bluuebunny/crossref_metadata_2025 huggingface dataset:
NASKAH AKADEMIK BADAN PERMUSYAWARATAN DESA
Authors: Umanailo Muhamad Chairul Basrun , Nawawi Mansyur , Hentihu Idrus , Hamid Iskandar , Ningkeula Edy Said , Bula M. , Umanailo Rosita , Jumu La , Bahasoan Husen , Assagaf Said Abdurahman
Published: July 2018

Sebagai subjek pembangunan tentunya warga masyarakat hendaknya sudah dilibatkan untuk menentukan perencanaan pembangunan sesuai dengan kebutuhan objektif masyarakat yang bersangkutan. Dalam arti bahwa perencanaan pembangunan yang akan dilaksanakan dapat menyentuh langsung kebutuhan masyarakat sehingga program perencanaan pembangunan desa yang akan dicanangkan, masyarakat dapat berpartisipasi seoptimal mungkin. Ide-ide pembangunan harus didasarkan pada kepentingan masyarakat dalam memenuhi kebutuhannya yang menunjang terhadap pembangunan nasional. Ide-ide pembangunan desa inilah yang akan ditampung oleh Badan Pemusyawaratan Desa (BPD) dan akan dimufakatkan bersama dalam musyawarah pembangunan desa sehingga dapat direncanakan dengan baik antara pemerintah dengan masyarakat. Hal ini pada akhirnya akan menumbuhkan prakarsa dan swadaya masyarakat serta partisipasi aktif nantinya pada saat pelaksanaan pembangunan desa.
The President’s Private Dictionary: How Secret Definitions Undermine Domestic and Transnational Efforts at Executive Branch Accountability
Authors: Setty Sudha N.
Published: July 2018

Published: Sudha Setty, The President's Private Dictionary: How Secret Definitions Undermine Domestic and Transnational Efforts at Executive Branch Accountability, 24 IND. J. GLOBAL LEGAL STUD. 513 (2017)..The 2016 EU-U.S. Privacy Shield is an agreement allowing companies to move customer data between the European Union and the United States without running afoul of heightened privacy protections in the European Union. It was developed in response to EU concerns that the privacy rights of its citizens have been systematically abrogated by the U.S. government in the name of national security, and contains a variety of assurances that the United States will respect and protect the privacy rights of EU citizens.How trustworthy are the U.S. assurances under the Privacy Shield? Both the Bush and Obama administrations secretly interpreted the terms of treaties, statutes and regulations in a manner that allowed them to take controversial actions, keep those actions secret, and later invoke national security to defend the legality of those actions if they became public. In cases involving torture, bulk data collection, and targeted killing, these administrations did so despite the common and objective understanding of applicable legal constraints not providing authorization for the very actions that they claimed were legal.It remains an open question as to whether the Trump administration will interpret the Privacy Shield in a similarly misleading manner: one in which public assurances suggest compliance with the Privacy Shield’s constraints, but the administration’s private interpretation of the Privacy Shield secretly breaches EU privacy protections. This paper considers possible ways to constrain the executive branch from relying on secret interpretations that would undermine the Privacy Shield’s transnational attempts at accountability
State Criminal Appeals Revealed
Authors: Heise Michael , King Nancy J. , Heise Nicole A.
Published: July 2018

70 Vanderbilt Law Review 1939 (2017)Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review. By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes. Our findings imply that defense appellate success rates may have declined in recent decades. In appeals of right, defendants who challenge a sentence enjoy a greater likelihood of success, as do those who have legal representation, file a reply brief or secure oral argument, and appellants from Florida. In high courts of last resort, appeals from sex offenses, raising certain trial issues, and appellants represented by publicly funded attorneys appear to fare better than others. Also notable is the absence of a relationship between defense success and factors including most crime types and claims raised, the court’s workload, and, for all but one model, whether the appellate judges were selected by election.
Writing to Learn Law and Writing in Law: An Intellectual Property Illustration
Authors: Madison Michael J
Published: July 2018

This essay, prepared as part of a Symposium on teaching intellectual property law, describes a method of combining substantive law teaching with a species of what is commonly called "skills" training. The method involves assessing students not via traditional final exams but instead via research memos patterned after assignments that junior lawyers might encounter in actual legal practice. The essay grounds the method in the theoretical disposition known generally as "writing to learn." It argues that students are likely to learn intellectual property law effectively if they learn to practice as intellectual property lawyers, and specifically to write as intellectual property lawyers.
Law-and-Economics Approaches to Labour and Employment Law
Authors: Schwab Stewart J.
Published: July 2018

33 International Journal of Comparative Labour Law and Industrial Relations (2017)This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. Era Two emphasizes that labour and employment laws might enhance overall social welfare by correcting market failures arising from monopsony power, externalities, public goods, asymmetric information, information-processing heuristics, and internal labour markets. Era Three uses empirical methods to referee between markets-work and markets-fail approaches. The article argues that unequal bargaining power is not a standard market failure, because even powerful employers have a profit-maximizing motive to provide benefits, such as vacation or safety, that workers are willing to pay for.
Readers' Copyright
Authors: Litman Jessica
Published: July 2018

This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright law. In response to growing criticism of copyright, some of copyright law's most ardent supporters have insisted that users have no rights, should have no rights, and have never had rights in the copyright scheme. That approach, I suggest, is making the problem worse, not better. Copyright seems out of whack because it has forgotten its most important constituents. In this essay, I take a series of very small baby steps in the direction of recognizing rights and liberties within the copyright system for readers, listeners, viewers and other members of the copyright audience.
Treaty of Tordesillas Syndrome: Sovereignty ad Absurdum and the South China Sea Arbitration
Authors: Rossi Christopher R
Published: July 2018

Cornell International Law Journal: Vol. 50 : No. 2 , Article 3. The South China Sea is the fifth largest body of water in the world. It accounts for five trillion dollars in annual commercial activity involving a third of maritime traffic worldwide. China claims wide-ranging sovereign rights over upwards of ninety percent of this Sea via a controversial U-shaped line. Its claim upsets regional stability and portends a coming conflict with the United States, the world's supreme maritime power, over the application of the United Nations Convention on the Law of the Sea (UNCLOS). China claims its sovereign authority predates UNCLOS by millennia; critics date China's claim to 1947. Already described as the most important ruling in the modem history of the international law of the sea, a Tribunal of the Permanent Court of Arbitration handed down a sweeping rebuke of China's contentions in the July 2016 Award in the South China Sea Arbitration (Philippines v. China), setting up a confrontation between emergent China and established United States. This Article discusses that Award in light of the fundamental tension within the liberal model of freedom of the seas-the unreconciled tension involving ownership interests over resources of the sea (dominium) and the decision-making power to rule over the seas (imperium). While scholarly attention dissects the Tribunal's discussion of historical and factual circumstances (effectivites) that aggregate against China's sovereignty claims, this Article notes deeper problems, too: Ambiguities in UNCLOS have allowed powerful states to historically territorialize wide swaths of the dwindling global commons, all within the compliant liberal framework. Such claims are reminiscent of the Treaty of Tordesillas (1494), where Spain and Portugal divided up ownership of the world. The territorializing instinct of the Treaty of Tordesillas serves as a syndromic indicator of a recurring problem involving the sea and its increasingly scarce resources. It sets up a major challenge for international law as between superpower interests in the South China Sea, and, more generally, over disputes involving the global commons and spatial regimes on the emerging frontier of technological capability.
The Persistent Vegetative State: A View across the Legal Divide
Authors: Beresford H. Richard
Published: July 2018

835 Annals of the New York Academy of Sciences 386 (1997)Praise for Fred Plum can take many forms: for pedagogical dynamism, for depth and breadth of contributions to neurology and neuroscience, for sure-handed guidance of a department that has infused neurology with today’s and tomorrow’s leaders, and for a truly uncanny ability to fan a drive to excel in those he has touched. Mindful of his admonition to be substantive in what one says and does, my praise will embody a few reflections on the enduring legal and social impact of the “point of view” he and Bryan Jennett authored for the journal Lancet in 1972.
Gunslingers on the High Seas: A Call for Regulation
Authors: Dutton Yvonne
Published: July 2018

Yvonne M. Dutton, Gunslingers on the High Sea: A Call for Regulation, 24 Duke J. Comp. & Int'l L. 107 (2013)Since only mid-2011, states have increasingly authorized their shippers to hire private armed guards to protect them as they travel through pirate-infested waters. Estimates indicate that in 2011, the percentage of ships employing armed guards rose from approximately 10% to upwards of 50%. Primarily, the guards are hired out by the 200 to 300 private maritime security companies (PMSCs) that have been created overnight to capitalize on this new opportunity. This article recognizes the importance of protecting innocent seafarers from violent pirate attacks. It also recognizes that the worlds' navies may not be able to protect each and every ship and crew from being attacked. Nevertheless, it argues that states should not be permitted to include private citizens in the fight against piracy without first ensuring that those guards will abide by governing laws and norms and be held accountable should they fail to do so. Yet, as the article shows through a comparison and analysis of the laws and guidance of five states, only some states appear to be providing any guidance regarding the necessary training and qualifications that armed guards must possess or how and when they may lawfully use and transport weapons. This article argues that states need to do more. At the very least, it urges states to agree on vetting and monitoring procedures to make certain that any guards who are hired by shippers are well trained and prepared to safely transport, store, and use weapons. States are responsible for the fight against piracy, and if they want to include private contractors in that fight, then they should act responsibly and regulate and monitor the guards' conduct. Otherwise, in a world where each state is creating its own rules or even no rules at all, the likely outcome is chaotic and violent seas — and perhaps the next "Blackwater" moment.
The Use of PMSCs by the United Nations in Times of Armed Conflict, Application of IHL and Responsibility Matters
Authors: González Javier Gamarro
Published: July 2018

The companies dealing with military and security matters are on the rise, and today they provide services to a very wide client list, which includes states and international organizations (IOs). It is well known that these companies have been deployed in a large number of armed conflicts, and indeed, some of them have become prominent in the sector not only for their military results but also for their abuses of international humanitarian law and human rights. Surprisingly, it is lesser known that the United Nations (UN) has also had recourse to private military and security companies in the context of United Nations military operations with regard to the maintenance of international peace and security.The engagement of private military security companies in UN peace operations entails multiple legal questions. This dissertation is especially intended to shed some light over the extent to which PMSCs deployment in UN peace operations is compatible with international humanitarian law and how the law of institutional responsibility deals with the violations of international humanitarian law committed by such companies when providing services to the UN. For that purpose and to that extent due recourse has been made to the most relevant international law sources on the matter, such as the Geneva Conventions, their Additional Protocols, and other relevant instruments such as the ILC Articles on State and IO responsibility, and the Montreux Document. Jus cogens and international custom, including the practice of international organizations and states, and opinion juris as ascertained by legal scholars and the International Court of Justice, play an essential role in this dissertation, since the United Nations has not become yet a party to any IHL treaty, thus employing an inductive methodology. A comparative approach was adopted in regard to the observations of the most eminent institutions and jurists, and domestic and international courts, including the International Court of Justice and the European Court of Human Rights for the purpose of ascertaining the different rules of attribution of conduct existing in international law. Besides, certain decisions of the latter Court were analysed in order to clarify by analogy whether the application of international humanitarian law and the imputation of acts can function under the same degree of control test.
What We Buy When We "Buy Now"
Authors: Perzanowski Aaron , Hoofnagle Chris Jay
Published: July 2018

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent — it depends on shifting business models, the success and failure of platforms, and often on the maintenance and availability of DRM authentication systems years after the consumer clicked “buy now.”This article presents the results of the first-ever empirical study of consumers' perceptions of the marketing language used by digital media retailers. We created a fictitious Internet retail site, surveyed a nationally representative sample of nearly 1300 online consumers, and analyzed their perceptions through the lens of false advertising and unfair and deceptive trade practices. The resulting data reveal a number of insights about how consumers understand and misunderstand digital transactions. A surprisingly high percentage of consumers believe that when they “buy now,” they acquire the same sorts of rights to use and transfer digital media goods that they enjoy for physical goods. The survey also strongly suggests that these rights matter to consumers. Consumers are willing to pay more for them and are more likely to acquire media through other means, both lawful and unlawful, in their absence. Our study suggests that a relatively simple and inexpensive intervention — adding a short notice to a digital product page that outlines consumer rights in straightforward language — is an effective means of significantly reducing consumers’ material misperceptions.Sales of digital media generate hundreds of billions in revenue, and some percentage of this revenue is based on deception. Presumably, if consumers knew of the limited bundle of rights they were acquiring, the market could drive down the price of digital media or generate competitive business models that offered a different set of rights. We thus turn to legal interventions, such as state false advertising law, the Lanham Act, and federal unfair and deceptive trade practice law as possible remedies for digital media deception. Because of impediments to suit, including arbitration clauses and basic economic disincentives for plaintiffs, we conclude that the Federal Trade Commission (FTC) could help align business practices with consumer perceptions. The FTC’s deep expertise in consumer disclosures, along with a series of investigations into companies that interfered with consumers’ use of media through digital rights management makes the agency a good fit for deceptions that result when we “buy now.”
Institutional Analysis and Physicians’ Rights after Vacco V. Quill
Authors: Palmer Larry I.
Published: July 2018

7 Cornell Journal of Law & Public Policy 415 (1998)
The House Always Wins: Systemic Disadvantage for Criminal Defendants and the Case against the Prosecutorial Veto
Authors: Hall Evan G.
Published: July 2018

102 Cornell L. Rev. 1717 (2017)In the Preface to the 44th Annual Review of Criminal Procedure, Judge Alex Kozinski levels a number of criticisms against the modern American criminal justice system. Central among those criticisms is his assessment of the fundamental imbalance in criminal trials between the prosecution and the defense: “[W]e like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.” Judge Kozinski’s concern—that the system is rigged to some degree in favor of the prosecution—is a relatively common one among defense attorneys and criminal justice reform advocates. Less common, however, are the specific measures Judge Kozinski proposes to ameliorate the criminal justice system’s flaws. One of his proposals that would work to rectify this imbalance centers on the right of the accused to receive a trial from his peers:Give criminal defendants the choice of a jury or bench trial . . . The prosecution has many institutional advantages, not the least being that they get to go first and thus have their theory of the case laid out before the defendant can present any evidence at all. I would think it fair to let the defendant get the choice of judge or jury.In many states, when a criminal defendant wants to waive the right to a jury trial in favor of a bench trial, the defendant must first obtain the consent of the prosecutor. Scholars and practitioners frequently call the refusal of that consent the “prosecutorial veto,” and what Judge Kozinski proposes is its complete elimination from criminal procedure. The primary goal of this Note is to analyze the merits of that proposal. The Note will provide the relevant legal background to the issue, including the Supreme Court’s jurisprudence on the prosecutorial veto in Part I, and the various federal and state statutory approaches to the issue in Part II. Then, in Part III, the Note will consider the merits of Judge Kozinski’s proposal to eliminate the prosecutorial veto by exploring the policy arguments for it. Finally, in Part IV, the Note will make the case against the prosecutorial veto. The Note will conclude by agreeing with Judge Kozinski’s proposal and arguing for its adoption.
Legal Approaches for Open Access to Research Data
Authors: Doldirina Catherine , Eisenstadt Anita , Onsrud Harlan , Uhlir Paul
Published: July 2018

Collective experience across the globe shows that the open use and sharing of scientific and technical data accelerate scientific discoveries and stimulate economic growth. The overall goal of this article is to review and assess legal mechanisms to facilitate the open sharing and use of data in support of achieving public-interest societal objectives. The article concludes with a set of action recommendations for policy makers, publishers, librarians, data center managers, university administrators, public interest organizations, and individual researchers, as well as their legal counsel.
Implementing a Public Health Perspective in FDA Drug Regulation
Authors: Zettler Patricia , Riley Margaret Foster , Kesselheim Aaron S.
Published: July 2018

There is, without question, a public health crisis in the United States arising from both illicit and prescription opioid misuse, addiction, and overdose. The Food and Drug Administration (FDA) is one regulator with an important role to play in minimizing the harms associated with prescription opioids, while also ensuring that prescription opioids are available for the evidence-based management of pain. One question, however, is to what extent the agency can consider in its decisions to approve opioids and keep existing ones on the market the provider and patient behaviors contributing to the epidemic. This is, in part, because FDA’s approval of drugs is often understood as narrowly focused on weighing the benefits and risks of the products as defined in the preapproval clinical trials that are used to set the drug’s official FDA-approved indication. Such a limited focus would exclude important information about the real-world use and public-health impact of prescription opioids and other drugs with externalities. This Article argues that, to better regulate drugs like opioids that have such externalities, one step FDA should take is to use a “public health” perspective in its approval (and withdrawal) decisions. The Article describes how the federal Food, Drug, and Cosmetic Act authorizes FDA to take this broad approach in its drug approval and withdrawal decisions and offers some principles for implementing this approach systematically.Citation: Patricia J. Zettler, Margaret Foster Riley, and Aaron S. Kesselheim, Implementing a Public Health Perspective in FDA Drug Regulation, 73 Food & Drug L.J. 221 (2018).Posted with the permission of the Food and Drug Law Institute.
Privacy as Product Safety
Authors: Grimmelmann James
Published: July 2018

19 Widener Law Journal 793 (2010)Online social media confound many of our familiar expectations about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could usefully be applied to the structurally similar problem of privacy in social software. After setting the scene with a discussion of how people use Facebook and why standard assumptions about privacy and privacy law fail, this essay examines the parallel between physically safe products and privacy-safe social software. It illustrates the value of the product-safety approach by considering another ripped-from-the-headlines example: Google Buzz.
R. v. Awer and the Dangers of Science in Sheep’s Clothing
Authors: Chin Jason
Published: July 2018

Canadian courts regularly affirm their commitment to gatekeeping scientific evidence, saying it is fundamentally important to determine the admissibility of such evidence before it can impact the ultimate decision. The significance of gatekeeping is underscored by the fact that unreliable science has been at the heart of many high-profile wrongful convictions. In fact, a leading study demonstrated that invalid forensic science was present in approximately 60% of wrongful convictions. But while pronouncements of commitment to gatekeeping are laudable, they are empty if not rigorously followed. In fact, a recent trend has seen a more permissive approach take hold, with scientific evidence characterized as “specialized knowledge”, and evaluated primarily on the basis of the expert’s qualifications. Exacerbating this issue, trial judges sitting alone are regularly more permissive in their gatekeeping role than those sitting with a jury. Both trends, which insulate scientific evidence from scrutiny, came to a head in a recent 2-1 decision of the Alberta Court of Appeal. In this case, R v Awer, the Crown’s expert presented a theory about DNA transfer supported by his own previous informal observations and journal articles penned by a police crime lab (and of questionable reliability). Despite the Crown’s characterization of the expert’s testimony as science, the majority of the Court of Appeal characterized it as specialized knowledge, and refrained from any inquiry into how the expert performed his tests, his sample size, or any controls for bias. Similarly, despite characterizing the journal articles as science, the majority did not scrutinize them at all. As a result, two highly prejudicial forms of evidence were allowed to impact a critical legal decision with no analysis as to their reliability.
Don't Forget Non-code Statutes
Authors: Keele Benjamin John
Published: July 2018

Keele, B. J. (2013). Don’t forget non-code statutes. Virginia Lawyer, 62(1), 49, 57.
Fetishizing Copies
Authors: Litman Jessica
Published: July 2018

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the idea that every appearance of any part of a work anywhere should be deemed a “copy” of it, and that every single copy needs a license or excuse. In this chapter, I focus on two well-known instances of copy-fetish: the contention that any appearance of a work or part of a work in the random access memory of a computer or other digital device is an actionable copy, and the assertion that the copyright statute’s distribution to the public right encompasses possession of any copy that is publicly accessible. Both arguments have their inception in difficult-to-justify court of appeals decisions, which were then embraced by copyright owners as tools to expand secondary liability. Neither one makes much sense on its own terms. The political economy of copyright, however, makes it overwhelmingly likely that any comprehensive copyright revision bill will incorporate both of them. That makes it imperative to recognize readers’, listeners’ and viewers’ copyright liberties expressly, and to protect them with explicit statutory provisions.
MDL v. Trump
Authors: Bradt Andrew D. , Clopton Zachary D.
Published: July 2018

Litigation against the Trump administration has proliferated rapidly since the inauguration. As cases challenging executive actions like the travel ban and allegedly unconstitutional receipt of emoluments multiply in federal courts around the country, an important procedural question has so far not been considered: should these similar cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases — and we suspect that, sooner rather than later, one of these parties might give MDL a try.In this Essay, we argue that although the MDL statute would allow for consolidation of these public-law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases’ undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process, and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass-tort litigation — and, indeed, it risks harming the national tort system more generally.
Copyright and Embargoes on Digital Collections
Authors: Keele Benjamin John
Published: July 2018

Working paper--comments welcome.This paper argues that libraries collecting digital works should consider imposing temporary discovery and access embargoes on some copyrighted works. These embargoes can strengthen the library's fair use case for creating and preserving digital copies.
Rethinking the Ken Through the Lens of Psychological Science
Authors: Chin Jason , Crozier William Edward
Published: July 2018

Canadian courts are loathe to admit expert evidence from psychological scientists when that evidence does not concern a disposition, typically a psychological disorder. As a result, psychological evidence concerning the unconscious processes and situational forces that underlie mistaken eyewitness identifications and wrongful confessions are regularly excluded from courtrooms. Courts justify these exclusions on the basis that the evidence is not beyond the ken of the trier of fact – the psychologist would simply be describing an experience shared by judge and jury. This reasoning stands on a fundamental misunderstanding of psychology. In fact, psychological science finds that the situation drives behaviour in a manner that regularly evades the trier of fact’s ken. This is because these situational forces rely on unconscious cognitive processes, and humans rarely have introspective access to these processes. As a result, humans cling to several deep misconceptions about memory processes and confessions. In this Article, we first discuss the mechanics of the mischief: why humans fail to account for unconscious processes and the situation, and instead focus on disposition. Then we provide evidence for this type of reasoning in decisions to exclude expert evidence about eyewitness identifications and false confessions. We conclude with recommendations to manage prejudicial evidence in a manner that is based on a more nuanced understanding of human psychology.
Judicial Enforcement of Socioeconomic Rights: A Comparison between Transformative Projects in India and South Africa
Authors: Menell Natasha G.
Published: July 2018

Cornell International Law Journal: Vol. 49 : No. 3 , Article 5.Constitutionally enshrined socioeconomic rights are a topic of enduring controversy. Societies overcoming exploitive regimes in the twentieth century have experienced popular demand for rapid economic and social transformation. Even before the adoption of the Universal Declaration of Human Rights, emerging constitutional democracies debated the transformative potential of enforceable socioeconomic rights.Opponents of constitutionalizing socioeconomic rights have not disputed the need for transformation in such societies, but argue that such rights are non-justiciable because they present pressing questions of social policy best left to the democratically accountable actors in government. A related objection proposes that judicial enforcement of socioeconomic rights is dangerous to a system of separation of powers.
The New Illegitimacy: Children of Cohabiting Couples and Stepchildren
Authors: Bowman Cynthia Grant
Published: July 2018

20 Journal of Gender, Social Policy & the Law 437 (2012)The legal treatment of children of unmarried parents and stepchildren must be changed if they are not to be disadvantaged in comparison with children of married parents. With respect to the areas of law discussed in this Article, legal reform is necessary in a variety of situations in which legitimate children receive what is the functional equivalent of posthumous support-that is, inheritance in the absence of a will, social security survivors benefits, workers' compensation, and tort suits for wrongful death and loss of consortium. Cohabitants and stepchildren of both married and unmarried parents should be added to the persons listed as the natural objects of a decedent's bounty under state intestacy law after they have lived together for two years or the adult cohabitants have had a child in common. The Social Security Act should be amended so as to treat illegitimate children genuinely as equal to legitimate children, by not requiring proof of actual dependency at the time of the death of the insured if they had a right to support at that time. Stepchildren of both married and unmarried parents should also be eligible for social security benefits if they were minors and dependent upon the insured stepparent when he or she died. Under workers' compensation laws, wrongful death statutes, and in common law loss of consortium cases, awards should be available to cohabitants' children and stepchildren on the same terms as to children of married parents; in most cases, this will involve dependency at the time of death. In the absence of legal change in all these areas, children will continue to be punished for their parents' failure to marry.
Equality and Nondiscrimination Through the Eyes of an International Religious Organization: The Organization of Islamic Cooperation’s (OIC) Response to Women’s Rights
Authors: Blitt Robert C.
Published: July 2018

This article is the first of a two part series that draws on women‘s rights and sexual orientation and gender identity (SOGI) to explore how the Organization of Islamic Cooperation (OIC) represents, interprets and seeks to impact the right to equality and protection against discrimination as enshrined under international human rights law. The study is a novel one inasmuch as the OIC is neither a state nor a religious group per se. Rather, the OIC stands out as the only contemporary intergovernmental organization unifying its member states around the commonality of a single religion. In this capacity, the organization maintains no direct obligations or rights under key instruments such as the Universal Declaration on Human Rights (UDHR) or the International Covenant on Civil and Political Rights (ICCPR).Nevertheless, as part of its mandate representing 57 predominantly Muslim states, the OIC has increasingly asserted a role for itself on the international stage as "the collective voice of the Muslim world." This new assertiveness is particularly evident in the context of debates surrounding the content of human rights norms in international fora such as the United Nations, where the OIC has sought to develop common policy positions and encourage its members to vote as a bloc on issues of concern. Against this backdrop, the article concludes that supporters of universal human rights norms need to better understand how the OIC‘s mission to "protect and defend the true image of Islam" may impact international debates over the substance of equality and nondiscrimination norms, and develop appropriate responses to these efforts as a means to ensure that universality is not undermined.This article begins with a brief introduction to the OIC, and proceeds to explore its relationship with the principles of equality and nondiscrimination by examining its founding document and other relevant primary sources. With this understanding in place, the paper turns to examine the OIC‘s contemporary handling of these principles as manifested in debates surrounding women‘s rights as well as the relevance and impact of "Islamic family values" on the scope of those rights. This article‘s exploration of "family values" also serves as a pivot point to begin framing rights issues related to Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) individuals and related SOGI issues. Throughout this examination, the role of the OIC‘s newly established Independent Permanent Human Rights Commission (IPHRC) is considered as a means of appraising whether a shift in the OIC‘s position may be forthcoming.
Neoliberal National Security: Wielding Counterterrorism Powers to Protect Economic Growth, in Liberalization and Globalization: Changing Legal Paradigm
Authors: Setty Sudha
Published: July 2018

Forthcoming: Sudha Setty, Neoliberal National Security: Wielding Counterterrorism Powers to Protect Economic Growth, in LIBERALIZATION AND GLOBALIZATION: CHANGING LEGAL PARADIGM (National Law School of India University Book Series 2017), edited by Sairam Bhat.The Indian government’s crackdown on anti-nationalist protest and its secret implementation of broad data collection and surveillance regime illustrates the dangers of empowering the government’s use of its vast powers to prevent, curtail or punish those who pose or are perceived to pose a threat to the economic security of India. This Book Chapter describes three strands to view with each other to understand the concern surrounding the use of counterterrorism powers to preserve neo-liberal goals in the face of criticism and protest. These strands are the political imperative of the Indian government to protect and grow the economy while dealing with the fear that terrorism may derail India’s economic development; second, the inclusion of economic insecurity in the legal definition of a national security threat; and third, the vast powers granted to and used by intelligence and law enforcement agencies dealing with perceived national security threats with little judicial or other external constraint. The characterization of anti-nationalist protest as a form of sedition that led to the harsh treatment of the Jawaharlal Nehru University protesters and the largely secret but extremely broad Central Monitoring System data gathering and surveillance system are exemplars of concerns that arise with the granting of broad national security and counterterrorism powers and without strong oversight or constraint. The Author proposes that Parliament reconsider its current authorization of the use of counterterrorism powers to deal with potential economic threats, and the courts be willing to look closely at cases that curtail the rights to expression, due process, and privacy in the name of economic security. If India is to ensure adherence to the rule of law while fulfilling the national priority of growing its economy, the Parliament courts and the public must insist on better transparency and accountability.
The Death Penalty: Should the Judge or the Jury Decide Who Dies?
Authors: Hans Valerie P. , Blume John H. , Hritz Amelia C. , Johnson Sheri Lynn , Royer Caisa E. , Wells Martin T. , Library Cornell
Published: July 2018

12 Journal of Empirical Legal Studies, 70-99 (2015)This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977– 2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, stranger homicides, and the victim’s gender also increased the likelihood of a death sentence, as did the county of the homicide. We reflect on the implications of these results for debates about the constitutionality of judge sentencing in capital cases.
Witchcraft and Statecraft: Liberal Democracy in Africa
Authors: Tebbe Nelson
Published: July 2018

96 Georgetown Law Journal 183 (2007)This Article addresses the prospects of liberal democracy in non-Western societies. It focuses on South Africa, one of the newest and most admired liberal democracies, and in particular on its efforts to recognize indigenous African traditions surrounding witchcraft and related occult practices. In 2004, Parliament passed a law that purports to regulate certain occult practitioners called traditional healers. Today, lawmakers are under pressure to go further and criminalize the practice of witchcraft itself. This Article presses two arguments. First, it contends that the 2004 statute is compatible with liberal principles of equal citizenship and the rule of law. Second, it warns against outlawing witchcraft as such. Subjecting suspected sorcerers to criminal punishment based on governmental determinations of guilt that many will perceive to be unprincipled would work too much damage to individual autonomy and national unity, among other values. These arguments are designed to contribute to a wider discussion about the capacity of liberalism to respond to the global resurgence of religious traditionalism, especially in countries where traditionalists may comprise a large majority of the citizenry.
Sally Yates, Ronald Dworkin, and the Best View of the Law
Authors: Wendel W. Bradley
Published: July 2018

In her letter to President Trump, Acting Attorney General Sally Yates stated that her refusal to enforce the executive order banning travel from seven Muslim-majority countries was "informed by [her] best view of what the law is after consideration of all the facts." Yates's claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community's political morality. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality.There are two reasons for denying that lawyers should seek the best view of the law. First, Dworkin's jurisprudential vision has always sat uncomfortably with the fact of moral pluralism. He has very little to say about the possibility that a faithful reconstruction of the community's moral principles will establish that there are multiple moral narratives potentially bearing on the same question of legal interpretation. The second reason is the need to preserve the legitimacy of law as a normative system that resists reduction to either political preferences or raw power. The capacity of the legal profession to resist the naked exercise of power depends on the perception that there is a difference between what is lawful and what is in someone's interests, whether those of the President or of some imagined cabal of liberal opponents. By referring to the obligation to "seek justice and stand for what is right," Yates left herself open to the criticism that she was acting as a partisan who objected to Trump's executive order on policy ground, not an impartial gatekeeper advising the administration on the legality of its proposal.
Choice Architectures
Authors: Hockett Robert C.
Published: July 2018

This brief symposium contribution takes stock of the 'behavioralist turn' in classical decision theory, finding in its systematic endogenizing of preferences a close cousin to efforts to situate the 'unsituated self' of classical liberal justice theory. It finds that this turn has not only enriched theory, but has also assisted policy by sidestepping once deep divides between self-styled 'liberals' and 'welfarists' - much as advertised by distinguished contributors to the field including Sunstein and Thaler. The piece concludes by suggesting further, more 'macro'-oriented adjustments to choice architectures that likewise can 'nudge' welfare-enhancing choices without outright coercing them. In particular, it describes government 'market actor' roles that I have proposed elsewhere to solve a great variety of what I call the recursive collective action problems that plague financial markets and macro-economies. Because these problems are endemic to decentralized markets, harm literally everyone, and cannot be solved by anyone acting individually, modulating individual incentives through collective market action need not count as 'coercive' at all.
Law Libraries as Publishers: Using Print-on-Demand
Authors: Keele Benjamin John
Published: July 2018

Keele, Benjamin J. (2015). Law Libraries as Publishers: Using Print-on-Demand. ALL-SIS Newsletter, 34(3),8-9.