Sara Sun Beale and Pinar Olcer
This course will use comparative law methodology to examine contemporary criminal justice issues, including over criminalization, corporate criminal liability, prosecutorial discretion, and bribery and corruption. The course materials will explore how the U.S. system and other national systems respond to contemporary challenges. Readings also will consider how over-arching norms are transposed within supranational and international frameworks and down to national and subnational governments, from Europe to the United States (and vice versa) and back up to international treaties. Deeply and intricately tied into local legal frameworks and realities, criminal and criminal procedural law concerns an area of positive law in which it is famously difficult to gain consensus, even within one national sphere. Thus, what behavior should be criminalized, how law enforcement should be arranged, what constitutes fairness and just punishment all concern sensitive issues in the context of which “sharing” law can be difficult. Nevertheless, a great deal of “borrowing” or diffusion of law does take place, either informally or formally via international and supranational treaties or joint law enforcement efforts, in order to effectively combat crimes which are held to endanger international and transnational interests. Adopting similar rules – either by conscious decision or informal (judicial or executive) borrowing – does not always mean however that transplanted law will work, or work in the same manner in every environment, where contextual factors may have an impact on the way in which the law operates. By turning to distinct substantive and procedural themes within the domain of criminal justice, the aim is to gain understanding of the manner in which this type of law can be transposed to different contexts, what types of bottlenecks can be encountered therein and how issues of transposition can and should be dealt with.