Announcements

The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.



LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law

"R v Khawaja and the Fraught Question of Rehabilitation in Terrorism Sentencing" Free Download
(2014) 39:2 Queen’s Law Journal 587

ROBERT DIAB, Thompson Rivers University - Faculty of Law
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In R v Khawaja, Supreme Court of Canada addressed the question of how courts should handle the sentencing of terrorism offenders. Although it affirmed the Ontario Court of Appeal’s decision to raise the sentence imposed by the trial judge, the Supreme Court took a different approach to the importance of rehabilitation as a goal in terrorism sentencing generally. The Court of Appeal found that because of terrorism’s unique and serious nature, there should be very little consideration of the possibility of rehabilitation. The Supreme Court disagreed, ruling that the weight to be placed on rehabilitation in such cases should be left to trial judges and that, depending on the facts, rehabilitation could be a significant factor even in the context of very serious terror offences.

The author reviews the history of R v Khawaja, contrasting the Supreme Court’s decision with the approach of the Ontario Court of Appeal both in Khawaja and in a number of other cases. He reviews the British and Australian jurisprudence drawn on by the Court of Appeal, which looks on terrorism as a distinct type of crime that calls only for an emphasis on deterrence and punishment in sentencing, and argues that the Supreme Court’s decision indicates a significantly different attitude to the issue. Khawaja allows for rehabilitation to potentially factor into the sentencing of terrorism offenders. The author further considers this decision though the lens Antony Duff’s theory of punishment, which suggests that the concepts of moral agency, equality and the possibility of individual redemption are foundational to a sense of political community. He argues that the Supreme Court’s decision constitutes an implicit affirmation of Duff’s view on the importance of the goal of rehabilitation even for the worst offenders.

"Attacking Human Implants: A New Generation of Cybercrime" Free Download
5 Law, Innovation and Technology (2), p. 248-277

MARK N. GASSON, University of Reading - Department of Cybernetics
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BERT-JAAP KOOPS, Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)
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Human ICT implants, such as RFID implants, cochlear implants, cardiac pacemakers, Deep Brain Stimulation, bionic limbs connected to the nervous system, and networked cognitive prostheses, are becoming increasingly complex. With ever-growing data processing functionalities in these implants, privacy and security become vital concerns. Electronic attacks on human ICT implants can cause significant harm, both to implant subjects and to their environment. This paper explores the vulnerabilities that human implants pose to crime victimisation in light of recent technological developments, and analyses how the law can deal with emerging challenges of what may well become the next generation of cybercrime: attacks targeted at technology implanted in the human body.

After a state-of-the-art description of relevant types of human implants and a discussion how these implants challenge existing perceptions of the human body, we describe how various modes of attacks, such as sniffing, hacking, data interference, and denial of service, can be committed against implants. Subsequently, we analyse how these attacks can be assessed under current substantive and procedural criminal law, drawing on examples from UK and Dutch law. The possibilities and limitations of cybercrime provisions (e.g., unlawful access, system interference) and bodily integrity provisions (e.g., battery, assault, causing bodily harm) to deal with human-implant attacks are analysed.

Based on this assessment, the paper concludes that attacks on human implants are not only a new generation in the evolution of cybercrime, but also raise fundamental questions on how criminal law conceives of attacks. Traditional distinctions between physical and non-physical modes of attack, between human bodies and things, and between exterior and interior of the body need to be re-interpreted in light of developments in human implants. As the human body and technology increasingly merge, cybercrime legislation and body-integrity crime legislation will become intertwined, posing a new puzzle that legislators and practitioners will sooner or later have to solve.

"Felonia Felonice Facta: Felony and Intentionality in Medieval England" Free Download
Criminal Law and Philosophy (2014 Forthcoming)

ELIZABETH PAPP KAMALI, University of Michigan at Ann Arbor
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This paper explores the meaning of the word “felony? in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case out of the realm of felony. It suggests that the very definition of felony and felonious behavior — and thus the essence of criminal responsibility — may be bound up with the idea of mens rea during this period. The paper aims to uncover broader societal understandings of the nature of guilt and innocence, and to highlight connections and disconnections between the formal criminal law of felony, with its heavy emphasis on capital punishment, and popular and ecclesiastical understandings of culpability.

"Negotiated Order: The Fourth Amendment, Telephone Surveillance, and Social Interactions, 1878-1968" 
Information and Culture, Vol. 48, No. 4, pp. 419-447 (2013).

COLIN AGUR, Yale Law School
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In the US, the words ‘telephone surveillance’ bring to mind contemporary security concerns about smart phone tracking, the NSA warrantless wiretapping scandal, and the telecommunications provisions of the Patriot Act. Yet telephone surveillance is as old as telephony itself, dating back to the nearly simultaneous commercialization of the telephone and phonograph in 1878. First put to use by users, so they would have a written record of business meetings held over the phone, recorders were later put to use by police for surreptitious recording of criminal suspects’ conversations. This article examines telephone surveillance by American law enforcement agencies from the inception of telephone service to the passage of the Federal Wiretap Law in 1968, focusing on the challenges an advancing, proliferating, and shrinking technology posed for Fourth Amendment law. To highlight the technological, institutional and cultural interactions that have shaped Fourth Amendment jurisprudence, the article deploys Jack Balkin’s theory of cultural software and Anslem Strauss’s concept of a negotiated order, and brings together major cases, federal legislation, and evidence of government surveillance. The article shows how telephone surveillance brought the Fourth Amendment into prominence and inspired many of its most contentious debates; the article argues that during the first 90 years of telephone usage in America, laws on search and seizure developed not from constitutional consistency or logic, but as the result of a complex negotiation process involving new media and human agency.

"Reflecţii Privind Prostituţia Şi Proxenetismul (Reflections on Prostitution and Pimping)" Free Download
Annals of the Constantin Brancusi University - Juridical Sciences Series, No. 1, 2014

ION CRISTINEL RUJAN, University Constantin Brancusi of Targu-Jiu
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Romanian Abstract: Faptele oamenilor sunt judecate în raport de morală şi lege, de păcat, urmat de pedeapsa divină, sau pedeapsă contravenţională sau penală. Prostituţia este, fără îndoială, un fenomen social, alături de proxenetism. Aceste două conduite sunt în mod clar imorale, dar evoluţia lor istorică, din punct de vedere legal, la noi în ţară şi în lume, ne prezintă o inconstanţă în regimul de pedepsire a unor astfel de practici. Au existat mai multe abordări referitoare la prostituţie: sancţionarea penală a acestor practici, considerate infracţiuni de obicei, neîncriminarea prostituţiei, în sensul că nu se sancţionează penal şi legalizarea acesteia, realizată prin emiterea unor norme juridice de reglementare a activităţii.

După cum se ştie, Codul penal actual nu mai încriminează prostituţia, cum de altfel nu mai încriminează nici cerşetoria, adică faptele de obicei realizate fără constrângere, determinare sau înlesnire.

English Abstract: People’s deeds are judged in relation to morality and law, of sin, followed by divine punishment or civil or criminal penalty. Prostitution is undoubtedly a social phenomenon and so is pimping. These two behaviors are clearly unethical, but their historical evolution legally, in our country and in the world, presents an inconsistency in the regime of punishing such practices. There have been several approaches to prostitution: criminal penalty of such practices usually considered crimes, uncriminalization of prostitution, meaning that there are no criminal sanctions and its legalization, accomplished by issuing legal norms regulating the activity.

As known, the current Criminal Code no longer incriminates prostitution, as otherwise no longer incriminates begging, namely the deeds usually done without coercion, determination or aiding.

"Consimţământul Persoanei Vătămate, Cauză Justificativă În Dreptul Penal (The Consent of the Injured Party, Justified Cause in Criminal Law)" Free Download
Annals of the Constantin Brancusi University - Juridical Sciences Series, No. 1, 2014

ELENA-GIORGIANA SIMIONESCU, Constantin Brancusi University of Targu Jiu
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Romanian Abstract: Consimţământul persoanei vătămate, ca şi cauză jutificativă în dreptul penal român, înlătură caracterul nejustificat al faptei, o trăsătură esenţială a infracţiunii, în condiţiile în care el aparţine titularului valorii sociale ocrotite sau reprezentantului legal ori convenţional al acestuia, este valabil exprimat şi vizeză o valoare socială determinată de care titularul poate dispune în mod legal.

Dacă valoarea socială este de o importanţă deosebită, precum viaţa - obiect de ocrotire penală, interesul apărării ei nu mai este excusiv al titularului, caz în care legea exclude caracterul licit al consimţământului persoanei vătămate.

English Abstract: Consent of the person injured as a justified cause Romanian criminal law, removes the unjustified nature of the offense, an essential feature of the offense, while he protected social value to the holder or his legal representative or conventional, is valid target value expressed social determined that the owner may have legally.

If social value is of particular importance as life - Criminal object protection, defending its interests no longer excuse the holder, in which case the law excludes the legality of the consent of the person injured.

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About this eJournal

Sponsored by: Indiana University Maurer School of Law.


This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.

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To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

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Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LAW & SOCIETY EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal

ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law

JEANNINE BELL
Professor of Law, Indiana University Maurer School of Law

PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School

KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law

LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology, President, Law and Society Association, Review Section Editor - Law & Social Inquiry, Director - Institute for Legal Studies, University of Wisconsin Law School

LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law

MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

MICHAEL GROSSBERG
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law

WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law

ANNA-MARIA MARSHALL
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

LYNN MATHER
Professor of Law and Political Science, SUNY Buffalo Law School

JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law