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Dissent and Legitimacy in International Criminal Law
Get PDFThroughout history, dissenting opinions have been subject to soaring praise as well as vitriolic criticism. Although some commentators nominally acknowledge that the normative value of dissenting opinions necessarily varies depending on the unique context in which the relevant court operates, in fact, we see the same arguments advanced to support or oppose dissenting opinions, regardless of the court in which those opinions appear. Dissents are particularly prevalent in international criminal courts--those courts established to prosecute the worst crimes known to humankind: genocide, war crimes, and crimes against humanity. Although dissents in these courts have garnered little scholarly attention, the few normative arguments that have been made track those that have been advanced for decades in the United States and other judicial systems. In a previous work, I launched a comprehensive empirical and normative analysis of separate opinions in international criminal law. Whereas my earlier scholarship laid the groundwork and evaluated certain alleged benefits of separate opinions, this Article begins by empirically assessing their costs. The Article then evaluates the primary normative claim made in support of separate opinions both domestically and internationally: that they enhance the legitimacy of the court and its opinions. These examinations reveal that previous commentators have employed one-size-fits-all analyses that fail to take account of the unique features of international criminal courts and mass atrocity trials. These features complicate the relationship between separate opinions and legitimacy, but the quantitative and qualitative evidence combined strongly suggest that separate opinions are likely to delegitimize an already fragile, vulnerable criminal justice system
A New Feudalism: Selfish Genes, Great Wealth, and the Rise of the Dynastic Family Trust (DFT)
Get PDFToday’s record levels of economic inequality are infecting our future as the top 0.01% bequeath vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines—not just for a generation or two, but forever. Although it may sound implausible, interviews with estate lawyers serving very high-net-worth clients reveal that some members of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues. Recent work in evolutionary biology reveals a universal and powerful human drive for high-status descendants—a drive for “quality” progeny so powerful that it appears to trump the usual desire to maximize quantity of offspring. Coupled with the long history of dynastic family wealth in England, this science suggests that today’s wealthiest testators will utilize powerful modern legal institutions (e.g., well-developed laws of contract and trust; deep and efficient capital markets) to forge a new sort of trust that I dub a Dynastic Family Trust (DFT). DFTs will be larded with innovative provisions leveraging a founder’s wealth to maximize descendants’ status for generation after generation. For those fearing the pernicious effects of concentrated wealth on democracy and equal opportunity, the rise of the DFT is alarming. Fortunately, there is a very easy fix: simply reinstate the Rule Against Perpetuities. Given a race-to-the-bottom dynamic among the states, national legislation is necessary
A World Without Prosecutors
Get PDFBennett Capers’ article Against Prosecutors challenges us to imagine a world where we “turn away from prosecution as we know it,” and shift “power from prosecutors to the people they purport to represent.”
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Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a “[r]adical change,” I find the focus on prosecutors in this context decidedly indirect.
This abstract has been adapted from the article\u27s opening paragraphs
From Negative to Positive Algorithm Rights
Get PDFWe consider this issue here and suggest that the current calls for a negative right to be free from AI could very well transform over time into positive claims that demand the use of algorithmic tools by government officials. In Part I, we begin by sketching the current landscape surrounding the adoption of AI by government. That landscape is characterized by strong activist and scholarly voices expressing a pronounced aversion to the use of digital algorithms—and taking a decidedly negative rights tone. In Part II, we show that, although aversion to complex technology might be understandable, that aversion is neither inevitable nor impossible to overcome. We offer several examples of advanced technologies and analytic techniques that in the past have emerged in the face of significant criticism, but which have come to be widely accepted. In fact, there now exists an affirmative expectation—even at times a legal one—that government should use these technologies when making consequential decisions affecting people’s interests.
Given the possibility of legal and, more broadly, public insistence on the use of at least certain kinds of advanced technologies, we put forward in Part III a set of factors that may help lead eventually to widespread acceptance of algorithmic technologies similar to the acceptance of the technologies discussed in Part II. We suggest that a path forward exists that might build a general acceptance of the use of algorithmic tools by governmental entities, a path that would represent a shift from present-day calls for negative-rights protections against AI to eventual positive-rights expectations that good government practices routinely involve the use of AI.
This abstract has been taken from the authors\u27 introduction
Limited Protection: The Impact of Illegal Entry on Due Process Rights in Expedited Removal Proceedings
Get PDF[...] This Note argues that illegal entry often limits the scope of asylum seekers’ due process rights in court and negatively impacts the asylum process in a way that runs afoul with the spirit of due process and fairness. Asylum eligibility should not hinge on whether entry is legal, but whether applicants are able to meet the evidentiary burden. Conditioning asylum seekers’ procedural due process rights on the legality of entry creates arbitrary asylum results and carries high risks of sending back asylum seekers to danger, simply because they were not able to obtain valid travel documents from the governments that persecuted them. Furthermore, illegality of entry creates the concept of undeserving asylum applicants, which often conflicts with the principle of fairness in removal proceedings.
This Note proceeds as follows. Part I discusses important legal issues relevant to understanding asylum seekers’ due process rights in expedited removal proceedings, including Congress’s plenary power over immigration, the asylum application process, and the statutory expedited removal framework. Part II analyzes the Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam, which reversed key determinations from the Ninth Circuit. Part III advances this Note’s main arguments. Illegal entry significantly limits asylum seekers’ due process rights by triggering expedited removal. However, giving the legality of entry undue weight in the asylum process leads to arbitrary adjudications and high risks of error. Asylum eligibility should not be contingent upon legal entry in a way that violates the Due Process Clause of the Fifth Amendment. Finally, Part IV examines how sociopolitical factors complicate the issue.
This abstract has been taken from the author\u27s introduction
Could a More Limited Environmental Goods Agreement Resolve Continued Issues in Cities Compliance?
Get PDFThis Note will adopt an economic perspective while advocating for the most sustainable practices in natural resources management. It will first conduct a series of case studies of natural resources for which there is transnational or international demand, but unsustainable management. While CITES-listed resources will be considered with particular attention, unlisted and more conventional resources will also be considered. In its second part, this Note will consider mechanisms currently available in international trade to accommodate environmental progress, then will set forth various new measures the WTO could adopt to incentivize sustainable management of the Part I resources. Part III will consider new roles for CITES, U.N. bodies, and other international associations in working with the WTO to encourage sustainability. Finally, this Note will conclude by suggesting that environmental groups and trade associations in the developed world pressure their governments to consider using the WTO not only to liberalize global trade but to resolve environmental problems created by free trade.
This abstract has been taken from the author\u27s introduction
Defending the Less Dead: Using the Decriminalization of Sex Work to Combat the High Incidence of Serial Homicide of Street-Based Sex Workers
Get PDFSex workers have historically represented a disproportionate percentage of all victims of serial murder. Several serial murderers in the past thirty years have evaded detection for years, taking the lives of dozens of victims, by targeting sex workers, playing off the biases of society and law enforcement, and counting on the halfhearted investigation techniques that often followed missing person reports for less valued members of society, or the “less dead.” This Note argues that the decriminalization of all aspects of sex work is the surest way to improve the safety of street-based sex workers and reduce high victimization of this marginalized group in crimes of serial homicide. Based on the success of the decriminalization model in New Zealand, legalizing sex work reduces the power imbalance between law enforcement and sex workers and improves channels for sharing information, allowing the police to better investigate and protect sex workers from the risk of serial homicide, and allowing sex workers to better protect themselves