Justice Samuel Alito has sat on the judicial bench for nearly 30 years and has authored more than 250 Supreme Court opinions, nearly 40% of those for a majority of the Court. But his jurisprudence has yet to be systematically described. Although superficial accounts have been offered, they diverge widely. To some commentators, for example, Justice Alito is a methodological pluralist or “newer textualist,” though to others he is an originalist of the same or similar stripe as Justice Antonin Scalia. Yet Justice Alito’s jurisprudence cannot so neatly be identified with these or other competing descriptions. This Article is the first systematic account in any legal publication of Justice Alito’s jurisprudence. It analyzes nearly three dozen of Justice Alito’s opinions to demonstrate that three themes characterize his jurisprudence: (1) a fact-oriented approach in which fact is distinct from doctrine; (2) an implementation of “inclusive originalism,” under which a judge may evaluate precedent, policy, or practice, but only if the original meaning of the constitutional text incorporates such modalities; and (3) a strong presumption in favor of precedent and historical practice. Justice Alito’s jurisprudence is largely consistent with Burkean Conservatism. The three themes of Justice Alito’s jurisprudence follow the two features of Edmund Burke’s philosophical method of approaching political questions. First, Justice Alito’s distinction between fact and doctrine acknowledges both the Burkean rejection of abstract theory and the necessity of placing factual circumstances before principle and theory. Second, Justice Alito’s deference to precedent and historical practice squares with the Burkean tradition of relying on tradition and prescriptive wisdom.
{"title":"The Jurisprudence of Justice Samuel Alito","authors":"S. Calabresi, Todd W. Shaw","doi":"10.2139/SSRN.3235320","DOIUrl":"https://doi.org/10.2139/SSRN.3235320","url":null,"abstract":"Justice Samuel Alito has sat on the judicial bench for nearly 30 years and has authored more than 250 Supreme Court opinions, nearly 40% of those for a majority of the Court. But his jurisprudence has yet to be systematically described. Although superficial accounts have been offered, they diverge widely. To some commentators, for example, Justice Alito is a methodological pluralist or “newer textualist,” though to others he is an originalist of the same or similar stripe as Justice Antonin Scalia. Yet Justice Alito’s jurisprudence cannot so neatly be identified with these or other competing descriptions. \u0000 \u0000This Article is the first systematic account in any legal publication of Justice Alito’s jurisprudence. It analyzes nearly three dozen of Justice Alito’s opinions to demonstrate that three themes characterize his jurisprudence: (1) a fact-oriented approach in which fact is distinct from doctrine; (2) an implementation of “inclusive originalism,” under which a judge may evaluate precedent, policy, or practice, but only if the original meaning of the constitutional text incorporates such modalities; and (3) a strong presumption in favor of precedent and historical practice. \u0000 \u0000Justice Alito’s jurisprudence is largely consistent with Burkean Conservatism. The three themes of Justice Alito’s jurisprudence follow the two features of Edmund Burke’s philosophical method of approaching political questions. First, Justice Alito’s distinction between fact and doctrine acknowledges both the Burkean rejection of abstract theory and the necessity of placing factual circumstances before principle and theory. Second, Justice Alito’s deference to precedent and historical practice squares with the Burkean tradition of relying on tradition and prescriptive wisdom.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"87 1","pages":"507-578"},"PeriodicalIF":1.5,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46438376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Computer Fraud and Abuse Act prohibits unauthorized use of computer systems. One proposed method of defining unauthorized use is to use the norms of actual computer users, restricting punishment to that which many or all agree to be unauthorized. This study measures lay authorization beliefs and punishment preferences for a variety of computer misuse activities. Though perceived authorization is strongly predictive of punishment attitudes, results show that many people view common misuse activities as unauthorized but not deserving of any meaningful punishment. Respondents also viewed as unauthorized many activities – such as ignoring a website’s terms of service, surfing the news while at work, or connecting to a neighbor’s unsecured wireless network – that scholars have argued are implicitly licensed. This divergence between perceived authorization and desired punishment presents a challenge for the CFAA framework. To avoid results that would strike both the lay public and field experts as overcriminalization, “unauthorized use” must therefore be interpreted far more narrowly than common usage would suggest.
{"title":"Measuring Computer Use Norms","authors":"Matthew B. Kugler","doi":"10.2139/SSRN.2675895","DOIUrl":"https://doi.org/10.2139/SSRN.2675895","url":null,"abstract":"The Computer Fraud and Abuse Act prohibits unauthorized use of computer systems. One proposed method of defining unauthorized use is to use the norms of actual computer users, restricting punishment to that which many or all agree to be unauthorized. This study measures lay authorization beliefs and punishment preferences for a variety of computer misuse activities. Though perceived authorization is strongly predictive of punishment attitudes, results show that many people view common misuse activities as unauthorized but not deserving of any meaningful punishment. Respondents also viewed as unauthorized many activities – such as ignoring a website’s terms of service, surfing the news while at work, or connecting to a neighbor’s unsecured wireless network – that scholars have argued are implicitly licensed. This divergence between perceived authorization and desired punishment presents a challenge for the CFAA framework. To avoid results that would strike both the lay public and field experts as overcriminalization, “unauthorized use” must therefore be interpreted far more narrowly than common usage would suggest.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"84 1","pages":"1568-1590"},"PeriodicalIF":1.5,"publicationDate":"2016-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2675895","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68250079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United Nations Human Rights Committee (HRC) has not considered the application of the International Covenant on Civil and Political Rights (ICCPR) to same-sex marriage since providing their views in 2002 in response to an individual communication brought by two lesbian couples about New Zealand’s Marriage Act. Since 2002, the pace of reform globally has been increasing, with numerous countries now allowing same-sex couples to marry — in many cases in response to court decisions. This has led a number of commentators to opine that at some time in the future, the HRC will depart from the views it expressed in 2002 and adopt an interpretation of the ICCPR which embraces a right to marry a person of the same sex. This Article takes a doctrinal approach to that issue and goes to its crux. It applies the general rule of treaty interpretation set out in Article 31 of the Vienna Convention on the Interpretation of Treaties and argues that (i) the right to marry in Article 23(2) of the ICCPR should be given an evolutionary, rather than static interpretation; and (ii) a contemporary evolutionary interpretation of the right to marry should encompass a right to marry a person of the same sex.
{"title":"The Evolutionary Interpretation of Treaties and the Right to Marry: Why Article 23(2) of the ICCPR Should Be Re-Interpreted to Encompass Same-Sex Marriage","authors":"Oscar I. Roos, A. Mackay","doi":"10.2139/SSRN.2887121","DOIUrl":"https://doi.org/10.2139/SSRN.2887121","url":null,"abstract":"The United Nations Human Rights Committee (HRC) has not considered the application of the International Covenant on Civil and Political Rights (ICCPR) to same-sex marriage since providing their views in 2002 in response to an individual communication brought by two lesbian couples about New Zealand’s Marriage Act. Since 2002, the pace of reform globally has been increasing, with numerous countries now allowing same-sex couples to marry — in many cases in response to court decisions. This has led a number of commentators to opine that at some time in the future, the HRC will depart from the views it expressed in 2002 and adopt an interpretation of the ICCPR which embraces a right to marry a person of the same sex. This Article takes a doctrinal approach to that issue and goes to its crux. It applies the general rule of treaty interpretation set out in Article 31 of the Vienna Convention on the Interpretation of Treaties and argues that (i) the right to marry in Article 23(2) of the ICCPR should be given an evolutionary, rather than static interpretation; and (ii) a contemporary evolutionary interpretation of the right to marry should encompass a right to marry a person of the same sex.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"54 1","pages":"879-945"},"PeriodicalIF":1.5,"publicationDate":"2016-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83574954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, I suggest that a more critical view toward the notion of “religion” under Article 9 by the European Court of Human Rights would take an important step toward a more inclusive and egalitarian human rights jurisprudence. In other work, I have shown that “religion” as a legal term of art is generally understood by judges to refer primarily to belief, and that this understanding privileges Christianity at the expense of others.I begin by reviewing the position of religion in Europe and the special role of religion in the origin of the Westphalian system, the emergence of liberalism and, ultimately, modern human rights. I then turn to the specific right at issue, that of religion or belief under the ECHR. I discuss the origin of the Convention, review the structure of the Court and Commission it created, and take account of the analytical approach applied in addressing claims arising under Article 9. I suggest that Christian bias may be observed both in the terms of the Convention itself, and in its application by the Court. The final language used in the text of the Convention introduces inequality between religions based on the relative centrality of belief by tacitly equating religion with “belief” and with a similarly vague and belief-based notion of “conscience.”I then discuss how the Court has exacerbated the problems inherent in the convention through Court-made doctrines including the forum internum and forum externum, a historical theological dialectic the Commission repurposed as a legal doctrine, the margin of appreciation, consensus, and subsidiarity. I conclude that maintaining religion as a legal term of art is inherently problematic because it requires a focus on belief that does not comfortably fit outside of a Western context. Court adjudicating claims for religious protection involving religious minorities should take due care not to assume that belief plays a central role in those traditions.
{"title":"Religion, Conscience, and Belief in the European Court of Human Rights","authors":"Aaron R. Petty","doi":"10.2139/SSRN.2641644","DOIUrl":"https://doi.org/10.2139/SSRN.2641644","url":null,"abstract":"In this paper, I suggest that a more critical view toward the notion of “religion” under Article 9 by the European Court of Human Rights would take an important step toward a more inclusive and egalitarian human rights jurisprudence. In other work, I have shown that “religion” as a legal term of art is generally understood by judges to refer primarily to belief, and that this understanding privileges Christianity at the expense of others.I begin by reviewing the position of religion in Europe and the special role of religion in the origin of the Westphalian system, the emergence of liberalism and, ultimately, modern human rights. I then turn to the specific right at issue, that of religion or belief under the ECHR. I discuss the origin of the Convention, review the structure of the Court and Commission it created, and take account of the analytical approach applied in addressing claims arising under Article 9. I suggest that Christian bias may be observed both in the terms of the Convention itself, and in its application by the Court. The final language used in the text of the Convention introduces inequality between religions based on the relative centrality of belief by tacitly equating religion with “belief” and with a similarly vague and belief-based notion of “conscience.”I then discuss how the Court has exacerbated the problems inherent in the convention through Court-made doctrines including the forum internum and forum externum, a historical theological dialectic the Commission repurposed as a legal doctrine, the margin of appreciation, consensus, and subsidiarity. I conclude that maintaining religion as a legal term of art is inherently problematic because it requires a focus on belief that does not comfortably fit outside of a Western context. Court adjudicating claims for religious protection involving religious minorities should take due care not to assume that belief plays a central role in those traditions.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"65 1","pages":"807"},"PeriodicalIF":1.5,"publicationDate":"2015-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91056667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay describes some fundamental debates concerning the nature and possibility of universal human rights, conceived as a species of justice rather than law. It identifies four claims entailed by such rights and some significant problems each claim confronts. The designation “universal human rights” explicitly asserts three of them: paradigmatic human rights purport to be (1) universal, in that their protections and obligations bind every society, regardless of its laws and mores; (2) human, in that the rights belong equally to every person by virtue of one’s humanity, regardless of character, social standing, disabilities, or other individual attributes; and (3) matters of right which afford certain fundamental individual interests priority over the community’s wishes or welfare. Human rights differ widely in what they afford a right to — life, religious liberty, adequate nutrition, etc. — but they all share a fourth claim on which each distinct right is premised: that (4) the right specified serves to safeguard one such fundamental priority interest. Each of these claims generates uncertainty and disagreement, even among those who do not doubt the reality of universal human rights. Some theorists favor putting these some of these claims to rest by pursuing a different understanding of human rights that makes sense without them. The more modest aim of this Essay is to help inform that proposal by presenting these claims and challenges as concisely and transparently as possible.
{"title":"Four Challenges Confronting a Moral Conception of Universal Human Rights","authors":"Eric D. Blumenson","doi":"10.2139/SSRN.2394917","DOIUrl":"https://doi.org/10.2139/SSRN.2394917","url":null,"abstract":"This Essay describes some fundamental debates concerning the nature and possibility of universal human rights, conceived as a species of justice rather than law. It identifies four claims entailed by such rights and some significant problems each claim confronts. The designation “universal human rights” explicitly asserts three of them: paradigmatic human rights purport to be (1) universal, in that their protections and obligations bind every society, regardless of its laws and mores; (2) human, in that the rights belong equally to every person by virtue of one’s humanity, regardless of character, social standing, disabilities, or other individual attributes; and (3) matters of right which afford certain fundamental individual interests priority over the community’s wishes or welfare. Human rights differ widely in what they afford a right to — life, religious liberty, adequate nutrition, etc. — but they all share a fourth claim on which each distinct right is premised: that (4) the right specified serves to safeguard one such fundamental priority interest. Each of these claims generates uncertainty and disagreement, even among those who do not doubt the reality of universal human rights. Some theorists favor putting these some of these claims to rest by pursuing a different understanding of human rights that makes sense without them. The more modest aim of this Essay is to help inform that proposal by presenting these claims and challenges as concisely and transparently as possible.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"33 1","pages":"327"},"PeriodicalIF":1.5,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87991821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.The best categorization of this duty of clarity and clarification is that it was an aspect of the judicial power granted under Article III of the Constitution. Thus, the article rejects James Bradley Thayer’s form of judicial deference - that legislation should be uphold on the basis of any interpretation that could be embraced by “a rational person” - as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands without any clear framework of discipline provided by legal rules. As a result, Thayer’s concept of constitutional deference has a larger scope and effect than it did at the jurisprudence of the Founding where judges were not seen as lawmakers in that sense and where the judicial duty of clarity has jurisprudential roots in natural law rather than positivism. But the article also rejects the notion that judicial review permits judges to overturn legislation based on their own view of the Constitution, even if their interpretation is not clearly the best one. The duty of clarity casts doubt on the legality of constitutional construction as opposed to constitutional interpretation in the course of judicial review, because constitutional construction can occur only when the meaning of the Constitution is unclear.
{"title":"The Duty of Clarity","authors":"John O. McGinnis","doi":"10.2139/SSRN.2578318","DOIUrl":"https://doi.org/10.2139/SSRN.2578318","url":null,"abstract":"This article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.The best categorization of this duty of clarity and clarification is that it was an aspect of the judicial power granted under Article III of the Constitution. Thus, the article rejects James Bradley Thayer’s form of judicial deference - that legislation should be uphold on the basis of any interpretation that could be embraced by “a rational person” - as extreme and unwarranted. Thayer followed a jurisprudential tradition that developed subsequent to the Framing in which judicial review was fundamentally a political rather than a legal exercise and in which judges necessarily made law in the interstices of a written text’s unclear commands without any clear framework of discipline provided by legal rules. As a result, Thayer’s concept of constitutional deference has a larger scope and effect than it did at the jurisprudence of the Founding where judges were not seen as lawmakers in that sense and where the judicial duty of clarity has jurisprudential roots in natural law rather than positivism. But the article also rejects the notion that judicial review permits judges to overturn legislation based on their own view of the Constitution, even if their interpretation is not clearly the best one. The duty of clarity casts doubt on the legality of constitutional construction as opposed to constitutional interpretation in the course of judicial review, because constitutional construction can occur only when the meaning of the Constitution is unclear.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"84 1","pages":"843-919"},"PeriodicalIF":1.5,"publicationDate":"2015-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a statutory interpretation would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend that interpretation. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention — and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon. This essay examines how courts employ the Sherlock Holmes canon in practice and explores the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.
{"title":"The Sherlock Holmes Canon","authors":"Anita S. Krishnakumar","doi":"10.2139/SSRN.2545919","DOIUrl":"https://doi.org/10.2139/SSRN.2545919","url":null,"abstract":"Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a statutory interpretation would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend that interpretation. Failure to comment arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention — and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon. This essay examines how courts employ the Sherlock Holmes canon in practice and explores the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"26 1","pages":"1"},"PeriodicalIF":1.5,"publicationDate":"2015-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68199249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a widespread belief among both academics and policymakers that international criminal trials are too complex, and tribunals have come under enormous pressure to reduce the complexity of their trials. So far, however, changes to the procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to fulfill their purposes. Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are two factors that courts cannot control: the accused’s seniority within the political or military hierarchy and whether the accused is a direct perpetrator. The complexity of international criminal trials appears to be driven by the need to attribute responsibility for serious violations of international criminal law to accused who are often both organizationally and geographically distant from the crimes they are alleged to be responsible for. Attribution of responsibility is a necessary feature of most international criminal trials, and complexity associated with this process cannot be easily eliminated. The Article considers some ways that complexity could be significantly reduced – for example by making international criminal law violations strict liability offenses – but they all come with serious drawbacks that would probably undermine the purposes of international criminal justice. Ultimately, it appears that international criminal trials must be complex if they are to achieve the goals that we have set for them.
{"title":"The Complexity of International Criminal Trials Is Necessary","authors":"S. Ford","doi":"10.2139/SSRN.2573952","DOIUrl":"https://doi.org/10.2139/SSRN.2573952","url":null,"abstract":"There is a widespread belief among both academics and policymakers that international criminal trials are too complex, and tribunals have come under enormous pressure to reduce the complexity of their trials. So far, however, changes to the procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to fulfill their purposes. Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are two factors that courts cannot control: the accused’s seniority within the political or military hierarchy and whether the accused is a direct perpetrator. The complexity of international criminal trials appears to be driven by the need to attribute responsibility for serious violations of international criminal law to accused who are often both organizationally and geographically distant from the crimes they are alleged to be responsible for. Attribution of responsibility is a necessary feature of most international criminal trials, and complexity associated with this process cannot be easily eliminated. The Article considers some ways that complexity could be significantly reduced – for example by making international criminal law violations strict liability offenses – but they all come with serious drawbacks that would probably undermine the purposes of international criminal justice. Ultimately, it appears that international criminal trials must be complex if they are to achieve the goals that we have set for them.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"22 1","pages":"151"},"PeriodicalIF":1.5,"publicationDate":"2015-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81455306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article focuses on a major reform encouraged by the International Criminal Tribunal for Rwanda (ICTR) – the abolition of the death penalty in Rwanda. For a decade prior to this reform, Rwandan courts have been imposing the death penalty in genocide cases. Using a qualitative empirical research method, still uncommon in international legal studies, the article shows how the ICTR’s requirements influenced the abolition, and then considers the impact of the abolition on national reconciliation in Rwanda. The findings suggest that the abolition has contributed to reconciliation, including through re-humanizing perpetrators and their relatives, improving survivors’ perception of society, and inspiring both survivors and perpetrators to envision a shared future. This is quite remarkable considering that, during the debates on the ICTR’s establishment, Rwanda insisted that sentencing to death genocide perpetrators was necessary for post-conflict justice and reconciliation. The article thus sheds a new light on the relationship between international tribunals and national reconciliation. In particular, it suggests that international tribunals can advance national reconciliation (and thus attain one of their explicit goals) through encouraging domestic legal developments such as death penalty reforms. Moreover, by raising awareness to the abolition’s positive effects on interethnic relations in Rwanda, the article could inform debates about the future of capital punishment in other death penalty countries.
{"title":"International Criminal Courts in Action: The ICTR's Effect on Death Penalty and Reconciliation in Rwanda","authors":"Sigall Horovitz","doi":"10.2139/SSRN.2640306","DOIUrl":"https://doi.org/10.2139/SSRN.2640306","url":null,"abstract":"This article focuses on a major reform encouraged by the International Criminal Tribunal for Rwanda (ICTR) – the abolition of the death penalty in Rwanda. For a decade prior to this reform, Rwandan courts have been imposing the death penalty in genocide cases. Using a qualitative empirical research method, still uncommon in international legal studies, the article shows how the ICTR’s requirements influenced the abolition, and then considers the impact of the abolition on national reconciliation in Rwanda. The findings suggest that the abolition has contributed to reconciliation, including through re-humanizing perpetrators and their relatives, improving survivors’ perception of society, and inspiring both survivors and perpetrators to envision a shared future. This is quite remarkable considering that, during the debates on the ICTR’s establishment, Rwanda insisted that sentencing to death genocide perpetrators was necessary for post-conflict justice and reconciliation. The article thus sheds a new light on the relationship between international tribunals and national reconciliation. In particular, it suggests that international tribunals can advance national reconciliation (and thus attain one of their explicit goals) through encouraging domestic legal developments such as death penalty reforms. Moreover, by raising awareness to the abolition’s positive effects on interethnic relations in Rwanda, the article could inform debates about the future of capital punishment in other death penalty countries.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"6 1","pages":"505"},"PeriodicalIF":1.5,"publicationDate":"2015-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87534450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court declared 30 years ago in Turner v. Safley that prisoners are not without constitutional rights: Any restriction on those rights must be justified by a reasonable relationship between the restriction at issue and a legitimate penological objective. In practice, however, the decision has given prisoners virtually no protection. Exercising their discretion under Turner, correctional officials have saddled prisoners’ expressive rights with a host of arbitrary restrictions — including prohibiting President Obama’s book as a national security threat; using hobby knives to excise Bible passages from letters; forbidding all non-religious publications; banning Ulysses, John Updike, Maimonides, case law, and cat pictures. At the same time, the courts have had no difficulty administering the Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives prisons far less deference by extending strict scrutiny to free exercise claims by prisoners. Experience with the Turner standard demonstrates that it licenses capricious invasions of constitutional rights, and RLUIPA demonstrates that a heightened standard of review can protect prisoners’ expressive freedoms without compromising prison security. It is time for the Court to revisit Turner.
30年前，最高法院在特纳诉萨夫利案(Turner v. Safley)中宣布，囚犯并非没有宪法权利:对这些权利的任何限制，都必须以相关限制与合法的刑罚目标之间的合理关系为依据。然而，在实践中，这一决定实际上没有给囚犯提供任何保护。在特纳的领导下，狱警们行使他们的自由裁量权，对囚犯的表达权施加了一系列武断的限制——包括禁止奥巴马总统的书作为国家安全威胁;用小刀从书信中删去圣经段落;禁止一切非宗教出版物;禁止尤利西斯、约翰·厄普代克、迈蒙尼德、判例法和猫画。与此同时，法院在执行《宗教土地使用和机构人员法》(RLUIPA)方面没有任何困难，该法案通过严格审查囚犯的自由行使要求，大大减少了监狱的顺从。特纳标准的经验表明，它允许反复无常地侵犯宪法权利，而RLUIPA表明，提高审查标准可以在不损害监狱安全的情况下保护囚犯的表达自由。现在是法院重新审视特纳的时候了。
{"title":"Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny","authors":"D. M. Shapiro","doi":"10.2139/SSRN.2568132","DOIUrl":"https://doi.org/10.2139/SSRN.2568132","url":null,"abstract":"The Supreme Court declared 30 years ago in Turner v. Safley that prisoners are not without constitutional rights: Any restriction on those rights must be justified by a reasonable relationship between the restriction at issue and a legitimate penological objective. In practice, however, the decision has given prisoners virtually no protection. Exercising their discretion under Turner, correctional officials have saddled prisoners’ expressive rights with a host of arbitrary restrictions — including prohibiting President Obama’s book as a national security threat; using hobby knives to excise Bible passages from letters; forbidding all non-religious publications; banning Ulysses, John Updike, Maimonides, case law, and cat pictures. At the same time, the courts have had no difficulty administering the Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives prisons far less deference by extending strict scrutiny to free exercise claims by prisoners. Experience with the Turner standard demonstrates that it licenses capricious invasions of constitutional rights, and RLUIPA demonstrates that a heightened standard of review can protect prisoners’ expressive freedoms without compromising prison security. It is time for the Court to revisit Turner.","PeriodicalId":47068,"journal":{"name":"George Washington Law Review","volume":"84 1","pages":"972-1028"},"PeriodicalIF":1.5,"publicationDate":"2015-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68207283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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