Search: self-defense

Kudos to Daniel Chow and Mike Koehler for a wonderful conference last week at Ohio State Law School addressing the FCPA at thirty-five. It’s always a risk to hold a conference that mingles hard-core practitioners with soft and fuzzy academics, but this one seemed to work. The defense and prosecution side of the FCPA bar battled it out with competing panels addressing the merits and demerits of FCPA prosecutions. Charles Duross, the DOJ attorney in charge of FCPA prosecutions, gave a spirited defense of the Obama Administration’s robust enforcement campaign,...

...tribunals, Article 42 of the new Russian Criminal Code does not limit the defense of superior orders to orders that were not “manifestly unlawful” — orders whose illegality a reasonable soldier would have recognized. On the contrary, a soldier is entitled to the defense under Article 42 as long as he did not actually know that the order was unlawful, a much higher standard: 1. There shall not be deemed to be a crime the causing of harm to the interests protected by the criminal law by a person acting...

...and have the other side drop useful evidence in your lap, as might happen in a criminal case. In the cited article, the exculpatory evidence was acquired by a defense attorney in a previous criminal case that was supposed to be presented to a Military Commission. That was a criminal case, and the government fulfilled its obligation to the defense. The judge may order the government to turn over to the petitioner information that might prove favorable to that side. That might be similar to Brady material, but it would...

By Marty Lederman and Steve Vladeck* Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law. One of the major disputes concerns whether and how the NDAA might alter the status quo. In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those...

...affecting U.S. neutral shipping. The Sabbatino decision rested on just this concern, applying it, self-consciously, even to U.S. courts. In any case, international law has flourished in many countries even without any form of judicial enforcement. Both here and abroad, domestic courts have rarely played a dominant role in enforcing international law obligations. (The sui generis case of the EU is an exception, of course, but an exception made possible, among other things, only because of the shadow cast by the ECJ’s compulsory jurisdiction.) In this nation, as in many...

...sovereign equals, elevating the status of the non-state actor in order to elevate the status of the agreement itself. But with Crimean separation being widely condemned, the reverse would seem to be the case here: a collective decision to shun one of the parties has the effect of denying it legal capacity to enter into a treaty. Some argue that an internationally acknowledged self-determination unit (e.g., Palestine) may conclude a treaty notwithstanding the state-centric definition in Article 2 of the Vienna Convention. This argument relies on Article 3 of the...

...IEAs in at least three levels: Rebutting the assumption of international investment and trade law as self-contained regimes International investment and trade law have been traditionally conceived as self-contained regimes in international law. Although this conception is not based on existing principles or disciplines in neither regime, they have been built on a series of restrictive interpretations developed by arbitral tribunals and WTO panel decisions. Tribunals can determine the applicable law in each process, as well as the methods and principles of interpretation. Even in cases where States have relied...

...In this post, I will briefly summarise Shalev’s arguments and offer my rejoinder. In short, I think Shalev misconstrues the application of the principle of uti possidetis to the Israeli-Palestinian conflict to insist on a colonial reading of international law, where the self-determination of colonised peoples is secondary to the expansionist territorial aspirations of nation states. Or, to simply quote from one of Shalev’s most disturbing statements, that: “Palestinian self-determination cannot negate Israel’s territorial claims”. Shalev’s post is divided into two parts. The first part contests my claim that the...

...be served. Or if your tastes run European, you can choose to spend a semester studying Tocqueville’s Democracy in America, with special attention to his treatment of early 19th-century American law and the legal profession. Tocqueville’s infatuation with America will be compared and contrasted with the French’s contemporary attitude of horror and disgust toward all things American. Thursday evenings its “Self, Serenity, and Vulnerability: East and West” which bills itself as a meaningful study of the meaninglessness of human life. It promises a comparison of some of the ways in...

...advice establishes a possible affirmative defense known as entrapment by estoppel in a criminal proceeding. Even if one believes that the OLC's secret opinions are the kind of authoritative pronouncement that would establish the defense, the individual's reliance on that legal advice still must be reasonable. The defense is greatly disfavored even in US courts and is not recognized in the Rome Statute. Ben Milan, "a reliance on legal advice establishes a possible affirmative defense known as entrapment by estoppel in a criminal proceeding." From a purely academic point of...

...start somewhere!" I actually find it more logical and believable to say that a Jew or an Arab have an intrinsic interest in boycotting Israel specifically over their respective ethnorreligious origins and Israeli policy, but of course this is not a compelling argument for anyone else (and it seems to me it isn't even a compelling argument for most Jews either). Guest KJH: "Israel’s policies toward Palestinians are murderous and discriminatory" Response: Tell us how Isreali policies are "murderous" ... Self-defense is "murderous"? Again, a prime example of an absurd...

Patrick S. O'Donnell I absolutely agree with you that piracy is not equivalent to terrorism and therefore that pirates are not terrorists. However, one premise of the argument also severs the notion of terrorism from nation-states and that doesn't work either. As Robert Goodin makes clear in What's Wrong With Terrorism (2006), "states and state officials can practise terrorism, too. There is nothing in the concept itself to preclude that possibility. And there is much in the historical record to demonstrate that the possibility is a real one. States have...