth Factors on Prosecutors’ Decisions to Charge Suspects in Penetrative and Non-Penetrative Sex Offenses

Abstract

In sexual assault cases, prosecutorial charging decisions may be influenced by legal factors like offense seriousness and convictability and extralegal rape myths. We use data on sexual assaults in Los Angeles, to test for the effects of victim behavior, victim credibility, and “real rape” stereotypes on the decision to file charges. We also test the liberation hypothesis, examining whether rape myths influence the charge decision more in less serious nonpenetrative cases then in penetrative cases. Results show that victim credibility and behavior, but not consistency with real rape stereotypes, affect charging decisions, even after controlling for legally relevant factors, and they influence prosecutors’ charging decisions equally in penetrative and nonpenetrative cases. Rape myths also influence the charging decision indirectly via victim cooperation. We conclude that rape myths are incorporated into the criminal justice system’s definition of and response to sexual violence, so cannot be addressed by changing case screening policies.     

China’s Stance on Investor-State Dispute Settlement: Evolution,Challenges, and Reform Options

Netherlands International Law Review - China is one of the most active states in concluding bilateral investment treaties (BITs) globally. Its BITs can be categorized into three generations based...     

Do Defense Attorney Referrals for Competence to Stand Trial Evaluations Depend on Whether the Client Speaks English or Spanish?

Criminal defense attorneys (N = 142) responded to a survey asking them to read a vignette describing a Hispanic defendant charged with assault and rate the severity of the defendant’s mental illness and likelihood of referring him for an evaluation of competence to stand trial (CST). The vignettes varied in terms of whether the defendant spoke English or Spanish, and whether his mental illness symptoms were obvious or ambiguous. Overall, attorneys rated the Spanish-speaking defendant as less mentally ill than the English-speaking defendant, and were less likely to refer the Spanish-speaking defendant for a CST evaluation. Attorneys who perceived more logistical barriers to seeking a CST evaluation in their local communities were less likely to refer the defendant for a CST evaluation, but only when the defendant spoke Spanish. These findings suggest attorney decisions were influenced by language, although further research is needed to identify the mechanism of this influence.     

Route Selection and Optimization on Deepening the Reform of Land Expropriation System in China——Based on the double value object of impartiality and efficiency

全国各地土地征收实践中大量纠纷和冲突的不断发生,迫切要求深化土地征收制度改革.而且,公平与效率作为衡量法律制度优劣的重要尺度,也切实要求深化土地征收制度改革.基于市场化改革的理论共识,结合实践经验和政策指引以及国外制度建设的启示,深化土地征收制度改革就是突破现有的制度障碍,遵循公平与效率双重价值目标,区分公益性和非公益性用地,构建农村集体土地征购和出让制度,进一步完善我国现有的农村土地征收法律制度体系.     

An introduction to the special issue on ‘Organised crime and illegal markets in the UK and Ireland’

This paper provides an introduction to the articles and report excerpt submitted to the special issue of Trends in Organized Crime on ‘Organised crime and illegal markets in the UK and Ireland’. The aim of the special issue is to draw together empirical research findings and theoretical accounts on various manifestations of organised crime in the particular geographic context(s), the evolution of organised crime, the links between organised crime, the legal sphere and paramilitary groups, as well as an account of the demographic profile and attitudes of citizens in areas in which organised crime groups thrive.     

Reflections on Mortgage Keynesianism: Applying Prasad’s (2012) Abundance and the Paradox of Poverty in the United States to Contemporary China

Social Justice Research -     

Parents’ and non-parents’ beliefs about the cues to deception in children

Previous research has suggested that certain groups of experts are better at detecting deception than others. A possible explanation for this finding is that some expert groups have different beliefs about the cues to deception. This study investigated these beliefs in one such expert group, namely parents. Four different scenarios were presented, each scenario depicting a deception for a child at a different age. For each one, participants were asked to indicate whether behaviours would occur more or less frequently during deception. Some differences were found between parents and non-parents for overall beliefs, however there were few differences in their awareness of situational variations, with all participants being aware that deceptive behaviour could change across situations. Results are discussed in terms of the relationship between beliefs and expertise as well as the importance of direct versus indirect experience in the formation of beliefs about the cues to deception.     

Venirepersons’s Attitudes Toward the Insanity Defense: Developing,Refining, and Validating a Scale

Given the prevalence and predictive strength of negative attitudes toward the insanity defense, we conducted three studies with 426 venirepersons to develop an understanding and a measure of public attitudes toward the insanity defense. In these studies, we developed, iteratively refined, and cross-validated the insanity defense attitude-revised (IDA-R) scale. The results suggest that IDAs are underpinned by ones degree of (a) orientation toward strict liability, and (b) concern about perceived injustice and danger associated with the defense. The IDA-R assesses these two-dimensions with good internal consistency, convergent and divergent validity, and predictive utility. The IDA-Rs predictive utility generalizes across jurisdictions and manipulation of case facts. Theoretical and practical implications for research and for identifying impartial jurors at voir dire are discussed.     

China,the Chinese Representative,and the Use of International Law to Counter Japanese Acts of Aggression: China’s Standpoint on UNWCC Jurisdiction

This article discusses China’s influence on the United Nations War Crimes Commission (UNWCC). It describes China’s participation in the discussion of war crimes investigation and punishment, emphasizing the particular influence of Chinese Representative Wellington Koo. The article examines Koo’s application of international law to address Japanese atrocities committed towards China, particularly in using the UNWCC as a means of ensuring that Japanese aggression did not go unpunished. Despite the inability to hold many Japanese war criminals accountable, the author emphasizes China’s remarkable impact on the UNWCC, and maintains that China continues to remain a strong force in international law.     

The Four Nobles’ Truths and Their 16 Aspects: On the Dogmatic and Soteriological Presuppositions of the Buddhist Epistemologists’ Views on Niścaya

Most Buddhists would admit that every Buddhist practice and theoretical construct can be traced to or at least subsumed under one or more among the four nobles’ truths. It is hardly surprising, then, that listening to these truths and pondering upon them were considered the cornerstones of the Buddhist soteric endeavour. Learning them from a competent teacher and subjecting them to rational analysis are generally regarded as taking place at the very beginning of the religious career or, to put it otherwise, still as an ordinary person along the preparatory path. At this stage, the discursive nature of the four nobles’ truths fits well the didactic and intellectual requirements of early religious practice. But how about the subsequent, more distinctively intuitive/non-conceptual stages of a mystic’s career? How to interpret, for instance, our sources’ strong emphasis on the four nobles’ truths as forming the content of the first pivotal event on the path, the so-called path of vision? And how to understand a philosopher’s claim that the yogic path exhausts itself in one’s learning, rationally analyzing and mentally cultivating the four nobles’ truths? In order to understand this, one has to turn to Abhidharmic interpretations of the four truths as embodying the ultimately true aspects of reality itself. Here, the truths are not regarded as a didactic device encapsulating the entire Buddhist law, but as the basic sixteenfold structure of the real. It is, of course, these ultimately true aspects that the path of cultivation is supposed to make directly perceptible to the yogin, thus enabling him to get rid of ignorance.     

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.     

Asterix and Obelix in Drugland: an introduction to the special issue on ‘drug markets’

This paper provides an introduction to the articles bringing forward empirical research findings and theoretical accounts on drug markets, raising questions about the nature of the relationship between the organization of drug markets and the official frameworks surrounding them, and, importantly, about the complexity of this relationship.