The article analyzes prohibitions on membership in terrorist organizations and examines their justifiability. It begins by providing a definition of a terrorist organization. It then describes the far-reaching modern prohibitions on membership in terrorist organizations in various jurisdictions. The article goes on to provide a doctrinal analysis of membership offenses. Based on similarities with conspiracy doctrine, membership offenses are analyzed as expansions of attempt law or, in some cases, of complicity doctrines. The justifiability of this expansion is examined. The article introduces a distinction between exclusively terrorist organizations, passive membership of which can be legitimately prohibited under certain conditions, and ancillary and dual-purpose organizations, passive membership of which cannot be legitimately prohibited. Next, the justifiability of prohibiting more active forms of membership in each of these types of organizations is discussed. Last, guidelines for the legislation of appropriate prohibitions are proposed.
The legal system has been ambivalent about naked statistical evidence. Addressing this ambivalence, the article explores the epistemological status of naked statistical evidence and its normative and practical implications. It is suggested that since naked statistical evidence cannot generate knowledge, it cannot be the basis for assertions of facts; and assertions of facts are practically and legally important: they are essential in order to establish the court's responsibility for its decisions and its errors. Such responsibility is needed in order to maintain the legitimacy of the legal system; to avoid unfairness to defendants; and to ensure that legal decision-makers have no valid claims against the decision-making arrangement. As a result, the legal system is inclined to avoid statistical evidence altogether.
Modern legal regimes have narrowed the scope of the sexual history evidence that is admissible for purposes of proving or refuting claims of consent in cases of sexual assault. Yet, under most modern regimes, similar-sexual-history evidence is still admissible. The article critically analyses the epistemic foundations of these regimes by laying down two arguments. The main argument is that, in the vast majority of cases, similar sexual history is simply irrelevant to questions of consent. First, a simple statistical analysis demonstrates that, in the class of complainants on sexual assault, similar-sexual-history evidence is not indicative of consent. Bayesian insights are then introduced in order to reinforce the analysis and refine it by identifying one narrow exception. Next, it is demonstrated that, in light of the proposed analysis, current evidential regimes can only make sense under some highly controversial normative or factual assumptions. The secondary argument contends that some of the modern evidential regimes reflect the idea that claims of power inequalities between men and women should be at the heart of sexual assault law, rather than claims of consent or lack of it.
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