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Volume II Issue 1 (January 2015)

1. All Bark and No Bite? Rhetoric and Reality in the War and Terror, by Roslyn Fuller, INSYTE Research Group, Waterford Institute of Technology, at 1-40; 

Abstract. This paper argues that not only has the “war on terror” failed to hinder terrorism, it has also unequivocally failed to have any appreciable impact on the content of international law. The doctrine of the “war on terror” initially mixed together aspects of human rights and humanitarian legal regimes, combining this conflation of systems with a much broadened definition of the term “conflict” and those who could be viewed as legitimate targets in a conflict. However, this new interpretive framework, put forward mainly by the United States, failed to gain traction among other States, and even among domestic U.S. government agencies. Thirteen years after the War on Terror commenced no cohesive changes in State practice or opinio juris have occurred which would lead to the conclusion that the traditional laws of peace and conflict have been significantly altered on these points. There was perhaps never, in any legal sense, a global “war on terror.”

Keywords: Humanitarian Law, Customary International Law, Terrorism, Human Rights Law, Armed Conflict, Military Operation.   

2. Dealing with Illicit Enrichment: What Indonesia Might Learn from U.S. by Laras Susanti, Fakultas Hukum Universitas Gadjah Mada, at 41-97;

Abstract. In recent years, the international community has come to recognize the power of investigating illicit enrichment to uncover corrupt offenses by establishing some regional and international conventions, such as the Inter-American Convention Against Corruption (IACAC) and the United Nation Convention Against Corruption (UNCAC). As for state response, for example, Indonesia deals with illicit enrichment by requiring public officials at  certain levels to submit financial disclosure statements to the Corruption Eradication Commission (KPK) whose findings on the statements may be used to strengthen the evidence in corruption prosecutions. In fact, there is no civil and criminal sanction for failing to submit or giving false information. As a result, only a few public officials obey and submit the statements. Additionally, it has been noticed, the KPK lacks a method of  tying  the evidence on those statements to corruption offenses. This article draws from the U.S. approach where it does not criminalize public officials for illicit enrichment, but it integrates tax evasion and financial disclosure investigations, and in many cases, it leads to corruption convictions. Finally, this article recommends that Indonesia should avoid criminalizing illicit enrichment, and instead establish civil and criminal prosecution of financial disclosure system violations for failing to file and/or  providing false information, and integrate tax and corruption investigations by incorporating indirect methods of proof for illicit enrichment investigations that may find evidence to strengthen corruption prosecutions.

Keywords: Corruption, Criminal Law, Money Laundering, Procedural Law.

3. Legal Ethics Education in Germany by Stefan Kirchner, University of Lapland Faculty of Law, at 98-132;

Abstract. As more and more law school graduates enter the legal profession there is at the same time a deregulation of the legal profession, which is understood to refer to attorneys. This leads to the emergence of new players in the legal market and - in addition rather than taking anything away from the importance of profession-specific rules - an increased importance of legal ethics. For the purposes on this text, legal ethics is defined as unwritten rather than written rules of behavior which is expected of attorneys. For centuries, Germany has relied on a two-step legal education, in which university studies are followed by practical experience. This two year period introduces graduates to different legal professions. In recent years, though, also university education is putting more emphasis on the needs of the profession and many law faculties have begun to place more emphasis on the practical dimensions of the law. This will include written rules concerning the legal profession but it might not necessarily include legal ethics in the sense of the term used here. While the most fundamental rules relating to the profession of attorneys are regulated under federal law, education, including legal studies, falls within the purview of Germany’s sixteen federal states. Although basic rules are very similar across states, there are small differences between the details of the subjects which are to be covered in legal studies. As the current attention given by academia to professional rules regarding the profession of attorney is a relatively recent phenomenon, there are marked differences with regard to what different states require their law graduates either in the first state exam at the end of their university studies or in the second state exam after the two year practice period. Apart from this, the question is asked in this article how legal ethics, as opposed to professional rules for lawyers, are dealt with by law faculties in Germany.

Keywords: Professional Ethics, Legal Education.  

4. A Modest Proposal: Legalize Millions of Undocumented Immigrants with the Change of a Single Statutory Date by Alexander T. Holtzman, Michael E. Moritz College of Law & the John Glenn School of Public Policy, The Ohio State University, at 133-60; 

Abstract. Nearly 12 million undocumented immigrants currently live in the United States. Seemingly not a day goes by where the press does not cover immigration and immigrant issues. These articles discuss everything from the day-to-day experiences of undocumented immigrants in Alabama or Arizona, to the macro-political implications of Congress passing, or failing to pass, comprehensive immigration reform legislation. Yet, despite the press coverage, the on-the-ground realities, and the political ramifications, Congress has been unable to reform our broken immigration system. One reason posited for this failure is that the proposed solutions are simply too complicated. However, with respect to addressing the U.S.’s undocumented immigrant population, the solution need not be: Congress may amend a single date in the registry statute under Immigration and Nationality Act (INA) § 249, 8 U.S.C. § 1259, last altered during the Reagan Administration. By amending a single date, Congress could provide a path to legalization and citizenship for millions of undocumented immigrants with strong ties to the communities where they live and work.

Keywords: Immigration Law, Registry, Immigration Reform, INA 249, Legalization, Path to Citizenship. 

5. The Ethics of Tax Evasion: A Comparative Study of Chinese and U.S. Opinions by Robert McGee of Fayetteville State University, Yeomin Yoon of Seton Hall University & Ye Li of University of International Business and Economics, Beijing, China, at 161-86;

Abstract. Tax evasion is defined as the illegal nonpayment of a tax. Various arguments have been made over the centuries to justify tax evasion. Historically, the strongest arguments to justify tax evasion have been in cases where the people perceive the tax system to be unfair, where the government is corrupt, where tax rates are too high, where there is inability to pay, where a large portion of the funds collected are wasted or wind up in the pockets of corrupt politicians or their friends or family, where the funds are spent on projects the taxpayer morally disapproves of, or where the taxpayers perceive that they are not getting much in return for their tax payments. There has also been a perception that tax evasion is acceptable if everyone else is doing it or if the probability of getting caught is low.  
Historically, the weakest arguments have been in cases where the government works for the benefit of the people, where the money is being spent wisely, where the government is not corrupt, where the system is perceived as being fair, and where the people are receiving good benefits in exchange for their tax payments. 
The present study examined and summarized the main arguments and incorporated them into a survey instrument that was distributed to 200 university students in China and 161 in the United States to determine the relative strengths of 18 historical arguments that have been used to justify tax evasion in the past. The arguments are ranked from strongest to weakest. Comparisons are also made between Chinese and U.S. opinion. A comparison of rankings and mean scores found that, overall, the Chinese were significantly more opposed to tax evasion in 10 cases and significantly less opposed to tax evasion in two cases. Chinese women were more opposed to tax evasion than were Chinese men in all 18 cases; the opposition was significantly stronger in 10 cases. For the U.S. sample, men were significantly more opposed to tax evasion than women in one case; for the other 17 cases, the differences in mean scores were not significant.

Keywords: Ethics, Tax Evasion, Gender, Student Status, Academic Major, Public Finance.

6. India’s Company Act of 2013: A Governance Shift into the Sunlight by Sarah Alvy of California Western School of Law and San Diego State University Graduate School of Business at 187–220

Abstract. Recently enacted, the Companies Act of 2013 overhauls India’s corporate governance framework and has left the country anticipating whether implementation of the Act will be successful in attaining its policy objectives. This article examines and critiques three provisions of the Act, including mandatory female board directorship, corporate social responsibility, and auditor rotation. The article uses global business case studies to argue, from a managerial perspective, that each provision will enhance corporate governance and oversight, resulting in a more efficient Indian capital market. Also, the article comments on how the U.S. could emulate India in adopting a regulation designed to increase female board directorship.

Keywords: Company Law, Corporate Governance, Corporate Social Responsibility, Law and Development.

Comment

7. Attorney-Client Communication, Legal Ethics and the European Convention on Human Rightsby Stefan Kirchner, University of Lapland Faculty of Law, at 223-38; 

AbstractIn the 2014 judgment in Öcalan v. Turkey (No. 2), the European Court of Human Rights had to deal with the permissibility of the monitoring of attorney client communication in the case of a convicted terrorist. While the European Convention on Human Rights (ECHR) protects all forms of communication under Article 8 ECHR, attorney-client communication receives particular protection under Article 6 ECHR as an important part of the right to a fair trial. This article looks at the limits of the protection afforded to attorney-client communication, in particular in cases in which such communication goes beyond the mandate and into unethical or ethically unclear territory.

Keywords: Legal Ethics, Human Rights, the Right to Communicate, Council of Europe, European Law.