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Journal articles on the topic 'Legal defenses'

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Published: 4 June 2021

Last updated: 5 February 2022

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1

Weintraub, Lisa. "Inner-city Post-traumatic Stress Disorder." Journal of Psychiatry & Law 25, no. 2 (June 1997): 249–86. http://dx.doi.org/10.1177/009318539702500203.

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For the first time, psychiatrists have explicitly recognized the connection between urban violence and Post-Traumatic Stress Disorder (PTSD), in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Using the new DSM-IV definition, this article reexamines the use of the PTSD insanity defense in inner-city criminal cases. After investigating the extent to which inner-city defendants meet the criteria of PTSD, the author outlines how the legal system has applied the PTSD insanity defense in criminal cases and explores the policy implications of those defenses. The author concludes that although many inner-city defendants can meet the medical and psychological criteria of PTSD, the legal system should not encourage such defenses. Instead, the author advocates using knowledge about inner-city PTSD to design creative crime-prevention strategies.

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2

Husak, Douglas N. "Partial Defenses." Canadian Journal of Law & Jurisprudence 11, no. 1 (January 1998): 167–92. http://dx.doi.org/10.1017/s0841820900001739.

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J.L. Austin is usually credited with having called attention to the existence of different kinds of defenses. His philosophical insights have inspired many legal commentators, especially theorists of criminal law. The contrast between justification and excuse forms the cornerstone of his thought. Austin’s most valuable contribution was to identify and explore the similarities and differences between justification and excuse. Yet a very important feature of these defenses as Austin conceived them is typically neglected by most of the scholarship that he inspired. Austin maintained that “few excuses get us out of it completely.” Clearly, he held the same view about justifications. But most of the subsequent work on justifications and excuses has treated each as complete defenses. A complete defense, by definition, precludes liability altogether. If the foregoing claim by Austin is correct, however, relatively few excuses (or justifications) are complete defenses. Those justifications or excuses that do not preclude liability altogether—which Austin believed to be the more numerous—might be called partial defenses. Partial justifications and excuses have received far less scholarly attention than those that result in acquittal. In this paper I hope to make some small progress in correcting this oversight.

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3

Oriet, Thomas, and Dr Leo Oriet. "Employer Rights and Legal Defenses to OSHA Citations." American Journal of Economics and Business Administration 10, no. 1 (January 1, 2018): 31–51. http://dx.doi.org/10.3844/ajebasp.2018.31.51.

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4

Tygart, Clarence E. "Public Acceptance/Rejection of Insanity–-mental Illness Legal Defenses for Defendants in Criminal Homicide Cases." Journal of Psychiatry & Law 20, no. 3 (September 1992): 375–89. http://dx.doi.org/10.1177/009318539202000306.

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A representative sample of public opinion was investigated concerning the processes by which the public accepts/rejects homicide defendants’ mental illness legal defenses. Lesser acceptance of a mental illness defense was associated with: (1) political conservatism; (2) traditional or orthodox religious beliefs; and (3) a “free will” rather than a “determinism” philosophical stance. Mental health professionals were accorded little influence in the public's determination of their positions on the mental illness defense. However, for those who did not have strong opinions on the mental illness defense, mental health professionals were defined generally as having significant influence on their decisions.

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5

Laymon, Ronald. "Defenses against charges of artistic failure: Some legal analogies." Philosophical Studies 73, no. 2-3 (March 1994): 239–56. http://dx.doi.org/10.1007/bf01207670.

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6

Glass, Gregory. "Legal defenses and outcomes in Paragraph IV patent litigation." Journal of Generic Medicines: The Business Journal for the Generic Medicines Sector 10, no. 1 (March 2013): 4–13. http://dx.doi.org/10.1177/1741134313482558.

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7

Kasian, Marilyn, Nicholas P. Spanos, Cheryl A. Terrance, and Suzanne Peebles. "Battered women who kill: Jury simulation and legal defenses." Law and Human Behavior 17, no. 3 (June 1993): 289–312. http://dx.doi.org/10.1007/bf01044510.

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8

Norrie, Alan. "The Problem Of Mistaken Self-Defense: Citizenship, Chiasmus, and Legal Form." New Criminal Law Review 13, no. 2 (2010): 357–78. http://dx.doi.org/10.1525/nclr.2010.13.2.357.

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This essay concerns the law of mistaken self-defense in England and Wales. It considers the widely held view that the honest mistake rule is wrong because it relates the mistake to mens rea. It accordingly fails to distinguish between offense and defense, and within defenses between justification and excuse. I argue against this view that these core criminal law concepts are fluid and irresolute. Mistaken self-defense can be analyzed in terms of an irreducible chiasmus (antithesis) in the law between "doing the right thing for a wrong reason" and "doing the wrong thing for a right reason." This makes it doctrinally unstable. When this is understood, it becomes clear that it may sometimes make moral and legal sense to analyze mistaken self-defense as concerning proof of mens rea, and sometimes not. What determines the matter in individual cases is a political understanding of the nature of citizenship in modern society. The analysis is offered in the light of recent police killings of innocent members of the public in London.

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9

Weinstock, Robert, and Harold Pruett. "Abuse of Psychiatric Legal Defenses Revisited: Mandatory Psychiatric Student Withdrawal." Journal of Forensic Sciences 35, no. 4 (July 1, 1990): 12905J. http://dx.doi.org/10.1520/jfs12905j.

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10

Frevert, Ute. "Honour and /or /as Passion: Historical trajectories of legal defenses." Rechtsgeschichte - Legal History 2014, no. 22 (2014): 245–55. http://dx.doi.org/10.12946/rg22/245-255.

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11

Diane Miller Sommerville. ""PMS Made Me Do It" and Other Gendered Legal Defenses." Reviews in American History 38, no. 3 (2010): 499–505. http://dx.doi.org/10.1353/rah.2010.0010.

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12

Melman, Charlie. "If “Everyone Does It,” Then You Can Too." Stance: an international undergraduate philosophy journal 9, no. 1 (April 19, 2018): 27–31. http://dx.doi.org/10.33043/s.9..27-31.

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I argue that the “But Everyone Does That” (BEDT) defense can have significant exculpatory force in a legal sense, but not a moral sense. I consider whether legal realism is a better theory of the law than the more orthodox view of respecting the law as it is written. I next examine what the purpose of the law is, especially attending to how widespread disobedience is treated. Finally, I attempt to fit BEDT within Paul Robinson’s framework for categorizing defenses. I conclude that, first, BEDT can have significant exculpatory force; second, a BEDT plea does not comport with either Robinson’s definition of an excuse or other commonly held conceptions and so needs its own classification; and finally, BEDT does not exonerate the offender in a moral sense—only in a legal context.

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13

McKee, Geoffrey R. "Insanity and Adultery: Forensic Implications of a Divorce Case." Psychological Reports 76, no. 2 (April 1995): 427–34. http://dx.doi.org/10.2466/pr0.1995.76.2.427.

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Legal responsibility for acts presumes that a person's behavior is rationally intentional and under voluntary control. Automatism, a type of insanity defense, contends that the person's conscious, voluntary control of behavior has been impaired by a mental disorder. In a recent case in South Carolina, automatism was offered as a defense to adultery, an at-fault grounds for divorce. On appeal, the State Supreme Court recognized the novel application of mental impairment defenses in domestic litigation and remanded the case for rehearing. Implications of the ruling for clinical and forensic practice in family court are discussed.

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14

Norris, Jesse J. "Accounting for the (Almost Complete) Failure of the Entrapment Defense in Post-9/11 US Terrorism Cases." Law & Social Inquiry 45, no. 1 (November 7, 2019): 194–225. http://dx.doi.org/10.1017/lsi.2019.61.

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Despite a number of compelling entrapment claims in post-9/11 US terrorism cases, these claims have nearly always failed. While previous research suggests possible reasons for this almost complete failure of the entrapment defense, no research has yet systematically examined the mechanisms responsible for this result. Drawing on thirty-seven interviews with individuals with in-depth knowledge of particular cases, as well as textual analysis of court decisions and quantitative analysis of a terrorism database, this article identifies several factors contributing to the entrapment defense’s failure. These include strategic choices by defendants to plead guilty or use other defenses, prosecutorial misconduct, evidence manipulation by informants and police, deficient entrapment doctrines, and procedural irregularities. Consistent with the general trend of counterterrorism law enhancing government power while reducing accountability, the multiple opportunities for authorities to manipulate the legal process leave defendants with little realistic chance of acquittal on entrapment grounds.

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15

D'hondt, Sigurd. "The Cultural Defense as Courtroom Drama: The Enactment of Identity, Sameness, and Difference in Criminal Trial Discourse." Law & Social Inquiry 35, no. 01 (2010): 67–98. http://dx.doi.org/10.1111/j.1747-4469.2009.01178.x.

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This article traces cultural defense as a discursive realization‐in‐context, rather than as a legal‐doctrinal figure, in a Belgian real‐life criminal trial. In examining the defense plea for a Turkish man accused of battery, three discursive techniques are identified for making Cultural Otherness visible: de‐individualization, reporting preparatory meetings with the client, and supplying ethnographic “expert” knowledge that transforms the client into the “object” of discourse. Apart from providing information about the defendant's background, cultural defenses also involve particular modes of behaviorally orienting toward the defendant in the courtroom. Otherness must be enacted in court, and to this end attorneys often actively disaffiliate themselves from their clients, marking them as impenetrable, mute, and unemancipated. In doing so, they draw extensively upon the indexical and iconic modalities of talk, which is convenient because the matrix of sameness and difference on which the cultural defense is founded escapes formal legal definition.

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16

Spriggs, Mark T., and John R. Nevin. "The Legal Status of Trade and Functional Price Discounts." Journal of Public Policy & Marketing 13, no. 1 (March 1994): 61–75. http://dx.doi.org/10.1177/074391569401300105.

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An increasing number of firms have integrated beyond traditional retailer-wholesaler boundaries and now sell the same product through two or more structurally different channel systems. As a result, the historically synonymous definitions for trade and functional price discounts are becoming obsolete. If regulatory agencies continue to use these obsolete definitions, enforcement of the Robinson-Patman Act becomes confused and distributive innovation is inhibited. A price discount's definition determines who is (and is not) entitled to the discount, so the definition is a key starting point for analyzing a discount's competitive effect, which is the primary test under the Robinson-Patman Act. Regulatory agencies should be conscious of the pro-competitive effects of price discounts and follow an enforcement policy that encourages both competition and innovation. The authors clarify trade and functional price discount terminology, discuss the role those discounts play in developing more efficient channel systems, review the existing defenses to price discrimination charges, and conclude with a recommendation for an explicitly recognized availability defense for these types of channel-based price discounts.

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17

Flaherty, Martin S. "Judicial Globalization in the Service of Self-Government." Ethics & International Affairs 20, no. 4 (December 2006): 477–503. http://dx.doi.org/10.1111/j.1747-7093.2006.00046.x.

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For at least the past several decades, judges around the world have been looking beyond their own states' jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well… .Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

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18

Sangero, Boaz. "A New Defense for Self-Defense." Buffalo Criminal Law Review 9, no. 2 (January 1, 2006): 475–559. http://dx.doi.org/10.1525/nclr.2006.9.2.475.

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Abstract Private defense, like self-defense, has been virtually undisputed both in the past and present and even taken for granted, and perhaps particularly for this reason, sufficient attention has not always been given to the rationale underlying private defense. As a result, the legal arrangements set for private defense in the different legal systems are deficient, inconsistent, and, at times, replete with internal contradictions. This article seeks to propose a sound rationale for the concept of private defense. It begins by attempting to clearly and precisely delineate the scope of the defense and weed out cases that are occasionally (and, I maintain, mistakenly) included in the framework of its scope by means of two general and imperative distinctions: between justification and excuse and between the definitive components of offenses and those of defenses. With regard to the first distinction, I consider the validity of its application and its possible implications for private defense. Since the validity of the second distinction is undisputed as an empirical fact (at least formally) in all modern penal codes, the question raised is whether there is a significant difference between the definition of offenses and the definition of defenses. The answer to this question is relevant to a number of issues, and of particular relevance to private defense are its implications for the application of the principle of legality and with regard to the mental element that should be required of the actor in such situations. Next I embark on a discussion of the various theories competing for predominance as elucidations of private defense. These theories and this discussion then serve as the background and foundation for the construction of the article's proposed rationale for private defense. The novelty of this rationale is in its integrative approach, melding a number of the proposed justifications for self-defense, rather than taking the traditional path of espousing one all-excluding rationale.

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19

Perevalova, Liudmyla, Oleksandr Kuzmenko, and Yana Hryhorenko. "Defenses VS military security of the state: theoretical and legal aspect." Herald of Zaporizhzhia National University. Jurisprudence, no. 1 (2019): 7–13. http://dx.doi.org/10.26661/2616-9444-2019-1-01.

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20

Morse, Stephen J. "Excusing and the New Excuse Defenses: A Legal and Conceptual Review." Crime and Justice 23 (January 1998): 329–406. http://dx.doi.org/10.1086/449273.

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21

Swenson, Elizabeth V. "Legal Liability for a Patient's Suicide." Journal of Psychiatry & Law 14, no. 3-4 (September 1986): 409–34. http://dx.doi.org/10.1177/0093185386014003-406.

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Lawsuits alleging psychotherapist liability for a patient's suicide have increased in number recently. Although the traditional theory of negligence is still popular, issues involving the standard of care and proof of causation are particularly difficult when one of the parties to the therapeutic relationship is not living. These problems have different implications when failure to prevent suicide is alleged than when a psychotherapist is said to have caused the suicide. In the latter, the presence of informed consent and assumption of the risk must be carefully evaluated as defenses. Alternative theoretical bases for these suits include implied contract, breach of fiduciary duty, and strict liability.

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22

Strange, Carolyn. "The Unwritten Law of Executive Justice: Pardoning Patricide in Reconstruction-era New York." Law and History Review 28, no. 4 (October 4, 2010): 891–930. http://dx.doi.org/10.1017/s0738248010000714.

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Reconstruction was an uncertain time in New York City, the nation's foremost metropolis, riddled with political corruption and rocked by popular protest. Stabilizing efforts took numerous forms, including the brutal suppression of workers' rallies and the prosecution of municipal politicians and officials. Public faith in the criminal justice system and its capacity to prosecute and punish criminals had also reached a low ebb by the 1870s, prompting the state government to investigate the district attorney's office in New York County and its court system. In the words of a veteran member of the city's criminal bar, the “deplorable uncertainty” of punishment was making “a mockery of justice.” A Columbia University medico-legal expert agreed, claiming that murder, “if not yet cultivated as one of the fine arts … [was] a matter of daily occurrence.” High-profile trials in the wake of the Civil War tested public and professional criticism of jury independence, particularly jurors' disinclination to find killers guilty of murder, compounded by defense attorneys' growing use of “moral” and “emotional insanity” defenses. Every time apparently sane killers, such as William McFarland (tried and acquitted on grounds of “temporary insanity” in 1870 for the murder of his former wife's lover) escaped conviction on the basis of questionable insanity defenses, newspapers announced “the insanity dodge,” and medico-legal experts squabbled over the growing problem of “feigned insanity.” Occasionally Manhattan's murderers did face the gallows, especially the poor and friendless, as the execution of William Foster in March 1873 confirmed, but it seemed that well-financed and well-defended murderers, like Edward Stokes, murderer of financier Jim Fisk, could exploit the technicalities of the law if the vagaries of medicine failed to secure acquittals. A justice system of this sorry character had little hope of deterring would-be murderers, the New York Times despaired: “MURDER AND HANGING-Examples Wanted-Strangle All Our Murderers Together.”

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23

Lewis, Timothy B., and Jeffrey N. Barnes. "An Accounting Liability Heuristic." Journal of Business Case Studies (JBCS) 11, no. 4 (October 5, 2015): 189–224. http://dx.doi.org/10.19030/jbcs.v11i4.9447.

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This article traces the thought processes involved in understanding and managing accountants’ legal liability which is sometimes broadly called “professional malpractice.” The cumulative nature of potential liability is demonstrated. The various legal theories of liability are discussed along with the most prominent potential affirmative defenses against liability. Unique to this paper is the decision heuristic providing a framework for assessing potential accountants’ legal liability. This discussion is useful for both student and practitioner.

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24

Walter, C., and E. P. Richards. "Legal defenses to the use of data digits to identify fabricated data." IEEE Engineering in Medicine and Biology Magazine 21, no. 2 (March 2002): 77–80. http://dx.doi.org/10.1109/memb.2002.1046119.

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25

Gooding, Piers, and Tova Bennet. "The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities." New Criminal Law Review 21, no. 1 (2018): 141–69. http://dx.doi.org/10.1525/nclr.2018.21.1.141.

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The U.N. Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defense and similar “special defenses” in criminal law. Proponents argue that abolishing the defense would advance efforts to fully recognize the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound the substantive inequality of an already marginalized population. This paper seeks to accelerate this debate with reference to Swedish criminal law, which saw the abolition of the insanity defense in 1965. Neither side of the debate appears to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators appear to have overlooked CRPD-based considerations. Instead, Sweden seems likely to reintroduce the insanity defense following long-standing domestic criticism. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in the quest for due process rights and substantive equality for people with disabilities in criminal law.

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26

Kielbowicz, Richard B. "The Law and Mob Law in Attacks on Antislavery Newspapers, 1833–1860." Law and History Review 24, no. 3 (2006): 559–600. http://dx.doi.org/10.1017/s0738248000000808.

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Two months after a mob in Alton, Illinois, killed abolitionist editor Elijah Lovejoy and destroyed his fourth press, a jury acquitted several assailants accused of rioting. By the time that the trials commenced in January 1838, the defenses had all been publicly aired; indeed, they had been rehearsed in print and at well-attended meetings long before the attack occurred. The mob's leaders had taken special care over several months to lay a legal foundation for their action; most notably, the Illinois attorney general led the pre-attack rhetorical justification and the post-attack courtroom defense. In the end, the jury found that resorting to forcible measures in such circumstances did not clearly fall outside the law.

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27

Arlen, Jennifer. "Designing Mechanisms to Govern Takeover Defenses: Private Contracting, Legal Intervention, and Unforeseen Contingencies." University of Chicago Law Review 69, no. 3 (2002): 917. http://dx.doi.org/10.2307/1600635.

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28

Hallen, Benjamin L., Riitta Katila, and Jeff Rosenberger. "The Interplay of Legal, Temporal, and Social Defenses in Corporate Venture Capital Relations." Academy of Management Proceedings 2012, no. 1 (July 2012): 13066. http://dx.doi.org/10.5465/ambpp.2012.13066abstract.

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29

Annandale, Ellen. "Professional Defenses: Medical Students' Perceptions of Medical Malpractice." International Journal of Health Services 26, no. 4 (October 1996): 751–75. http://dx.doi.org/10.2190/t5q8-gx9y-k55n-050e.

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Despite the pronounced interest in “challenges to professional dominance” in Britain, medical malpractice has been subject to little empirical attention. There has been a flurry of policy activity within the National Health Service over the last six or so years and a steady stream of commentary from professional bodies, yet we know very little about the views of various medical practitioners who occupy different positions in the professional hierarchy. This article explores the views of (first and fifth year) medical students and considers the extent to which they cohere with the public discourse of medical elites. The author suggests that while individual practice is the focal concern for medical students who seem acutely aware and concerned about litigation, elites construct malpractice as a macro economic-legal problem, strategically severing the association between individual practice and the experience of a malpractice suit.

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30

Andrews, Lori B., and Ami S. Jaeger. "Confidentiality of Genetic Information in the Workplace." American Journal of Law & Medicine 17, no. 1-2 (1991): 75–108. http://dx.doi.org/10.1017/s0098858800007930.

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This Article analyzes existing legal protections for the confidentiality of information collected through genetic screening or genetic monitoring in the workplace. It notes that there are a variety of protections, such as ethical codes for occupational physicians, statutes protecting health care information in the hands of the employers, and tort, contract and constitutional principles. It describes defenses to suits based on improper disclosure of medical information. The Article then analyzes legal bases for employee and third party access to the employee's genetic information. In response to gaps in existing legal protections, it suggests parameters for a model law protecting the confidentiality of genetic information collected in the workplace.

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31

Choong Lyong Ha. "The Legal Characteristics of Consumer Arbitration Clause and Defenses in the U.S. Contract Laws." JOURNAL OF ARBITRATION STUDIES 23, no. 3 (September 2013): 61–80. http://dx.doi.org/10.16998/jas.2013.23.3.61.

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32

de Vel-Palumbo, Melissa, Chelsea Schein, Rose Ferguson, Melissa Xue-Ling Chang, and Brock Bastian. "Morally excused but socially excluded: Denying agency through the defense of mental impairment." PLOS ONE 16, no. 6 (June 10, 2021): e0252586. http://dx.doi.org/10.1371/journal.pone.0252586.

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Defendants can deny they have agency, and thus responsibility, for a crime by using a defense of mental impairment. We argue that although this strategy may help defendants evade blame, it may carry longer-term social costs, as lay people’s perceptions of a person’s agency might determine some of the moral rights they grant them. In this registered report protocol, we seek to expand upon preliminary findings from two pilot studies to examine how and why those using the defense of mental impairment are seen as less deserving of certain rights. The proposed study uses a hypothetical vignette design, varying the type of mental impairment, type of crime, and type of sentence. Our design for the registered study improves on various aspects of our pilot studies and aims to rigorously test the reliability and credibility of our model. The findings have implications for defendants claiming reduced agency through legal defenses, as well as for the broader study of moral rights and mind perception.

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33

Cotton, Michele. "The Necessity Defense and the Moral Limits of Law." New Criminal Law Review 18, no. 1 (2015): 35–70. http://dx.doi.org/10.1525/nclr.2015.18.1.35.

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It is puzzling that American criminal law recognizes self-defense while rejecting the conceptually similar defense of necessity. Necessity applies where pressing circumstances provoke the defendant to commit an otherwise unlawful act, while self-defense applies where an assailing person does so. Different treatment would make sense if the two defenses were morally distinguishable. But they are morally equivalent, whether considered from the perspective of natural law, social contract theory, or utilitarianism. Rather, the motivation appears to be that the necessity defense, unlike self-defense, implies biological determinism, calling into question the criminal law’s traditional assumption that human beings exercise free will in choosing their actions. And, as its treatment of the necessity defense indicates, American criminal law does not simply proceed from an assumption of free will but silences any contradiction. Such a stance means not only that the necessity defense cannot be accommodated, but also that the legal system cannot make use of the insights of the sciences and social sciences to the extent that they describe human behavior deterministically. However, it may be better for the law to embrace a more salutary kind of inconsistency, one that entertains the possibility that the law is capable of moral improvement and self-correction.

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34

Daigle, Ronald J., Timothy J. Louwers, and Jan Taylor Morris. "HealthSouth, Inc.: An Instructional Case Examining Auditors' Legal Liability." Issues in Accounting Education 28, no. 4 (June 1, 2013): 887–93. http://dx.doi.org/10.2308/iace-50530.

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ABSTRACT This instructional case explores auditors' legal liability under the Securities Exchange Act of 1934 by asking students to assume the role of either the plaintiffs' (investors') or defendants' (Ernst & Young's) legal counsel. By using publicly available documents and testimony (provided on a dedicated website for this instructional case) in their arguments, students not only explore in depth one of the more egregious accounting scandals of the new millennium, but also are exposed to the plaintiff's burden of proof and the defendant's defenses in a Rule 10b-5 action. Additionally, by understanding the root causes of the fraud and why it took so long to uncover, students can better understand a number of the provisions set forth by the Sarbanes-Oxley Act of 2002. Results of a student survey after completion of the case indicate that case objectives were met. Students also report enjoying the case materials and welcoming other cases using similar types of materials.

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35

Tomei, Jenna, Robert J. Cramer, Marcus T. Boccaccini, and Nancy Ryba Panza. "The Gay Panic Defense: Legal Defense Strategy or Reinforcement of Homophobia in Court?" Journal of Interpersonal Violence 35, no. 21-22 (June 14, 2017): 4239–61. http://dx.doi.org/10.1177/0886260517713713.

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Gay panic refers to a heterosexual man violently responding to unwanted sexual advances from a gay man. In court, the defendant may argue he was provoked or temporarily insane. This study utilized 352 jury-eligible citizens to assess differences across mediums of gay panic. Participants were asked to read vignettes depicting a control, gay panic as provocation, or gay panic as insanity condition and provide verdicts and ratings of blame and responsibility. Participants also completed measures assessing political orientation and homonegativity. Data were analyzed via a MANCOVA, a chi-square goodness-of-fit test, and general linear modeling. Verdicts, victim blame, and ratings of responsibility differed across vignette conditions, with an observed leniency effect when gay panic was claimed in either context. Homonegativity also exacerbated patterns of prodefendant views, as participants higher in homonegativity assigned higher victim blame, lower defendant responsibility, and more lenient verdicts in the gay panic conditions. The effect of political orientation was nuanced, as only republicans in the provocation condition followed the anticipated pattern in rendering more lenient verdicts. Results provide additional support for the notion gay panic defenses may be, in part, fueled by political beliefs and prejudicial beliefs against persons of sexual minority status. Drawing from a justification–suppression model, it may be that in cases of gay panic, a context is created in which prejudiced ideologies can be openly expressed via leniency on the defendant. Implications may be relevant to future criminal law policies and practices, particularly advocacy and policy efforts, judicial training, and trial consultation to attorneys for juror selection and development of trial strategy.

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36

Lewis, Seth C., Amy Kristin Sanders, and Casey Carmody. "Libel by Algorithm? Automated Journalism and the Threat of Legal Liability." Journalism & Mass Communication Quarterly 96, no. 1 (March 12, 2018): 60–81. http://dx.doi.org/10.1177/1077699018755983.

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The rise of automated journalism—the algorithmically driven conversion of structured data into news stories—presents a range of potentialities and pitfalls for news organizations. Chief among the potential legal hazards is one issue that has yet to be explored in journalism studies: the possibility that algorithms could produce libelous news content. Although the scenario may seem far-fetched, a review of legal cases involving algorithms and libel suggests that news organizations must seriously consider legal liability as they develop and deploy newswriting bots. Drawing on the American libel law framework, we outline two key issues to consider: (a) the complicated matter of determining fault in a case of algorithm-based libel, and (b) the inability of news organizations to adopt defenses similar to those used by Google and other providers of algorithmic content. These concerns are discussed in light of broader trends of automation and artificial intelligence in the media and information environment.

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Moore, Gregory P. "Liability of Emergency Physicians for Studies Ordered in the Emergency Department: Court Cases and Legal Defenses." Journal of Emergency Medicine 40, no. 2 (February 2011): 225–28. http://dx.doi.org/10.1016/j.jemermed.2009.08.047.

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Sardu, Alessandra. "On the Execution of Investment Arbitral Awards in Recent Case Law." Law & Practice of International Courts and Tribunals 17, no. 3 (December 10, 2018): 499–526. http://dx.doi.org/10.1163/15718034-12341390.

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AbstractThis article examines the peculiarities and points of criticism of the execution of investment arbitral awards. It specifically addresses the potential obstacles to the execution of investment arbitral awards based on recent case law. First, the article focuses on the differences existing between the phases of enforcement and execution of investment arbitral awards, with special regard to the procedural frameworks of investment arbitration that are most commonly utilized. Secondly, the issue of the interrelation between these two phases is addressed in the light of national case law, given that enforcement of an arbitral award has a preliminary function for the purpose of its actual execution, in addition to representing an obstacle to the latter. Before focusing on the legal defenses to forcible execution that can undermine the entire efficacy of an arbitral award, the article explores those defenses raised to avoid an award’s enforcement.

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Cheng, Le, Winnie Cheng, and Jian Li. "Defamation case law in Hong Kong: A corpus-based study." Semiotica 2016, no. 208 (January 1, 2016): 203–22. http://dx.doi.org/10.1515/sem-2015-0114.

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AbstractDefamation law is a long-standing research focus. Previous studies on defamation law have pointed out the importance of balancing two fundamental issues in law, namely, protection of reputation and freedom of speech. The present corpus-based legal study, using ConcGram 1.0 as the analytical tool, examined the phraseological profile of reported cases on defamation in Hong Kong in order to find out the types of defense and the approach to meaning in the defamation case law in Hong Kong. Regarding defenses to a defamation claim, the results show that fair comment, qualified privilege, and justification are the most prevalent types, that unintentional defamation is not used at all, and that there has been a noticeable shift from fair comment to honest comment. As for the approach to meaning, the ordinary and natural approach is found to be a pivotal means of solving the threshold problem in defamation cases, that is, whether the words involved are defamatory or not.

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Katz, Matthew, and Chad Seifried. "A Lawsuit in the Waiting: Special Relationships within Campus Recreation?" Recreational Sports Journal 36, no. 1 (April 2012): 45–59. http://dx.doi.org/10.1123/rsj.36.1.45.

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This work explores a potential legal argument holding campus recreation programs liable for injuries sustained during recreational activity using the concept of a “special relationship.” A literature review on the impacts of campus recreation programs will be followed by a discussion of how campus recreation programs may meet several established legal requirements for such a special relationship to exist, requirements found in the 1993 case Kleinknecht v. Gettysburg. This discussion will focus on concepts of recruiting and community benefits found in both the campus recreation literature and the Kleinknecht findings. We will conclude with a discussion of potential defenses for the recreation industry in such a case where a special relationship lawsuit is attempted along with points of emphasis to reduce the prospects of litigation.

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Abd Aziz, Ahmad Shamsul, Nor Azlina Mohd Noor, and Khadijah Mohamed. "THE NEED FOR PUBLIC INTEREST DEFENCE IN COPYRIGHT LAW DURING THE INFORMATION TECHNOLOGY ERA." International Journal of Law, Government and Communication 5, no. 19 (June 10, 2020): 107–17. http://dx.doi.org/10.35631/ijlgc.519008.

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In the age of information technology, copyright law contends with a new challenge. Owing to this, various challenges of regulating copyright infringement on the Internet need to be tackled. Copyright law has its intent in the public interest. Nevertheless, it should not forfeit the rights of the copyright owner. Therefore, a balance must be maintained in preserving copyright owners ' rights while, at the same time, the work can be used by the public. This is so as the public interest in Malaysia is not rendered as a special provision pertaining to entitlements under the Copyright Act 1987. Still, certain legal provisions in the Copyright Act 1987 include the term of public interest. In arguing the need to offer public interest in copyright law especially in the era of information technology, this article discusses the theory of public interest and the theory of information technology. Via library research, this article uses the legal research method. This article concludes that while there is no specific provision as regards the public interest in Copyright Act 1987, it does not in itself oppose Article 8 of the TRIPS Agreement because the public interest is being impliedly considered in the defense of copyright. Therefore, there is no need to create specific provisions as the current defenses of copyright are appropriate and the court may decide whether the use of such remedies is allowed or not.

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Spuhler, James Norman. "Biological evolution: The origin of the cell, how evolutionary processes work, and current legal attacks and defenses." Reviews in Anthropology 17, no. 1-4 (February 1991): 183–89. http://dx.doi.org/10.1080/00988157.1991.9977919.

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Ausness, Richard C. "Is Litigation the Way to Combat the Opioid Crisis?" Journal of Law, Medicine & Ethics 48, no. 2 (2020): 293–306. http://dx.doi.org/10.1177/1073110520935341.

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This paper examines the lawsuits brought by state and local government entities against prescription opioid producers and sellers. It examines their potential liability as well as some of the defenses they might raise. The paper also discusses multidistrict litigation and government lawsuits in state court. It concludes that litigation is not the best solution to the opioid crisis.

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Sawicki, Nadia N. "Defining The Known Risk: Context-Sensitivity In Tort Law Defenses." Journal of Tort Law 12, no. 1 (May 27, 2019): 9–31. http://dx.doi.org/10.1515/jtl-2019-0003.

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Abstract The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.

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Wood, Emily F., Sarah A. Trescher, Monica K. Miller, and Christine M. McDermott. "Individual Differences Relate to Support for Insanity and Postpartum Depression Legal Defenses: The Mediating Role of Moral Disengagement." Psychiatry, Psychology and Law 25, no. 2 (August 7, 2017): 219–36. http://dx.doi.org/10.1080/13218719.2017.1351905.

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Nash, Marian, and (Leich). "Contemporary Practice of the United States Relating to International Law." American Journal of International Law 90, no. 2 (April 1996): 263–79. http://dx.doi.org/10.2307/2203689.

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In response to a request from the court to the Legal Adviser of the Department of State, by a letter dated November 29, 1995, the United States submitted a Statement of Interest in Meridien International Bank Ltd. v. Government of the Republic of Liberia. The United States stated that the executive branch had determined that allowing the (second) Liberian National Transitional Government (LNTG II) access to American courts was consistent with U.S. foreign policy. The court, the United States maintained, should therefore accord that Government standing to assert claims and defenses in the action on behalf of the Republic of Liberia.

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Benedict, Susan, Arthur Caplan, and Traute Lafrenz Page. "Duty and 'Euthanasia': the Nurses of Meseritz-Obrawalde." Nursing Ethics 14, no. 6 (November 2007): 781–94. http://dx.doi.org/10.1177/0969733007082118.

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This article examines the actions and testimonies of 14 nurses who killed psychiatric patients at the state hospital of Meseritz-Obrawalde in the Nazi 'euthanasia' program. The nurses provided various reasons for their decisions to participate in the killings. An ethical analysis of the testimonies demonstrates that a belief in the relief of suffering, the notion that the patients would 'benefit' from death, their selection by physicians for the 'treatment' of 'euthanasia', and a perceived duty to obey unquestioningly the orders of physicians were the primary ethical reasons that were stated for their behavior. However, 20 years had elapsed between the killings and the trial, thus giving ample opportunity for the defendants to develop comfortable rationales for their actions and for their attorneys to have observed successful defenses of others accused of euthanasia.

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Galkin, S. S. "LENDING RIGHT AND INSOLVENCY ESTATE." Courier of Kutafin Moscow State Law University (MSAL)), no. 7 (September 16, 2020): 121–29. http://dx.doi.org/10.17803/2311-5998.2020.71.7.121-129.

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The article analyzes the practical aspects of inclusion the lending right into the insolvency estate. Based on the analysis of existing legal regulations and judicial practice of their application, there are existing restrictions on the inclusion of lending rights in the insolvency state. These restrictions are analysed from a balance of interests of the owner, the debtor and his creditors, as well as the correct distribution of economic costs while providing priority protection to each of these entities. Based on the concept of flexible legal regulation, the author formulates possible approaches (de lege ferenda and de lege lata) to solving this problem. The article focuses on the definition of the elements of the theoretical concept of a flexible system of protecting rights in insolvency. This concept includes, for example, the following aspects: firstly, the need to relativize those absolute defenses that can directly negatively affect the general economic well-being (In this case, the insolvency estate), secondly, the enforcement search for the scope of the protection provided should be carried out by judicial weighing and procedural assessment of various relevant factors, as well as the corresponding gradation of legal consequences, which should be identified by legislator or superior court.

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Hunter, Jr., Richard J. "MAKING WHIPPED CREAM OR GETTING HIGH: PRODUCT MISUSE OR A FAILURE TO WARN?" JOURNAL OF SOCIAL SCIENCE RESEARCH 8, no. 3 (August 1, 2015): 1672–82. http://dx.doi.org/10.24297/jssr.v8i3.3599.

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This paper will consider several legal issues presented by this scenario: Is the Whip-it! a defective product? Is the manufacturer or the seller of the Whip-it! liable for not properly warning a prospective plaintiff about the dangers inherent in the use of the product? Is Walter a foreseeable user of the product? Has the plaintiff misused the product to such an extent that he or she would be unable to recover for any injuries? Would any other defenses be potentially available to the defendant? These questions will be analyzed in the context of Starn v. Smoke Island and Jenkins v. W.L. Roberts, Inc.

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Mandell, William J. "A Physician's Exposure to Defamation." Quality Assurance and Utilization Review 7, no. 1 (March 1992): 30–33. http://dx.doi.org/10.1177/106286069200700105.

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The article defines defamation, discusses how to avoid a defamation action, and suggests defenses against a defamation action. Several examples are given that demonstrate common situations where liability exists and how a physician should respond. The article explains that at times we have a duty to speak and differentiates between our legal, moral, and ethical duty. Defamation should not be a concern for those involved in the peer review process, as long as they are truthful or act in a good faith belief that what they are saying is true. The article should enhance peer review by encouraging physicians to participate without fear of a retaliatory law suit.

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