279 research outputs found

    The Right to Swing?

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    An analysis of the Supreme Court of Canada\u27s decision in Labaye v. the Queen that held that the activities occurring in a Montral swingers club could not be classified as indecent. I posit that Labaye is best understood as concerning sexual liberty (as described in Lawrence v. Texas and other cases) and not as an indecency case

    Forced Pregnancy and the ICC

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    Social Media Data in Research : Provenance Challenges

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    The work described here was funded by a grant from the United Kingdomā€™s Economic and Social Research Council Social Media - Developing Understanding, Infrastructure & Engagement (ES/M001628/1).Postprin

    The Legal Ethics of Family Separation

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    On April 6, 2018, the Trump administration announced a ā€œzero toleranceā€ policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parentsā€™ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutorsā€™ charging decisions may have the effect of separating families, the question of prosecutorsā€™ ethical responsibilities in these situations continues to be of paramount importance. This Article contends that prosecutors, as ministers of justice, should consider their charging decisionsā€™ effects on children and families. Because of limited resources and opportunity costs, prosecutors cannot pursue every criminal misdemeanor and inevitably take the public interest into account in making charging decisions. The Trump administrationā€™s ā€œzero-toleranceā€ policy may have limited prosecutorsā€™ discretion but did not eliminate it. Prevailing prosecutorial standards recognize prosecutorsā€™ broad charging discretion but focus predominately on culpability in individual cases. Prosecutors should instead seek justice for the situation, which could include declining to prosecute nonviolent misdemeanors to keep families intact

    Protecting the Guild or Protecting the Public? Bar Exams and the Diploma Privilege

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    The bar examination has long loomed over legal education. Although many states formerly admitted law school graduates into legal practice via the diploma privilege, Wisconsin is the only state that recognizes the privilege today. The bar examination is so central to the attorney admissions process that all but a handful of jurisdictions required it amidst a pandemic that turned bar exam administration into a life-or-death matter.This Article analyzes the diploma privilege from a historical and empirical perspective. Whereas courts and regulators maintain that bar examinations screen out incompetent practitioners, the legal profession formerly placed little emphasis on bar examinations and viewed them as superfluous for graduates of accredited law schools. The organized bar turned against the diploma privilege as the legal profession began to diversify, and some states abolished the diploma privilege specifically to block black law students from the profession. The notion that bar examinations ensure a base level of competence is a relatively recent construct. A few studies have suggested that attorneys who struggle on the bar examination are more likely to commit misconduct. However, drawing on cross-state attorney complaint and charge data as well as Wisconsin attorney disciplinary cases, I demonstrate that the bar examination requirement has no effect on attorney misconduct. The complaint rate against Wisconsin attorneys is similar to that of other jurisdictions, and Wisconsin attorneys are charged with misconduct less often than attorneys in most other states. Moreover, the rate of public discipline against Wisconsin attorneys who were admitted via the diploma privilege is the same as that of Wisconsin attorneys admitted via bar examinations. Bar examinations as currently constituted do little to advance public protection. A carefully drafted and enacted diploma privilege would comply with the Constitutionā€™s Dormant Commerce Clause and would incentivize law schools to better prepare students for practice. States also have more direct means to address attorney misconduct than relying on ex ante measures such as bar examinations

    International Criminal Trials and the Disqualification of Judges on the Basis of Nationality

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    Judges who sit on the International Criminal Court (ā€œICCā€) and other international criminal tribunals (ā€œICTsā€) are nationals of particular states and are elected to serve largely on the basis of their nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judgeā€™s performance of his or her duties. This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their home nations. Other international tribunals prohibit judges from adjudicating cases involving their home nations or otherwise control for national bias in judging. Judges at the ICC and other ICTs undoubtedly strive to be independent and impartial, but they cannot be expected to act as representatives of the international community and its values in cases where they will be under psychological and economic pressure to rule in accordance with domestic interests. The parties to a conflict are also likely to use a judgeā€™s nationality as a proxy for his or her capacity to be impartial

    International Criminal Trials and the Disqualification of Judges on the Basis of Nationality

    Get PDF
    Judges who sit on the International Criminal Court (ā€œICCā€) and other international criminal tribunals (ā€œICTsā€) are nationals of particular states and are elected to serve largely on the basis of nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judgeā€™s performance of his or her duties. This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their home nations. Other international tribunals prohibit judges from adjudicating cases involving their home nations or otherwise control for national bias in judging. Judges at the ICC and other ICTs undoubtedly strive to be independent and impartial, but they cannot be expected to act as representatives of the international community and its values in cases where they will be under psychological and economic pressure to rule in accordance with domestic interests. The parties to a conflict are also likely to use a judgeā€™s nationality as a proxy for his or her capacity to be impartial

    The Legal Ethics of Family Separation

    Get PDF
    On April 6, 2018, the Trump administration announced a ā€œzero toleranceā€ policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parentsā€™ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited. Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutorsā€™ charging decisions may have the effect of separating families, the question of prosecutorsā€™ ethical responsibilities in these situations continues to be of paramount importance. This Article contends that prosecutors, as ministers of justice, should consider their charging decisionsā€™ effects on children and families. Because of limited resources and opportunity costs, prosecutors cannot pursue every criminal misdemeanor and inevitably take the public interest into account in making charging decisions. The Trump administrationā€™s ā€œzero-toleranceā€ policy may have limited prosecutorsā€™ discretion but did not eliminate it. Prevailing prosecutorial standards recognize prosecutorsā€™ broad charging discretion but focus predominately on culpability in individual cases. Prosecutors should instead seek justice for the situation, which could include declining to prosecute nonviolent misdemeanors to keep families intact

    International Criminal Trials and the Disqualification of Judges on the Basis of Nationality

    Get PDF
    Judges who sit on the International Criminal Court (ā€œICCā€) and other international criminal tribunals (ā€œICTsā€) are nationals of particular states and are elected to serve largely on the basis of nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judgeā€™s performance of his or her duties. This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their home nations. Other international tribunals prohibit judges from adjudicating cases involving their home nations or otherwise control for national bias in judging. Judges at the ICC and other ICTs undoubtedly strive to be independent and impartial, but they cannot be expected to act as representatives of the international community and its values in cases where they will be under psychological and economic pressure to rule in accordance with domestic interests. The parties to a conflict are also likely to use a judgeā€™s nationality as a proxy for his or her capacity to be impartial
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