Legality in criminal law, its purposes, and its competitors -- A partial history to World War II -- Nuremberg, Tokyo, and other Post-War cases -- Modern development of international human rights law : practice involving multilateral treaties and the Universal Declaration of Human Rights -- Modern comparative law development : national provisions concerning legality -- Legality in the modern international and internationalized criminal courts and tribunals (with a note on legality in internationally-supervised trust territories) -- Legality as a rule of customary international law today
It is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state's courts do not allow challenges to jurisdiction based on international law, and the state of the outsider's nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of jurisdiction. Some common law states, like the United States, have no thorough jurisdictional provisions in their criminal codes. In the United States, the presumption against extraterritorial effect, revitalized in the non-criminal case of Morrison v. Australia National Bank (U.S.S.Ct. 2010), can assist in minimizing the problem of "surprise" jurisdiction over persons who had no reason to know that they would be subject to United States criminal laws which do not specify the territory, persons, and situations outside the U.S. to which they apply. The presumption against extraterritorial effect might sensibly be given an "elemental" reading. The presumption against extraterritoriality would be triggered if neither subjective territoriality (an act committed in the U.S. constitutes an element of an offense) or objective territoriality (a result which is an element of the crime occurs on U.S. territory) is present. It is hard to believe that any state would give up the general right to control either wrongful acts or illegal effects on its own territory, despite statements made by certain countries in the Morrison litigation and its aftermath. In developing this argument, this paper suggests that, on average, in recent decades, Congress has been more attuned to the obligations of the United States as an entity under the international law of jurisdiction than have been the Courts.
This piece responds to Russell G. Pearce and Eli Wald, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law (presented at the 2011 Altheimer Symposium, UALR Bowen School of Law). It agrees with their view that arguments from "relational self-interest" (viewing self interest as necessarily connected to the interests of others) can address issues of incivility in the American politics and the practice of law in ways that other arguments cannot. It disagrees with them on a few specific points: 1. The so-called Ordeal of Incivility in American politics, culture and law practice is not particularly a new thing; 2. Claims that society as a whole used to be more civil ignore that the state of society at these earlier times excluded large segments of society from civic participation; 3. Claims that the practice of law has recently become less civil ignore the fact that most of the tools of incivility (except discovery abuse) are old–but this piece admits that the fragmentation of specialties such as torts and criminal law into plaintiff (or prosecution) and defense bars does make seeing both sides of issues much more difficult, and 4. Any definition of civility in the practice of law must allow for vigorous cross-examination and closing argument (which would be uncivil if done outside of the courtroom context, and even in that context appear uncivil to non-lawyers) and must allow litigators to argue for legal positions that many people in society might consider uncivil and disruptive.
