Penn State Journal of Law and International Affairs最新文献

{"title":"The Limits of Judicial Idealism: Should the International Criminal Court Engage with Consequentialist Aspirations?","authors":"S. Dana","doi":"10.2139/ssrn.2205172","DOIUrl":"https://doi.org/10.2139/ssrn.2205172","url":null,"abstract":"Idealism about what international criminal justice mechanisms can achieve has lead to ideologically driven judicial decision-making in international criminal law (ICL). ICL idealism manifests itself in the belief that international criminal prosecutions can achieve an awesome array of goals. These include retribution, deterrence, reconciliation, rehabilitation, restoration, building a historical record, preventing revisionism, expressive and didactic functions, crystallizing international norms, general affirmative prevention, establishing peace, preventing war, vindicating international law prohibitions, setting standards for fair trials, combating impunity, and more. Ironically, this idealism, although usually well intended, has actually contributed to the politicization of the international judicial process.The perverse consequences of this politicization frequently surface in the sentencing jurisprudence and punishment of perpetrators of atrocity crimes. The shortcomings of the sentencing practice of ICTR and ICTY provide ammunition for today’s ICC skeptics. In a trial process that frequently appears opaque to outsiders because of complex facts, extraordinary crimes, and unfamiliar procedural rules, the sentence is one feature that is readily accessible to the victimized communities and the rest of the watchful world. Unfortunately, as illustrated by local reactions and criticized by observers, sentencing appears erratic, unprincipled, and politically motivated.This article argues that international idealism has distorted the expression of condemnation and the just distribution of punishment among perpetrators of atrocity crimes. I establish this thesis by examining the application of reconciliation and deterrence in sentencing practice of international criminal courts. My tentative conclusion is that both reconciliation and deterrence ideologies have perversely impacted international sentencing such that the punishment imposed does not reflect the culpability of the individual. This is a troubling setback for any institution that holds itself out to be a criminal justice mechanism, and could challenge the supremacy of this type of mechanism as the primary response to atrocity crimes. Moreover, it is important to respect the limits of legalism as an agent of social engineering in post-conflict and transitional justice initiatives. Thus, this article’s findings also illuminate assumptions underlying the on-going debate concerning the efficacy of international criminal tribunals.","PeriodicalId":131276,"journal":{"name":"Penn State Journal of Law and International Affairs","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129299177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Should Clauses Prohibiting Assignment be Overridden by Statute","authors":"L. Gullifer","doi":"10.5040/9781509903139.ch-014","DOIUrl":"https://doi.org/10.5040/9781509903139.ch-014","url":null,"abstract":"Many contracts for the supply of goods or services include a clause prohibiting assignment by the supplier of its rights under the contract. The existence of such clauses, both in particular contracts and more generally, can have a chilling effect on the use of receivables as collateral to obtain financing. Thus, in many jurisdictions, there is a legislative override for such clauses, so that they are not enforceable against third parties. There is an ongoing debate as to whether English law should follow suit and, if so, what form the override should take, which has now led to a power to make reforms being included in sections 1 and 2 of the Small Business, Enterprise and Employment Act 2015.1 This chapter examines the arguments for and against an override in English law, informed by two small-scale surveys undertaken by the author and others over the last four years.2","PeriodicalId":131276,"journal":{"name":"Penn State Journal of Law and International Affairs","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115249217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Territorial Status Triggering a Functional Approach to Statehood","authors":"W. T. Worster","doi":"10.2139/ssrn.3111875","DOIUrl":"https://doi.org/10.2139/ssrn.3111875","url":null,"abstract":"","PeriodicalId":131276,"journal":{"name":"Penn State Journal of Law and International Affairs","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115862645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Translating Scholarship into Policy","authors":"S. Gartner, Amy C. Gaudion","doi":"10.2139/ssrn.3425201","DOIUrl":"https://doi.org/10.2139/ssrn.3425201","url":null,"abstract":"Follow this and additional works at: https://elibrary.law.psu.edu/jlia Part of the Diplomatic History Commons, History of Science, Technology, and Medicine Commons, International and Area Studies Commons, International Law Commons, International Trade Law Commons, Law and Politics Commons, Political Science Commons, Public Affairs, Public Policy and Public Administration Commons, Rule of Law Commons, Social History Commons, and the Transnational Law Commons","PeriodicalId":131276,"journal":{"name":"Penn State Journal of Law and International Affairs","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130829619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the intellectual history of freedom of contract and regulation","authors":"Hans-Wolfgang Micklitz","doi":"10.2139/SSRN.2587696","DOIUrl":"https://doi.org/10.2139/SSRN.2587696","url":null,"abstract":"Are we, private lawyers and contract lawyers, not convinced that we share a common understanding of freedom of contract, of‚ freedom’, of‚ contract’, and of the restriction of freedom of contract through ‘regulation’? Is this common understanding not the basis on which we all operate – implicitly or explicitly – in our intellectual discourse while cutting across different legal traditions and different legal cultures? I argue that this common understanding is no more than a rather superficial ‘gentleman’s agreement’ which allows us to communicate with each other whilst maintaining our own preconceptions. In fact, there are different models of freedom of contract and regulation in Germany, France, the UK and the European legal order, each deeply ingrained in their respective intellectual history.","PeriodicalId":131276,"journal":{"name":"Penn State Journal of Law and International Affairs","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124921544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}