This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, we emphasize the (...) communicative aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice. (shrink)

Empirical legal research into courts and adjudication starts with a formal model of trial courts and the nature of adjudication. This article discusses empirical legal research on trial courts and adjudication and divides them into three dimensions of analysis, macro, meso, and micro, to frame the discussion of empirical legal studies into courts and adjudication, the various methods researchers use, and significant findings. Empirical research may be theoretical, pragmatic or policy oriented. A large body of research approaches the (...) study of courts and adjudication from an organizational perspective, looking at court structures and how they affect daily operation. Examining trial court judges' approaches to their work, including adjudication, using survey research has also been undertaken in non-English speaking jurisdictions. Each type of research design has specific strengths and advantages, as well as limitations, but each contributes to advancing knowledge about the nature, role, and reality of trial courts and adjudication. (shrink)

The novelties of the contemporary international order require a rethinking of the normative foundations of criminal justice. Although one can understand the relevance of basic principles such as th...

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to (...) analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right. (shrink)

The identification of courts as “open” and “public” institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This Article explores how—during the last few centuries—public procedures came to be one of the attributes defining certain decision-making institutions as “courts.” The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed “publicity,” a practice he (...) commended by detailing the architecture for various entities—from the Panopticon for prisoners to the Parliament for legislators and courts for judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline. Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement. For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices. The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each other—before an observant and often times critical public—as equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudication’s democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences. (shrink)

This article explores the “fair trial” as a good practice for the construction of public proof. If proof signifies closure on matter at hand, and publicness is taken to signify both “access to” and “participation in” the construction of proof by the publics concerned, the authors contend that the “fair trial” is a good example of building public proof and that its backbone constraints can be of great interest to the defenders and advocates of participative Technology Assessment, especially (...) citizens' juries. (shrink)

The aim of this article is to present some of the results of empirical research on the communication process at a trial conducted in Polish courts. These results will concern the participation of non-professional participants of a trial and the ways in which they deal with the communication process in the courtroom. The article presents the results of the analysis of the research material conducted in accordance with the detailed research questions and analytical categories. The analysis has especially (...) shown that: (1) the non-professional participants used some legal terminology, but the statements without legal terminology were also communicatively effective; (2) the level of activity of non-professional participants related to participation at the trial varied depending on what the activity concerned; the activity in asking questions to the presiding judges regarding legal issues and the course of the court proceedings appeared to be significant; (3) the non-professional participants’ had a real and significant problem with asking questions during the examination (the proper realization of this element of the trial); (4) the statements of the non-professional participants of a trial were very protective; they used many different “linguistic means of protection” (e.g., acts of supposition or acts of doubt) which are connected with the obligation to tell the truth, the prohibition of concealing the truth and giving false testimony during examination; (5) the non-professional participants of a trial reach for adequate argumentative acts, which are suitable for influencing the perception of specific events or persons, and they strengthen their statements by using appropriate linguistic means of persuasion. (shrink)

This paper contributes to two topics that have received insufficient attention in science and technology studies: the social dimensions of causal reasoning and how the knowledge-making site of expert testimony affects the production and reception of social scientific knowledge. It deals with how social scientists make causal claims when testifying as expert witnesses in trials where causal claims are relevant, using as a case study the so-called L’Aquila trial, in which experts were summoned by the parties to testify on (...) the causes of risk-related behavior by the inhabitants of an Italian city in early 2009. In particular, I analyze the process of selection of causal loci, the attribution and removal of agency, the increase and decrease of causal factors in the explanation of an event, and the delimitation of the explanandum. As a general insight derived from the case, it is argued that the position of experts in a trial––which side summons them––may be a more important factor than their branch of expertise to account for certain types of these practices. (shrink)

The paper seeks to analyse how two domestic courts decided criminal trials under circumstances of emotional mobilisation and political stress. Decisions from Argentina after 1983 and Romania after Ceausescu’s dictatorship illustrate how citizens’ affects influence courts’ choices within penal cases. Both cases show how the judiciary had to enter a dialogue with resentful and indignant claims for redress. However, while the Argentinean court filtered emotions through the strainer of equal respect and thus pushed the cause of democratic justice ahead, (...) the Romanian case serves as a cautionary tale about how not to correct injustices through criminal law. These two cases provide us with important lessons about the obstacles, but also the opportunities associated with public emotions during periods of radical political transformation. (shrink)

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show (...) that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best. (shrink)

According to their standardized treatment within the Indian legal tradition, ordeals are supposed to occur, under certain circumstances, when one person formally accused another of some crime in a court of law. While not disputing the general accuracy of this standardized treatment of ordeals, this article argues for the widespread practice in pre-modern India of another—hitherto unrecognized—type of ordeal that fails to fit this basic scenario, for such ordeals would occur when someone was widely believed to have committed some (...) wrongdoing, but was not forced to stand trial in a formal judicial court. In order to prove his innocence and, thereby, mitigate the damage caused by his suspected guilt, such an individual could—and sometimes did—arrange for himself to undergo an ordeal at his own expense and independently of any formal plaint. After establishing the practice of ordeals of this sort in pre-modern India, this article then examines some possible explanations for their development. (shrink)

The European Clinical Trials Directive was issued in 2001 and aimed to simplify and harmonise the regulatory framework of clinical trials throughout Europe, thus stimulating European research. However, significant complexity and inconsistency remains due to disparate interpretation by EU member states. Critical care research has been particularly impacted due to variable and often restrictive consenting procedures for incapacitated subjects, with some countries requiring a court-appointed representative, while others recognise consent from family members and occasionally professional representatives. Furthermore, the absence (...) of a waiver of consent threatened to put an end to emergency research in Europe and was met with varied responses. Approval procedures by ethics committees are equally inconsistent, particularly those relating to provision of a single opinion for multi-centre trials. Although evidence is somewhat mixed, this complexity as well as a general increase in administrative and financial burden following the Directive has been shown to cause a reduction in clinical trial activity in Europe, particularly academic trials. We aim to clarify some of these inconsistent procedures, particularly those relating to informed consent of incapacitated subjects, as well as discussing some general weaknesses and possible improvements of the Directive ahead of its planned revision in 2011. (shrink)

The future of trial lies in customization. Throughout the Anglo-American world, the public model of criminal and civil procedure is gradually giving way to a private contractual paradigm, one which allows the litigating parties to tailor the evidentiary and procedural landscape of trial to fit their specific needs and preferences. Procedural and evidence rules are shifting from mandatory safeguards of public values to default rules and bargaining chips within the hands of the litigating parties. There is growing recognition (...) in the ability of litigating parties in civil trials and of defendants in criminal trials to waive evidentiary and procedural rights, such as the right of cross-examination, the right to trial by jury, or the right to appeal. Courts are exhibiting a willingness to enforce choice of procedure and choice of evidence agreements, such as agreements to restrict the presentation of otherwise admissible evidence or to allow for presentation of otherwise inadmissible evidence. (shrink)

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding (...) the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent and shows how they form a part of the phenomenon of the political management of dissent: the demonization and otherization of defendants and their supporters; the tendency to employ the charge of conspiracy and thus target a group rather than a single individual; the bending of the laws of procedure; the utilization of previously-untested substantive charges; the appeal made by each side to an external principle or vision--typically, the government resorts to the law of necessity whereas the defense resorts to natural law or a vision of "true justice" ; focus on the judge as manipulator of laws; and the appellate court assuming the role of the ultimate sage, performing its task with balance and detachment. The appellate court may use softer rhetoric in an effort to minimize the damage to the appearance of legality. When it does so, the rule of law is reaffirmed as a concept that benefits all sides; there is thus unity in the commitment to the rule of law, not to patriotism or to identification with the government. In addition, an effort is made to reaffirm the maxim that the government is a government of law, not of men. (shrink)

The process of territorial planning is complicated, because there are different and even opposite interest of persons related with particular territory. Administrative legal regulation of territorial planning in Lithuania underlies emergence of a legal conflict, namely the administrative litigation. Investigation of the administrative dispute applying the pre-litigation procedure allows the parties thereof to save both money and time. This article presents the problematic aspects of the pre-trial investigation of the administrative disputes arising in the area of territorial planning. The (...) article is composed of an introduction, three parts and conclusions. In the first part the characteristics of the disputes arising in the area of territorial planning, the preconditions of origin, and the demand for the pre-trial investigation thereof are analyzed. Legal regulation of pre-trial investigation out-of-court of the disputes arising in the area of territorial planning is revealed in the second part. In the third part key provisions of the reform of the pre-trial investigation out-of-court of the disputes arising in the area of territorial planning are discussed. (shrink)

Hegel called world history a court of judgement, a world court, and in his Lectures on the Philosophy of World History he took Africans before that court and found them to be barbaric, cannibalistic, preoccupied with fetishes, without history, and without any consciousness of freedom. -/- In this paper, after rehearsing some of the more familiar objections to Hegel's verdict against Africa, I turn the tables and put Hegel on trial. More specifically, given that much of (...) Hegel's account is directed against the Ashanti, I will use what is known about them and especially what Hegel either did know or should have known, to take him before the court of the Ashanti, where the use of evidence can be interrogated. The results of this examination render all the more pressing the need to give an account of how Hegel applied his system of justice to Africa, which I attempt to do in the second part of the paper. In the third part, I return to the interpretation of Hegel's statement about Africa as unhistorical and, having restored it to its context in Hegel's system, show its. (shrink)

Media trials, also known as trial by media or media-frenzy, refer to the phenomenon of media outlets conducting a trial of an accused individual or organization in the court of public opinion befor...

In lieu of an abstract, here is a brief excerpt of the content:Cynthia B. Cohen THE TRIALS OF SOCRATES AND JOSEPH K. No two trials could have been more unlike than those of Socrates and Joseph K. As portrayed in Plato's Apology,' Socrates was the conscience of Athens, a thoughtful and courageous man whose life was devoted to the pursuit of wisdom. He challenged others to examine themselves and to transform themselves into lovers of truth and goodness. This gadfly of (...) Athens was put on trial by those whom he had stung and was dispatched with a final slap. He died the bravest, wisest, and most upright man of his time. By contrast, Joseph K., the protagonist of Kafka's novel, The Trial, was an ordinary bank clerk locked into a life of unreflective routine. His arrest one day by the agents of a Court he could not comprehend failed to change his rote approach. Like a fly stuck fast to flypaper, he was glued to the details of his immediate experience, and would not rise above these to find meaning in his dreary life, or even in his shameful death. Socrates was an original and constructive thinker who died rather than deny the purpose that he found in human life; Joseph K. was a leaden bureaucrat whose life was one long moment of guilty hesitation before a broader vision of things. Or is it that Socrates was an arrogant, peculiar, conniving failure who was engaged in an insidious attempt to undermine the moral and political values of Athens? And is it that Joseph K. was a successful young businessman who had established himself as a conscientious, decent, and eminently reasonable man struggling bravely for justice against an alien and capricious authority? Or perhaps these two trials should be seen as very similar. Each man was tried on charges of which he claimed to be innocent; each wanted to restore order and meaning to a disintegrating world; each led a life that became the cause of his death; and each was condemned for claiming that the unexamined life was not worth living. Or is it that Joseph K. was condemned for maintaining that it was the examined life that was not worth living...? 212 Cynthia B. Cohen213 Difficulties in the interpretation of works of literature are to be expected when their subjects are complex and subtle individuals set in an atmosphere in which basic questions of human significance are raised. Both the Apology and The Trial are such works. Socrates initially seems a model of clarity to the interpreter. He responds to his accusers in a form of direct discourse that can be taken at face value. He presents his arguments openly and cogently. There can be no doubt that his general position is coherent, consistent, and reasonable. Yet the interpreter 's initial satisfaction fades as Socrates' irony creates confusion about what Socrates professes to know. His lines of reasoning seem to intersect in paradox; his answers to questions about the meaning and purpose of human life curve around to miss each other. The interpreter emerges confused and perplexed. These transformations of perspective and significance are repeated in The Trial. Joseph K., too, is described in a straightforward manner that is clear and quite detailed. His reactions and arguments appear sensible and well-reasoned. Yet on closer examination, his simple statements turn out to have hidden meanings; his responses often contradict one another; his logical arguments appear pointless. His answers to questions about the meaning and purpose of human life are immediately challenged by a horde of competitors. To the interpreter, The Trial metamorphizes into a model of intentional obscurity. The problem of interpretation is compounded in the case of Socrates by the question of the accuracy of our information about him. The "Socratic problem" is well known. Each of the four major sources about his life and thought, Xenophon, Aristophanes, Plato, and Aristotle, presents a somewhat different person. There has been strong support for the view that the portrayal of Socrates in the earlier dialogues of Plato is essentially sound, even though this earlier Socrates seems at variance with the later one. The resolution of this problem is irrelevant to this endeavor. Our purpose is to consider the life and... (shrink)

The article addresses the pervasive global challenge of delayed justice, emphasizing its role as a catalyst for widespread judicial reforms. The study defines international and national court approaches to reasonable trial durations by employing systematic and comparative legal methods. It delves into essential technology courts and parties use to ensure timely proceedings, categorizing associated risks and problems. The authors advocate for the multi-door courthouse system, illustrating its efficacy in reducing delays. Furthermore, the article classifies technologies facilitating reasonable (...) class='Hi'>trial durations, acknowledging and offering solutions for the challenges they present. This research contributes to the dynamic landscape of judicial reform, offering a holistic perspective on the multifaceted aspects of timely justice. (shrink)

This study investigates the interrelation of outer appearance and spatial configuration of modern Chinese court buildings with the party-state’s strategy of building regime legitimacy. The spatial element of this relation is explored in four different court buildings in Kunming, Chongqing, Shanghai and Xi’an. It is argued that court buildings contribute to the empowerment of individuals who appear as parties in trials. Courthouses also facilitate the courts’ function of exercising social control and the application of an instrumentalist approach (...) to the principle of public trials. Both the grounding of court buildings in the past and their compliance with international models of a modern independent judiciary are aspects of consolidating regime legitimacy. (shrink)

This review discusses the thesis advanced by Sarah Summers in her recent book. In particular it examines the three radical claims that structure her argument. First, that the commonly used analytical distinction between adversarial and inquisitorial traditions in criminal procedure should be abandoned. Secondly, that since the Continental reforms of the 19th century, criminal procedure can best be understood in terms of a single European procedural tradition. Thirdly, that the European Court of Human Rights has misconstrued the logic of (...) that single European procedural tradition by failing to understand that it involves the rejection of a ‘determinative’ pre-trial phase. Each of Summers’ three arguments is subjected to critical analysis and ultimately rejected as innovative and stimulating but flawed. (shrink)

The Supreme Court against the Criminal Jury critiques the Supreme Court’s decisions to allow reduced jury sizes and less than unanimous jury verdicts to determine guilt. John A. Murley and Sean D. Sutton challenges the Court’s decisions by examining its incomplete understanding of the purpose of trial by jury and evaluating its use of inaccurate and unreliable studies as support for its decisions.

The relationship between the ethical standards for the governance of clinical trials and market forces can be complex and problematic. This article uses India as a case study to explore this nexus. From the mid-2000s, India became a popular destination for foreign-sponsored clinical trials. The Indian government had sought to both attract clinical trials and ensure these would be run in line with internationally accepted ethical norms. Reports of controversial medical research, however, triggered debate about the robustness and suitability of (...) India's regulatory system. In response to civil society pressure and interventions by the Supreme Court, the Indian government proposed additional measures aimed at strengthening protections for clinical trial participants. Whilst the reforms can be seen as a victory for human rights activists, they have also been criticised as being overly burdensome for sponsors. Indeed, their announcement prompted an exodus of clinical trials from India. Fearful of losing business to ‘rival’ countries, the Indian government is revisiting some of its proposals. The Indian example suggests that research ethics frameworks and national policies for economic development are increasingly intertwined. Host countries are in theory free to improve the lot of research participants, but doing so may make them appear less attractive to foreign sponsors, who can simply shift their activities to more industry-friendly jurisdictions. Although these economic pressures are unlikely to lead to a regulatory ‘race to the bottom’, they may limit host countries' ability to enact socially desirable reforms. (shrink)

Socrates On Trial tells of Socrates's return to a modern city that is plagued by prejudice, privilege and populism. On resuming his questioning in the agora he is arrested, interrogated by his prosecutors, questioned by his Judge, and confessed to by his inquisitor. On a Festival Day, he explores a new model for the just city --a city based not on mastery but on learning --before offering a new apology to the court that will, once again, decide his (...) fate. This new/old Socrates offers the city a renewed vision of justice by reconceptualizing the meaning and significance of thinking and education. From the force of Socratic questioning, he unfolds a different logic of truth, freedom, and justice. His conversations exert a gravitational force that draws key cultural elements of the city -- property, wealth, money, family, essence, gendered and racialized identities, production, distribution and consumption -- into its educational orbit. At stake here is the vulnerability of modern democracy to authoritarian leaders and their sponsors. Influenced by sophisticated propaganda people's frustration with democracy is channeled into visceral anger on the one hand, and into disillusioned scepticism and cynicism on the other. Belief in truth and education collapses in exhaustion and fatigue, caught in the headlights of seemingly irresolvable and petrifying rational paradoxes that block all paths to social justice. Socrates On Trial, describing the return of Socrates to the modern city, heralds a new education for such a city. (shrink)

The international community has yet to develop a broadly accepted philosophical rationale for the extraterritorial adjudication of war crimes. Instead, several justifications exist in a state of tension that produces uncertainties in the applicable legal doctrines and policies. This article explains how the competition between the “atrocities” approach on the one hand, and the statist and humanitarian rationales on the other, causes instability in the regime. It advocates for increased attention to the philosophical grounding of extraterritorial war crimes trials, particularly (...) in light of the increasing frequency of such trials before international courts as well as national courts exercising universal jurisdiction. (shrink)

On June 16, 2003, the Supreme Court ruled that forced administration of antipsychotic drugs to a defendant facing serious criminal charges is appropriate in order to render that defendant competent to stand trial, but only in limited circumstances. The treatment must be medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and necessary to significantly further important government interests, after taking account of less-intrusive alternatives.Charles Sell, a former dentist, had a (...) long history of mental illness. He had been hospitalized twice, in 1982 and 1984, after expressing paranoid ideas to law enforcement officials. In May 1997, Sell was charged with fifty-six counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering. He was released on bail after a magistrate determined that he was currently competent to stand trial. (shrink)

On June 16, 2003, the Supreme Court ruled that forced administration of antipsychotic drugs to a defendant facing serious criminal charges is appropriate in order to render that defendant competent to stand trial, but only in limited circumstances. The treatment must be medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and necessary to significantly further important government interests, after taking account of less-intrusive alternatives.Charles Sell, a former dentist, had a (...) long history of mental illness. He had been hospitalized twice, in 1982 and 1984, after expressing paranoid ideas to law enforcement officials. In May 1997, Sell was charged with fifty-six counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering. He was released on bail after a magistrate determined that he was currently competent to stand trial. (shrink)

This essay examines the political trials through which, according to Machiavelli's Discourses, republics should punish magistrates and prominent citizens who threaten or violate popular liberty. Unlike modern constitutions, which assign indictments and appeals to small numbers of government officials, Machiavelli's neo-Roman model encourages individual citizens to accuse corrupt or usurping elites and promotes the entire citizenry as political jury and court of appeal. Machiavellian political justice requires, on the one hand, equitable, legal procedures that serve all citizens by punishing (...) guilty parties and discouraging retaliatory reprisals, including foreign intervention. On the other hand, frankly acknowledging the power disparities that exist in every republic, Machiavelli outlines how political trials enable pro-plebeian magistrates and populist reformers to thwart patrician-generated smear campaigns and oligarchic conspiracies. (shrink)

Among anti-war activists there has been much discontent with respect to the conduct of the defense. Many had expected a far-reaching indictment of the government for its criminal behavior in Vietnam. Those who had been hoping for a "confrontation with illegal and immoral authority" are naturally disappointed, since no such confrontation took place. In fact, the defendants themselves did make strong statements about the illegality and barbarism of the American war in Vietnam. With the exception of Michael Ferber, a resister (...) himself, the defendants took their stand, without qualifications, on the "Call to Resist Illegitimate Authority", which announced the intention of the signers to support resistance to the Vietnam war, and which insisted that actions taken in support of resistance "are as legal as is the war resistance of the young men themselves." However, this aspect of the trial was barely reported in the press. Within the framework defined by the government, adopted by the Court, and accepted by the press, the issue of the legality of the war was not pertinent, nor was the question of the right, or even the duty, of resistance to American aggression. (shrink)

This essay examines the political trials through which, according to Machiavelli's Discourses, republics should punish magistrates and prominent citizens who threaten or violate popular liberty. Unlike modern constitutions, which assign indictments and appeals to small numbers of government officials, Machiavelli's neo-Roman model encourages individual citizens to accuse corrupt or usurping elites and promotes the entire citizenry as political jury and court of appeal. Machiavellian political justice requires, on the one hand, equitable, legal procedures that serve all citizens by punishing (...) guilty parties and discouraging retaliatory reprisals, including foreign intervention. On the other hand, frankly acknowledging the power disparities that exist in every republic, Machiavelli outlines how political trials enable pro-plebeian magistrates and populist reformers to thwart patrician-generated smear campaigns and oligarchic conspiracies. (shrink)

Based on the examination of 49 Chinese criminal trials transcribed from the audio-visual recordings on the ‘China Court Trial Online’ website ( https://tingshen.court.gov.cn/ ), the institutional participants–prosecutors, defence lawyers, and judges–are found to frequently repeat defendants’ responses (‘other-repetition’), after a question–answer adjacency pair. Other-repetition has been described as a resource for showing participation and familiarity (Tannen 2007), initiating repair and registering receipt (Schegloff 1997), and displaying understanding and emotional stance (Svennevig 2004). However, other-repetition in trial discourse (...) has not been thoroughly researched. Therefore, this article aims to further examine this salient institutional linguistic feature in order to explore stance construction as a third turn. It is common to associate certain prosodic features of a repetition with the stance of the speaker. However, prosody may not be a reliable cue for stance interpretation in Chinese courtrooms, as institutional participants might conceal their stance during a repetition. Though they are more explicit in displaying their stance with turn-initial repeats, the distinction between the prosody of repeats for different functions is not categorical. It is found that defendants are sensitive to the lexicogrammar and multimodal cues for stance interpretation. (shrink)

This study examines the intertextual influence of the courtroom spoken genre with the written genre used by judge’s summing up and lawyers’ closing arguments in Ethiopian Criminal court trial. In doing so, it employs the relational and comparison-expository structuring models. The relational struc- turing is used to give emphasis to the manner in which evidence items bear on particular issues and shows how evidence items are related to each other and to major facts in issues of judge’s summing-up (...) while the comparison-expository structure is to intertextually link the spoken genres of the two opposing lawyers’ views with the Ethiopian criminal law written statutes. The findings of the study suggest that mixed rhetorical strategies, the judge’s relational summing up and the lawyers’ comparison-expository closing arguments, are more effective than a strict narrative strategy in addressing the final judgment of the argumenta- tion. (shrink)

Background: Clinical trials involving children previously considered unethical are now considered a necessity because of the inherent physiological differences between children and adults. An integral part of research ethics is the informed consent, which for children is obtained by proxy from a consenting parent or guardian. The informed consent process is governed by international ethical codes that are interpreted in accordance with local laws and procedures raising the importance of contextualizing their implementation.DiscussionThe Zimbabwean parental informed consent document for children participating (...) in clinical research is modeled along western laws of ethics and requires that the parent or legally authorized representative provide consent on behalf of a minor. This article highlights the experiences and lessons learnt by Zimbabwean researchers in interpreting and obtaining informed consent for orphaned children participating in a collaborative HIV clinical trial involving the Medical Research Council, United Kingdom and four centers, three of which are in Uganda. Researchers were faced with a situation where caregivers of orphaned children were not permitted to provide informed consent for trial participation if the Zimbabwean courts had not legally appointed them. The situation contrasted with general clinical practice where legal papers where not required for providing consent for surgical procedures for example.SummaryExperiences gained from this clinical trial revealed that while there may be internationally established guidelines governing the process of obtaining informed consent for children participating in research, there may be need to be cognizant of the culture within which the research is taking place. This may call for the development of an ethico-legal framework that governs research-involving children in Zimbabwe that would facilitate their participation in clinical research, while ensuring that they are protected from exploitation. The Medical Research Council of Zimbabwe has since started developing that framework in a process that is expected to involve critical stakeholders namely the community including children, ethicists, the legal fraternity and researchers. (shrink)

Analyses of Kafka’s The Trial often read the text as an existentialist work, arguing that the novel metaphorizes the absurdity of a modern world where God no longer exists. However, I agree with Slavoj Žižek, who posits that such a modernist reading ignores what is most vital in Kafka’s text—that the absence of God is “always already filled by an inert, obscene, revolting presence”. I argue that this “revolting presence” for Josef K is the presence of the Court; (...) The Trial describes the subject within a society organized by the symbolic order, the big Other, the symbolic network of rules regulating our lives and structuring our reality. For this reason, I read The Trial as pointing the way toward critical postmodernism. But a strictly postmodernist reading of The Trial cannot work without the Lacanian intervention of the split subject. Readings of The Trial based solely on the framework of Foucault’s power/knowledge theory, without a consideration of Lacanian subject formation, are incomplete. Foucault posits that individuals only become subjects via discourse, becoming subjects either through interpellation or via relationship to power. This begs the question, how does an individual become the desiring subject? How does a defendant such as Josef K. come to accept the power of the Court? I answer these questions by applying a necessary psychoanalytic intervention to Foucauldian readings of The Trial, interpreting the text as the narration of Josef K.’s unconscious experience as a split subject in relation to the big Other. (shrink)

This paper is a deconstruction of a ghostwritten report of a randomized, double-blind, placebo-controlled efficacy and safety trial of citalopram in depressed children and adolescents conducted in the United States. Court documents revealed that protocol-specified outcome measures showed no statistically significant difference between citalopram and placebo. However, the published article concluded that citalopram was safe and significantly more efficacious than placebo for children and adolescents, with possible adverse effects on patient safety.

Sortition, i.e. random appointment for public duty, has been employed by societies throughout the years as a firewall designated to prevent illegitimate interference between parties in a legal case and agents of the legal system. In judicial systems of modern western countries, random procedures are mainly employed to select the jury, the court and/or the judge in charge of judging a legal case. Therefore, these random procedures play an important role in the course of a case, and should comply (...) with some principles, such as transparency and complete auditability. Nevertheless, these principles are neglected by random procedures in some judicial systems, which are performed in secrecy and are not auditable by the involved parties. The assignment of cases in the Brazilian Supreme Court is an example of such a procedure, for it is performed using procedures unknown to the parties involved in the judicial cases. This article presents a review of how sortition has been historically employed by societies and discusses how Mathematical Statistics may be applied to random procedures of the judicial system, as it has been applied for almost a century on clinical trials, for example. A statistical model for assessing randomness in case assignment is proposed and applied to the Brazilian Supreme Court. As final remarks, guidelines for the development of good randomization procedures are outlined. (shrink)

The charge of treason and the judgment of insanity have left questions that invariably intrude on an assessment of Pound’s life and work. Critics frequently adopt a strategy of separating the life and the work, but tactical review is often necessary. There is a lightness in Pound’s writing that speaks of a being detached from the concerns of the world. Yet with his economic theory of social credit, his political and racial views, as well as his concern for other writers, (...) he is of the world—in the world and part of it. He was decidedly not tied to geography. He had no region or period, and he was as comfortable in Confucian China as in Dante’s Florence or twentieth-century Rome. He could work anywhere. He wrote The Pisan Cantos while jailed in Italy. The Cantos were published while he was in a mental wart at St. Elizabeths, yet a court found that he could not understand the charges against him. Can such an impairment and such achievement occur at the same time? If you say no, then what of the treason? Did he feign madness to escape punishment? Could Pound have been convicted of treason?In this paper, I intend to examine what has been loosely referred to as “the trial of Ezra Pound” and to show that Pound’s case should have been brought to trial within one or two years after his commitment to St. Elizabeths because he had a reasonable chance of being found not guilty of treason; even if found guilty, the circumstances in mitigation of a long prison term would have been so evident that he would have likely spent considerably less time in prison than he spent locked up at the mental institution. I will do this, in part, by reviewing the similarities and differences between Pound’s case and three other treason cases that came to trial within the first years after World War II. The English case, Rex v. Joyce, was tried shortly after the close of the war and well before Pound’s competency hearing on 13 February 1945.3 The law applied in Joyce would have led Pound’s lawyer to seek some postponement of trial until the American courts decided whether to follow the English lead. The other two cases involve the Americans, Douglas Chandler and Robert Best, employees of German radio, who were indicted with Pound in 1943. 3. William Joyce was an American who came to be known as “Lord Haw Haw.” He was hanged at Wandsworth, England, 3 Jan. 1946. He was the best known of the “radio traitors.” He began his programs, “This is Jairmany calling,” and would then prophesy the destruction of English towns and cities. The name “Lord Haw Haw” was created by the English journalist, Jonah Barrington, to ridicule Joyce and to make him appear idiotic. Conrad L. Rushing is a Superior Court Judge in California and an occasional lecturer in law at the University of California, Berkeley. He teaches a course in law and literature at the California Judges College and is a founder of the Sane Jose Poetry Center. (shrink)

This article offers a political reading of Franz Kafka's posthumous work The Trial. In this novel, the main protagonist is subject to an arrest and trial conducted by the ambiguous authority of a shadowy court and its officials. This article explores Joseph K.'s experience of being subject to the Law, and relates this to our own understanding and experience of political subjectivity in modern times. K.'s doomed search for order through a ‘permanent resolution’ of his case is (...) related to the modern desire for order: Specifically, the desire for both philosophical and political frameworks that provide narratives or certainty. Here modernity is understood to be characterized by an anxiety brought about by a crisis in authorship and authority. The article then considers K.'s desire for justice and the Law, and his entanglement with the power of the court, as analogous to the modern experience of the triad of justice–law–power, which is subsumed under the banner of ‘sovereignty’. In particular, the article explores K.'s inability to locate, read, or fix the Law; a problem that is also reflected in the aporia of sovereignty as justice–law–power. K.'s experience alerts us to the contradictions in the triad justice–law–power; contradictions that occur as although each member of the triad is dependent upon the other two, each member of the triad also seeks to exclude or deny this dependency. Thus, read politically, K.'s struggle in The Trial can be seen as a reflection of the modern struggle with sovereignty as the triad justice–law–power, and the impasse that K. reaches is also the impasse that modernity has reached. (shrink)

This article offers a political reading of Franz Kafka's posthumous work The Trial. In this novel, the main protagonist (Joseph K.) is subject to an arrest and trial conducted by the ambiguous authority of a shadowy court and its officials. This article explores Joseph K.'s experience of being subject to the Law, and relates this to our own understanding and experience of political subjectivity in modern times. K.'s doomed search for order through a ‘permanent resolution’ of his (...) case is related to the modern desire for order: Specifically, the desire for both philosophical and political frameworks that provide narratives or certainty. Here modernity is understood to be characterized by an anxiety brought about by a crisis in authorship and authority. The article then considers K.'s desire for justice and the Law, and his entanglement with the power of the court, as analogous to the modern experience of the triad of justice–law–power, which is subsumed under the banner of ‘sovereignty’. In particular, the article explores K.'s inability to locate, read, or fix the Law; a problem that is also reflected in the aporia of sovereignty as justice–law–power. K.'s experience alerts us to the contradictions in the triad justice–law–power; contradictions that occur as although each member of the triad is dependent upon the other two, each member of the triad also seeks to exclude or deny this dependency. Thus, read politically, K.'s struggle in The Trial can be seen as a reflection of the modern struggle with sovereignty as the triad justice–law–power, and the impasse that K. reaches is also the impasse that modernity has reached. (shrink)

The story of The Trial is puzzling. Joseph K. is arrested by three officials from a mysterious court. That is, Joseph K. is informed of his arrest, but he remains free to go wherever he wants. The...

Work requirements are the centerpiece of HHS's Trump Administration strategy to undo the ACA expansion for low income working age adults. This article examines the June 29, 2018 trial court opinion in Stewart v. Azar which held that HHS's approval of Kentucky's Section 1115 work demonstration was “arbitrary and capricious.” The purpose of Medicaid is to provide health coverage and HHS may not ignore the loss of coverage that will result from a work requirement.