Law Defense Research Articles

Understanding the MetaBirkin: Trademark Law and an Appropriate Legal Standard for NFTs

This note argues that the recently decided trademark case, Hermès v. Rothschild, highlighted the flaws of the Polaroid factors and their singular focus on determining consumer confusion, and makes a case for an expanded understanding of a copyright fair use defense in trademark law. Two forms of fair use are already acknowledged in the trademark context, but neither are comparable to the much stronger fair use exception in copyright law. The factors in the copyright fair use defense seem to strike directly at the heart of the most salient concerns in Hermes v. Rothschild, while the Polaroid factors seem to allow only tangential considerations of certain key factors.

Kedudukan Hukum Mahar “Sunreng” dalam Perkawinan Bugis Makassar

This study aims to determine and analyze the implementation of the provision of land dowry in marriage according to national defense law, as well as the legal protection status of ownership of land rights in marriage dowry in Tanralili District, Maros Regency. In addition, it also aims to find out and analyze legal protection for women who receive dowry land in marriage in Tanralili District, Maros Regency. In addition to field research, namely open interviews with a number of local government officials such as the Head of BPN Maros Regency, Tanralili Sub-District, Head of KUA Tanralili District, as well as questions and answers with several residents who married with land as their dowry, a literature study was also conducted (Library Research) by studying related laws and regulations, books, journals, and articles obtained through the internet. Data analysis is carried out using qualitative and normative analysis techniques. The result of this study is that the implementation of dowry in marriage of national land law is valid or permissible as long as legal certainty in terms of certificates is submitted at the time of marriage contract if and according to national land law if registered with the national land office by first proving by a deed of grant made by the Land Deed Making Officer (PPAT). And Legal protection for women who receive land, the provision of dowry in marriage in Tanralili District, Maros Regency, which is the strongest on land, is a certificate made by the local land office, further suggestion that the granting of dowry in marriage can be recognized for its implementation according to national land law.

In defense of humean non-universal laws

In defense of humean non-universal laws

Provocation and the Reasonable Asian: Applying the Reasonable Person Standard to Asian Defendants Asserting the Provocation Defense

AbstractThis Article examines the criminal law defense of provocation in the U.S., which employs an objective reasonable person standard, as applied to recent Asian immigrants. It discusses approaches taken in other countries and describes the cultural defense. The Article concludes with different possibilities for a hypothetical Asian defendant who was provoked: Improving education about U.S. laws as a preventative measure, using expert cultural witnesses at trial, and taking the defendant’s characteristics into consideration during the sentencing stage.

SEPs infringement and competition law defence in German case law

Within the debate on the role of competition law in standard essential patents (SEPs) litigation, German case law has taken centre stage because of the number of decisions handed down and its traditional patent-owner-friendly approach. As the framework handed down by the European Court of Justice (CJEU) in Huawei is usually interpreted as being opposed to the approach adopted by the German Federal Court in the Orange Book Standard decision, it is worth investigating how German courts have tackled the competition law defence in the post-Huawei scenario. The article maintains that the Federal Court’s rulings in Einwand have aligned German case law with the Huawei framework and that the attention devoted in German case law to the implementer’s obligations is consistent with the principles set out by the CJEU. Nonetheless, recent lower courts’ decisions confirm that the case-by-case detection of the licensee’s willingness is still a challenging issue.

When Victims of Modern Slavery Became Offenders: The Unravelling of the UK’s Modern Slavery Agenda

ABSTRACT While victims of trafficking who commit crimes have a defense in law in England and Wales, this has not been without controversy in the courts and is increasingly threatened in practice as British government ministers heap suspicion on those formally seeking recognition as victims of modern slavery. In the first part of this article, we review recent criminal cases decided by the Court of Appeal in England and Wales to explore why it is that some victims of trafficking break the law. These cases reveal the impossible choices that constitute the nexus of circumstances that lead victims to offend. In the second part of this article, we examine the cases of three people convicted of modern slavery and allied immigration crimes that are excluded from the statutory defense in English and Welsh law to show how morally comprehensible the commission of serious crimes can be in the aftermath of exploitation, destitution and trauma. We conclude by urging academics and activists in the modern slavery field to be vocal about how few victims fit their stereotypes and to help articulate the irreconcilably difficult choices that explain why some break the law in immigration contexts that are overtly hostile toward them.

Anxieties about International Law: Law Debenture v Ukraine

The idea that international law is received into the common law to some greater or lesser extent persists in contemporary accounts of the English constitution. In The Law Debenture Trust Corporation plc v Ukraine, however, a majority of the Supreme Court held – in circumstances ripe for its reception – that international law had no place in the English common law of duress and contractual defences. This note explains why, after Law Debenture, international law's reception into English law seems practically impossible. It then sketches an alternative account of how international law can be invoked in English proceedings – never truly received into English law, but instead applied as the lex causae under a choice of law rule for inter‐state issues – which proves more theoretically satisfying and practically meaningful, and which also provides a better path to the outcome reached in Law Debenture.

Redefining doubt in cases of uncertainty: an analysis of the 2023 US DoD Law of War Manual revision to the presumption of civilian status in armed conflict

The third edition of the United States (US) Department of Defense Law of War Manual, updated in December 2016 (2015 DoD Manual) states that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects”. The 2015 Manual received general support from military circles, but some experts believed that rejecting the customary international law (CIL) status of the presumption of civilian status in instances of doubt was an apparent mistake or important error. The 2023 US DoD Law of War Manual (2023 Manual) has now been promulgated with a revision to the doubt rule. Doubt regarding the character of persons or the nature of dedicated civilian objects results in a “presumption” of civilian status “unless the information available indicates that the persons or objects are military objectives”. The 2023 Manual attracted criticism, with some experts, especially those with military experience, arguing that it is counterproductive to incorporate exponentially legalistic or complex, nuanced judgements about status determinations, presumptions and the sufficiency of rebuttal evidence in practical matters such as targeting decisions. The article evaluates the substance and implications of the revision to the doubt rule in the 2023 Manual. The article further considers whether the doubt rule regarding the civilian character of persons and the nature of certain objects has acquired customary international humanitarian law status. Ultimately, the article concludes that is not realistic to include a presumption for application in targeting decisions due to the complexities of applying legalistic concepts during armed conflict.

Symmetrical and complementary escalation: Understanding the dynamics of the Ukraine war

Abstract The paper argues that the initial phase of the Ukraine war involved not only one but two escalatory processes, one following the pattern of symmetrical escalation and the other the pattern of complementary escalation. Symmetrical escalation is “conventional” conflict escalation, which was obviously occurring between Russia and Ukraine. However, drawing on a concept that was originally developed in the context of couple and family therapy, the paper argues that a second escalatory process developed between Russia and Western powers that followed the pattern of complementary escalation. In a complementary escalation, two participants take polarized positions on a spectrum of behavioral options and increasingly radicalize and rigidify in these positions, in a self-reinforcing interactional spiral, as when, e. g., one partner becomes increasingly accusatory and the other increasingly conciliatory, or one becomes increasingly responsible and the other increasingly irresponsible. The interactions between Russia and the West in the early months of 2022 can be described as involving such an escalatory or polarizing spiral, with Russia taking the position of “resort to war and reliance on brute force” and the West taking the position of “defense of international law and ban of war as a means of politics”. While both sides had leaned towards these positions before, they had done so only in the sense of partial and situationally flexible preferences, not in the sense of absolute and rigorously defended principles, and what turned them into staunch and uncomprisiming defenders of these principles was their mutual interaction and polarization. The paper presents a model that captures this dynamic, it discusses the problematic or even tragic role of international law in this process, and it underpins this with general system-theoretical considerations on the role of formalization and legitimation in social systems.

<span>Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law</span>

<span>Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law</span>

The Military Component and its Role in the History of the Japanese State and Society: The Specifics of the Japanese Military System in the 7th–9th Centuries

The purpose of this article is to analyze the role of the military component underlying the functioning of the Japanese state in the 7th–9th centuries. It was during this period that military houses appeared in Japan, and military service began to be perceived as one of the most important government functions. The recruitment of the armed forces was based on universal conscription. As part of the most important government codes, the Military Defense Law for the first time in Japan laid the foundation for the formation of the institution of universal conscription. In this regard, it is extremely interesting to trace how much the Japanese recruitment system coincided and whether it coincided at all with the Chinese one. Created at the turn of the 7th–8th centuries the army recruitment system was a complex phenomenon, which was undoubtedly a progressive step towards the formation and development of the Japanese state. However, despite all the progressiveness of this system, which was borrowed by the Japanese from China, in the conditions of Japanese reality (exorbitant burden for peasants and the absence of enemies) it turned out to be unnecessary and by the 9th century it was replaced by “private” formations. However, the fact that this system, with minimal changes, was taken as the basis of the Japanese Imperial Army in the second half of the 19th century and existed until 1945, speaks of its advanced character and enormous historical significance.

Not Just Non-Consensual Pelvic Exams

Not Just Non-Consensual Pelvic Exams

Resilience and adaptation: examining the impact of the defense law on accounting and auditing professions during the COVID-19 pandemic in Jordan

Purpose This study aims to examine the impact of Jordan’s defense law on the accounting and auditing professions during the COVID-19 pandemic. Design/methodology/approach Using a qualitative methodology with a philosophy of interpretivism, semi-structured interviews were conducted with seven audit partners and 14 auditors to explore the consequences of the defense law in Jordan. Thematic analysis was used to identify key themes and findings. Findings The study reveals significant impacts of the defense law on the accounting and auditing professions. Additional disclosures in financial statements were required, increasing the workload for accounting professionals. Auditors faced challenges related to non-compliance risks, fraud risks, management override risks in collecting sufficient evidence. Specific industries, such as restaurants, transportation and tourism, were particularly affected, posing higher audit risks. Originality/value This study contributes to the international debate on the impact of crisis-related laws on the audit profession. It offers insights into the challenges faced by auditors during crises and underscores the necessity of adapting auditing practices to new regulatory requirements. The study’s originality lies in its examination of the specific consequences of the defense law in Jordan, providing valuable implications for professionals worldwide and emphasizing ongoing discussions on crisis-related regulations in auditing practices. It underscores the need for adaptability, learning and innovation in addressing regulatory changes and managing audit risks in crisis situations. The findings provide valuable insights for professionals worldwide and emphasize ongoing discussions on crisis-related regulations in auditing practices.

Autonomous systems, superior orders and manifest unlawfulness: is there a duty to disobey?

The recent development of the next generation of ‘drones’ featuring some form of artificial intelligence or machine learning – the autonomous military system or AMS – has fuelled speculation about who the law ought to hold responsible for any negligence or malfeasance in their use. In a scenario recently posted by the Australian War College, an Air Force pilot relies on sensor information and artificial intelligence assessments provided by AMS which led to an (ultimately unlawful) order to attack a target. If that story played out in real life, what disciplinary liability should that ADF member face for their actions: do AMS fundamentally challenge the circumstances in which Defence Force members should disobey unlawful orders? Would disciplinary liability be assigned differently if the pilot was from another host jurisdiction? This article comparatively examines the superior orders defence in the domestic law, with a view to identifying the application of the duty to disobey in relation to orders involving AMS.

Introduction to the Special Issue

One of Britian's colonial legacies is the common law defence available to adults who corporally punish children. Canada inherited this defence, which became codified in 1892 as Section 43 of the Criminal Code. The aim of this Special Issue is to examine Canada's law alongside those of other former members of the British Empire that have abolished their defences - Ireland, Scotland and Wales.
 The first three papers in this issue will place Canada's law within its global, historical and colonial contexts. The next three papers tell the stories of how Ireland, Scotland and Wales overcame the same challenges faced in Canada to ultimately provide equal protection for children.

“Why didn’t we do this years ago?”: Ireland’s Journey to Prohibiting All Corporal Punishment of Children

In December 2015, Ireland became the 47th country to prohibit all corporal punishment of children, abolishing the common law defence of “reasonable chastisement”. This article tells the story of this momentous cultural and legislative change from the perspective of the Senator who championed the reform in the Irish Parliament. From the roots of the English common law defence through revelations of endemic violence against children to human rights rulings and courageous tenacity, the journey to ultimately achieving equal protection for children in Ireland is fully documented.

Revisiting Defence of Claim of Right in Nigerian Criminal Law through Elimuya v. Police

The defence of bonafide claim of right under Nigerian criminal law is an important menu in the consideration of the defences open to a defendant in a criminal trial. In Charge No MAB/43c/2020 Commissioner of Police v. Chief Paul Idima Obi Elimuya the defence came up for consideration before the learned trial Senior Magistrate Grade 1, Edema Doris (Mrs.) sitting at the Magistrates’ Court, Abbi in Delta State, Nigeria. Because of the intricate nature of the defence and the manner in which it was considered in the above mentioned charge, this study is actuated towards revisiting the defence under the Nigerian criminal procedure law and determine whether given the factual circumstances in which the defence arose, the trial court was in the right footing in rejecting the defence as made during the trial proceedings in Elimuya’s case. This study would consider the forgoing issue in relation to the appeal which the defendant later took out against the judgment of the learned trial Magistrate to the High Court of Justice, Kwale Delta State, Nigeria. This study uses the doctrinal method relying on judicial decisions and other relevant statutory instruments in the area of the law under consideration. It uses the locus classicus on the subject area of the law in Nigeria (Nwakire v State) to interrogate both the facts yielded in Elimuya v Police and the judgment delivered by the trial court on 15th October, 2022. As this study is essentially an academic exercise, the aim is to highlight the importance of the defence in criminal procedure law, demonstrating the circumstances under which it is to be raised and upheld and the controversies surrounding its application under Nigerian law. The study finds that the facts in Elimuya v Police were on all fours with the circumstances under which the defence ought to have been upheld and the refusal of the learned trial Magistrate in upholding same led to miscarriage of justice and to the appeal. The study therefore recommends that whenever the question whether the defence of claim of right is applicable during a trial, the trial court and indeed an appellant court should look out for the essential elements of the defence as outlined in this study.

The Moral Foundation of Criminal Defences and the Limits of Constitutional Law

The Supreme Court of Canada’s decision in R v Khill provided a novel moral framework for self-defence. Whereas self-defence was previously categorized as a justification, the Court now maintains that it constitutes an excuse in some cases. In other cases, the Court suggests self-defence sits between justification and excuse, captured by a principle I elsewhere call “moral permissibility”. The Court’s choice to adopt a more robust relationship between the moral principles underlying justification/excuse and self-defence is principled. However, the basis for that conclusion—the application of moral philosophy to the law of criminal defences—applies with equal force to the law of duress and necessity. Unfortunately, the statutory duress defence and section 8(3) of the Criminal Code limit the juristic scope of those defences. Although these restrictions may be challenged under section 7 of the Charter, this challenge will likely fail as defendants need not be denied a defence. Instead, they will be denied a proper moral assessment of their actions. To instill greater coherency into the law, it is prudent to repeal the statutory duress defence. This approach would allow courts to utilize the broad wording of the new “defence of person” provision to develop the law of self-defence, necessity, and duress in line with the moral philosophy underlying these defences. Constitutionalizing the principles underlying criminal defences can nevertheless serve two broader purposes: mitigating the tendency of courts and counsel to unduly rely upon other less transparent (jury nullification) or heavy-handed (judicial review) legal devices to avoid conviction.

Does the government's defence funding bill really only create an unenforceable political commitment?

The article is devoted to the draft law on defence financing, which aims to oblige the government to allocate an amount of at least 2% of GDP to defence in every draft law on the state budget. During the inter-ministerial comment procedure, the Supreme Audit Office expressed doubts whether the draft means anything more than an unenforceable political commitment in relation to the Chamber of Deputies". The article convincingly demonstrates, with the help of legal argumentation and interpretation of the Constitution of the Czech Republic, the Rules of Procedure of the Chamber of Deputies, as well as the established case law of the Constitutional Court of the Czech Republic, that if approved, the Chamber of Deputies will also be bound by the Defence Financing Act when approving the state budget. To do otherwise would violate constitutionality.

Does Mistaken Belief in Consent Constitute a Defence in South African Rape Cases?

In the 2020 case of Coko v S 2022 1 SACR 24 (ECG), the Eastern Cape High Court held that a person's mistaken belief in consent to penetrative sex could constitute a valid defence in law. In statutory provisions and jurisprudence, the absence of the victim's consent is fundamental in establishing a case of rape. This paper evaluates the decision, where it was held that when an appellant reasonably believes that the complainant/victim had consented to sex, this alone could be enough to acquit the appellant of the charge of rape.