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quarta-feira, 30 de setembro de 2015

Rights and Regulation: Lawrence v. Texas and the Evolution of Sexual Regulation


Melissa Murray University of California, Berkeley - School of Law

August 27, 2015

Abstract:

Since it was decided in 2003, Lawrence v. Texas has underwritten the effort to expand access to marriage to same-sex couples. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage — same-sex or otherwise. Instead, Lawrence was a case about criminal sex, and more specifically about limiting the state’s authority to regulate and punish non-marital sex and sexuality. In short, Lawrence was a case about sexual liberty. 
The focus on Lawrence as a waystation to same-sex marriage has allowed us to overlook a developing threat to Lawrence’s values of sexual liberty and limits on the state’s authority to regulate and punish non-marital sex. As this Essay explains, in the twelve years since Lawrence was decided, an alternative system of sexual regulation has quietly taken shape and become more visible. Meaningfully, this alternative system is distinct from both the criminal sexual regulation that preceded Lawrence and the marital sexual regulation that has flourished in Lawrence’s wake. 
But while it exists outside of either criminal law or marriage law — the two domains that, historically, have served as the principal sites of state sexual regulation — this alternative system of civil regulation nonetheless incorporates the values of both of these regulatory domains by condemning and punishing sex outside of marriage. And, perhaps most troublingly, this civil system of sexual regulation resists the constitutional protections for non-marital sex that Lawrence conferred. 
This Essay surfaces and explores this emergent form of civil sexual regulation that, until now, has been neglected and overlooked. As it explains, this alternative system of civil sexual regulation achieves many of the same punitive ends that criminal sexual regulation accomplished before Lawrence, and in so doing repudiates Lawrence’s core values. In this way, this system of civil regulation poses a threat to the prospect of greater liberty in intimate life.

Disponível em: <http://ssrn.com/abstract=2652479>. Acesso em 13 set. 2015.

terça-feira, 29 de setembro de 2015

International Law in Domestic Courts

Santa Clara University - School of Law

University of Maryland Francis King Carey School of Law

September 14, 2015

Handbook on the Politics of International Law (Wayne Sandholtz & Christopher A. Whytock, eds., 2015). 

Abstract:
This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the forthcoming book Handbook on the Politics of International Law, Wayne Sandholtz and Christopher A. Whytock, editors.

Traditional accounts of international law in domestic courts focus on the distinction between monist and dualist legal systems. In monist systems, courts apply international law directly. In dualist systems, direct application is not an option, so courts apply international law indirectly, or not at all. Although this account is formally correct, it tells us very little about the functional role of domestic courts in the international legal system. In this chapter, we present a functional account that focuses on the distinctions among horizontal, vertical, and transnational legal obligations. Modern international law regulates horizontal relationships between states, vertical relationships between states and private parties, and transnational relationships between private parties whose interactions cross state lines. The role of domestic courts in interpreting and applying international law varies greatly, depending on whether the international rule at issue is horizontal, vertical, or transnational.

We demonstrate in this chapter that the willingness (or ability) of courts to apply international law — that is, the decision that a particular issue is “legal” as opposed to “political” — depends heavily on the nature of the international legal rule. Domestic courts rarely interpret or apply horizontal rules. Indeed, they often refer to treaties that regulate solely the horizontal relationship between states as “political” in nature. As a result, implementation of horizontal obligations typically involves executive, not judicial action. This is true for both monist and dualist states. In contrast, domestic courts routinely interpret and apply transnational rules, and executive branch officials play little or no role in implementing such rules. (Purely private law treaties such as the Convention on Contracts for the International Sale of Goods provide a clear example.) Again, this is true for both monist and dualist states.

It is more difficult to generalize about the role of domestic courts in interpreting and applying vertical rules, such as human rights treaties. However, the classic monist-dualist distinction does a poor job of explaining why domestic courts in some countries apply vertical rules aggressively, while domestic courts in other countries are reluctant to apply vertical (international) rules to regulate the conduct of government officers. It is in this dimension, therefore, that we seek to draw special insights into how particular political relationships may affect the willingness of domestic courts to implement international law in domestic law, and to effect legal change on their own initiative.

This chapter draws on materials from approximately two dozen countries to present an account of the role of domestic courts in interpreting and applying horizontal, transnational, and vertical international legal rules.


Number of Pages in PDF File: 43

Disponível em: http://ssrn.com/abstract=2660513. Acesso em: 22 set. 2015.

segunda-feira, 28 de setembro de 2015

The Course Source: The Casebook Evolved

Stephen M. Johnson 

Mercer University Law School 
August 3, 2015

Capital University Law Review, Forthcoming 

Abstract:
Psychologist Abraham Maslow once noted that “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Law students are changing, law schools are criticized for failing to prepare practice-ready lawyers, and there is nearly universal consensus that legal education must transform. However, the principal tool that many faculty rely on to prepare their courses, the Langdellian casebook, is ill-suited for the transformation. The prototypical casebook that is still the standard for many courses today was designed for the Socratic dialogue and case method mode of instruction. While there is still a place for that method of instruction in legal education, other methods of instruction, the carriage bolts and lag screws of modern legal education, cannot be hammered down with the traditional casebook. 

Several influential studies of legal education have concluded that law schools should focus more heavily on training students in professionalism and in skills that are vital to the practice of law. In addition, the American Bar Association recently amended its accreditation standards for law schools to require schools to include more assessment and experiential learning in their curriculum. Over several decades, many faculty have moved away from the traditional Socratic dialogue and case method form of instruction, at least in upper division courses. While many more are receptive to making such changes, they are reluctant to abandon those methods unless there are tools available that will ease the adoption of other teaching methods. The traditional casebook does not provide those tools. Teaching materials and pedagogy are intimately connected and major shifts in pedagogy can be achieved through the evolution of teaching materials. Before there can be widespread adoption of new teaching methods that a have a rich focus on skills, professionalism, experiential learning and assessment, casebooks must evolve to provide faculty with the tools to re-design their courses. 

Technology should play a central role in the evolution of the casebook. Today’s students are digital natives and technology has played a central role in their education beginning in elementary school. The evolved casebook should be an e-book, but one that is unlike the e-books that legal publishers have marketed in the past. Rather than a traditional casebook, it should be a “course source”, a one-stop shop for all of a faculty member’s teaching resource needs. The Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of Law, stressed the importance of training students in the knowledge, skills and values necessary to the legal profession. A course source should recognize that those three apprenticeships are interconnected, and that a faculty member needs the tools to train students in all of those areas, rather than assuming that a separate class that focuses on the legal profession or research and writing will develop the student’s skills and values. In addition to the cases, statutes, notes and problems that are included in casebooks today, a course source should include simulations, drafting, research, counseling, negotiation and other skills-related exercises, professionalism hypotheticals and problems, as well as quizzes and a variety of formative assessment tools that faculty can incorporate into their courses. As an e-book, it should take advantage of the wealth of materials that are available online and in a variety of media formats, by incorporating links to content that puts the cases, materials and disputes in the book in context, to provide a fuller and richer understanding of the materials. Ideally, a course source would be created and distributed through a Creative Commons license as open source materials, so that faculty could choose the portions of the materials that they find most useful and relevant for their teaching and distribute those materials to students for free. 

This article outlines a vision for the transformation of the casebook into the course source that is necessary for the broader adoption of a range of teaching methods by faculty. Part I of the article describes the adoption of the Socratic dialogue and case method in legal education, the criticisms to those modes of teaching, the development of teaching methods that are being used to supplement or replace the Socratic dialogue and case method, and the forces, such as the ABA Standards, the Carnegie Report and similar reports, that are catalyzing the transformation of teaching methods in legal education. Part II describes how the changing nature of the student body in law schools requires faculty to adopt new teaching methods to supplement or replace the Socratic dialogue and case method. Part III outlines the evolution of the Langdellian casebook and demonstrates that most traditional law school casebooks and coursebooks are not designed to facilitate adoption of a variety of teaching methods that are necessary to educate a changing student body. Finally, Part IV outlines a vision for the course source, a new generation of teaching materials to replace the casebook. That section of the article discusses the benefits and limitations of the evolved casebook, and the impediments to its evolution.


Number of Pages in PDF File: 63

Disponível em: <http://ssrn.com/abstract=2654904>. Acesso em 13 set. 2015.

sexta-feira, 25 de setembro de 2015

'Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine

Darren Lenard Hutchinson 

University of Florida - Levin College of Law
March 18, 2013

Alabama Law Review, Vol. 65
University of Florida Levin College of Law Research Paper No. 15-3 

Abstract:

The Supreme Court utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictory. Nevertheless, this factor has become salient in recent equal protection cases brought by gays and lesbians. Indeed, the Court is currently reviewing a court of appeals case that applies this doctrine and finds that gays and lesbians constitute a quasi-suspect class. Recent scholarship and case law have addressed the inefficiencies of suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and the emerging scholarship and case law that respond to it. This Article offers two alternatives approaches that could inform a new theory of equal protection.


Number of Pages in PDF File: 75

Disponível em: <http://ssrn.com/abstract=2238733>. Acesso em: 13 set. 2015.

quinta-feira, 24 de setembro de 2015

The International Rule of Law in the Cycle of Contestations and Deference

Machiko Kanetake 
Utrecht University

Andre Nollkaemper 
University of Amsterdam - Amsterdam Center for International Law

September 15, 2015 
Machiko Kanetake & André Nollkaemper (eds.), The Rule of Law at the National and International Levels: Contestations and Deference, Oxford: Hart Publishing (2016 Forthcoming)
Amsterdam Center for International Law No. 2015-14 

Abstract:
This paper is the concluding chapter of the edited volume ‘the rule of law at the national and international levels: contestations and deference’. The paper first provides some patterns of national contestations (section I) and international deference (section II). The paper moves on to identify some of the shortcomings of the process of developing international law through national contestations and international deference (section III). Our overall argument is that the cycle of national contestations and international responses can be conceptualized as an integral part of the rule of law in the international legal order (section IV).

Number of Pages in PDF File: 17

Disponível em: http://ssrn.com/abstract=2660815. Acesso em: 22 set. 2015.

quarta-feira, 23 de setembro de 2015

Recovering the Right to Not Marry

Melissa Murray 

University of California, Berkeley - School of Law
June 27, 2015

Abstract:
In June 2015, the United States Supreme Court announced its much-anticipated decision in Obergefell v. Hodges, the federal challenge to state-level laws that prohibited legal recognition of same-sex marriage. The Court’s opinion struck down opposite-sex only marriage laws as an unconstitutional violation of the right to marry. In doing so, the Court offered a full-throated endorsement of marriage as a social institution of critical importance, and underscored exclusion from marriage as a traumatic legal injury.

Like most cases to consider the nature and scope of the marriage right, the Obergefell opinion is replete with references to Loving v. Virginia, the 1967 case that famously struck down Virginia’s anti-miscegenation law, and in doing so, spoke of a fundamental “freedom to marry.” Though this aspect of the Loving opinion has endured and, indeed, has provided crucial support to the effort to expand civil marriage to include same-sex couples, Loving had more to say. In invalidating the Virginia statute, the Loving Court specifically identified “the freedom to marry, or not marry.”

In Loving’s wake, the jurisprudence has focused on the first part of this statement – the freedom to marry – while wholly ignoring the second – the freedom to not marry. This paper attempts to fill this void by considering the nature and scope of the right to not marry. In particular, it asks whether this right exists, and if so, what are its contours? Most importantly, it considers what reclaiming this right might mean for marriage, as well as efforts to foster a greater degree of sexual freedom and liberty in intimate life outside of that institution.

Disponível em: <http://ssrn.com/abstract=2652478>. Acesso em 13 set. 2015.

segunda-feira, 21 de setembro de 2015

The Cross-fertilisation Rhetoric in Question

WEDNESDAY, SEPTEMBER 9, 2015

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 84, no. 3, 2015) is out. Contents include:
  • Special Issue: The Cross-fertilisation Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals
    • Triestino Mariniello & Paolo Lobba, The Cross-fertilisation Rhetoric in Question: Use and Abuse of the European Court’s Jurisprudence by International Criminal Tribunals
    • Sergey Vasiliev, International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-fertilisation
    • Julia Geneuss, Obstacles to Cross-fertilisation: The International Criminal Tribunals’ ‘Unique Context’ and the Flexibility of the European Court of Human Rights’ Case Law
    • Ulf Linderfalk, Cross-fertilisation in International Law
    • Elena Maculan, Judicial Definition of Torture as a Paradigm of Cross-fertilisation: Combining Harmonisation and Expansion
    • Michelle Farrell, Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law
  • Harmen van der Wilt, Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

sexta-feira, 18 de setembro de 2015

RECENT DEVELOPMENTS ON THE MEANING OF “HABITUAL RESIDENCE” IN ALLEGED CHILD ABDUCTION CASES

Paul Beaumont and Jayne Holliday

Paul Beaumont, Professor of European Union and Private International Law and Director of the Centre for Private International Law, School of Law, University of Aberdeen.

Jayne Holliday, Research Assistant and Secretary of the Centre for Private International Law, School of Law, University of Aberdeen.

I. Introduction
At the conference on “Private International Law in the Jurisprudence of European Courts – Family at Focus” held in Osijek, Croatia, June 2014, an overview of the recent developments within European and International Family Law was presented by Professor Beaumont that included analysis of the law of maintenance, surrogacy, same sex relationships, custody issues, child abduction and recognition and enforcement of agreementsin family law matters. Drawing from that presentation, this article will focus on the recent developments on the meaning of habitual residence in child abduction casesfrom the UK Supreme Court and the Court of Justice of the European Union (CJEU), in particular the move by the UK Supreme Court towards a more uniform definition of habitual residence in line with the jurisprudence of the CJEU under the Brussels IIa Regulation.

Disponível em: <http://www.abdn.ac.uk/law/research/working-papers-455.php>. Acesso em: 08 set. 2015.


quarta-feira, 16 de setembro de 2015

The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?

Tobias Lock 

University of Edinburgh School of Law
June 9, 2015

EU Constitutional Law Review, Forthcoming
Europa Working Paper No 2015/02
Edinburgh School of Law Research Paper No. 2015/18 

Abstract:
Opinion 2/13 of the European Court of Justice on the European Union’s accession to the European Convention on Human Rights has dealt a severe blow to the ambitions of the EU and the Council of Europe to put the relations between the EU and the ECHR system on a sure and formal footing. The CJEU held numerous aspects of the Draft Accession Agreement to be incompatible with the Treaties. Accession cannot therefore go ahead as planned. This article explores whether and how accession could still be achieved and if in light of the Court’s demands it can still be maintained that it would improve the human rights protection of individuals in the EU. The argument proceeds in four steps: first, the article outlines the background to Opinion 2/13 and the basic tenets of the Draft Accession Agreement; second, it explores the technical options available to overcome the hurdles to accession, such as changes to the accession agreement, reservations, unilateral declarations, and Treaty change; third, it provides a diagnosis of the shortcomings identified by the Court and proposes possible solutions; and fourth, it expresses some doubts whether in light of these proposed solutions, accession is still desirable.

Number of Pages in PDF File: 35

Lock, Tobias, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable? (June 9, 2015). EU Constitutional Law Review, Forthcoming; Europa Working Paper No 2015/02; Edinburgh School of Law Research Paper No. 2015/18. Disponível em: http://ssrn.com/abstract=2616175. Acesso em 22 set. 2015.


segunda-feira, 14 de setembro de 2015

The Sharia Problem with Sharia Legislation

Asifa Quraishi-Landes 

University of Wisconsin Law School
August 28, 2015

Ohio North University Law Review, Vol. 41, No. 545, 2015
Univ. of Wisconsin Legal Studies Research Paper No. 1361 

Abstract:
A much-cited 2013 Pew poll reported that a strong majority of Muslims around the world favor making sharia the “official law of the land” in their countries. This was alarming news for many, especially when followed by further statistics supporting things like hand amputation and stoning as criminal punishment. But does a Muslim desire for sharia necessarily mean “sharia legislation”? Does public support for sharia have to mean Muslim theocracy? The answer is “yes” if law sharia is defined as scripturally derived religious legal doctrine. But that is a very narrow definition of religious law, and it is an especially inappropriate way to understand sharia. In this article, I will explain why a country that “follows sharia” need not — indeed, should not — be one that “legislates sharia.” I will also show how an appreciation of this distinction — among Muslims as well as non-Muslims — will open up new solutions to the apparently intractable and politicized conflicts between Islamism and secularism in many Muslim majority countries today.

Specifically, I will explain why sharia is best understood as an Islamic rule of law, rather than just the collections of Islamic doctrinal rules known as fiqh. Looking at pre-modern Islamic jurisprudence and Muslim history, I show that sharia rule of law systems were made up of two branches: 1) fiqh rules extrapolated from scripture by religious legal scholars articulating right conduct for Muslims, and 2) siyasa laws created by temporal rulers, legitimated on service of the public good. The role of siyasa as the second of these two branches is especially important to understanding sharia as a rule of law system, but unfortunately is virtually absent in contemporary discourses. As a result, sharia-minded Muslims tend to advocate theocratic systems of government. That is, without an appreciation of the importance of how and why siyasa is part of sharia, average Muslims presume that sharia corresponds only to the doctrinal rules of fiqh, thus leading them to believe that state legislation of fiqh rules is the only way their government can follow sharia. In short, they understand sharia as a collection of rules rather than as a rule of law. This then leads to public support of sharia legislation in politics and in polls. The result is theocracy — government articulating and enforcing religious law upon its people. In opposition to this trend, I will show why “sharia legislation” efforts around the world are misguided attempts by Muslims to make their governments more Islamic. Ironically, these sharia legislation efforts operate from a European paradigm of the nation-state rather than pre-colonial Muslim norms of law and government, and they stand in the way of deeper, more creative and authentic thinking about Islamic constitutionalism in the modern world.

Number of Pages in PDF File: 23

Quraishi-Landes, Asifa, The Sharia Problem with Sharia Legislation (August 28, 2015). Ohio North University Law Review, Vol. 41, p. 545, 2015; Univ. of Wisconsin Legal Studies Research Paper No. 1361. Disponível em: http://ssrn.com/abstract=2652896. Acesso em: 22 set. 2015.



sexta-feira, 11 de setembro de 2015

Parochial Procedure

Maggie Gardner 

Harvard Law School
August 20, 2015

Abstract:
Scholars criticize the federal courts for being too parochial when it comes to transnational litigation, either by pushing away cases that are too “foreign” or by refusing to apply foreign or international law. According to the parochial critique, this U.S.-centrism is undermining the reciprocity on which the system of private international law depends, generating friction with allies, regulatory conflict, and access-to-justice gaps. This Article takes the parochial critique as a starting point, but it challenges the critique’s assumption that the fault lies with U.S. judges. It argues instead that parochial procedure can develop even in the absence of parochial judges because the aggregated behavior of a group can differ from the preferences of its individual members. Drawing on insights from behavioral psychology and institutional analysis, the Article identifies how constrained decisionmaking in a complex legal and factual context like transnational litigation can generate repeated errors that are then amplified through the path dependence of the common law. Even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law. To illustrate, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The doctrinal pressures outlined here can explain why the first two are often criticized as parochial while the latter two are not. And if that account is at least plausible, it supports the primary claim of the Article: that the parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.

Number of Pages in PDF File: 54

Gardner, Maggie, Parochial Procedure (August 20, 2015). Disponível em: http://ssrn.com/abstract=2651453. Acesso em 22 set. 2015.

quarta-feira, 9 de setembro de 2015

Aplicabilidade do direito europeu ao reconhecimento de divórcio celebrado no exterior

Pedido de decisão prejudicial apresentado pelo Oberlandesgericht München (Alemanha) em 11 de junho de 2015 — Soha Sahyouni/Raja Mamisch

(Processo C-281/15)
(2015/C 294/36)

Língua do processo: alemão
Órgão jurisdicional de reenvio: Oberlandesgericht München
Partes no processo principal: Demandante - Soha Sahyouni; Demandado - Raja Mamisch

Questões prejudiciais

1) O divórcio privado — no caso vertente, decretado por um tribunal religioso na Síria com base na sharia — insere-se no âmbito do Regulamento (UE) n.o 1259/2010 do Conselho, de 20 de dezembro de 2010, que cria uma cooperação reforçada no domínio da lei aplicável em matéria de divórcio e separação judicial, conforme definido no artigo 1º do mesmo?

2) Em caso de resposta afirmativa à primeira questão:

a) Deve o artigo 10º do Regulamento (UE) nº 1259/2010 ser aplicado para efeitos da apreciação da possibilidade de reconhecimento de um divórcio em território nacional?

b) Em caso de resposta afirmativa à questão 2, alínea a):

(1) Deve apreciar-se em termos abstratos se a lei do foro reconhece a um dos cônjuges o direito ao divórcio, sujeitando-o contudo, consoante tenha um ou outro sexo, a requisitos processuais e materiais diferentes dos previstos para o outro cônjuge,

ou

(2) A aplicabilidade da referida norma depende de a aplicação da lei estrangeira — que é discriminatória em abstrato — ser igualmente discriminatória no caso concreto?

c) Em caso de resposta afirmativa à questão 2, alínea b), nº 2:

O facto de o cônjuge discriminado dar o seu consentimento para o divórcio, incluindo através da aceitação de uma compensação, pode fundamentar a não aplicação dessa norma?


sexta-feira, 4 de setembro de 2015

When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach

Mathilde Cohen 
University of Connecticut - School of Law

2015

Washington and Lee Law Review, Vol. 72, 2015 

Abstract:    
Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and against reason-giving in increasingly similar ways.

By combining theories of democratic legitimacy with empirical, doctrinal, and historical evidence of judges’ concrete reason-giving practices in the United States and Europe, the Article argues that rather than being in opposition, these two legal cultures are converging toward a common methodology. No longer can it be assumed that civil law judges and common law judges are on opposite ends of the spectrum.

Number of Pages in PDF File: 89

COHEN, Mathilde. When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach (2015). Washington and Lee Law Review, v. 72, 2015. Disponível em: <http://ssrn.com/abstract=2646871>. Acesso em: 28 ago. 2015.

quarta-feira, 2 de setembro de 2015

Nuremberg: Procedural Due Process at the International Military Tribunal

Tessa McKeown 
Victoria University of Wellington - Victoria University of Wellington, Students/Alumni

2013

Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 32 

Abstract:      
For over sixty years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945-1946). This paper argues that the defendants’ procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in attempt to secure a fair trial for the twenty-two defendants. This paper examines the history of fundamental due process rights (recognised in both continental Europe and common law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. This paper further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.

Number of Pages in PDF File: 40

Keywords: Nuremberg trial; due process rights; International Military Tribunal; fair trial

McKEOWN, Tessa. Nuremberg: Procedural Due Process at the International Military Tribunal (2013). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 32. Disponível em: <http://ssrn.com/abstract=2647780>. Acesso em: 28 ago. 2015.