In Hot Pursuit of NRD Claims

Federal- and state-designated entities' ability to pursue claims for damages to the nation's natural resources have long existed under statutory and common law but, until recently, were placed on the back burner.

Pursuit of Natural Resource Damage (NRD) claims by federal and certain state governments have drastically increased. New Jersey and New Mexico have been among the most aggressive. Issues surrounding NRD claims such as allocation of liability, calculation of damages using formulas and technical factors, and causation are the focus of litigation. New Jersey's groundwater initiative and New Mexico's program are being watched closely to determine future success of NRD claims.     

Analysis and counter‐policies on elderly criminals in Korea

The second counter‐policy is an establishment of a proper network of legal systems, including the establishment of accurate statistical data and well‐structured criminal law and defense systems for the elderly — comparable to the currently operative systems established to process and to deal with crimes of teenage and female offenders.

Research on indigence, health, recreation, housing and other welfare areas of the elderly is common in Korea, but research on elderly criminals is rare. Projecting that their crime rates will rise, this preliminary research was conducted in order to understand their crime status and to establish proper counter‐policies.

This research focuses on the analysis of the present elderly population and changes of their status, in addition to criminal theories and criminal trends. Analysis on criminal statistics is done through classifying criminal offenses and special offenses according to the present governmental criminal classification methods of Korea. Criminal offenses are further separated into serious and estate‐related offenses.

The result of analysis on elderly criminals in Korea indicates that the most common crimes are assaults and related offenses, including battery and bodily injuries. Most assaults or related charges were, however, not decidedly serious. Among estate‐related offenses, misappropriation and property‐damage were the most common. Among special offenses, constructional violations have the highest rate. The majority of estate related offenses were less serious and produced less than W‐ 1,000,000 (approximately $1150 US dollars) in damages.

Destruction of traditional society is the major source of criminal activities. While younger generations demand less authoritarian and more interdependent relationships, the elderly insist upon adhering to their traditional ways of thinking. The elderly commit crimes out of the animosity and exasperation created from a perceived incompatibility with modern society. Their diminishing social and family hierarchies, along with carelessness and lack of recreation, lead the elderly into feeble or fatuous life styles, eventually leading to various offenses.

There is no simple solution to prevent the elderly from committing crimes since complex social and/or personality problems cause these deviant behaviors. The government needs to understand the overall problems and establish necessary counter‐policies with regard to the elderly. Even if their present crime rates seem insignificant now, the numbers are growing rapidly.

Conclusively, the first counter‐policy is to eliminate the source of the problems. Some specific policies that can be adopted to eliminate these sources include the expansion of employment and related educational opportunities to improve their economic conditions; realignment of medical benefit systems; broader access to effective recreational activities through volunteer and other civic programs; and social adjustment programs that can guide the elderly to better adjust to the evolving social changes.     

The Influence of New Mental Health Legislation on the Criminal Justice System

The current trend towards the deinstitutionalization of mental patients has led some to predict a movement into the criminal justice system. This paper describes an attempt to examine this hypothesis by comparing commitment and arrest rates in Philadelphia before and after the enabling legislation.

The hypothesis of movement into the criminal justice system was not supported by the comparison of rates, nor by an examination of the careers of ninety-four selected ex-patients.

The implications of the findings are discussed, with reference to similar studies in different states; and the conclusion is reached that the results must be interpreted in the light of the changing role of the criminal justice system as well as that of the mental hospital.     

Traumas of a child victim of rape in India: A diagnostic study

The study reveals (a) incidences of sexual abuse of minor girls is a global problem, (b) minor victims experience severe traumas which often remain unexpressed, and (c) in the absence of proper family and social support, minor rape victims have difficulty in coping with their daily lives. Rehabilitation programs are essential for them. A specific law is needed in the country to deal with such cases separately and justly.

This study discusses the trauma of rape of minor children, first giving a macrolevel view of sexual abuse, such as rape of minor girls in India and other developing countries, then at the microlevel, analyzing the impact of rape through a few individual cases. The data is based on crime statistics of the National Crime Records Bureau for the years 1993–99 which give the figures of rapes of minor girls in the age ranges of 10 years and younger, and between 10 and 16 years.

The paper is divided into two parts. The first explores various studies of the extent of rapes of minors in different countries and gives a graphic representation of the incidence of rape and kidnapping in India. Traumas suffered by the minor victims of rape are discussed in detail and supported by few cases. The second part gives suggestions on how to rehabilitate these minor rape victims.     

Recommended Films

First Run Features, The Film Center Building, 630 Ninth Avenue, Suite 1213, New York, NY, 10036. Website: https://www.firstrunfeatures.com/

Patrimonio (Directors: Lisa F. Jackson and Sarah Teale, 2018)     

Corrections in Israel and the United States: A Comparative Analysis

The general underlying philosophical intent of corrections in both Israel and the United States is the restoration of the offender to a productive role in the community. Since the correctional intent is essentially the same, it is not surprising that the systems established to implement this aspiration are rather similar and exhibit many of the same ambiguities, weaknesses, and frustrations. The focus of the paper is on two correctional alternatives: incarceration and probation.

As in America, Israel's prisons are overcrowded; most of the correctional facilities are unfit for human habitation; sanitary conditions are poor; occupational, vocational, and educational opportunities are virtually non-existent; and rehabilitation exists in name only. The recidivist rate of criminal offenders is as high in Israel as in the U.S. Various Israeli commissions in recent years have decried the prison conditions and have called for reform but, again as in the U.S., the problem has defied an acceptable solution.

Israel's probation services are part of the country's social services delivery system rather than the penal or judicial systems. That is the case because, unlike the U.S. conception, probation in Israel is not considered a punishment. Probation services are utilized by the Criminal Justice System, but organizationally they are not part of it. Still, the functions carried out by the Israeli probation officers very much resemble those of their counterparts in the U.S. Probation services in Israel have not expanded in recent years, even though the number of incarcerated offenders has increased.

Corrections has never been a priority in Israel and will not be so long as the country remains preoccupied with security matters. On the other hand, the crime rate continues to increase and so does the prison population. Consequently, the country's correctional problems and policies, in all their dimensions, should be re-examined, and the sooner the better.     

Paint It Black: Rhode Island Supreme Court Rejects Lead Paint Nuisance Suit

During the past decade, state and local governments have increasingly brought suits to redress harm caused by products, including cigarettes, firearms, and toxins such as asbestos, lead paint, and even greenhouse gases, based not on the products liability or negligence theories conventionally applied, but on the public nuisance doctrine. Although the public nuisance doctrine potentially offers governmental plaintiffs more lenient standards with respect to issues like product and manufacturer identification, control of the product, proximate cause, and application of statutes of limitation, while limiting manufacturers' defenses, and has generated insurance claims and pressure to enter settlements, nearly all applications of public nuisance law to products claims have ultimately failed when heard by the courts on the merits. In February 2007, however, a Rhode Island trial court, in a groundbreaking decision, entered a judgment on a jury verdict imposing liability on three lead pigment manufacturers for creating a public nuisance, and ordered them to abate the nuisance in Rhode Island at a cost estimated to exceed two billion dollars.

On July 1, 2008, the Rhode Island Supreme Court reversed the trial court's judgment against the lead paint manufacturers and held that the state attorney general's complaint should have been dismissed for failure to state a claim upon which relief could be granted. The state had not, and could not, allege facts sufficient to support a public nuisance claim, as the doctrine was construed in Rhode Island or nationally. Relief from the serious harms caused by lead paint was available only through specific Rhode Island legislation and products liability law, not the public nuisance doctrine. The Rhode Island Supreme Court's decision is consistent with recent decisions from other state courts, most notably opinions issued by the highest courts of New Jersey and Missouri during 2007, and has already influenced other public nuisance plaintiffs to abandon their lead paint suits.     

Citizenship and justice: public prosecutors in social contexts in Portugal

All over the world judicial systems are under tremendous pressure as the instruments used by citizens to access their full rights. The erosion of other state powers has transferred expectations of social intervention or, at least, protection for the rights of the weak and vulnerable, to the sphere of justice. Hence, in some countries the social role of judges or public prosecutors has become more important and their work is publicly scrutinised to ensure that their duties are performed correctly and fairly. In addition to criminal law, social areas of justice (concerning workers and children) have become more central to judicial systems, conferring a new public responsibility on these professionals.

In several countries, including Portugal, public prosecutors are unusual within the legal profession given that they have equal status in both social and criminal areas of law. In certain systems, public prosecutors may act as a party, defending the rights of powerless citizens and leading them through the judicial process. Such powers offer great potential for fairness and justice but at the same time can lead to dangerous professional controversies. Through an analysis of the Portuguese model, one of the more advanced of its kind (in terms of intervention), some of the main features will be described and identified.

Public prosecutors in Portugal have, for many years, been in charge of a set of very varied responsibilities within the context of the Family and Juvenile and Labour Courts which far exceed what is publicly acknowledged, particularly in criminal matters. However, their functions are not limited to those of the ‘public prosecutor’ or ‘coordinator of the investigation’ typically associated with responsibilities in criminal matters.

Within the context of these two major and socially sensitive areas, public prosecutors act as intermediaries between the different parties and entities involved in litigation, a fact which, in professional terms, endows them with features which are atypical of magistrates and places them in close contact with citizens. Thus, taking a case study based on the Coimbra Family and Juvenile and Labour Courts as its starting point, this paper aims to map out these formal and informal functions, which create a level of importance that is probably much higher than would have been expected, particularly given the lack of truly credible and effective alternatives that enable citizens to access law and justice.     

Book reviews

Word Processing for Solicitors, Kevin Townsend and Kate Taphouse, Gower Publishing, 1983 £12.50

Computer Law, Colin Tapper, Longman, London and New York, 1983 Third Edition, £9.50

Understanding Computer Contracts, Martin Edwards, Waterlow Publishers, 1983 £6.50

Data Protection: Perspectives on Information Privacy, Edited by Colin Bourn & John Benyon, Department of Adult Education, University of Leicester, 1983 £5

The Computer in Court, Alistair Kelman and Richard Sizer, Gower Publishing Company, 1982 £15.50

Principles of Database Systems, Jeffrey D Ullman, Pitman Publishing Ltd, 1982 Second Edition £13.95

Computers and the Law Teacher, A report of the proceedings of a conference held at North Staffordshire Polytechnic, Edited by David V Marshall, North Staffordshire Polytechnic, 1983 £3     

How American Commercial Bail Developed Differently from Other Common Law Countries

Outside the United States those countries sharing the common law tradition are pervasively hostile to commercialization of the bail process, whereas in the United States it is the typical approach. In some jurisdictions payment for bail is a crime; in others it is simply obstructed by various civil legal disabilities. How the American branch of the common law heritage came to deviate so strikingly from the rest on the matter of commercial bail is the topic of this article.

Beginning in the second half of the nineteenth century, courts principally in Ireland, England, and India began to act against payment to bail sureties on the concept that any indemnification of them—even partial—undermined their reliability. Irish courts took the approach that indemnified potential sureties were unreliable and should be rejected by courts. Where all potential sureties were indemnified, bail should be denied. In England courts declared agreements to indemnify sureties illegal contracts contrary to public policy, which would not be enforced by courts. While India took up the refinement of this position, England went on to declare agreements to pay bail sureties to be criminal conspiracies.

Meanwhile in the United States a circumscribed version of the position that indemnification contracts were against public policy—and therefore illegal and unenforcible—actually gained acceptance between 1870 and 1912. In 1912, however, Justice Holmes in Leary v. U.S. renounced the common law concept of bail sureties in favor of an “impersonal and wholly pecuniary” view. This terminated the anti-indemnification movement. Courts soon noted the detrimental effects of commercialism on bail.     

Criminal Justice in Soviet Russia

Compared to American criminal justice, the fabric of Russia's system is a tightly woven structure operating under centralized co-ordination. During recent history, the goals of Russia's criminal justice system have shifted from repression by terrorism to crime prevention through education and an emphasis on individual duty in peace-keeping matters.

The militia (police), created in 1917, has been mandated to prevent crime through intelligence activities, direct intervention, and citizen education. In 1966, it was given the responsibility for the supervision of offenders newly released from correctional institutions. Peoples Volunteer Brigades and the DRUZHINNIKS aid the militia in crime prevention.

The courts also make use of non-professionals in the persons of lay assessors to insure that the accused is judged by his “peers.” The court system itself is inquisitorial in nature as opposed to the American accusational model. As the accused person moves through pre-trial and trial procedures, one can see how his “rights” may be legally abridged at every step.

Russian courts have a variety of sentences from which to choose, ranging in harshness from public censure to death by shooting. Deprivation of liberty may be applied by degree from “education” to compulsory labor to strict incarceration. The Soviets are attempting an organized plan of diversionary sentencing, in order to reduce prison populations to all but the most dangerous offenders.

Correctional facilities depend on inmate commissions to keep order and motivate good behavior through group influence and peer pressure. Inmates as well as civilians have “a national duty to mind other people's business.”

In the United States, justice is fragmented into a variety of jurisdictions: municipal, county, state, and federal, each with its own law enforcement agencies, courts, and correctional agencies. Further, there is only limited coordination among the various segments of the system. There is little argument to the proposition that the American “system” of criminal justice is inefficient.

Unlike America's disjointed system, the Russian Criminal justice system is unified; militia (police), procurators (prosecutors), courts, and correctional facilities operate under a centralized coordinating body. This body is characterized by a unity of purpose and a high degree of systemic integration (Juviler, 1979, p. 1).     

Judicial Attitudes Towards the Right to Legal Representation in Zimbabwe

This article examines the activities of the courts in Zimbabwe with regard to the right to legal representation for those arrested and held under the “ordinary” criminal law and for those detained without trial under emergency powers operating under the state of emergency.

The article assesses the extent to which the courts have protected the right by examining a number of decided cases and concludes that despite pressure from the executive, the courts have steadfastly refused to delimit the right.     

University visitor revisited. Part 2

The House of Lords not convinced by the New Zealand innovation

     

Lessons from the Third World for Understanding American Criminal Justice

This paper argues for and attempts to demonstrate the case for including materials related to the operation of Third World criminal justice in courses dealing with American criminal justice system. The author argues that an examination of the contexts and processes of criminal justice in Third World nations increases one's ability to understand and critique the history and operations of our criminal justice enterprises. The Third World context offers laboratories for testing assumptions about American criminal justice without the implicitly pervasive ideological overtones we come to accept unquestionably in our own system simply because it is the one in which we operate.

Within the context of poverty, “dual societies,” chronic political instability, the struggle for economic development, and colonialism, the Third World offers an opportunity to study the interaction and impact of law, politics, economics, social control, and social change on the development and operations of criminal justice. Using examples from the literature of anthropology, law and social change, and political and economic development, the author attempts to demonstrate the usefulness of this interdisciplinary approach and the Third World context in teaching about the criminal justice system.     

Two “Wrongs” Make a Right to Coverage: When Waiver or Estoppel Precludes an Insurer's Breach of Cooperation Defense

Liability insurance policies almost always contain a provision requiring the policyholder to cooperate with the insurance company in various ways. An insured's failure to comply with such a condition may preclude coverage. When an insurer asserts a breach of the cooperation provision defense to a claim for coverage, however, the insured may counter that the insurer either waived, or is estopped from relying on, the cooperation provision. This article provides a brief outline of waiver/estoppel issues to be considered in evaluating an insurer's conduct when it asserts a non-cooperation defense.

“When you point your finger at someone, three fingers are pointing back at you.”

—Anonymous     

Attitudes and public punishment preferences: Finnish results of Scandinavian sense of justice research

Opinion polls have repeatedly shown that populations favour severe penalties for offenders. However, surveys using a case vignette method, where the attributes of the case described to the respondents are varied, produce more versatile results. Such research gives a nuanced picture of punitive attitudes. In this study, the sentence decisions of laypeople who are informed about the offender’s criminal history, ethnic background, gender, social issues and substance abuse were examined.

A representative mail survey collected in Finland as part of Scandinavian sense of justice research was used as empirical data. Respondents were presented with six criminal cases and asked to determine sentences for them. All respondents received the same vignettes, but the background attributes of the offenders varied randomly.

This study showed that all the background attributes had a clear connection to the sentence decisions. Considering these results, the idea of a ‘general punitive attitude’, which is commonly used in academic literature, appears to be too simple of a way to look at the relationship between attitudes and punishment decisions.     

Book reviews

Transborder Data Flows (Proceedings of an OECD Conference) Edited by Hans‐Peter Gassmann North Holland (Elsevier Science Publishers) 1985, US$74.00

Plastic and Electronic Money: New Payment Systems and Their Implications Patrick Frazer Woodhead Faulkner Limited 1985 £35

A User's Guide To Computer Contracting: Forms, Techniques and Strategies Davis, Allen, Bowman and Armstrong Harcourt Brace Jovanovich 1985, $75

Legal Protection of Computer Programs and Data C. Millard Sweet & Maxwell/Stevens 1985, £24

Piracy of Phonograms Gillian Davies ESC Publishing Ltd. 1986. 2nd edition. £17.95.

Biotechnology and Patent Protection—An International Review F. K. Beier, R. S. Crespi and J. Straus O.E.C.D. 1985, £5

Protecting Privacy in Two‐Way Electronic Services David H. Flaherty Mansell Publishing Company 1985, £23.50

High‐Tech Espionage Jay Tuck Sidgwick and Jackson Ltd 1980, £10.95     

Book reviews

Handbook of Legal Information Retrieval Edited by J Bing, Norwegian Research Centre for Computers and Law, Oslo, in co‐operation with T Fjeldvig, T Harvold and R Svoboda North‐Holland 1984, US $96.25

Information Technology: The Challenge to Copyright. James Lahore, Gerald Dworkin and Yvonne Smyth Sweet & Maxwell and The Centre for Commercial Law Studies 1984, £12.00

Data Processing and the Law Edited by Colin Campbell Sweet and Maxwell 1984, £20.00

Le droit des Contrats Informatiques — Principes — Applications Centre de Recherches informatique et droit des Facultes Universitaires de Namur Maison Ferdinand Larder (Brussels), 1983, 45 FB

Computer Insecurity Adrian R.D. Norman Chapman and Hall 1983, £14.95

The Data Protection Act Richard Sizer and Philip Newman Gower Publishing, 1984, £16.95

The Data Protection Act 1984 Professor Bryan Niblett Oyez Longman Publishing, 1984, £18.00

The Data Protection Act 1984 — A Guide to the New Legislation J. A. L. Sterling CCH Editions, 1984, £15.00

Privacy and Data Protection — An International Bibliography Professor David H. Flaherty Mansell Publishing, 1984, £23.50

Computer Contracts R Morgan & G Stedman Oyez Longman Publishing 1984, 2nd Edition, £27.50

Computer Contracts Handbook Michele Rennie Sweet & Maxwell 1984, £15.00

Computer Contracts — An International Guide to Agreements and Software Protection Hilary Pearson Financial training 1984, £14.95     

Analysis of prostitution in Japan

Before World War II, we witnessed the purification movement, on which Christian groups embarked as moral entrepreneurs. After the war, female groups took the initiative in a movement for anti‐prostitution law. The movement resulted in the enactment of the Prostitution Prevention Law in 1956, which made prostitution a punishable criminal offense. On the other hand, in the United States in the 1960s, some criminologists advocated the necessity of de‐criminalization of victimless crimes, one of which was prostitution. Some groups of feminists also insisted on the de‐criminalization of prostitution to emancipate women toward a freer and more liberated sexuality. New ideas regarding the control, or lack thereof, of prostitution were then introduced into Japan — a country where decriminalization was not realized in the dimension of criminal laws.

With its rapid economic growth, Japan became a consumer's society, in which the demand for prostitution increased. In response to this trend, more prostitutes committed financially compensated sexual acts in disguised brothels or in other various call‐girl systems. However, the total number of offenses of the Prostitution Prevention Law exposed by the police has decreased drastically during the past thirty years. In essence, we now see the de‐criminalization of prostitution in the practices of law enforcement agencies.     

The Legal Culture and Legal System in Post-Franco Spain

In analyzing the process of creating criminal law, Howard Becker pointed out elements such as moral entrepreneurs, availability to the mass media, and political maneuvering. In this article the author analyses how these elements are seen in the emergence of Anti-Prostitution Law in Japan. According to historical documents Christian groups worked as moral crusaders in the purification movement before World War II. But after the war secular groups, especially female groups, became the main entrepreneurs for the enactment of Anti-Prostitution Law.

In those countries where believers in a monotheistic religion like Christianity are the majority of the population, moral entrepreneurs may play an important role in creating criminal law. On the other hand, Japan does not have many such believers. Most Japanese, influenced by Shinto, are tolerant of different religions. Therefore, in the emergence of criminal law, moral crusaders who are interested in forcing their own morals on others are rarely seen. The author cannot emphasize the role of moral entrepreneurs as Howard Becker did. In Japan most drafts of law are made by bureaucrats in the national government in accord with opinions of the ruling Liberal Democratic Party. Then laws are submitted to the Diet by the Cabinet. As a result, research on the roles of bureaucrats, the ruling Liberal Democratic Party, and the Cabinet is important in the sociology of criminal law in Japan.