October 8, 2012
Byberg on Childless Child Porn
Jacqueline Helen Kingston Byberg (Durham University - Durham Law School) has posted Childless Child Porn - A ‘Victimless’ Crime? A Comparative Analysis of the Validity of the Current Restrictions in the United Kingdom and United States on Virtual Child Pornography in Relation to the Right to Free Speech on SSRN. Here is the abstract:
This paper will comment on the current prohibition of the (arguably) victimless crime of virtual child pornography (VCP) in both the US and UK and it’s interaction with the right to free speech. This paper is limited in it’s scope and will only discuss in passing the offence of prohibited images of a child, nor will it consider in anyway images that are a product of computer morphing, in which a physical element of a child is ‘morphed’ into an indecent image. The forthcoming discourse will contend that the current prohibition of VCP is an unjustifiable violation of the right to free speech, through the consideration of the practical and theoretical validity of the justifications for this prohibition. Furthermore, it will consider the possible advantages of restricting rather than prohibiting VCP.In order to achieve this the first chapter will briefly examine the development of the law regulating actual child pornography and the current legislation governing VCP in both the US and UK. The first chapter will also succinctly make note of the parallels that become evident when comparing the individual jurisdictional responses to VCP. The second chapter considers the right of free speech operationally in the US and UK, the legislative clarity of VCP’s current categorisation as obscene or indecent and the impact both this and private consumption has on the justifiability and adjudged proportionality of the prohibition. The third chapter will consider the prevailing justifications habitually referenced when defending the contravention of the right to free speech caused by the statutory prohibition of VCP. The fourth chapter will explore the interactions of the preceding chapters justifications with the right of free speech, consider alternate motivations for enacting the current prohibition as well as recommend a possible legislative solution. Lastly, the fifth chapter will conclude this paper.
Siegel on Textualism, Jury Trials, Etc.
Stephen A. Siegel (DePaul University - College of Law) has posted Textualism on Trial: Article III’s Jury Trial Provision, the 'Petty Offense' Exception, and Other Departures from Clear Constitutional Text on SSRN. Here is the abstract:
Can anything be constitutional that violates clear and concrete commands contained in the Constitution? Most all constitutional theorists say “No.” As much as they disagree on how to interpret the Constitution’s vague clauses, they agree that nothing can justify a departure from the Constitution’s many rule-like directives. As Randy Barnett has recently quipped: “To remain faithful to the Constitution...we must never forget it is a text we are expounding.”
Nevertheless, constitutional practice gives a different answer. On the one hand, there are “constitutional workarounds,” which Mark Tushnet describes as instances where "[f]inding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts — and do so without (obviously) distorting the tools we use." On the other hand, there the writings of other scholars who, in the course of investigating particular constitutional clauses and controversies, discuss constitutional doctrines or governmental practices that they say violate clear and concrete constitutional text without a workaround to provide cover.
This Article explores and supplements these many scholarly claims. It contends that our constitutional tradition contains an array of doctrines and practices that depart from clear and specific constitutional rules. Constitutional praxis evidently has different norms, and teaches different lessons, from constitutional theory.
This Article supports its contention in two ways. First, it discusses a variety of constitutional doctrines and governmental practices that other commentators have already noted as conflicting with clear constitutional text; and second, it provides a thorough study of a well-known and important constitutional doctrine that is not generally recognized as a departure from the Constitution’s clear requirements. The example is the petty crime exception to the right to jury trial.
The Constitution enshrines the right to jury trial in Article III, § 2, which peremptorily commands that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” However, according to the petty crime exception defendants facing no more than six months in jail, or a fine of no more than $500, have no right to a jury trial. The petty crime exception, at least at first blush, appears to depart from the Constitution’s literal requirement of jury trial for “all crimes.” The full argument is more complex, but it reaches the same conclusion.
In addition, in its initial analysis of Article III’s jury provision, this Article employs the interpretive approach of modern textualism. Only after a textualist analysis is complete are the alternative interpretive norms of originalism and living constitutionalism brought into the discussion. Because of the varying results produced by these three interpretive modes, this Article, in the process of establishing that the petty crime exception is a departure from a clear and concrete constitutional command, provides a telling example of the extent to which the varying interpretive norms of textualism, originalism, and living constitutionalism have shaped our constitutional development.
Stewart on Corporate Criminal Theory
James G. Stewart (UBC Faculty of Law) has posted A Pragmatic Critique of Corporate Criminal Theory: Atrocity, Commerce and Accountability on SSRN. Here is the abstract:
Corporate criminal liability is a controversial beast. To a large extent, the controversies surround three core questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers. In this paper, I use examples from the frontiers of international criminal justice to criticize all sides of these debates. In particular, I harness the latent possibility of prosecuting corporate actors for the pillage of natural resources and for complicity through the supply of weapons, to highlight the shortcomings of corporate criminal theory to date. Throughout, I draw on principles derived from philosophical and legal pragmatism to reveal a set of recurring analytical flaws in this literature. These include: a tendency to presuppose a perfect single jurisdiction that overlooks globalization, the blind projection of local theories of corporate criminal responsibility onto global corporate practices; and a perspective that sometimes seems insensitive to the plight of the many who have fallen victim to corporate crime in the developing world. To begin anew, we need to embrace a pragmatic theory of corporate criminal liability that is forced upon us in a world as complex, unequal, and dysfunctional as that we presently inhabit.
October 7, 2012
Oberman on Teaching Rape
Michelle Oberman (Santa Clara University - School of Law) has posted Changes in Legal Education and Legal Ethics: Article: Getting Past Legal Analysis...Or How I Learned to Stop Worrying and Love Teaching Rape (Creighton Law Review, Vol. 42, p. 799, 2012) on SSRN. Here is the abstract:
Long after the rape chapter was over, when we had moved on to inchoate crimes and cases involving "call girls" and conniving defendants who took messages for them in an era before voicemail - protagonists with whom my students, it seemed safe to wager, were unacquainted - the thoughtful young man from the third row stopped in to ask, "What was the take away from the classes on rape?" My hope is that, in explaining my approach to teaching rape, I will also address the deeper themes afoot in contemporary critiques of legal education: whether and how law schools are training students for the practice of law, and what practical use, if any, is served by scholarship among legal academics. These interviews, combined with years of teaching the edited appellate opinion in my casebook, convinced me that I could use the case to surface themes and teach skills often left out of the first-year classroom. Before class, I divided the students into small groups, assigning each group a distinct rape statute, and required them to apply their statutes to the police statements in order to advise the state's attorney about the merits of prosecuting the case. In a class on rape, the search for "bad facts" forces students to retell two stories - the victim's and the defendant's - in legally relevant ways. The state charged both boys with rape, and at first blush, the facts underlying Juan G. Either way, rape victim advocates felt certain that civil remedies could have offered Laura more than criminal law did. Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.
Chan on Duress in Singapore
Wing Cheong Chan (National University of Singapore (NUS) - Faculty of Law) has posted Legislation and Case Notes: Developments in Duress: Coercion, Moral Choice and Subjectivism (Singapore Journal of Legal Studies, p. 154, July 2012) on SSRN. Here is the abstract:
Twenty-seven years ago, Peter English rightfully lamented that the scope of the defence of duress in criminal law in Singapore was far too limited, and this was especially worrying in view of the availability of capital and mandatory sentences in this jurisdiction. Criticisms of the defence being too restrictive and proposals for reform have also been made by other writers and the Law Commission of India.
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