Showing papers in "Law and contemporary problems in 1996"
TL;DR: In this article, the authors focus on illicit firearms markets and propose a solution to address these illicit markets, while at the same time the capacity of police departments to design and implement new operational strategies (through "community" and "problem-solving" policing) is increasing.
Abstract: Since the mid-1980s, there has been a dramatic increase in youth gun violence.1 In most areas, juveniles and many other youth are legally prohibited from purchasing firearms, especially handguns. As a result, many firearms utilized in youth crimes are obtained through active and pervasive illicit gun markets. There is currently very little being done to address these illicit markets,2 while at the same time the capacity of police departments to design and implement creative new operational strategies (through "community" and "problem-solving" policing) is increasing. Approaches focusing on illicit firearms markets thus seem a logical and potentially productive strategy. Finally, while enforcement and prevention efforts have so far paid relatively small dividends in reducing youth gun violence, attacking illicit gun markets is an idea which at least has not yet failed.3
349 citations
TL;DR: For example, the authors states that international crimes that rise to the level of jus cogens constitute obligatio erga omnes which are inderogable, i.e., crimes that arise from the higher status of such crimes include the duty to prosecute or extradite, the nonapplicability of statutes of limitations for such crimes, any immunities up to and including Heads of State, and the defense of "obedience to superior orders".
Abstract: International crimes that rise to the level of jus cogens constitute obligatio erga omnes which are inderogable. Legal obligations which arise from the higher status of such crimes include the duty to prosecute or extradite, the nonapplicability of statutes of limitations for such crimes, the non-applicability of any immunities up to and including Heads of State, the non-applicability of the defense of “obedience to superior orders” (save as mitigation of sentence), the universal application of these obligations whether in time of peace or war, their non-derogation under “states of emergency,” and universal jurisdiction over perpetrators of such crimes.
214 citations
TL;DR: In this paper, the authors examine the time trends in homicide rates in the United States, and find that the fears are not totally inappropriate, even in the recent years when homicide rates have been falling.
Abstract: In the United States, opinion polls over the last several years have consistently placed violence near the top of the public's list of concerns. This seems to happen regardless of whether homicide rates are climbing or falling. In this paper, we examine the time trends in homicide rates in the United States, and find that the fears are not totally inappropriate, even in the recent years when homicide rates have been falling. We find that, while there has been a significant decline in homicides committed by older offenders, homicides committed by younger offenders grew dramatically beginning in 1985. An important factor in that growth has been a significant increase in the availability of guns to young people. By examining time trends in age-specific arrest rates for homicide (gun homicide compared to non-gun homicide) and similar trends in drug-related arrest rates (juveniles compared to adults), the role of gun availability, especially as it has risen through the recruitment of young people into drug markets, is identified as a probable cause of these homicide trends. Further examination of mortality rates-due to gun homicides compared to non- gun homicides as well as gun suicides compared to non-gun suicides-for various age and race groups also implicates gun availability as a key contributing factor to the growth in youth homicide.
152 citations
TL;DR: In recent years, the use and deadly consequences of gun violence among adolescents has reached epidemic proportions as discussed by the authors, and the increasing rates of firearm deaths among teenagers is especially alarming, especially among African-American teenagers and young adults.
Abstract: In recent years, the use and deadly consequences of gun violence among adolescents has reached epidemic proportions. At a time when national homicide rates are declining, the increasing rates of firearm deaths among teenagers is especially alarming. Deaths of adolescents due to firearm injuries are disproportionately concentrated among nonwhites, and especially among African-American teenagers and young adults. Only in times of civil war have there been higher within-group homicide rates in the United States. There appears to be a process of self-annihilation among male African-American teens in inner cities that is unprecedented in American history. Unfortunately, few studies have examined these sharp increases in gun fatalities among young males.
133 citations
TL;DR: The assumption that individuals or groups who have been the victims of hideous atrocities will simply forget about them or expunge their feelings without some form of accounting, some semblance of justice, is to leave in place the seeds of future conflict.
Abstract: The field of human psychology has taught the lay world a principle regarding personal emotion that is now taken as a given: To ensure good mental health and stability, it is crucial that individuals emerging from massive abuse and trauma develop appropriate mechanisms to confront and process that past experience, facilitating closure rather than repression. Figuring out which approach or mechanism will be most helpful to the healing process will vary from person to person, and will be determined in part by the background and makeup of the particular individual as well as by the nature of the trauma endured. But, for both victims and perpetrators of past abuse, dealing with the reality and consequences of its occurrence is essential. In responding to such trauma, groups and nations tend to function similarly to individuals. Societies shattered by the perpetration of atrocities need to adapt or design mechanisms to confront their demons, to reckon with these past abuses. Otherwise, for nations, as for individuals, the past will haunt and infect the present and future in unpredictable ways. The assumption that individuals or groups who have been the victims of hideous atrocities will simply forget about them or expunge their feelings without some form of accounting, some semblance of justice, is to leave in place the seeds of future conflict.
107 citations
TL;DR: Among the materials recorded in the main hall of the Holocaust memorial at Yad Vashem in Israel are the words of the great eighteenth century founder of modern Hasidism, Bal Shem Tov: "Forgetting lengthens the period of exile! In remembrance lies the secret of deliverance.".
Abstract: Among the materials recorded in the main hall of the Holocaust memorial at Yad Vashem in Israel are the words of the great eighteenth century founder of modern Hasidism, Bal Shem Tov: "Forgetting lengthens the period of exile! In remembrance lies the secret of deliverance."' As the founders of Yad Vashem knew, remembrance is vital if bloody crimes like the Holocaust are to be addressed and their repetition prevented. This insight is critical as both successor regimes and the international community turn to consideration of the question of impunity. Heinous violations of human rights should never go unremarked. Their extent should be catalogued, their details exposed, and their causes explored. If carnage is ignored or forgotten, peace and justice are seriously jeopardized. It is only when misconduct is exposed and addressed that the law can begin to build a fence around it. The extension of the rule of law is premised upon the disclosure of misdeeds and societal response to that disclosure.2
99 citations
TL;DR: In the past several years, Argentina, Cambodia, Chile, El Salvador, Guatemala, Haiti, Uruguay, and South Africa have each granted amnesty to members of the former regime that commanded death squads that tortured and killed thousands of civilians within their respective countries as discussed by the authors.
Abstract: In the past several years, Argentina, Cambodia, Chile, El Salvador, Guatemala, Haiti, Uruguay, and South Africa have each granted amnesty to members of the former regime that commanded death squads that tortured and killed thousands of civilians within their respective countries. With respect to four of these countries (Cambodia, El Salvador, Haiti, and South Africa), the United Nations pushed for, helped negotiate, and/or endorsed the granting of amnesty as a means of restoring peace and democratic government. At the preparatory conference for the establishment of a permanent international criminal court in August 1997, the U.S. Delegation circulated a paper suggesting that the proposed permanent court should take into account such amnesties in the interest of international peace and national reconciliation when deciding whether to prosecute. Numerous scholars have made the case against granting amnesty to those who commit violations of international humanitarian law (the laws of war), or who commit other serious human rights crimes (genocide, torture, and crimes
96 citations
TL;DR: Mortality from almost every type of injury has decreased during the past decade, but death from firearms has risen in the United States since 1985, with the largest increase occurring among adolescents.
Abstract: Mortality from almost every type of injury has decreased during the past decade.1 The major exception is death from firearms. Gun deaths have risen in the United States since 1985, with the largest increase occurring among adolescents.2 Gun purchases by minors are illegal under federal law.3 Handgun possession by individuals under eighteen years of age is also unlawful.4 "Although the question of restricting firearm ownership and usage is contentious ... , few argue that adolescents should have unsupervised access to firearms or other lethal weapons. Fewer still argue that adolescents should be permitted to carry loaded firearms or other lethal weapons at school or on city streets.'"5
76 citations
TL;DR: Since World War II, the number of conflicts of an international character declined as did their harmful impact, in comparison to other types of conflicts whose harmful consequences increased as mentioned in this paper, while the occurrence of conflict of a non-international character and purely internal conflicts has dramatically increased in number, intensity, and victimization.
Abstract: Since World War II, the number of conflicts of an international character declined as did their harmful impact, in comparison to other types of conflicts whose harmful consequences increased Indeed, the occurrence of conflicts of a non-international character and purely internal conflicts has dramatically increased in number, intensity, and victimization In addition, tyrannical regimes produced systematic and large scale-victimization far exceeding quantitatively and qualitatively the harmful results generated by all other types of conflicts2
70 citations
TL;DR: A brief overview of the current status of such laws and regulations in the former Communist Bloc can be found in this paper, with a focus on lustration laws, which remain the most commonly used device for screening and "prosecuting" former Communist leaders, candidates for office and selected public employees.
Abstract: Following the 1989 “democratic revolutions,” there was an immediate, though not surprising, backlash against former communist regimes. Throughout Eastern Europe, it was widely perceived that former Communists could not be trusted to carry out democratic reforms. In this context, an important debate surfaced that focused on questions of culpability for crimes committed by former Communist regimes. Options ranged from providing amnesty or pardon, prosecuting individuals, or outlawing the Communist Party. Indeed, many of the newly constituted governments reacted swiftly by outlawing the Party, prosecuting anyone deemed to have had connections to the Party or the Secret Police, or restricting those individuals from certain government and non-government posts. Lustration laws, though controversial, remain the most commonly used device for screening and “prosecuting” former Communist leaders, candidates for office, and selected public employees. These laws, which generally rely on information contained in Secret Police files, are used to determine whether suspected individuals collaborated with the former state security service. The international community has generally opposed the lustration process. This article presents a brief overview of the current status of such laws and regulations in the former Communist Bloc.
66 citations
TL;DR: The Rhetoric of reaction has been applied to the issue of gun control in the United States as mentioned in this paper, arguing that the proposed reform will have results exactly the opposite of those intended by the reform's proponents.
Abstract: In his 1991 book The Rhetoric of Reaction, Albert O. Hirschman identified three arguments that are commonly mustered against proposed "progressive" reforms.1 One argument contends that the proposed reform will have results exactly the opposite of those intended by the reform's proponents; the second is that the reform will have no effect at all; and the third is that the reform will come at the cost of degrading fundamental rights or values-freedom itself, for instance.2 The labels for these three arguments form the subtitle of Hirschman's book: "Perversity, Futility, Jeopardy."3 Gun control has long been a contentious issue in the United States. A wide spectrum of laws regulating the manufacture, import, sale, possession, and use of guns, with the ultimate purpose of reducing gun violence, can be deemed "gun control laws." Such laws have attracted a good deal of opposition. Given his argument, Hirschman should be pleased to learn that the "rhetoric of reaction" has indeed been brought to bear on the issue of gun control: Gun-control laws don't work. What is worse, they act perversely. While legitimate users of firearms encounter intense regulation, scrutiny, and bureaucratic control, illicit markets easily adapt to whatever difficulties a free society throws in their way. Also, efforts to curtail the supply of firearms inflict collateral damage on freedom and privacy interests that have long been considered central to American public life. Thanks to the seemingly never-ending war on drugs and long experience attempting to suppress prostitution and pornography, we know a great deal about how illicit markets function and how costly to the public attempts to control them can be.4
TL;DR: In this article, the authors take stock and consider general recommendations for the future of truth commissions, and propose a set of minimal standards for such a body to be considered a serious, good faith effort and respectful of those who will be affected by its work.
Abstract: After nearly fifteen years of significant international attention to official commissions investigating past rights atrocities—and four years since such bodies have been known generically as “truth commissions” and have been studied comparatively—it is appropriate to take stock and consider general recommendations for the future. All truth commissions are created on an ad hoc basis, usually set up in the midst of a political transition as a means to respond to the legacy of a horrific past. These commissions are intentionally short-lived, and neither mirror the courts nor a human rights ombudsman in their function and aims. By their very nature, truth commissions are quite pliable, and can be created in almost any shape or size, and to fit any number of agendas, depending on the circumstances and who holds the most influence over their design and operation. While there are good reasons for each to be shaped and empowered differently, there must be minimal standards for such a body to be considered a serious, good faith effort and respectful of those who will be affected by its work. International guidelines, or minimal standards, could well be helpful to those crafting a truth commission. The crafters virtually always begin with no experience in ad hoc, official truth-seeking on great numbers of rights abuses, and may be genuinely unaware of the pitfalls that lie ahead. Guidelines could also, of course, facilitate appropriate international and national oversight by
TL;DR: In the 1990s, youth crime and the young offender became the featured problem in public and legislative debates as discussed by the authors, and the most poignant reminder of the change in public focus was the passage of a federal law that established the creation of "gun-free schools" as a policy ambition of the national government.
Abstract: Concern about the violent young offender is a cyclical phenomenon in the United States, usually lagging a few years behind general public alarm about rising crime rates The sharp increase in violent crime in the United States between 1965 and 1974 occurred without any particular focus on adolescent offenders After 1975 and until the beginning of the 1980s, however, youth crime and the young offender became the featured problem in public and legislative debates1 The moral panic about drugs and drug control that was launched in the mid-1980s, like the reaction to the crime problem in the late 1960s, did not center on young offenders for a number of years Since about 1993, however, the young offender and particularly the violent young drug offender has been a special target of public anxiety and governmental activity One aspect of the attention young offenders are getting in the 1990s is brand new, rather than merely a cyclical recurrence For the first time in modern history, middle-adolescent offenders are being identified as a high-risk and highusage group for firearms The federal Office of Juvenile Justice and Delinquency Prevention now issues reports on reducing youth gun violence2 Drive-by shootings, fear of guns, the demand for metal detectors in schools, proposals for special legislation, these are the youth violence soundbites of the 1990s The most poignant reminder of the change in public focus was the passage of a federal law that established the creation of "gun-free schools" as a policy ambition of the national government3 The sad part of this stated ambition is that gun-free schools were regarded as an accomplished fact for all of previously recorded American history This essay is a brief examination of three dimensions of the juvenile firearms use epidemic of the period since 1985 Part II of the essay will examine the factual foundation for concerns about rising youth gun use It will compare
TL;DR: In the former Yugoslavia during 1991-94, a civil war left 250,000 persons dead, 2 million displaced, and an entire population scarred for life as discussed by the authors. But the most grotesque and enduring features of the Bosnian tragedy are the thousands of egregious acts perpetrated as war crimes by all sides against one another, but mainly by
Abstract: The war criminal sickens the conscience of civilized society.' War crimes are repulsive, heinous acts. War carried out under the most civilized laws of armed conflict is horrible, but its horrors are greatly exacerbated by those brutal acts of plunder, torture, rape, and murder that humanitarian laws of war forbid. Such vile acts affect not only those against whom they are perpetrated; they appall and offend all of humanity. Since war criminals often operate with the knowledge and assistance of local political and legal authorities, domestic law does little to deter these actors. Prevention and punishment of war crimes thus become legal concerns and moral obligations, not just for those governments in whose territory crimes occurred, but for all states. Indeed, the effective prosecution and punishment of war criminals remain essential to the prevention of such crimes, the protection of human rights and fundamental freedoms, and the promotion of international peace and security.2 The horrors perpetrated in the former Yugoslavia during 1991-94 furnish a tragic case in point. This civil war left 250,000 persons dead, 2 million displaced, and an entire population scarred for life. But the most grotesque and enduring features of the Bosnian tragedy are the thousands of egregious acts perpetrated as war crimes by all sides against one another, but mainly by
TL;DR: The very fact that an international meeting of experts convenes to consider the issue of impunity for international crimes and serious violations of human rights is itself a measure of changing times as mentioned in this paper.
Abstract: The very fact that an international meeting of experts convenes to consider the issue of impunity for international crimes and serious violations of human rights is itself a measure of changing times. Although some legal obligations to investigate, prosecute, and punish perpetrators or compensate victims already existed,' until the 1990s the issue was not on the agenda of either the human rights community or states. The last ten years has seen a sea change, prompted both by the end of the cold war and by recognition that the seeds of future violations are sown, in part, in the failure to come to terms with past cycles of violations. Accountability is now routinely demanded and assessed by international human rights groups, and anti-impunity measures are no longer seen as simply a question of national choice. The United States now announces that accountability is a mainstay of its foreign policy, especially in situations of transition. The U.S. State Department Country Reports now refer to impunity as a major problem in a number of countries. The Ad-hoc Tribunals on the Former Yugoslavia and Rwanda2 have, of course, helped advance the law by signaling, at least in theory, that certain international crimes must be prosecuted. And the creation of an International Criminal Court is finally firmly on the agenda, with a Diplomatic Conference scheduled for 1998 and a series of Preparatory Committee meetings this year. On a national level, courts and legislatures have begun grappling with the issues of impunity and amnesty. Recent amnesty laws in South Africa and
TL;DR: The last two decades of the Cold War saw human rights reach a low ebb in Latin America as discussed by the authors, and the continent was overrun by serious violations of human rights, from Argentina's Dirty War and Chile's General Pinochet in the South, to bloodbaths of peasants in El Salvador and indigenous peoples in Guatemala in the North.
Abstract: The last two decades of the Cold War saw human rights reach a low ebb in Latin America. From Argentina’s Dirty War and Chile’s General Pinochet in the South, to bloodbaths of peasants in El Salvador and indigenous peoples in Guatemala in the North, the continent was overrun by serious violations of human rights. Few countries escaped. Even today the region’s two largest nations, Brazil and Mexico, suffer widespread and systematic patterns of police torture (among other abuses), while massive violence stalks Colombia and
Journal Article•
TL;DR: The consent-to-search program as mentioned in this paper was proposed by a district captain who was attending a meeting in late 1993 at which a woman complained about a house where children played with guns while the mother was away.
Abstract: Lt. Joseph Richardson ... recalls attending a meeting in late 1993 at which a woman complained about a house where children played with guns while the mother was away. When police arrived, the children ran into the house. \"There was nothing we could do,\" said Richardson, now [a district captain]. \"There was no legal way to get in, and there wasn't enough information to obtain a search warrant.\" The woman at the meeting then asked a single question that changed everything. \"Why don't you just knock on the door and ask that mother if you can search the house?\" Richardson realized the woman was right. \"I could think of no logical reason why I couldn't ask to search,\" he recalls. Thus was born the consent-to-search program.'
TL;DR: In this article, the authors consider what we can learn from the experience of attempting to suppress illicit drug markets and show that the results are at best mixed, with prices for cocaine, heroin, and marijuana still very high compared to what they would be in legal markets, at least twenty times the legal price in the case of cocaine.
Abstract: As the nation contemplates a major effort to reduce the availability of handguns to urban youth, inter alia through aggressive enforcement against illicit transactions, it seems useful to consider what we can learn from the experience of attempting to suppress illicit drug markets. Since 1985, drug enforcement has probably represented the nation's largest commitment to control an illegal market through criminal sanctions ever undertaken.1 Commitments to state prison for drug offenses now constitute about thirty percent of the annual total, or roughly 130,000.2 The results are at best mixed. Prices for cocaine, heroin, and marijuana remain very high compared to what they would be in legal markets, at least twenty times the legal price in the case of cocaine.3 Perhaps as a consequence, attractive illegal drugs like cocaine are used by many fewer persons than alcohol; how much that should be attributed to illegality per se as opposed to the stringency of enforcement is indeterminable at this time.4 On the other hand, these prices have fallen substantially in recent years,5 and availability, at least for youths,
TL;DR: A subpoena for confidential data is likely to be intimidating to a researcher regardless of his level of confidence in his objective evaluation of the data as mentioned in this paper. Yet, subpoenas are an omnipresent threat in all kinds of cases, from a products liability case against a cigarette manufacturer to a criminal prosecution of a prostitute.
Abstract: When researchers rely on others to provide foundational data for research, they may often need to assure these sources that their identities and identifiable data will be kept confidential. Confidential firsthand reports are essential tools for enabling researchers to explore a plethora of important questions in such areas as health, economics, and public policy. Given their availability to the public, as well as to legislators and other policy makers, such reports may advance measures to ameliorate a variety of serious problems. Unfortunately, even the most objective research may be put at risk if it becomes bogged down in the muddy fields of litigation. A subpoena for confidential data is likely to be intimidating to a researcher regardless of his level of confidence in his objective evaluation of the data. The average researcher is illprepared for the sudden interference of a subpoena or the blocking tactics of an adversary flanked by expert witnesses. Yet, subpoenas are an omnipresent threat in all kinds of cases, from a products liability case against a cigarette manufacturer to a criminal prosecution of a prostitute. But what makes a subpoena excessive? There is no simple definition, nor bright-line rule; rather, the determination involves weighing various factors: the public interest served by the research project versus the public or private interest that prompted the subpoena; the importance of guaranteeing confidentiality in gaining access to essential information and scholarly research versus an alleged right to know the identity of the confidential sources or to review the research data.
TL;DR: The history of trademark law was seen as playing out the tension between protecting entitlements on the one hand and encouraging competition by allowing free access to protected trademarks on the other. as discussed by the authors traces the recent history of the trademark law and considers how courts, agencies, and legislatures have struggled to resolve the conflict between protection and access, property rights and free competition, and morality and policy.
Abstract: In 1979, the Trademark Reporter published an article that I had written in law school that surveyed the intellectual history of intellectual property law, and particularly trademark law, from its earliest inception to the late 1970s.1 The article focused on the perceived, age-old conflict between encouraging competition and protecting \"monopolistic\" property rights in the form of patents, copyrights, and trademarks. The history of trademark law was seen as playing out the tension between protecting entitlements on the one hand and encouraging competition by allowing free access to protected trademarks on the other. In the 1970s, this conflict was most apparent in efforts by the Federal Trade Commission (\"FTC\") to use antitrust laws to directly attack the use of trademarks as anticompetitive. At another level, this conflict was seen as a reflection of the tension between formalism and legal realism. This article traces the recent history of trademark law and considers how courts, agencies, and legislatures have struggled to resolve the conflict between protection and access, \"property rights\" and \"free competition,\" and morality and policy. The recent history of trademark law has shown a trend toward greater protection of trademarks and rejection of most claims that trademarks have anticompetitive effects. In retrospect, the aggressive enforcement actions taken by the FTC in the 1970s represented the high-water mark of the attack on trademarks that utilized the argument that trademarks are inherently anticompetitive. Reflecting a shift in antitrust law generally, trademarks have been relatively immune from antitrust attack since the early 1980s. Under current thinking, the goals of antitrust law and trademark protection are perfectly compatible. This shift in antitrust law parallels judicial developments in substantive trademark law where the pendulum has swung back in favor of protection over access. In the recent era, the expansive judicial protection of trademarks has been undergirded by a general acceptance of the economic theories of the Chicago School that trademark use is in fact pro-competitive.2
TL;DR: In an increasing variety of lawsuits, judges are confronting, and innocently "resolving," epistemological questions that have perplexed academic analysts of science for many decades, such as what is the nature of "truth" and "validity" in science? What makes one disputed scientific claim "better" than competing interpretations and points of view? When is the science invoked by parties to a lawsuit sufficiently reliable to be heard in court, let alone to justify the imposition of serious financial liability or restraints on personal liberty? And when conflicts occur between alternative approaches to interpreting scientific information,
Abstract: Like Moliere's Monsieur Jourdain on learning that he had been speaking prose for forty years, most U.S. judges would probably be astonished to find that their everyday assessments of scientific evidence recapitulate some of the most profound contemporary debates in the philosophy and sociology of scientific knowledge. In an increasing variety of lawsuits, judges are confronting, and innocently "resolving," epistemological questions that have perplexed academic analysts of science for many decades.1 What is the nature of "truth" and "validity" in science? What makes one disputed scientific claim "better" than competing interpretations and points of view? When is the science invoked by parties to a lawsuit sufficiently reliable to be heard in court, let alone to justify the imposition of serious financial liability or restraints on personal liberty? And when conflicts occur between alternative approaches to interpreting scientific information, who should decide which approach is better? Questions like these have arisen in remarkably diverse factual contexts, and they tax judicial understandings of how scientific research is done. For example, the landmark environmental controversies of the 1970s and 1980s invited courts to compare legal and scientific standards of certainty and to give administrative agencies a reasoned basis for acting as they did when there was no consensus in science to guide them.2 Toxic tort claims pitted medical and scientific experts against each other, requiring courts to assess their relative credibility as well as their competence to testify on matters relevant to determinations of liability.3 Requests to exclude various types of novel scientific evidence forced courts to act in effect as gatekeepers for scientific methodologies and
TL;DR: In this paper, the authors present a volume of Law and Contemporary Problems with a focus on the role of the "reluctant expert" and the importance of this information for researchers who will find themselves in this role in the future.
Abstract: Those of us who conduct independent research are expected to present findings at professional meetings and publish results in peer-reviewed journals. Over the last twenty-five years, this basic norm of the scientific community has provided opportunities for parties in litigation to use these findings to expand or limit potential damage claims.' When such situations emerge, researchers can expect to have their research activities, data, and their professional integrity challenged. These challenges occur even if such claims are unwarranted by the paradigmatic standards of the researchers' discipline.2 The targeted researcher often becomes an "unwilling informant" when he or she receives a subpoena that requests all records corresponding to the relevant research. Parties in litigation purposefully use broad subpoenas in an attempt to gather any and all information that can be repeatedly challenged by a "litigation-centered review" rather than a "discipline-centered review."3 Upon reviewing the articles in this volume of Law and Contemporary Problems, I was impressed by the range of issues covered, the comprehensiveness and detail provided, and the importance of this information for researchers who will find themselves in the role of the "reluctant expert" in the future. Although I had previously served as an expert witness for the court and for plaintiffs in several toxic tort cases, when, as an independent researcher, I re-
TL;DR: A review of the fundamental goals that institutions designed to protect public order seek to fulfill can be found in this paper, where a set of fundamental sanctioning goals for the protection, restoration, and improvement of public order are discussed.
Abstract: What can the enlightened sectors of the international community do to prevent and halt the proliferation of genocides and massive human rights violations around the planet? We evade the obvious, albeit costliest answer-to arrest them before, or at least while they are happening, by any means necessary: to stop them by stopping them. Instead, we focus on actions after the fact. One method, which is particularly favored is to create courts to try the perpetrators of atrocities. Indeed, in the course and the wake of the atrocities committed in Cambodia, southern Sudan, the former Yugoslavia, Haiti, Rwanda, Burundi, Zaire-the list grows relentlessly-many in the international community call for the creation of ad hoc or standing international criminal courts to deal with the gravest of international legal delicts. Courts are indispensable institutions in many domestic criminal and civil systems, and any polity, no matter how structured, must construct mechanisms of varying degrees of institutionalization to apply the law to concrete cases. But lest we fall victim to a judicial romanticism in which we imagine that merely by creating entities we call "courts" we have prevented or solved major problems, we should review the fundamental goals that institutions designed to protect our public order seek to fulfill. National legal systems allocate different responsibilities to criminal and civil law, but common to all legal systems is a set of fundamental sanctioning goals for the protection, restoration, and improvement of public order. While these fundamental goals have been expressed in many forms, they may be synthesized into seven specific goals:' (1) Preventing imminent discrete public order violations; (2) Suspending current public order violations; (3) Deterring, in general, potential future public order violations; (4) Restoring public order after it has been violated; (5) Correcting the behavior that generates public order violations;
TL;DR: In this paper, the authors present a collection of published legal opinions concerning the enforceability of such subpoenas and then describe researchers' concerns, focusing on three major issues: the economic and temporal demands of subpoenas; the impact of breached promises or expectations of confidentiality on individual privacy and research interests; and the consequences of releasing incomplete and unpublished research findings.
Abstract: Researchers have become increasingly aware of opportunities to act as expert witnesses in various kinds of criminal and civil litigation. Many, however, are unaware of the possibility that they and their data may be subpoenaed in connection with lawsuits in which they have not been retained as experts or named as parties. Such situations raise significant concerns about confidentiality of data (particularly from identifiable research participants) and premature disclosure of ongoing research. They also can impose substantial economic and temporal burdens on researchers and disrupt their research programs. While Federal Rule of Civil Procedure 45 provides protections for researchers whose data are subpoenaed for use in litigation,' the experience of researchers suggests that significant personal and professional burdens inherent in compelled production of research data are likely to remain. This article was prepared for a workshop on judicially compelled disclosure of researchers' data and scholars' testimony, sponsored by the Program for Science and Law at Georgetown University. It was intended to lend a real-world flavor to issues discussed in more detail by others at the workshop. The article first reviews a collection of published legal opinions concerning the enforceability of such subpoenas and then describes researchers' concerns, focusing on three major issues: the economic and temporal demands of subpoenas; the impact of breached promises or expectations of confidentiality on individual privacy and research interests; and the consequences of releasing incomplete and unpublished research findings. The article concludes with suggestions about how the burdens of compelled disclosure of research data may be minimized without jeopardizing the legitimate interests of litigants.
TL;DR: The authors examines the reasons for this consistent pattern of compromise and then considers what contribution the development of International Guidelines Against Impunity for International Crimes ("Guidelines") might make in moving toward a regime of consistent and meaningful accountability.
Abstract: We strive to overcome impunity for international crimes and serious violations of human rights. Our reasons may include a vision of justice and perhaps a hope for deterrence.1 Notwithstanding our aspiration to establish a regime of accountability, impunity remains a recurrent pattern. Where an effort at accountability is undertaken at all, it consistently is approached through a second-best alternative to full and complete accountability-some form of partial accountability and, hence, partial impunity. This essay briefly examines the reasons for this consistent pattern of compromise, and then considers what contribution the development of International Guidelines Against Impunity for International Crimes ("Guidelines") might make in moving toward a regime of consistent and meaningful accountability.
Journal Article•
TL;DR: Traynor as mentioned in this paper argued that with "common sense and goodwill in every quarter" there should be few problems due to compelled discovery of scholarly research, but in some cases, neither common sense nor goodwill prevail.
Abstract: On December 11, 1991, the Journal of the American Medical Association (“JAMA”) published three studies that examined the effect of the Camel cigarette “Old Joe” advertising campaign on adolescents and children. I was lead author on the study that showed that “Old Joe” was nearly universally recognized by six-year-old children, a level of awareness that matched the logo for the Disney channel. Because cigarette smoking is the leading preventable cause of death and disease in this country, I recognized that this research might play a prominent role in the subsequent debate about tobacco advertising. As a scientist, I naively assumed that this discourse would be conducted in academic journals based upon rigorous research and leading to an improved understanding of whether and how advertising influences adolescent experimentation with cigarettes. To date, most of the subsequent debate has occurred in court. From the beginning, the tobacco industry attempted to discredit this research and harass the researchers. My experience in confronting the tobacco industry has taught me how easily the courts can become the unwitting accomplices of an industry whose goal is profit, not the identification of scientific truth. In his paper in this issue of Law and Contemporary Problems, Michael Traynor states that with “common sense and goodwill in every quarter” there should be few problems due to compelled discovery of scholarly research. Unfortunately, in some cases, neither common sense nor goodwill prevail. In such cases, the court can become an instrument of abuse.
TL;DR: In this paper, the authors defined conflict as a public institutionalized armed conflict, defined as a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths, and the data in this article is based on the preliminary results of a study of armed conflict from 1945 (post-WWII) to 1996, compiled by the author at the International Human Rights Law Institute at DePaul University, under the direction of Professor M Cherif Bass
Abstract: Copyright ? 1997 by Law and Contemporary Problems * Law Program/Research School of Social Sciences, The Australian National University This article was written while the author was a Research Fellow at the International Human Rights Law Institute, DePaul University 1 Newspaper's Director on Post-Revolution Trials, ROMPRES, Mar 16, 1990, FBIS Daily Report (FBIS-EEU), Mar 22, 1990, at 70, cited in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 137 (N ROHT-Arriaza ed, 1995) 2 Gyorgy Konrad, The Viewpoint of the Victim, 2 CARDOZO STUDIES IN LAW AND LITERATURE 9, 11 (1990) 3 For the purposes of this article, "conflict" is defined as "public institutionalized armed conflict" Conflict includes armed conflict of an international character (the four Geneva Conventions 1949 and Protocol I of 1977), armed conflict of a non-international character (common article 3 of the four Geneva Conventions 1949 and Protocol II of 1977), and purely internal conflict, including tyrannical regime victimization (to which the Genocide Convention, the Torture Convention, and Crimes against Humanity apply) The definition corresponds with The Department of Peace and Conflict Research (Uppsala University, Sweden): An "armed conflict" is defined as a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths See Peter Wallensteen & Karen Axell, Conflict Resolution and the End of the Cold War, 1989-93, 31 J PEACE RES 33349 (1994) Clearly, deaths through internal regime victimization do not occur within the traditional concept of "battle" or "armed conflict" That is, the victims are usually not armed or only minimally, have no collective cohesive nature other than that ascribed by the state as perpetrator, and can not be described as an "adversary" except in the terms of the ideological framework of the state However, such internal conflict is public (through it being state conducted), institutionalized, and armed, and therefore corresponds to the framework definition stated 4 The data in this article is based on the preliminary results of a study of armed conflict from 1945 (post-WWII) to 1996, compiled by the author at the International Human Rights Law Institute at DePaul University, under the direction of Professor M Cherif Bassiouni
TL;DR: For example, this article pointed out that the legal system does not look for truth in the same way that the scientific community does, but the reality is that the two systems operate differently and that judges operate within a system that places a high priority upon obtaining relevant evidence that will aid in the truth-finding process.
Abstract: pliance with a subpoena may require her to spend weeks compiling materials for discovery and appearing for depositions to the detriment of her own research; the expert faced with the prospect of being served with discovery subpoenas in more than eighty cases and devoting his retirement to fending off subpoenas;' the graduate student whose studies are brought to a halt by involuntary involvement in a grand jury investigation of a restaurant fire;2 or the researchers required to review and delete identifying information from ninetyseven file drawers of documents.3 However, judges operate within a system that places a high priority upon obtaining relevant evidence that will aid in the truth-finding process. They are not easily persuaded by claims of "burdensomeness"; they are called upon routinely to compel testimony from reluctant witnesses, and they know that burdens are inherent in any litigation. Researchers engaged in their own truth-finding process are apt to think that the legal system looks for truth in the same way that the scientific community does, but the reality is otherwise. The two systems operate differently. Scientific research tends to be an evolving and uncertain process in which hypotheses are developed, tested, affirmed or discarded, and subjected to re-evaluation