Monday, September 28, 2015

Pharmaceutical Patenting in India

A recent patent law decision from India once again highlights the uneasy relationship between the pharmaceutical industry and intellectual property rights. In a decision reminiscent of the Indian Supreme Court’s 2013 decision against Novartis on its patent application for its chemotherapeutic drug Gleevec (generic name, imatinib), the Indian patent office rejected Pfizer’s patent application on its rheumatoid arthritis drug, Xeljanz (generic name, tofacitinib). Both decisions cited to Section 3(d) of the India Patent Act of 2005 to find that neither Gleevec now Xeljanz exhibited enhanced efficacy over earlier known forms of each drug.

In Novartis’ case, the Court rejected the patent application because Gleevec is a beta crystalline, methylate salt form of the known base compound, imatinib. Novartis had previously patented the imatinib base form (outside of India) but developed the Gleevec form so that it could be administered to patients orally. The differences between Gleevec and base imatinib were significant enough to gain patent protection in other countries, including the U.S., but Section 3(d) of Indian patent law imposes an additional requirement not seen in other jurisdictions. Specifically, Section 3(d) states that patentable inventions do not include “mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance.” Although Gleevec arguably has enhanced useability over its base imatinib form – which, again, is often enough for patentability in other jurisdictions – Section 3(d) requires evidence of enhanced therapeutic efficacy. Pfizer’s Xeljanz application suffered the same fate this past year.

Pharmaceutical companies are quite understandably up in arms about Section 3(d). Although Section 3(d) is not specific to pharmaceuticals on its face, India’s policy on drug patents quite expressly favors drug affordability over drug patenting. Section 3(d) is thus designed in large part to prevent pharmaceuticals from “evergreening” patent protection of their drugs by sequentially patenting variations on those drugs. This kind of sequential innovation is common in all areas of technology, but it is viewed with particular suspicion when it comes to pharmaceuticals, and understandably so. High pharmaceutical costs lead to tragic choices, even in relatively wealthy nations, and even more tragic lack of access to medicines in countries, such as India, where very few enjoy health insurance.

That being said, the pharmaceutical industry is the one area in which the patent system is thought actually to achieve its purpose of incentivizing investment in R&D. Although commentators disagree greatly on the exact cost to develop and market drugs, the pharmaceutical R&D is clearly an expensive and time-consuming enterprise, if only because of the heavy regulatory burdens of the drug approval process. Patents may raise pharmaceutical prices, but they also may help drug innovators recoup their costs.

India, on the other hand, is known more for its generic drug industry than for its innovative drug industry; not coincidentally, India’s strict policy toward pharmaceutical patenting favors its generic manufacturers. What correlation might exist between strong drug patents and strong pharmaceutical innovation would be interesting to measure by comparing data from various countries.



September 28, 2015 | Permalink | Comments (0)

Saturday, September 26, 2015

German Prosecutors Open VW Investigations

Earlier this month news broke that the U.S. Department of Justice had begun investigating the auto manufacturing giant, Volkswagen. Now, VW faces investigations throughout Europe and Asia.

In Germany, prosecutors in Braunschweig have opened a pre-investigation review that seeks to determine whether the State might prosecute individuals at VW on charges including aggravated fraud. This is not the first time that the Braunschweig prosecution office has investigated VW. In 2008, several top executives were charged and convicted of funneling payments to labor leaders to gain support for corporate policies. A court sentenced the company's chief employee representative, Klaus Volkert, to a three year prison sentence. Other allegations against the company at the time were far more scandalous. Investigators discovered that company executives arranged trips for employee representatives that included visits to prostitutes and shopping sprees. At the time, critics blamed VW's problems on the unusually close ties between labor and management at VW.

On the federal level, Germany's Minister of Transportation has also opened an investigation into "improper vehicle tampering" -a violation of both German and European law.

During the earlier scandal at VW, critics blamed the company's problems on the unusually close ties between labor and management at VW. Given that VW has long lauded its commitment to producing environmentally friendly cars, one wonders what kind of incentives engineers received for hiding their inability to meet those standards.


Mark Landler, "Sentence in Volkswagen Scandal," New York Times, February 23, 2008.

"VW May Face Criminal Probe in Germany," Automotive News Europe, September 23, 2015.









September 26, 2015 | Permalink | Comments (0)

Wednesday, September 16, 2015

Legal Aid and the Quality of Defense Counsel

The London Times reports that members of the Scottish Parliament's Justice committee voted against changing the form of legal aid payments from fixed to hourly rates on criminal appeals.

As a comparativist, I paused for a moment when reading a New York Times editorial, also from today, that indicated that Bad lawyering is behind most death sentences...."  While I question the correctness of that assertion, the alleged lawyer deficiency in that case - failure to introduce an impeaching confession from the government's main witness  - might well have resulted, as have others, from the very low assigned counsel fees paid in the United States.

September 16, 2015 | Permalink | Comments (0)

Monday, September 14, 2015

Interesting New Comparative Article on International Commercial Arbitration

Professor Strong, Missouri College of Law, has recently posted an article on SSRN entitled, "Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy."

From the abstract:

Over the last few decades, international commercial arbitration has become the preferred means of resolving cross-border business disputes. The popularity of this particular device is due to a number of uniquely attractive features ranging from the mechanism’s sophisticated blend of common law and civil law procedures to the routine use of reasoned awards. As a result, international commercial arbitration does not resemble domestic arbitration so much as it does complex commercial litigation. 

Although international commercial arbitration is considered a highly mature form of dispute resolution, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This situation is becoming increasingly problematic given the rising number of international commercial arbitrations that arise every year, the expansion and diversification of the pool of potential arbitrators, and the significant individual and societal costs that can result from badly written awards. 

This Article provides the first-ever in-depth analysis of the reasoned award requirement in international commercial arbitration. In so doing, the discussion draws heavily on the large body of material involving reasoned rulings in both common law and civil law courts and considers whether and to what extent those criteria apply in the arbitral context. As a result, this Article not only provides useful information to those seeking to better their understanding of the reasoning requirement in international commercial arbitration, it also provides key comparativeinsights into the judicial process in both common law and civil law legal systems. 

Much of the analysis focuses on theoretical concerns relating to reasoned decision-making in judicial and arbitral settings. However, the discussion also incorporates a strong practical element. As a result, this Article is relevant not only to specialists in international commercial arbitration but also to judges involved in enforcing reasoned awards domestically or internationally, scholars studying arbitral and judicial decision-making, and domestic arbitrators seeking to understand the parameters of a reasoned award under national law.


September 14, 2015 | Permalink | Comments (0)

Sunday, September 6, 2015

Guest Editorial: Forgive us, little Aylan Kurdi! Human rights could not save him

We are pleased to publish this Guest Editorial by Miguel Calmon Dantas

Doctor in Public Law by Universidade Federal da Bahia and Professor of Constitutional Law

The scenes are still in everyone's memory. The little boy held by police after a failed attempt to find life far from where he was born, because there is no more hope.

Forgive us, little Aylan, because you did not live what could. Because you will not giving all the smiles that could. To have found the dark side of the life so anytime soon.

Many children as Aylan lose their lives every day for a variety of causes: violence, poverty - and with it, hunger and disease - ethnic conflicts, wars and accidents. They had denied access to the most basic right of all, the right to life. Life to them is denied by the violation of other rights, human rights and fundamental rights that they cannot, despite its history, prevail over the most intense violations.

If the twentieth century was the Age of Rights, according to Norberto Bobbio, also experienced unbearable and countless atrocities.

The twenty-first century has witnessed the gradual emergence of a new constitutionalism, global, popular and virtual, turning to claim the effectiveness of human rights and fundamental rights; however, it has been also a century of intolerance and excesses of uncontrolled and ambivalence. A horror century of terrorists and terror of the States. A century of suffering and pain.

The pains of September 11. The pains of Atocha. Suffering from Guantanamo. Suffering from Charlie´s. The suffering that inspired the Arab Spring, the Indignados, Greek workers, all Occupies and even recent demonstrations in Brazil.

The frustration of those who see the persistence of tyrannical governments, the debt collection that oppress millions of national, countries governed not by politics neither by the will of the voters, but by the creditors. The frustration of those who see the increasingly internalized corruption in the res publica management.

All, in a way, feel the pain, frustration and suffering, exacerbated by what happened with the little Aylan, they are prey to despair, conformism and despair. To feel the human and fundamental rights as nothing. The non-human being. The denial of humanity because they are not brought the texts to life, not to be tried and experienced.

Human rights are addressed to all human beings, regardless of particular aspects such as nationality, ethnicity, gender, age. Only the single condition that they all have a single identity: the condition of being human. And out of all the violence that can be committed against a human being, that lead people to flee their homeland, to be outsiders and those who deny or hinder the entry of these refugees are the most serious because it undermines citizenship and solidarity. The right to have rights, in the precious definition of Hannah Arendt, and the right to have the community uphold rights of others, share responsibilities, and feel as the other.

Aylan and his family had the application for admission to Canada as refugees denied. The country closed its border not only for a family. Closed to human rights. Do not close to tourists and to lex mercatoria. There were no Syrians wanting to get in a developed country to explore their wealth or find a place in the sun. There were human beings desperately looking for a place to live. Closing for Aylan and family, leaving them delivered at random, Canada denied the human dimension of human rights. Only after the tragedy, the Canadian government began to investigate what happened so that there was the refusal of the request, granting it to the father, who did not accept more.

For these rights, which crave the dignity and turn to citizenship, founded on solidarity, reached the degree of recognition, many gave their lives. Giving your life, they ensured that the rights could save the life of the same as theirs. Aylan will be next to those who gave their lives for human rights.

At this point, the consolidation of human rights in the global legal civilization, should not be necessary more people lose their life for the rights to express their senses and their needs to be taken seriously. While all the time, not being touched by rights, people are losing their lives. It is clear, then, how uncivilized, in fact, it is our civilization.

So we should all apologize to the little Aylan. That even without being aware, guided by his father's hope, moved everyone, everyone impacted by global media. Seen as another, not as unique as a pair, such as a human. Must have his name in the pantheon of human rights.

To paraphrase of the article 377 of the 1795´s French Constitution, Aylan, seeking life by paths taken by his father, he´s going to be with those who courageously guard and defend human and fundamental rights.

Forgive us, Aylan. Human rights not saved your life. It is that you may have saved human rights, at least as to its universality and indivisibility, calling humanity to the full meaning of human life.



September 6, 2015 | Permalink | Comments (0)

Sunday, August 30, 2015

Diplomacy Lab Comparative Law Project

This semester I am working with eight students who are completing a research project for the U.S. State Department as part of the State Department's Diplomacy Lab project. The effort is part of a new program in which faculty and students develop ideas and solutions to policy issues identified by the federal agency.

This semester my students are studying public defender systems in four areas of the world: Asia, Sub-Saharan Africa, South America, and Europe. They will examine the different models for public defense in each area of the world and compile a report that they will present to the State Department.

The great part about the project is that the students get to participate in teleconferences with State Department officials and receive real world feedback on their work. I will report back on this project later, but it is a rare opportunity for my law students to do applied work in comparative law.


August 30, 2015 | Permalink | Comments (0)

Wednesday, August 26, 2015

It's August: The Lighter Side of Jury Service

As the summer draws to a close, let's take a deep breath before swinging into the next semester, for a look at the lighter side of jury service - US v. UK-style:


Best wishes to all for a rewarding Fall semester.

August 26, 2015 | Permalink | Comments (0)

Sunday, August 9, 2015

German Prisons and Human Dignity

German prisons are popular right now with criminal justice reformers, non-profit organizations, and even some reform-minded American politicians.

According to a recent editorial in the New York Times by Nicholas Turner of the Vera Institute and Jeremy Travis of the John Jay College of Criminal Justice, Germany not only incarcerates individuals at a far lower rate than in the U.S., but German prison officials treat those individuals far differently than in the U.S. Turner and Travis highlight the fact that German prisons allow inmates to wear their own clothes, encourage responsible decision-making, and seldom use solitary confinement. 

While punishment in America seems structured to strip inmates of any vestige of humanity and dignity, German inmates live in rooms rather than cells, sleep on beds rather than concrete slabs, and cook their own meals rather than attempt to survive on the cheapest meals than prisons can provide.

Ironically, the American public that appears to crave television programs like “Lockup” and “Jail” that use a National Enquirer-like lens to paint a picture of life behind bars in America as some sort of spectacle in which the American public feasts on the brutality of prison life. Footage of correctional officials decked out in full riot gear entering into cells to “extract” non-compliant inmates, inmate fights, and officials finding contraband in cells apparently boost viewership.

Perhaps we can take solace in the fact that in some corners there is a debate about the value of these shows.  When “Lockup” visited Cincinnati to film life at the Hamilton County jail, the majority of community officials opposed the visit. Dan Horn of the Cincinnati  Enquirer described the show as “sort of the Kardashians with blood, death threats, snitches and a guy who stabs people with pencils.” According to Horn, while Hamilton County Sheriff Jim Neill approved the visit, other county officials opposed it.  Notably, County Administrator Chrisian Sigman wrote  in an email to other county officials that “[i]t is highly unlikely that viewers of Lockup will visit or invest in our community after watching, in fact, I believe the show would have the opposite effect." To his credit, Sigman also denounced the show as being “dehumanizing and essentially us[ing] the misfortune of others for entertainment purposes.”

 While most of the county officials were worried that the portrayal of the county lockup would hurt the community’s economic fortunes, the jail officials apparently were more interested in showing the public their working conditions. To that end, the Sheriff’s spokesman told the paper that, “[o]verall, we believe it's a fair representation of life in the Hamilton County Justice Center and it gives viewers a small glimpse into what we deal with day in and day out.”

In contrast to the brutality and dehumanization in American facilities that seems to pervade our criminal justice system, American visitors to German prisons note that the centerpiece of the German correctional system is “human dignity.” But the difference between our correctional systems is broader than that, in the sentencing hearings and main proceedings that I observed in German, I noticed that both prosecutors and judges in most cases treated defendants, much more like the prodigal son or daughter who needed to be built up and reintegrated into the community rather than stripped down banished as some constructed “other.” As Nora Demleitner wrote in an article last year: “European sanctioning systems start with the offender’s ‘‘place in the community’’ rather than his relegation to a space outside society. Presumably that concept makes all actors in the criminal justice system more reluctant to remove the offender from the community by sending him to prison.”

The focus on human dignity can be extended beyond the criminal justice system towards governance in general. In particular, how does the concept of human dignity square with how American society treats the poor, the disabled, and the sick? Can we even square “human dignity” with the American myth that if you work hard enough, you will be rewarded? More on point, can we bring “dignity” to our criminal justice system, without bringing “dignity” into our norms of governance? 


Maurice Chammah, “Germany’s Kinder, Gentler, Safer Prisons,” THE MARSHALL PROJECT, June 17, 2015 at: https://www.themarshallprojec

Nora V. Demleitner, “Human Dignity, Crime Prevention, and Mass Incarceration: A Meaningful, Practical Comparison Across Borders, FEDERAL SENTENCING REPORTER, Vol. 27, No. 1, Ideas from Abroad and TheirImplementation at Home (October 2014), pp. 1-6 at 

Nicholas Turner & Jeremy Travis, “What we Learned from German Prisons,” THE NEW YORK TIMES,  August 6, 2015 at:


August 9, 2015 | Permalink | Comments (0)

Wednesday, July 29, 2015

Snowden: Patriot, Whistleblower, or Spy? (Part I)

I had the privilege this week of participating on a panel at the 2015 SEALS Conference that explored the question of whether Edward Snowden is a whistleblower or a spy.  The panel members engaged in a robust discussion  which examined (1)  whether Snowden’s actions fit under a traditional model of civil disobedience; (2) the extent to which Snowden harmed national security; and (3) whether our current legal framework offers adequate internal avenues for individuals like Snowden  to question the legality and wisdom of national security programs.

My comments focused primarily on question three. In this post, I’d like to briefly highlight that issue looking at U.S. law. In a subsequent post, I will offer a comparative perspective by looking at how European states address the issue.

While a good number of American commentators have called on Snowden to return to the U.S. to face trial, our current whistle-blowing laws in the national security field offer Snowden no adequate defense to his actions.  Although whistle-blowing legislation in the healthcare, financial, and consumer products industries protects whistleblowers from retaliation and in some cases actually provides financial rewards for disclosure, whistle-blowers in the national security field enjoy less protection.

Although the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA ) creates a process for employees and contractors who work in the national security sphere to report matters to Congress, it does not fully protect those individuals who do report from retaliation.  Nor does it cover civilian contractors like Snowden. The IWCPA also gives the agency directors the ability to limit the scope of external disclosure.  President Obama attempted to rectify that problem with Presidential Policy Directive 19. However, the real problem for whistleblowers is that none of these laws protect them from prosecution under the Espionage Act.  Notably, the structure of the act does not allow the fact finder to consider the defendant’s motivations for disclosure. Nor does the Act permit a jury to weigh whether the benefits from the disclosure to the public outweigh the damage done to our national security.

Harvard law professor, Yochai Benkler, has proposed a Public Accountability Defense for individuals who “violate the law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic  error, incompetence, or malfeasance even when it falls short of formal illegality.” Benkler argues that this defense is necessary because the national security organizations themselves, like other organizations, are prone to group think and routinely discourage individuals from challenging the majority position. As Benkler points out, by failing to adequate provide a robust mechanism for external review, our current regulations insulate the national security establishment from public accountability.



Yochai Benkler, “A Public Accountability Defense for National Security Leakers and Whistleblowers,” 8(2) Harvard Review of Law and Public Policy, July 2014.

Daniel D’Isidoro, “Protecting Whisteblowers and Secrets in the National Intelligence Community,” Harvard National Security Journal, September 29, 2014. Available online at:


July 29, 2015 | Permalink | Comments (0)

Thursday, July 23, 2015

Trade Dress Case in China

A colleague, Professor Hongjun (Nick) Yao, recently told me about an interesting trade dress case currently pending before the Supreme People’s Court in China. The state-owned Guangzhou Pharmaceutical Group (GPG) licensed its trademark, “Wang Lao Ji” (also read as “Wong Lo Kat”) to Hong Kong-based Hongdao Group for use in marketing ready-to-drink herbal tea throughout China. Hongdao invested millions of dollars in both advertising and designing a well-known red can for what became the top-selling canned beverage in China, surpassing even Red Bull and Coca Cola. GPG also marketed the same tea in a green carton under the same trademark but at much lower sales volumes. Problems arose, however, when the China International Economic and Trade Arbitration Commission invalidated continuations of the licensing arrangement in 2011 because they were based on bribery. Hongdao thereafter changed the name of its tea to “Jia Duo Bao” but continued using its well-recognized red can design.

GPG sued Hongdao, however, claiming that the red can design was protectable trade dress that belonged to GPG along with the licensed Wang Lao Ji trademark. The Guangdong High Court agreed in a decision that has engendered more than a little criticism. First, as Professor Yao notes, trademarks serve as “source” identifiers, allowing consumers to associate the quality of a particular good or service with the company that manufactures the good or provides the service. Because the red can design marked the herbal tea that Hongdao produced and sold (as opposed to the herbal tea that GPG produced and sold in green cartons), the High Court presumably should have held that trade dress rights in the red can design belonged to Hongdao. Second, the High Court suggested that trade dress rights in the red can design could not be separated from the trademark rights in the licensed WLJ mark. As Professor Yao notes, this differs markedly from U.S. trademark jurisprudence, under which any single product might bear multiple protectable trademarks owned by multiple separate entities.

One interesting aspect of the case that might explain the High Court’s decision, however, is the court’s factual finding that it was GPG, not Hongdao, who was more responsible for the reputation and trade dress value of the red can design. Although the Court acknowledged that Hongdao had invested a great deal in the design, the court attributed most of reputation and value of the red can trade dress to its association with the 150-yr-old WLJ mark – i.e., that GPG’s “investment” (associating its WLJ mark with the red can design) was more important than Hongdao’s investment in the design. This seems dubious as a factual matter, but if nonetheless accurate, it would not only explain the High Court’s decision but also help reconcile it to general trademark theory.

Regardless, it will be interesting to see the Supreme Court’s decision when it comes out.


Thanks so much to my fellow Comparative Law Prof Bloggers, Shawn Marie Boyne, Monica Eppinger, and Lissa Griffin for allowing me to join them on this blog. 

July 23, 2015 | Permalink | Comments (0)

Sunday, July 19, 2015

Japan: Prosecutorial Misconduct

A recent article in The Economist of a case in which a Japanese prosecutor altered a document that was being used as evidence casts an unusually revealing eye on the traditionally respected Japanese prosecution, in a system that is already heavily weighted against an accused.

July 19, 2015 | Permalink | Comments (0)

Sunday, July 12, 2015

Recent Comparative Empirical Work Posted on SSRN

Contributory Negligence in the Twenty-First Century: An Empirical Study of Trial Court Decisions

James Goudkamp and Donal Nolan posted this paper on July 10, 2015. From the abstract:

In this paper we report the results of an empirical study of the practical operation of the contributory negligence doctrine in the courts of England and Wales since the turn of the Twenty-First Century. For the purposes of the study, we analysed 273 trial court decisions. The two central questions that we looked at were (1) how often a defendant’s plea of contributory negligence was successful; and (2) by how much a claimant’s damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: (1) the claimant’s age; (2) the claimant’s gender; (3) the type of damage suffered by the claimant; (4) the contextual setting of the claim; and (5) the year of the decision. Our study uncovered a number of important truths about the contemporary operation of the contributory negligence doctrine hidden in this mass of case law. Our findings will be of considerable interest to both scholars and practitioners of private law

Quantifying Key Characteristics of 71 Data Protection Laws

Bernold Nieuwesteeg posted this paper on July 10, 2015. From the abstract:

This research is the first ever systematic study that unlocks six paramount characteristics in the literal text of 71 Data Protection Laws (DPLs). The quantification fosters comparison of a potential federal U.S. law with DPLs in the rest of the world. It can also be used for empirical legal research in information security by linking the index or subsets to data concerning, for instance, deep packet inspection.

This research is exploratory: adding more characteristics to the database is one of the key next steps for future research.

There are some noteworthy initial results: only 5 out of 71 DPLs have penalties that deter companies for non-compliance. Also, compared to the U.S. states, few countries have data breach notification laws. Principal component analysis reveals more information. Characteristics can be grouped in two unobserved factors, which explain ‘basic characteristics’ across laws and ‘add ons’ to these characteristics.

By summing these two factors a privacy index is constructed. Countries that are not known for their stringent privacy control such as Mauritius and Mexico cover a top position of this index. Member States of the European Union have DPLs with a privacy control score above average but no absolute top position

July 12, 2015 | Permalink | Comments (0)

Sunday, June 28, 2015

Marriage Equality Worldwide

Anne Marie Lindemann of Slate has posted a short video  entitled "The Stunning 15 year March to Marriage Equality Around the World" that tracks the growth of marriage equality around the world beginning with the Netherlands' 2000 decision to legalize gay marriage.

June 28, 2015 | Permalink | Comments (0)

Sunday, June 7, 2015

Teaching Criminal Law in China

I've been in China for three weeks teaching a class on American criminal law to a group of Chinese students studying law and/or criminal justice at the Shanghai University of Political Science and Law. Ironically, I couldn't log into this blog while in Shanghai.  Despite their varying degrees of English proficiency, the students engaged with the material. There were hiccups along the way. After spending the first session of the course laying out the basics of the adversarial system and the due process model, the students asked to learn about famous trials-including the O.J. Simpson case.

So I adjusted my material and used the narratives of famous trials to explain the basic elements of our adversarial system of justice as well as a few ways in which the system diverges from the ideal. Although my sample size of 40 students is a small one to build insights upon, I did notice some similarities and differences with my experiences of teaching in Germany's civil law system. To begin, many of my students in Shanghai questioned the ability of a jury to understand the case and not be swayed by emotions well-enough to render a decision. Their German peers also tend to question the merits of the jury system-though that questioning is rooted more deeply in the complexity of the law.

One big difference between justice in China and Germany is the relative harshness of punishment in China. In Germany, the bulk of cases that cross prosecutors desks are dismissed or slated for diversion progrems.  For that reason as well as the relative disinterest of German prosecutors in striking onerous bargains against the defedant, the rise of plea bargaining in Germany has reinforced the system's leniency. In contrast, justice in China may be both harsh and swift.

Given the harshness and ubiquity of the death penalty in China, I did not expect my students in Shanghai to place as much faith as they did in the symbolic role of punishment. One student even commented that it would be better for 9 innocent people are convicted, than if the court would let free one guilty person. While the prevalence of plea bargaining and the prospect of harsh sentences has compromised the fairness of the process in the U.S., the general public has begun to question the wisdom of high incarceration levels. In contrast in China, at least among the future elite, there appears to be a solid faith in the system's results and a cautious optimism that the State may temper those punishments in the future.

June 7, 2015 | Permalink | Comments (0)

Monday, June 1, 2015

Scottish Prosecutors to use IPads in Court

An interesting, and alluring, article in The Times of London contains an announcement that Scottish Prosecutors are going to be equipped with Ipads for use in court.  Although it is unclear exactly what they will use the ipads for, there is a reference to using ipads to take witness statements, which could well raise confrontation issues.  Otherwise, more efficient and cheaper access to records and increased security for records is intended.

June 1, 2015 | Permalink | Comments (0)

Wednesday, May 27, 2015

Treading Carefully: A British Bill of Rights

Next week the UK Parliament will consider a proposed British Bill of Rights (BBR) that is intended to replace the Human Rights Act of 1988, which essentially adopted the European Code of Human Rights as domestic UK law.  That's a broader statement than is probably accurate, but the HRA did force the UK courts to consider whether domestic legislation might violate the ECHR. 

A recent column in the London Times questions the need for a different bill of rights.  Will the rights be different?  Are there particularly 'British" rights that are not contained in the ECHR and vice versa?

To read the article in the Times, please click here.

My own guess is that the declaration of rights will  not be that different, but that the way in which the BRR will bind the courts and government could be quite different than the  apparatus for review under the  HRA.  Major differences between US and UK criminal procedure and law enforcement stem from the existence of the US Constitutional Bill of Rights.   Methods of fighting terrorism, for example, or the right to jury trial and the plea bargaining explosion in the United States are two examples that come readily to mind.  And maybe that's a good thing.   But the point is that the UK should tread carefully:  in the zest to free itself from the continent, it should make sure to replace what is already there with something that will function, in reality, in a way that is best for Britain.  

May 27, 2015 | Permalink | Comments (0)

Monday, May 11, 2015

The Benefits & Limits of Comparative Criminal Justice Research

In 2013, the Vera Institute of Justice published a report entitled, “Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States.”  The report was part of a larger “experiential” project in which teams of state officials from Colorado, Georgia, and Pennsylvania visited Germany and the United States to get a first-hand look at prison facilities and correctional practices. Without a doubt, American practices such as high mandatory minimum sentences, long sentences for drug crimes, and the incarceration of mentally ill offenders have fueled the rise of our nation’s prison system and led to incarceration rates that lead the Western world.

Some of the key differences in prison practices that the report taught include: longer and more professional training for prison officials, changes in the architectural design of prisons, and increased freedom of movement of inmates may be worth trying in the United States.

However, what the report fails to consider is the extent to which the problems in the U.S. system extend beyond our sentencing and correctional practices. Even if we eliminate mandatory minimum sentences, will the current structure of prosecution offices (headed by elected officials) embrace the widespread use of diversionary sentences?  There is a vast difference between the organizational culture in German prosecution offices and their U.S. counterparts.  To begin, the German Code of Criminal Procedure actually mandates that prosecutors conduct an objective investigation. It is the judge or judicial panel that conducts the bulk of the questioning in a criminal trial, not the prosecutor. Indeed, in most of the trials that I observed in Germany, the prosecutor is not invested in a particular outcome. 

Underpinning these differences in institutional design are historical and cultural norms. In Germany, where law is considered a science that can only be understood by professionals, the prospect of allowing a civilian jury to adjudicate guilt is inconceivable. In the U.S., with our wariness of government, the prospect of entrusting the fate of the accused to a government bureaucrat might be enough to provoke riots in the streets.  Perhaps an even deeper divide to bridge is our societal condemnation of criminals and the barriers that the system places in the way of reentry. In Germany, the government aims to reintegrate those who have gone astray quickly back into society. Thus prisons are not isolated gulags where inmates are stripped of their humanity.  In the U.S., we treat inmates as people who need to be separated from society as well as their own humanity.  

So, as we look for “solutions” to our problems in the U.S., let’s be open to the fact that the true roots of the problems in the criminal justice system go beyond sentencing practices.

May 11, 2015 | Permalink | Comments (0)

Thursday, May 7, 2015

Hearsay and Confrontation: Recorded Victim Statements in the US and UK



A recent case in England epitomizes the difference between our bill-of-rights-based criminal justice system and the UK’s more practical, parliamentary and judge-based process.


Last week, Masood Mansouri was convicted of rape. Mansouri, a carwash owner, apparently pretending to be a cab driver, picked up Ceri Linden, who was hailing a taxi, kidnapped her and raped her. Five days later, she committed suicide. She thus was unavailable to testify at trial. Instead, the jury watched a videotaped recording of an interview Ms. Linden gave to the police in which she described the assault. No rape case has ever been successfully prosecuted in England and Wales based on statements of a victim who is not subject to cross-examination.


Interestingly, of course, this kind of evidence would not be admissible in the United States -- and for a host of reasons. Aside from the fact that it is hearsay for which there is no exception, it would not be admissible under the residual clause. According to the testimony of a consultant forensic psychologist, Ms. Linden had an “emotionally unstable personality disorder,” and had been hospitalized nine times over six months for attempted suicides. My guess is that these circumstances would have made it inadmissibly unreliable. Nor would it be admissible under 'forfeiture by wrongdoing,' exception, because the defendant did not intentionally cause her to be absent.  Last but manifestly not least, the videotape clearly is a testimonial equivalent whose admission violates the confrontation clause under the Supreme Court’s Crawford v. Washington jurisprudence.


The stark inadmissibility of the video under US law raises interesting, recurring questions. While this conviction could be overturned either by UK domestic courts or the European Court of Human Rights, it’s a good reminder about the protections of the bill of rights and the limitations on US judges.   


Related References

May 7, 2015 | Permalink | Comments (0)

Monday, April 27, 2015

The Google Challenge to the Common Law Myth

James Maxeiner, an Associate Professor of Law at the University of Baltimore School of Law, has posted: A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth (April 21, 2015). 4 British Journal of American Legal Studies 141 (2015).

Available at SSRN:

From the abstract:
Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law ; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds it credible.

April 27, 2015 | Permalink | Comments (0)

Thursday, April 23, 2015

UK Criminal Justice and a UK Bill of Rights


Today in London, English lawyers are protesting what they see as the collapse of the criminal justice system.  No doubt austerity and budget cuts are to be blamed. 


At the same time, there is still talk from the Tories about creating a British bill of rights. Readers will recall that the Human Rights Act, which came into effect in 2000,  essentially rendered the British judicial system subject to the European Charter of Human Rights and to review by the European Court of Human Rights in Strasbourg.  9/11 occurred shortly thereafter.  As a result of the fear and reality of terrorism, the Human Rights Act and its focus on human rights has lost popularity.  Perhaps the notion of being subject to review by the mainland has lost whatever popularity it once had too.


To read an article from The Times of London on these subjects, click on the link below.

April 23, 2015 | Permalink | Comments (0)