Duncan On What Not To Do What Your Roommate Is Murdered In Italy: Amanda Knox, Her "Strange" Behavior, and the Italian Legal System @EmoryLaw

Martha Grace Duncan, Emory University School of Law, is publishing What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System, in the Harvard Journal of Gender and the Law. Here is the abstract.

One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique. Rather, it is emblematic of broader themes and a broader problem−that of human beings’ prejudice against “strangeness” and our desperation for a hasty assessment of guilt or innocence‒qualities that can bleed into a legal system to the detriment of the quest for truth. In this Article, I explore the Amanda Knox case in the context of our defective ability to judge. In Part One, I use the conceit of a “What Not to Do” list to highlight the role played by Amanda’s “strangeness” in bringing about her arrest and two convictions. In Part Two, I re-examine the usual rationale for Amanda’s behavior and suggest that a better explanation lies in her age and developmental stage. In Part Three, I shift from the interpreted to the interpreters, arguing that the latter were powerfully affected by the Madonna/whore complex and cultural differences between Perugia and Seattle. In Part Four, I analyze the impact of the Italian legal system, with its deep roots in the inquisitorial paradigm and its limited adversarial reforms. This Article is based not only on scholarly research but also on my four sojourns in Italy, where I retraced Amanda’s footsteps and discussed the case with numerous legal experts. I had the opportunity to interview Amanda herself after she was free in Seattle.

Download the article from SSRN at the link.

Faraguna on Regulating Religion in Italy

Pietro Faraguna, University of Ferrara Faculty of Law, has published Regulating Religion in Italy: The Constitution Does (Not) Matter. Here is the abstract.

Regulating religion in Italy has always been a crucial issue, starting from the outset of the national history. It is not necessary to have a deep knowledge of the history of the Italian state to be aware of this exceptionalism: geography is telling enough. The Italian state – a relatively weak state that always had to deal with a strong religion – is the only example of a state that contains another independent ecclesiastical (or sacerdotal-monarchical) state entity in the middle of its territory. In this paper, I focus on a specific aspect of this “constitutional” exceptionalism. I particularly focus on state-Church relations and on the peculiar implementation of the “idea of secularism” in Italy. The paper shows that the constitutional regulation of religion does not tell so much about the regulation of religion in the Italian constitutional experience. This is not due to a lack of constitutional provisions regulating religion and religious freedom. On the contrary, both the pre-republican constitutional charter and the republican Constitution accorded a very prominent role to the regulation of the religious phenomenon. Nonetheless, I will show that an investigation of the “living constitution” reveals that constitutional provisions have been implemented in diverging directions throughout the history of Italian secularism. To this end, in this paper I firstly provide an outline of the formal constitutional provisions of the 1848 Constitution followed by a brief overview of legislative and jurisdictional developments of the 19th and of the first half of the 20th century. Secondly, I address the constitutional provisions adopted in 1947, focusing on the constitutional “compromise” reached by the Constituent Assembly. Thirdly, I investigate briefly how the actors under the living constitution (the legislator, the government, common judges and the constitutional court in particular) tried to balance and develop the potentially conflicting principles included in the 1947 Constitution in the field of religious freedom, equality and state-Church relations. In particular, I focus on three particularly controversial examples: the teaching of religion in state schools; the display of the crucifix in classrooms and mechanisms for state funding of religious denominations. Finally, I argue that insofar as the regulation of religion in Italy is concerned, the actual shift in paradigm did not occur within the formal Constitution, but rather in the living Constitution.

Download the article from SSRN at the link.