Law Defense Research Articles

Constitutional parasitism, camouflage, and pretense: Shaping citizenship through subterfuge

Abstract Constitutional rights or values are sometimes used by governments to disguise, mask, or misdirect attention from the true nature of their actions. Such strategies of subterfuge are, by their nature, difficult to identify and prove. This article responds to the challenge of identifying and proving subterfuge by demonstrating three types of strategies of subterfuge governments may deploy. To that end it uses a close study of three strategies deployed in the Indian government’s defense of a controversial citizenship law. The first strategy is the introduction and incubation of nationalist versions of constitutional values, exemplified by the Indian government as it planted an alternative nationalist vision of secularism in legal and public discourse about citizenship. The second strategy is the appropriation of constitutional rights to serve as camouflage to deflect criticism of the government’s true aims; the Indian government illustrated this strategy as it used religious freedom to camouflage its goal of removing “infiltrators.” The third strategy is the appropriation of human rights precedents for state action which in fact breaches human rights. The article demonstrates how we might prove, identify, and establish each of these strategies, when they are at work.

The necessity defence in (the Swiss) climate protest cases: Democratic contestation in the age of climate activism

AbstractThe transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case‐law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting a priori climate necessity claims.

The Implications of the Activating Defense Law No.13 of 1992 on Human Rights in Jordanian Society - The Corona pandemic as a model

هدفت الدراسة الى التعرف الى الآثار المترتبة على تطبيق آوامر الدفاع على حقوق الأنسان في المجتمع الأردني ولتحقيق أهداف الدراسة تم الاعتماد على المنهج الوصفي التحليلي والمنهج الكيفي واعتمدت الدراسة على أداتى الاستبانة والمقابلة لجمع البيانات الكمية والنوعية عبر تطبيق إستبانة خاصة على عينة الدراسة , وإجراء مقابلات معمقة مع عدد من أصحاب الخبرة والاختصاص وصنع القرار , تكونت عينة الدراسة من 400 مواطن ومقيم في مؤسسات المجتمع الأردني محافظة الكرك,وتحديدآ من الأفراد المتضررين من جائحة كورونا , كما تم مقابلة 4 أفراد من المختصين والخبراء في حقوق الإنسان وصنع القرار. أظهرت نتائج الدراسة وجود علاقة بين الدرجة الكلية لبعد الآثار الايجابية كأحد الأثار المترتية على تطبيق آوامر الدفاع على حقوق الأنسان ,وأن المستوى العام لإجابات عينة الدراسة من الأفراد المتضررين من جائحة كورونا في مؤسسات المجتمع الأردني (محافظة الكرك) نحو مستوى حقوق الإنسان في المجتمع الإردني قد جاءت بمستوى مرتفع , وأوصت الدراسة من خلال نتائجها الميدانية بعدد من التوصيات.

Is Thalamic DBS Synergistic With VNS in Drug Resistant Genetic Generalized Epilepsy? (P5-1.001)

<h3>Objective:</h3> To report prolonged seizure freedom and improved quality of life after combining anterior nucleus of the thalamus deep brain stimulation (ANT-DBS) with vagus nerve stimulation (VNS) in a patient with drug resistant genetic generalized epilepsy (GGE). <h3>Background:</h3> Neuromodulation remains at forefront of management in patients with drug-resistant epilepsies though efficacy has been palliative and FDA approved in focal epilepsies. While polytherapy with anti-seizure medications (ASMs) is common, dual neuromodulation has received limited attention. <h3>Design/Methods:</h3> A 32-year-old female patient with drug resistant GGE who failed 10 antiseizure medications underwent video-EEG monitoring. EEG revealed 3–3.5 Hz generalized polyspike-and-wave discharges and generalized paroxysmal fast activity in brief run lasting less than 3 seconds increased during sleep. Seizures were not recorded. VNS model 106 Aspire SR was implanted at age 23 achieving parameters of 1.5 mA, 25 Hz, 250 μs, 14 sec on, 1.1 min off. Despite improvement with seizure reduction, ongoing monthly convulsions resulted in recurrent injuries. The patient subsequently underwent bilateral ANT-DBS placement with inferior most contacts on both sides well-positioned at the junction of the mammillothalamic tracts for monopolar stimulation at 5 V, 145 Hz, and 90 μs. <h3>Results:</h3> Neuro- “modulation” was observed in our patient with VNS following implantation of ANT-DBS by gradual reduction diminishing seizure frequency, intensity, and duration to ultimately become seizure-free for 21 months. Stable doses of Onfi 20 mg po bid and Keppra 1500 mg po bid were continued. After combining ANT-DBS with her incomplete VNS response she married, became employed, and was able to retain driving privileges and lead an independent lifestyle. <h3>Conclusions:</h3> Identifying a subset of patients with GGE responsive to polyneuromodulation promises personalized therapy for those with life-altering effects from generalized seizures. We speculate that the thalamic network connectivity may be modulated by dual ANT-DBS and VNS, leading to targeted neurobiological therapy in some patients with GGE. <b>Disclosure:</b> Dr. Khan has nothing to disclose. Erik Middlebrooks has received personal compensation in the range of $10,000-$49,999 for serving as a Consultant for Varian Medical Systems Inc. Erik Middlebrooks has received personal compensation in the range of $500-$4,999 for serving on a Scientific Advisory or Data Safety Monitoring board for Boston Scientific Corp. The institution of Erik Middlebrooks has received research support from Varian Medical Systems Inc. Dr. Freund has nothing to disclose. Sanjeet S. Grewal, MD has received personal compensation in the range of $500-$4,999 for serving as a Consultant for Medtronic. Dr. Tatum has received personal compensation in the range of $10,000-$49,999 for serving as a Consultant for Bioserenity. Dr. Tatum has received personal compensation in the range of $500-$4,999 for serving as an Editor, Associate Editor, or Editorial Advisory Board Member for Elsevier. Dr. Tatum has received personal compensation in the range of $500-$4,999 for serving as an Expert Witness for Defense Law Firm on behalf of a patient with epilepsy with funds donated to the Epilepsy Foundation of America. The institution of Dr. Tatum has received research support from Esai. The institution of Dr. Tatum has received research support from Mayo Clinic. The institution of Dr. Tatum has received research support from Liva Nova. The institution of Dr. Tatum has received research support from Engage Pharmaceuticals. The institution of Dr. Tatum has received research support from Xenon. Dr. Tatum has received publishing royalties from a publication relating to health care. Dr. Tatum has received publishing royalties from a publication relating to health care.

Clinical characteristics associated with the development of preoperative and postoperative seizures in patients with glioblastoma (P3-1.002)

<h3>Objective:</h3> To determine the factors which predict the occurrence of preoperative seizures (PRS) and post-operative seizures (POS) among patients with glioblastoma (GBM). <h3>Background:</h3> Seizures have been well described in patients with GBM, albeit at a lower frequency than low grade gliomas. Although recent studies suggest epileptogenesis has more to do with genetic molecular markers in low grade glioma-related seizure, information on factors that influence the development of of GBM-related PRS and POS is lacking. <h3>Design/Methods:</h3> We performed a single-center retrospective cohort study of patients with GBM evaluated at Mayo Clinic Florida, between 2018 and 2022. Clinical factors including, tumor molecular markers, neurophysiological and imaging findings were analyzed according to the status of PRS and POS. <h3>Results:</h3> One hundred thirty-two adult patients (median age=61.5 years), 79 (59.85%) females) were included. The most common locations were the temporal (n=50, 42.02%) and frontal (n=47, 39.50%) lobes. All patients underwent GBM resection, with 17.1% undergoing total resection (n=22). Sixty-two patients (46.27%) underwent intra-operative electrocorticography during GBM resection. Isocitrate dehydrogenase 1 (IDH1) wildtype was present in 121 patients (90.3%), 61 patients had O⁶-methylguanine-DNA methyltransferase (<i>MGMT</i>)-methylated GBM (46.21%). Forty patients (33.9%) had PRS, and 39 patients (38.24%) had POS (median follow-up=17.27 months; IQR=10.6–30.1). IDH1 wildtype and MGMT methylation status were not associated with PRS or POS. Patients with PRS were younger (59 years vs. 64 years, <b><i>p=0.021</i></b>) and experienced a longer survival time (16.1 months vs. 8.3 months, <b><i>p=0.044</i></b>) compared to patients without PRS. Occipital lobe GBM was associated with a lower likelihood of PRS (<b><i>p=0.043</i></b>) and POS (<b><i>p=0.001</i></b>). <h3>Conclusions:</h3> PRS is associated with younger age and longer survival time. PRS and POS are less likely to occur with occipital lobe tumors. Further studies are needed to confirm our findings and elucidate the influence of other tumor molecular markers in the development of PRS and POS in patients with GBM. <b>Disclosure:</b> Dr. Sánchez Boluarte has nothing to disclose. Dr. Garcia has nothing to disclose. Dr. Gunasekera has nothing to disclose. Dr. Tatum has received personal compensation in the range of $10,000-$49,999 for serving as a Consultant for Bioserenity. Dr. Tatum has received personal compensation in the range of $500-$4,999 for serving as an Editor, Associate Editor, or Editorial Advisory Board Member for Elsevier. Dr. Tatum has received personal compensation in the range of $500-$4,999 for serving as an Expert Witness for Defense Law Firm on behalf of a patient with epilepsy with funds donated to the Epilepsy Foundation of America. The institution of Dr. Tatum has received research support from Esai. The institution of Dr. Tatum has received research support from Mayo Clinic. The institution of Dr. Tatum has received research support from Liva Nova. The institution of Dr. Tatum has received research support from Engage Pharmaceuticals. The institution of Dr. Tatum has received research support from Xenon. Dr. Tatum has received publishing royalties from a publication relating to health care. Dr. Tatum has received publishing royalties from a publication relating to health care. Dr. Sirven has received personal compensation in the range of $5,000-$9,999 for serving as a Consultant for UCB. Dr. Sirven has received personal compensation in the range of $5,000-$9,999 for serving as a Consultant for Medtronic. Dr. Sirven has received personal compensation in the range of $5,000-$9,999 for serving as a Consultant for Neurelis. Dr. Sirven has received personal compensation in the range of $5,000-$9,999 for serving on a Scientific Advisory or Data Safety Monitoring board for Medtronic. Dr. Sirven has received personal compensation in the range of $10,000-$49,999 for serving as an Editor, Associate Editor, or Editorial Advisory Board Member for AAN. Dr. Sirven has stock in Doximity. Dr. Sirven has received publishing royalties from a publication relating to health care. Dr. Sirven has a non-compensated relationship as a Host with WJCT Public Media/ NPR that is relevant to AAN interests or activities. Dr. Freund has nothing to disclose. The institution of Dr. Ritaccio has received research support from NIH. Dr. Ritaccio has received intellectual property interests from a discovery or technology relating to health care. Kaisorn Chaichana has nothing to disclose. Alfredo Quiñones-Hinojosa has nothing to disclose. Dr. Feyissa has nothing to disclose.

Microburst Vagus Nerve Stimulation: Safety and Efficacy Outcomes (S44.003)

Microburst Vagus Nerve Stimulation: Safety and Efficacy Outcomes (S44.003)

The Merits of Ambiguity: Provocation from the Irish Perspective

The old common law defence of provocation has been abolished in many jurisdictions, including England and Wales and Northern Ireland, but it is still part of the law south of the Irish border. Up to now the Irish law of provocation has been built up solely by the courts, and has developed a number of peculiarities, not least the apparent rejection of the objective test by the Court of Criminal Appeal in the 1978 case of MacEoin. However, it is not until recently that the defence has come to the attention to the Supreme Court, in the 2020 case of McNamara. In this case the court set out to clarify the law, but the case has been criticised by commentators for its failure to clear up some of the existing ambiguities; indeed, it has been said that it has even introduced further ambiguities into the law that did not exist before. Be that as it may, this paper argues that McNamara is to be welcomed, in so far as it promotes a flexible approach and one which recognises the essentially normative nature of the provocation defence.

The Trafficking Defence in Criminal Law: Nexus and Compulsion

The United Kingdom has accepted international obligations under the Palermo Protocol, the Council of Europe Trafficking Convention, and the EU Trafficking Directive, in relation to the non-prosecution and non-punishment of victims of trafficking for offences they commit which are linked to their trafficking. The obligations are given effect by the Crown Prosecution Service (CPS) discretion not to prosecute, the abuse of process jurisdiction, the common law defence of duress, and the statutory defences under s 45 Modern Slavery Act 2015. In relation to adult victims of trafficking, in each case the question arises of whether they were compelled to commit the offence with which they are charged. This article shows how the English &amp; Welsh courts and the CPS have had insufficient regard to the United Kingdom's international obligations in interpreting ‘compulsion’, and that improvements are necessary to prevent breaches of the United Kingdom's obligations and the re-traumatisation of victims of trafficking.

Tindak Pidana Pembunuhan Karena Membela Diri Perspektif Hukum Pidana Islam dan Hukum Pidana Nasional

The crime of murder is a legal event that is forbidden in Islamic law. In criminal law in Indonesia it is regulated in Article 340 of the Criminal Code. However, there are legal consequences if a person commits a criminal act of forced murder because in self-defense one's efforts are to defend oneself against other people's criminal attacks in order to protect life, honor and property, namely by defending oneself when a person is attacked or deprived of his rights. This research is a library research, the materials and data obtained from the library and various other descriptions that are relevant to the problem of the writing topic. The results of the study are that there are similarities and differences in the terms of forced defense in Islamic criminal law and positive law. The equation for these conditions is the protected object (life, honor and property of oneself and others). The fundamental difference is that it exceeds the permissible defense limit. If in positive law it is permissible to go beyond the limits of forced defense on condition that there must be a cause for great mental disturbance (Article 49 paragraph 2) which is casuistic in nature and determined by a psychiatrist. Whereas the view of Islamic Criminal Law in carrying out acts of defense may not exceed the specified limit, if that happens then the excess must be accounted for by the person who committed the act.

Polemic of Law No. 23 of 2019 Concerning Management of National Resources for National Defense Formation of Reserve Components

The study of legal politics in the polemic of Law No. 23 of 2019 PSDN, legal politics, namely legal policies that determine the direction, form and content of law which includes the formation, application and enforcement of law in order to achieve certain social goals/state goals. So linked in this sense the formation and application of this law creates confusion for implementers and society. so that the formulation of the problem is how to carry out the formal and material formation procedures for Law No. 23 of 2019 concerning the Management of National Resources for the Formation of Reserve Components and what are the suitability of substances and the results of material reviews by the Constitutional Court. The approach method used in this research is juridical-normative, this study concludes Whereas the PSDN Law has formally been formed and ratified, but materially there are norms or principles that are still not accommodated in these regulations so that it is feared that it will cause friction between one law and another and there is overlap between regulations (the PSDN Law and the State Defense Law) which regulates the same matter with regard to the concept of defending the country (reserve component). One of the several polemical articles of the PSDN Law, namely the concept of human rights (HAM), which was not fully given limited space to citizens in the election process, became a reserve component.

The Legal Politics of State Defense in the Concept of Sovereignty of the Unitary State of the Republic of Indonesia

State defense is any effort to maintain state sovereignty, the territorial integrity of the Unitary State of the Republic of Indonesia, and the safety of the entire nation from threats and disturbances to the integrity of the nation and state. The goal to be achieved is to find and analyze state defense arrangements in the concept of Sovereignty of the Unitary State of the Republic of Indonesia. and to find and analyze the ideal concept of state defense legal politics in the concept of Sovereignty of the Unitary State of the Republic of Indonesia.&#x0D; This research uses normative juridical research with statutory, conceptual, comparative, philosophical, and historical approaches. Sources of legal materials used primary, secondary and tertiary sources of legal materials, the analysis used is qualitative. Based on the results of the study, it shows that state defense arrangements are regulated in Article 1 of Law number 3 of 2002 concerning State Defense and Law Number 34 of 2004 concerning the TNI in this Law, what is meant by state defense is all efforts to maintain state sovereignty, the territorial integrity of the Unitary State of the Republic of Indonesia, and the safety of the entire nation from threats and disturbances to the integrity of the nation and state. The Ideal Concept of State Defense Legal Politics in the Concept of Sovereignty of the Unitary State of the Republic of Indonesia is Defense Law Politics which refers to various juridical policies, where elements of the people must be given proportional space in defense considering the dynamics of the development of an increasingly dynamic national, regional and global strategic environment.

Preventive criminalization: legislation and issues in China

ABSTRACT Preventive criminalization is one of the most noteworthy legislative phenomena in China, exhibiting structural differences from the basic principles of criminalization and the traditional risk prevention function of criminal law, focusing mainly on the areas of counterterrorism and cybercrime. The advancement of the criminal law defense against new types of crime is necessary, but there is also an implied risk of expanding and blurring the boundaries of criminal law intervention. The trend towards preventive criminalization is inevitable in our country, guided by a positive view of criminal law. The addition of preventive criminal law provisions in future legislation should reasonably balance the relationship between social protection and civil rights, avoiding excessive intervention of criminal law on the grounds of prevention.

Anwesen Arche-tecture and the Amplification of the Natural Law

In this paper, I discuss and theorize the semiosis that occurs when poetizing about dynamic, addressing, and mysterious Being-physis. Such poetizing is beneficial for the grasp of the natural law and, thus, for ethical formation. The defense of the natural law and its prescribed basic goods still is hindered to some extent by the modernist milieu that persists even today in our so-called postmodern era. I confront the lingering Cartesian spirit in its various modes—viz., the reductive obsession with speculative self-evident propositions as a foundation for moral ideas well as the tendency to trace the source of all intelligible insights to the subjective consciousness—in order to develop a different approach towards the defense of the natural law. Specifically, I marshal ideas in the later Martin Heidegger and the Thomistic tradition, including ideas in John of St. Thomas’ semiotics as retrieved by John Deely, to articulate the importance of “Anwesen arche-tecture” qua the environing of Being-physis and the poetizing of the same to amplify the voice of the natural law. I analyze the process of symbolic externalization when poetizing Being and consider the metaphysical implications of the medium’s contribution to semiosis, which would include an anti-nominalist theory of relations and an account of participated intentionality, and thus, of esse-in-the-world. This paper is a Thomistic appropriation of Heideggerian themes for “semioethical” or “significal” theorizing, moving back and forth (“translating”) across different philosophical paradigms and discourses to locate the matter (die Sache) for thinking.

God's Brigands: People, Party, and Sect in Flavius Josephus's Bellum Judaicum

AbstractRenowned as a historian, Flavius Josephus enjoys little reputation as a political thinker. As heir to the classical historical tradition of Thucydides, however, considerations of the regime remained primary for him. All the more so given his most important task not inherited from them: the defense of the Jewish law and people against their pagan detractors. Josephus defended the law as having specified the best political regime (which he called “theocracy” but by which he meant a rigorous natural aristocracy). He defended the people as faithful to that law and as innocent of the terrible excesses of the great uprising of 66 CE. In so doing he was compelled to confront a phenomenon unknown to his classical predecessors: a politics not of class divisions but of sectarian ones. His response to it uncannily anticipated features of the modern (post-Machiavellian) reinterpretation of politics in terms of “peoples” and “elites.”

SEPs Infringement and Competition Law Defence in German Case Law

SEPs Infringement and Competition Law Defence in German Case Law

English Law of Defences: Sample Problem Question &amp;amp; Answer

English Law of Defences: Sample Problem Question &amp;amp; Answer

Personal non-property rights: current problems of civil law defense

Personal non-property rights: current problems of civil law defense

Corona Pandemic Impact on the Performance of the Iraqi Clinics

Contractual obligations in Iraq have been affected by the worldwide outbreak of coronavirus and the restrictive measures it has adopted, such as the announcement of the Defense Law. The enforcement of the Defense Law led in some cases to the impossibility to perform the contractual obligations that were previously established which triggered the parties to the contract - the debtor in particular - to invoke the application of force majeure or the doctrine of exceptional circumstances, and in both cases either demand contract frustration or mitigation of the contract. This research addresses the impact of applying the doctrine of unexpected circumstances and force majeure on contractual obligations following the provisions of Iraqi law and considering the legal texts of the defense and civil laws in force in Iraq. To achieve the goals of this research, the relevant legal texts were covered with explanation and detail, supported by the jurisprudence of the Iraqi courts.

Central-Local Government Coordination During the COVID-19 Response: A Case Study Analysis of Jordan and Morocco

This study seeks to understand the coordination of national and subnational governments in response to the COVID-19 pandemic in Jordan and Morocco. Utilizing a case study analysis strategy, this study provides a better understanding of the governmental response to the COVID-19 crisis in light of the relationship between the national and subnational levels of government. The examination of the two case studies, namely, Jordan and Morocco, was conducted through a document analysis strategy that implemented the READ approach. The results illustrate that pandemic management occurred through coordination between the central government, which is responsible for formulating response policies, and the subnational government, which is responsible for implementing these policies. Jordan formulated and institutionalized its response to the pandemic through the activation of Defense Law No. 13 of 1992. The governorates and municipalities worked together to implement the defense orders. Similarly, the government in Morocco established national response policies, and the local and territorial levels were responsible for executing these policies.

Casting a Constitutional Light on the Cultural Defence in South African Criminal Law

Abstract South Africa’s criminal courts have often dealt with cases where accused who committed culturally motivated crimes tried to escape criminal liability through a so-called “cultural defence”, a defence that does not currently exist in South African criminal law. However, most of the case law dealing with this matter predates the Constitution of the Republic of South Africa, 1996. Consequently, the Constitution’s cultural and religious freedom rights can be used to justify the formal recognition of a cultural defence in South Africa’s criminal law. Simultaneously, the Constitution contains limitation clauses that could counteract such a step. This article evaluates these contentious arguments and concludes that the conflict between the common law and African customary law in South Africa’s criminal law can be resolved by aligning the indigenous beliefs and customs in African customary law to the values underpinning the Constitution.