Contracts obtained by means of bribery: should they be void or valid?

This paper argues that contracts obtained by means of bribery should be valid. Nullity and voidability decrease the incentive for voluntary disclosure, assist corrupt actors with enforcing their bribe agreements and provide leeway for abuse. Thus, they run counter to effective anti-corruption. It is argued that other instruments are more suitable for preventing corruption.

Assessing the best interests of the child in cases of cross-border surrogacy: inconsistency in the Strasbourg approach?

This article examines the approach of the European Court of Human Rights (ECtHR) to assessing the best interests of the child in three recent cases of cross-border surrogacy, namely Mennesson v France, Labassee v France and Paradiso and Campanelli v Italy. It is argued that these cases reveal inconsistency in the ECtHR’s assessment of the best interests of the child. In Mennesson and Labassee, the ECtHR found that the national authorities’ refusal to legally recognise the relationships between the children and the intended parents amounted to a violation of Article 8 ECHR, whereas no violation was found in Paradiso. A notable distinguishing feature of Paradiso was that there was no genetic relationship between the child and the intended parents, and it is this point that seemingly led the Court to assess the best interests of that child differently to the others.     

How has the private sector reacted to the international standard against transnational bribery? Evidence from corporate anticorruption compliance programs in Argentina

In the last 20 years, the risks of bribing foreign public officials have greatly increased for multinational companies based in OECD countries and those listed on their stock markets. Generally, these risks can be mitigated through corporate compliance programs. Such compliance programs are directed at reducing bribery and other unethical behavior in the private sector. This paper assesses how the international standard against transnational bribery has impacted anticorruption compliance programs in Argentina. It first traces the origins and logics behind corporate anticorruption compliance. It later describes the international standard against transnational bribery and, in the light of information collected through 16 in-depth interviews and a survey conducted among 70 companies based in Argentina, it assesses how corporate anticorruption programs work in this country. After distinguishing between “paper”, “cheap-talk” ideal-type programs and sound, truly committed ideal-type policies, it suggests that anticorruption compliance in Argentina is placed closer to the former than the latter, and it offers possible reasons for such findings.     

Toxicologic analysis in cases of possible sudden infant death syndrome: a worthwhile exercise?

The diagnosis of sudden infant death syndrome (SIDS) is one of exclusion. At the Department of Forensic Medicine, Westmead Hospital, toxicologic analysis is performed as part of the postmortem examination of all apparent SIDS deaths. The results for the 5-year period January 1, 1994, to December 31, 1999, were audited to determine whether such routine testing was worthwhile. During this time there were 117 cases with a history consistent with SIDS. Drugs were detected in 19 (16%) of these cases. In 1 case, death was attributed to the finding of methadone. The presence of methadone was regarded as a possible contributing factor to death in a further 2 cases. The presence of possible methadone toxicity had not been expected from the history given before the examination in these 3 cases. In 114 cases there was a suitable sample for alcohol testing; in no case was alcohol detected. In 13 cases the postmortem examination revealed an anatomic cause of death (including 3 cases consistent with whiplash/shaken baby/impact head injury), which excluded a diagnosis of SIDS. In conclusion, routine toxicologic testing in all possible cases of SIDS death supplements the postmortem examination in excluding cases of non-SIDS.     

Restorative justice and probation decisions – an analysis of intentional assault cases in China

The restorative justice model focuses on amending offender-victim relations. Compared to Western countries, China's criminal justice policy has relied on both formal and informal mechanisms in dealing with criminal offending. Recently a victim-offender reconciliation (VOR) program has been codified in China to provide incentives for offenders and victims to resolve their disputes through court-guided mediation sessions. Using restorative justice as an interpretive framework and drawing upon 1000 minor intentional assault cases, this study examines the impact of core VOR concepts on probation decisions. Our analysis suggests that offender compensation and attitude were significantly related to the likelihood of receiving probation, and the defense attorney played an unexpected yet impactful role in shaping judges’ probation decisions. Theoretical and policy implications are discussed.     

The end of shareholder primacy in Indian corporate governance? Says who?!

The Indian Companies Act, 2013 has often been regarded as a ‘radical experiment with corporate purpose’, owing to its strong stakeholder orientation. Under Section 166(2), directors owe a fiduciary duty towards both shareholders and stakeholders, placed at the same level. The approach is pluralistic, without indicating a preference for one over the other. However, we argue that this stakeholder aspiration is limited to theoretical discourse. In terms of the committees that have been established to review Indian corporate law, and the subsequent amendments themselves, the purpose has been unidimensional: protection of shareholder interest. In practice, stakeholder interests do not feature.     

Iron triangle of the gong jian fa: Lessons from wrongful convictions in capital cases?

This article examines the iron triangle of the gong jian fa (police, prosecutors and courts) in China, based on Chinese lessons from high-profile wrongful convictions in capital cases. It argues that the iron triangle acts as both an administrative and a political control on such cases, behind which lies overly close cooperation between the three state institutions. This cooperation often results from coordination by local political-legal committees (PLCs). Under this institutional environment, the police, prosecutors and courts have to work together and cooperate with combating crime, without necessary restricts to ensure criminal justice even in capital cases. Responding to repeated occurrences of such typical injustices, China has promoted several waves of justice reforms to prevent and reduce wrongful convictions over the last ten years, but has failed to make substantive progress without effectively addressing the iron triangle. This continued failure calls for a holistic approach to future systemic reform. Particularly, specific measures are required to enhance judicial independence and to reduce intervention from local PLCs during the handling of individual cases. Such reforms would greatly reduce the risk of wrongful convictions in capital cases.     

Integrating the desire–for–control and rational choice in a corporate crime context

The “rational choice” framework, with its focus on risks and rewards, is often used to explain corporate criminality. In this paper, we build on this framework by integrating the notion of “desire‐for‐control.” Although common to many psychologists, the desire‐for‐control, or the general wish to be in control over everyday life events, has not been examined for its relevance in understanding criminal activity generally, or within corporate offending in particular. After demonstrating the importance of desire‐for‐control in the corporate context, we use data from a sample of managers and MBA students to examine the extent to which desire‐for‐control relates to rational‐choice considerations and corporate criminal decision‐making. Results suggest that desire‐for‐control (1) influences the interpretation of rational‐choice considerations and (2) is positively related to corporate criminality even after controlling for a number of important situational‐ and individual‐level factors. Implications for future theoretical and empirical research are addressed.     

More than the sum of its parts? Itemizing impairment in civil cases

Purpose. The purpose of the present study is to determine whether making multiple damage awards influenced civil mock jurors' assessments of those damage awards. Specifically, how does making one decision for pain and suffering damage awards versus two decisions (one for mental pain and suffering and physical pain and suffering) versus four decisions (one for loss of enjoyment of life, mental anguish, disfigurement, and physical disability/impairment) influence overall non‐economic damage awards. Methods. One hundred twenty undergraduates from a psychology participant pool read a case vignette that included information regarding four types of injuries that the plaintiff endured: loss of enjoyment of life, mental anguish, disfigurement, and physical disability/impairment. Participants were randomly assigned to render either one award for pain and suffering, two awards (one for physical pain and suffering and one for mental pain and suffering), or four awards (one for each pain and suffering element). Results. Results indicated that participants who rendered four awards provided significantly higher overall non‐economic damage awards than participants who provided one overall award. The variability of damage awards also increased as the number of damage awards increased. Conclusions. Itemizing non‐economic damage awards into distinct injury categories can lead to an increase in overall non‐economic awards. Members of the legal arena should be cautioned against itemizing damages to prevent variability in non‐economic awards.     

No body,no crime? The role of forensic awareness in avoiding police detection in cases of sexual homicide

PurposeThe study examines whether the use of forensic awareness strategies increases the chance of avoiding police detection in sexual homicide.MethodsLogistic and negative binomial regression analyses are used on a sample of 350 cases of sexual homicide – 250 solved and 100 unsolved cases – in order to determine if forensic awareness strategies are related to the status of the case (i.e., solved versus unsolved) and the number of days before body recovery, while controlling for certain victim characteristics.ResultsAlthough an offender’s use of precautions does not seem to increase the offender’s chance of avoiding police detection, some modus operandi behavior adopted by the offender at the crime scene may help to delay the discovery of the victim, and thus delay the offender’s apprehension. Moreover, the likelihood of whether or not a sexual murderer is apprehended varied significantly across victim characteristics.ConclusionSome offenders seem to exhibit rational thinking in targeting certain types of victims and in adopting certain strategies in order to delay body recovery. Number of days until body recovery is a more appropriate measure of detection avoidance than case status, as it is not biased by administrative rules or timing of data entry.     

Beyond the "science of sophomores": does the rational choice explanation of crime generalize from university students to an actual offender sample?

Much of the criminological literature testing rational choice theory has utilized hypothetical scenarios presented to university students. Although this research generally supports rational choice theory, a common criticism is that conclusions from these studies may not generalize to samples of actual offenders. This study proceeds to examine this issue in two steps. First, a traditional sample of university students is examined to determine how various costs and benefits relate to their hypothetical likelihood of offending. Then the same data collection procedures are employed with a somewhat different sample of younger, adjudicated, and institutionalized offenders to determine whether the conclusions drawn from the student sample generalize to this offender sample. Results generally suggest that the content and process of hypothetical criminal decision making differ in the sample of known offenders relative to the university students. Limitations of the current study, as well as suggestions for future research, are discussed.     

Directed embryo donation: free choice or discrimination?

The issue of whether to allow or prohibit the directed anonymous donation of human embryos for reproductive use has been publicly contentious. The claims that directed donation are a donor's autonomous right contrast with claims that the practice is discriminatory. Recent legislation and legal recommendation on the issue has been inconsistent or contradictory. This article specifically addresses the question as to whether the directed donation of embryos is the exercise of free choice or an act of discrimination. This question is considered from both ethical and legal viewpoints.     

Oxycodone intoxication in an infant: accidental or intentional exposure?

A case is presented of a 10 month old male who went into cardiac arrest at a local store. The infant subsequently expired and was autopsied at the Office of the Chief Medical Examiner, State of Maryland. The only remarkable finding was the detection of oxycodone in the postmortem specimens; the blood and liver oxycodone concentrations were 0.6 mg/L and 1.6 mg/kg, respectively. Oxycodone was identified and quantitated by gas chromatography-nitrogen-phosphorus detection and confirmed by full scan electron ionization gas chromatography-mass spectrometry. The medical examiner ruled that the cause of death was oxycodone intoxication, and the manner of death was homicide. The key toxicologic question in this case was whether or not it was reasonable for the infant to be exposed to oxycodone exclusively through breast milk or through an alternate source. It was concluded that, at best, there were serious concerns about the likelihood of drug exposure through consumption of breast milk.