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\"This book explores how the principles of legality and fair labelling have developed in international criminal law, from Nuremberg to the International Criminal Court and beyond. It features a comprehensive survey of domestic and international case law, treaties, and other materials, carefully unpacking the different rationales and elements of each principle and the various rules to which they apply. The book invites you to revisit landmark cases, such as those involving atrocities in the Former Yugoslavia, Rwanda, Sierra Leone, Darfur, and Palestine, through a distinctive lens: the finding that all rules substantively affecting the human rights of the accused - from crimes and penalties to labels - must be sufficiently accessible and foreseeable to the ordinary person.This book explores how the principles of legality and fair labelling have developed in international criminal law, from Nuremberg to the International Criminal Court and beyond. It features a comprehensive survey of domestic and international case law, treaties, and other materials, carefully unpacking the different rationales and elements of each principle and the various rules to which they apply. The book invites you to revisit landmark cases, such as those involving atrocities in the Former Yugoslavia, Rwanda, Sierra Leone, Darfur, and Palestine, through a distinctive lens: the finding that all rules substantively affecting the human rights of the accused - from crimes and penalties to labels - must be sufficiently accessible and foreseeable to the ordinary person.This book explores how the principles of legality and fair labelling have developed in international criminal law, from Nuremberg to the International Criminal Court and beyond. It features a comprehensive survey of domestic and international case law, treaties, and other materials, carefully unpacking the different rationales and elements of each principle and the various rules to which they apply. The book invites you to revisit landmark cases, such as those involving atrocities in the Former Yugoslavia, Rwanda, Sierra Leone, Darfur, and Palestine, through a distinctive lens: the finding that all rules substantively affecting the human rights of the accused - from crimes and penalties to labels - must be sufficiently accessible and foreseeable to the ordinary person\"-- Provided by publisher.

This book analyses the common law’s approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law’s approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of ‘retroactivity’ is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. ‘Prospective overruling’ is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law’s concern for certainty and liberty, and defeasible only to strong reasons. ‘Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. …The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.’ From the Foreword by Lord Rodger of Earlsferry

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies' privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States—more so than nearly any privacy statute or any common law tort. In this Article, we contend that the FTC's privacy jurisprudence is functionally equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC's privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy \"common law\" demonstrates that the FTC's privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this \"common law\" into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, extends far beyond privacy policies, and involves a full suite of substantive rules that exist independently from a company's privacy representations.

A fundamental principle of the rule of law (and indeed, rationality) holds that like cases should be decided alike. The law of retroactivity - the application of new legal rules to cases begun or finalized prior to the new rules' announcement - is one of the few, puzzling exceptions to this principle. Last Term, the Supreme Court in 'Edwards v. Vannoy' held that the jury unanimity requirement decided in 'Ramos v. Louisiana' did not apply retroactively. The Court also went a step further and held that the watershed exception of 'Teague v. Lane', allowing retroactive application of new \"watershed rules of criminal procedure,\" was completely foreclosed. Given the Court's justifications for its decision - namely, a heightened regard for preserving the finality of state court judgments - as well as the alternative versions of federal collateral review outlined in Justices Thomas's and Gorsuch's concurring opinions, the Court's decision in 'Edwards' augurs further cutbacks in the scope of federal habeas review.

This book explores how the principles of legality and fair labelling have developed in international criminal law, from Nuremberg to the International Criminal Court and beyond. It features a comprehensive survey of domestic and international case law, treaties, and other materials, carefully unpacking the different rationales and elements of each principle and the various rules to which they apply. The book invites you to revisit landmark cases, such as those involving atrocities in the Former Yugoslavia, Rwanda, Sierra Leone, Darfur, and Palestine, through a distinctive lens: the finding that all rules substantively affecting the human rights of the accused - from crimes and penalties to labels - must be sufficiently accessible and foreseeable to the ordinary person.

The Constitution's promises of freedom of speech and common defense can, at times, be at odds. One acute example of that tension is the prepublication review process, by which the government reviews written works by certain current and former employees to ensure that they do not contain classified or other sensitive information. While this process surely has its merits in preserving national security, it also presents authors with a bureaucratic thicket that is often difficult to navigate. This process is further complicated by the fact that the government can retroactively classify documents, meaning that information that authors might have thought was fair game is instead withdrawn from the public domain. The Supreme Court has addressed prepublication review only once, in Snepp v. United States. There, the Court validated the constitutionality of prepublication review but failed to articulate its reasoning in terms of established First Amendment doctrine. This Comment clarifies the standard of review applicable to prepublication review as an articulation of intermediate scrutiny. Once that standard of review is established, this Comment applies it to the prepublication review process. With regard to substance, this Comment argues that, under intermediate scrutiny, the government does not have a sufficient national security justification to censor unclassified information during the prepublication review process. With regard to procedure, this Comment recommends that retroactive classification decisions during the prepublication review process should be subject to document-by-document review, that the burden-shifting framework to determine whether information is sufficiently public should begin by placing the onus on the government, and that authors' legal claims arising from the process should not be mooted by completion of the review. Taken together, these clarifications and adjustments would subtly alter incentives to ensure that the prepublication review process equitably balances the interests of both the government and authors.

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded it. But there are costs as well. Retroactive changes in the law upset reliance interests. This can be particularly harmful when those reliance interests involve rights or entitlements that form the basis for substantial financial investment, as is often the case with patents. What is more, judges are aware that their decisions can do violence to existing reliance interests. This makes judges wary of making changes to patent law in the first place, which can lead to the law becoming stultified. Reducing the rate of legal change is not an adequate solution. Neither is takings law, which is commonly applied to solve similar problems that arise in the context of real property but is a poor fit for intellectual property. Rather, to ameliorate the reliance concerns generated by legal change, federal judges should be afforded the latitude to make their rulings purely prospective. And patent judges should exercise this discretion in the many cases where forward-looking change is called for but backward-looking change would do more harm than good.

This study describes how judges in Maricopa County, Arizona responded to age and other mitigation evidence in imposing “life” versus “natural life” sentences for juvenile offenders convicted of homicide in pre-Miller cases. Maricopa County was selected for this case study because of its history of adhering to “restrictive interpretations” of various kinds of mitigation evidence and because of the characteristics of this county’s local court community. The study employed a mixed-methods design consisting of a content analysis of relevant case documents and a quantitative analysis of the findings from the qualitative analyses of legal case documents. It examined 82% of the juveniles given natural life sentences and 72% of the juveniles given a sentence of life (25-to-life) in Maricopa County. The findings of this study indicated that judges referenced age as a statutory mitigating factor in 17% of both “life” and “natural life” cases, and age as a reason for the sentences imposed in 46% of both “life” and “natural life” cases. However, the age-relevant and other mitigating reasons referenced by judges lacked statistically significant associations with the sentences that the judges imposed. The only judicial reason with a statistically significant association with the imposed sentences was “emotional impact of the crime on the victim’s family.” The implications of this and other findings for “full responsibility” and “mitigation” approaches for blaming juvenile lifers were discussed, as well as the need for future research on post-Miller sentencing and resentencing processes.

The establishment of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') and International Criminal Tribunal for Rwanda ('ICTR') by the United Nations Security Council ('UNSC') may have been 'attractive' options, but their creation short-circuited the participatory and negotiated nature of international law.2 While Anghie and Chimni do not refer to this point, the UNSC's decisions effectively pre-answered the question asked in Prosecutor v Tadić ('Tadic'):3 whether the ICTY had the authority to call the defendant to account. The second ground of appeal was that para 7 of UNSC Resolution 1593 (2005) improperly placed the financial burden associated with the Darfur investigation and prosecution on state parties to the Rome Statute rather than the UN, and thus violated art 115(b) of the Rome Statute.13 This violation has been noted before, but even sustained critics of the use of UNSC Resolution 1593 to assert jurisdiction over Darfur have not flagged the expenses issue as jurisdictional.14 As the Appeals Chamber noted, this provision does not affect the Court's ratione loci (place), materiae (subject matter),personae (persons) or temporis (temporal).15 Similar arguments were made in the third ground of appeal, which stated that UNSC Resolution 2559 (2020) somehow invalidated UNSC Resolution 1593 16 The former called for the UN-African Union Hybrid Operation in Darfur ('UNAMID') to close down by 31 December 2020.17 This violated UNSC Resolution 1593, the defendant suggested, because that Resolution stated the ICC should be assisted by the UN as per the terms of art 2 of the Rome Statute and the UN-ICC Agreement.18 Whether or not such a violation follows from UNSC Resolution 2559, there was no reason to believe that the jurisdictional claim flowing from UNSC Resolution 1593 was somehow negated.19 III LEGALITY AND JURISDICTION The final ground of appeal was more taxing to deal with, due to the PTC's ruling on the issue of the principle of legality and non-retroactivity. The PTC responded through a rather blunt approach to legality that did not meaningfully engage with the defendant's underlying argument: that not only does the extraordinary assertion of jurisdiction over the situation in Darfur lead to important questions about the procedural dimensions of international criminal law,20 but it also leads to uncertainty about the substantive prohibitions of international criminal law. Under international law, the principle of legality has fewer elements than it does in some domestic systems.23 At its core, the international principle prohibits the retroactive application of criminal rules, including substantive prohibitions and penalties.24 Additional challenges for international criminal tribunals arise when it is considered that modes of liability25 and the re-characterisation or relabelling of crimes26 arguably are covered by the principle as well.

When German tennis star Boris Becker attempted to become a diplomat of the Central African Republic in 2018 to avoid bankruptcy proceedings in the United Kingdom, much of the world ridiculed his efforts. But his actions begged a genuine question: Can an individual become a diplomat so that his or her past actions are immunized from prosecution or suit, even after the actions have occurred or court proceedings have been instituted? In the United States, the answer appears to be yes. On at least two occasions, federal courts have allowed such retroactive applications of diplomatic immunity in cases involving allegations ranging from false imprisonment to mistreatment of domestic workers. Presumably under the political question doctrine, these courts reasoned that they must defer to the executive branch on issues of foreign affairs and on State Department certifications of diplomatic immunity, in particular. These courts did not review the factual contexts of the cases, which would have illuminated that the individuals in question were not actually diplomats, would be unlikely to ever act as diplomats, and seemingly had obtained diplomatic status solely for the purpose of evading suit or prosecution. This Note argues that the purposes of diplomatic immunity, analogies to other forms of immunity like presidential immunity, and the potential for unfettered abuse all cut against the retroactive application of diplomatic immunity. Courts need not dismiss cases as nonjusticiable under the political question doctrine solely because a case involves a question of diplomatic status. Rather, courts should narrowly tailor the judicially developed political question doctrine when legitimate issues as to the factual and legal validity of a defendant’s diplomatic position arise.