Legal Defense Research Articles

Elaine Black Yoneda: Jewish Immigration, Labor Activism, and Japanese Exclusion and Incarceration by Rachel Schreiber (review)

Reviewed by: Elaine Black Yoneda: Jewish Immigration, Labor Activism, and Japanese Exclusion and Incarceration by Rachel Schreiber Paul C. Mishler (bio) Elaine Black Yoneda: Jewish Immigration, Labor Activism, and Japanese Exclusion and Incarceration. By Rachel Schreiber. Philadelphia: Temple University Press, 2022. xi + 215 pp. This biography of Elaine Black Yoneda joins many other studies of radical activists that have explored individual lives rather than organizational histories or studies of radical ideologies. The author, Rachel Schreiber, is a dean at the Parsons School of Design in New York, and her earlier work was in art history, especially printmaking in the radical movement in the United States. She "discovered" Elaine Black Yoneda when she was asked to curate a historical exhibition on Jewish life in California. In her introduction Schreiber details the multiple tendencies in the writing of history that she draws on to produce this portrait of a remarkable woman. She names the "new biography" as a way to flesh out the lived experiences of individuals who may figure in organizational or social histories, but only as types. Then she talks about the contributions of women's history and the ways it has offered us a historical perspective that highlights both gender inequality and oppression and can bring to life the experiences of women who have been neglected previously. Finally, she draws on the multi-ethnic history of California and details her subject's position at the intersection of these three narrative traditions. It is a marvelous book not only because it brings to a larger audience the life of Elaine Black Yoneda and grounds it in clear writing and broad knowledge of the kinds of historical explorations that have informed her research. Importantly, it can also be read by someone who knows little about the scholarly literature on, for example, left-wing Jewish immigrants and their families. Similarly, Schreiber's discussions of class and ethnicity in California during the first half of the twentieth century; issues around anti-Japanese war-time incarceration; and complicated debates within the Japanese and Japanese American community are all done so well that any reader will understand the multiple strands of history that informed Elaine Black Yoneda's life. It is both supremely well-researched and scholarly and accessible. Elaine Black Yoneda was a significant figure in the Communist Party in California. She was born in 1906 to immigrant Jewish radicals in New York City. Her father became quite successful as the owner of dry-goods store in Boyle Heights, Los Angeles, where she grew up. While her parents were Communists themselves, their daughter initially showed little interest in radical politics. She was, by her own account, more interested in expensive dresses and fancy restaurants, an early iteration of what has become known as a "valley girl." Elaine Black's life changed when she was arrested by accident at a workers' demonstration and was outraged by the police brutality she [End Page 416] witnessed. As a result, she attended the March 6, 1930, demonstration that had been organized by the Community Party, in response to the crisis caused by the onset of the Great Depression. She became an activist for the International Labor Defense (ILD), the CPUSA legal defense organization, quickly becoming a leader of the ILD in California. It was in this capacity that Elaine Black met Karl Yoneda, a Japanese American Communist. She was delivering bail money after Karl and others had been arrested at a workers' demonstration. It was "love at first sight" for both of them. The high point of this period in her life is when she became the only woman on the Executive Committee of the 1934 San Francisco General Strike representing the ILD. The second period of Elaine's life was after the Japanese attack on Pearl Harbor in December of 1941. As the United States moved toward war with Japan, Japanese and Japanese Americans were told to leave the West Coast because they were all deemed security risks. They were forced from their homes and jobs and resettled in barren camps away from the West Coast. Karl was sent to Manzanar War Relocation Camp in eastern California near the Nevada border. Elaine decided that she, along with...

Tragedy and Juridical Forms

Foucault returned to the text of Sophocles’s Oedipus Tyrannos at various critical junctures in his thought. This article homes in on the place of that tragedy in the passage from the analytic of knowledge-power to the problematization of government by truth that took place around 1980, namely in Foucault’s Collège de France lectures. Particular attention is placed on the delineation of the political meaning of “alethurgy,” a neologism through which Foucault sought to thematize the significance of practices concerned with the manifestation of truth for the exercise of political power. By drawing on historical and anthropological studies of Greek “pre-law,” Foucault was able to explore the juridical dimensions of the liturgy of truth, especially in the transition from the Homeric centrality of the agon to the emergence of the forensic inquiry with its reliance on the extraction of (slave) testimony. The reading of tragedy here doubles as a nuanced critique of the juridical production of truth, one with important connections to Foucault’s contemporaneous political efforts to support practices of legal defense that rejected the demand that the crimi nalized subject reveal himself in an “auto-alethurgy.”

Sexual Addiction as a Legal Defense.

The term sexual addiction is used to describe a range of behaviors involving compulsive and maladaptive sexual behavior. There are mixed opinions in the medical literature regarding whether sexual addiction represents a valid psychiatric diagnosis or instead pathologizes behaviors in the expected range of human behavior. The opinions on sexual addiction in case law are similarly mixed. The condition has at times been used as a successful mitigating factor and at other times been rejected for lack of scientific evidence. The authors searched the LexisNexis database for legal cases that involved the use of sexual addiction as a mitigating or aggravating factor to provide an overview of the available case law. This article is focused on the uncertainty surrounding the diagnosis of sexual addiction and how it has been interpreted by the legal system.

Some criminological and criminal legal problems protection and defense of participants in criminal proceedings from socially dangerous encroachments in the conditions of martial law

Some criminological and criminal legal problems protection and defense of participants in criminal proceedings from socially dangerous encroachments in the conditions of martial law

Thurgood Marshall, Hero of American Medicine.

One of the heroes in American history, Associate Supreme Court Justice Thurgood Marshall (1908-1993) sought legal remedies against racial discrimination in education and health care. As director of the Legal Defense Fund (LDF) of NAACP from 1940 to 1961, his success in integrating law schools in Texas led to the first black medical student admitted to a state medical school in the South. Representing doctors and dentists needing a facility to perform surgery, the LDF brought cases before the courts in North Carolina that moved the country toward justice in health care. His ultimate legal victory came in 1954, Brown v. Board of Education of Topeka, the decision that declared racial segregation in public schools unconstitutional. In 1964, the LDF under Jack Greenberg, Marshall's successor as director, won Simkins v. Moses H. Cone Memorial Hospital, a decision that held that hospitals accepting federal funds had to admit black patients. The two decisions laid the judicial foundation for the laws and administrative acts that changed America's racial history, the Civil Rights Act of 1964 and the Social Security Act Amendments of 1965 that established Medicare and Medicaid. His achievements came during the hottest period of the American civil rights movement of the 1950s and 1960s. Well past the middle of the twentieth century, black Americans were denied access to the full resources of American medicine, locked in a "separate-but-equal" system woefully inadequate in every respect. In abolishing segregation, Marshall initiated the long overdue remedy of the unjust legacies of slavery and Jim Crow.

“Guilty of Publishing Only”: Jury Nullification as a Legal Defense in the Eighteenth Century

Abstract Previous research is largely mute about the strategies that printers and their legal counsels used to defend state libel lawsuits. Analysis of the legal arguments employed in sixty-eight state libel jury trials in anglophone courts from 1699 to 1792 identifies which of them were most associated with acquittal. Jury-nullification arguments, based on freedom of the press, which encouraged jurors to disregard judges’ directives and to contravene the law, had a higher rate of success than did approaches based on the standard legal precedents of the period. These findings suggest that the public was sympathetic with a broad interpretation of press freedom at a time when many Crown judges attempted to limit it exclusively to prior restraint.

Dirty Works: Obscenity on Trial in America’s First Sexual Revolution by Brett Gary

Although the title does not reveal it, Gary’s book employs a biographical approach to the study of how people who embraced modernism challenged the legal gender norms established in the Victorian Age and given potent legal effect through the Comstock Act and similar state legislation. Comstockery was paternalistic in every sense of the word, utilizing the concept of obscenity to protect the moral order of society by regulating sexuality. The legal standard that was used most often to decide obscenity cases was the Hicklin rule, which required only that an object have the potential to corrupt the most susceptible people to be ruled obscene. In the hands of magistrates, customs officials, and postal officials, its use was capricious and extensive.As a cultural historian speaking to legal scholars, political scientists, and legal historians, Gary chronicles the “changes and conflicts around sex and morality in American culture in a booming, ever-expanding marketplace of information and entertainment” from the 1920s into the 1950s (2). He uses “the actions of one particular law firm and one particular lawyer” to show how an older, established fear “of public vulnerability was countered by an equal powerful claim to the public’s right of access” (3). Morris Ernst, a partner at Greenbaum Wolff and Ernst, and associate counsels Alexander Lindey and Harriet Pilpel of the same firm “won signature cases in their larger campaign against” legal suppression of sexual expression and knowledge (3). Representing feminists, birth-control activists, doctors, sex researchers, booksellers, publishers, and novelists, they did a remarkable amount of the heavy lifting required to change the law. Their individual clients included Mary Ware Dennett, the pioneering author of a sex-education manual; Marie Stopes, the author of a path-breaking work extoling women’s sexual pleasure in marriage; Covici and Friede, the American publishers of Radclyffe Hall, author of “the most important English-language lesbian novel” of the period (111); James Joyce, author of the transgressive modernist masterpiece Ulysses; Margaret Sanger, the nation’s foremost birth-control advocate and activist; and Alfred Kinsey, America’s leading sex researcher.Ernst is famous as a leading lawyer for the American Civil Liberties Union (aclu), but, as Gary shows, much of his work took place outside that organization. By shifting the focus away from the organization, Gary sheds new light on how legal and cultural change occurred. His work complements and supplements Leigh Ann Wheeler’s How Sex Became a Civil Liberty (New York, 2012), which explains how the aclu incorporated sexual speech into the freedoms that deserved protection from government. Employing the traditional humanistic methodology of textual analysis, Gary illuminates in great detail how Ernst and his collaborators swayed courts (and sometimes bureaucrats or legislators) to their views. They seldom lost. More than one chapter concludes with the assertion that a judge “rendered a verdict that essentially accepted all their arguments” (286).Gary’s focus is on legal arguments, defense strategies, and trial work—often accompanied by behind-the-scenes maneuvering or publicity campaigns. He treats the briefs as not just legal arguments but also as social and cultural statements, and he views lawyers as creators constrained by the realities of litigation and context. Thus, they downplayed some aspects of their cases to gain a competitive advantage in court. For instance, in defending Dennett they glided past her treatment of masturbation to secure victory, and similarly with Sanger, they strongly pushed for a physicians’ exception to the restriction on importation of contraceptive devises. That decision reinforced the medicalization of birth control.Gary’s work details the emergence of a cultural and legal sexual revolution that set the stage for later developments. Numerous examples show how “Ernst and his colleagues” created “a core body of arguments” deployed “in virtually all of their cases” that “were steadily accepted by the courts,” shifting “the role of the state from one of paternalistic protector of childlike vulnerable citizens to an arbiter of adult marketplaces of knowledge and entertainment” (289).

Anti-Death Penalty Advocacy: A Lawyer’s View From Australia

This article reviews the executions of Australians in the region and the Australian responses over the past two decades. Informed by the author’s legal defence role in death penalty cases in Singapore and Indonesia, the article explores developments in anti–death penalty advocacy since 2015: the parliamentary enquiry, the ‘whole of government’ strategy led by the Department of Foreign Affairs and Trade and the efforts made by Australia and Australians in Asia.

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

THE MANY LIVES OF CONSTANCE BAKER MOTLEY

The Politics of Patronage: Lawyers, Philanthropy, and the Mexican American Legal Defense and Educational Fund. By Benjamin Márquez

<i>The Politics of Patronage: Lawyers, Philanthropy, and the Mexican American Legal Defense and Educational Fund.</i> By Benjamin Márquez

An Exploratory Study of “No-Crime” Homicide Cases Among Female Exonerees

ABSTRACT The majority of wrongful conviction research has examined the issue through a gender-neutral lens, studying males and females as an aggregate rather than independently. Recently, a distinct body of research examining female wrongful convictions has emerged. One surprising factor that has surfaced from this research is that wrongly convicted women are most often convicted for crimes which never happened, referred to as no-crime cases by the National Registry of Exonerations. There are a number of reasons for this, most appear strongly related to gendered stereotypes about women’s behavior. This exploratory study examined one type of no-crime case for female exonerees, no-crime cases involving homicide, designated as no-crime homicide cases in this study. No-crime homicide refers to cases involving murders and manslaughters that never occurred; rather, the deaths for which these women were convicted were the result of accidents, suicides, undiagnosed medical conditions, or even self-defense. Data for this study were extrapolated from the National Registry of Exoneration from cases of females who were exonerated from no-crime homicides. When compared to other female exonerees, the main contributing factors in the cases of women wrongfully convicted for no-crime homicides were more likely to be false and misleading forensic evidence and inadequate legal defense. These wrongly convicted women experience physical and psychological consequences as a result of their wrongful conviction, including shame and guilt. Not only do these women suffer from a miscarriage of justice which uniquely positions them as murderers, the impact of this stigma also continues post-release.

Morally excused but socially excluded: Denying agency through the defense of mental impairment.

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. Three randomized between-group experiments (N = 1601) used online vignettes to examine lay perceptions of a hypothetical defendant using a defense of mental impairment (versus a guilty plea). We find that using a defense of mental impairment significantly reduces responsibility, blame, and punitiveness relative to a guilty plea, and these judgments are mediated by perceptions of reduced moral agency. However, after serving their respective sentences, those using the defense are sometimes conferred fewer rights, as reduced agency corresponds to an increase in perceived dangerousness. Our findings were found to be robust across different types of mental impairment, offences/sentences, and using both manipulated and measured agency. 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.

משפטי התעמולה של אצ"ל בתקופת המרד, 1948-1944

In February 1944, the Irgun issued a ‘proclamation of revolt’ that ushered in a new era in the organization's attitude toward the mandatory government. In its publications, the Irgun called for a revolt against the mandatory laws, but in its directives to members, it was more moderate and measured. The legal defense in the weapons trials was centralized and managed by the legal organization of the Irgun, which functioned in conjunction with the law firms of Seligman, whom they considered trustworthy, and with Levitsky. Unable to engage in active warfare, the imprisoned members of the Irgun decided to turn the trial into a propaganda arena as the focus of an alternative struggle. A recommended line of defense was offered after their personal situation had been checked out and their legal status verified by the lawyers. The same considerations that led the Irgun to craft a political line of defense in many of the weapon’s trials led to a legal line of defense for the vast majority of the propaganda trials. The understanding that the propaganda trials did not attract a high degree of resonance in the media, the extreme youth of the defendants, and the possibility of getting them acquitted or at least of largely reducing their sentences, tipped the scales in favor of the decision to adopt a legal line of defense. The decision to continue delegating authority for the propaganda trials to the legal departments of the district was in keeping with the preference for a legal line of defense that did not require centralized and coordinated management. The Irgun's approach in the legal arena was graduated, complex and measured, ranging from adherence to its intrinsic goals and objectives to a concern for the life and freedom of its fighters.

Defenders at Law: Assessing the performance of legal defense on Drug Trafficking cases in Brazil

Defenders at Law: Assessing the performance of legal defense on Drug Trafficking cases in Brazil

«Законные интересы»: традиционный взгляд (позитивистская интерпретация) и оценка в контексте естественно-правовой природы прав человека

In theoretical jurisprudence and legal practice the concept of “legitimate interests” to a large extent retains legal uncertainty. This concept has acquired categorical meaning in the conditions of domination in jurisprudence of positivism methodology, from the position of which only the fixation of rights in the legislation gives their bearers the legal possibility of their full-fledged realization and protection. Introduced into circulation by the representatives of legal positivism, the concept of “legitimate interests” also acquired a specific meaning: these are the interests that are subject to legal protection and defense, but not to the extent that is typical for interests, the satisfaction of which is associated with the provision of their bearer of subjective right. The value of this understanding turns out to be insignificant.&#x0D; In a broad, constitutional-legal sense, legally protected interests (not “legitimate interests”) are the same rights, but rights that have not “matured”, not legally formalized as a subjective right; it is also the legal form of the existence of an interest and the right corresponding to it. Over time and under the influence of certain factors, legal interests, as a result, of taking root in public practice or legislative registration, pass into the category of “full-fledged” rights. It is presumed that in the legal toolkit, “legal interests” perform (replace) the function of a special legal mechanism (tool) of protection of the part of socially acceptable interests that are not mediated in the form of subjective rights. From this point of view, it is more important for the legislator not to strive for all new interests to be relegated to the category of subjective rights, which is practically impossible to do (national law would then acquire an indefinite character with poorly expressed regulatory principles); it is more important to equip the constitutional system with effective mechanisms for the protection and defense of all social interests of any significance. This approach best meets the main constitutional clause — the recognition of the individual, his rights and freedoms as the highest value of society.

Gamete Donor Anonymity: What's Privacy Got to Do with It?

In Canada, gamete donor anonymity is tacitly protected in the absence of laws or regulations that explicitly address the topic. This article explores and characterizes the historical and contemporary role of privacy, as a publicly protected legal interest, in the context of gamete donation. Ultimately, this article argues that anonymous gamete donation is not supported by the principle of privacy in Canadian law. The argument proceeds by identifying and exploring three candidate rationales for gamete donors’ interests in privacy as referenced in past and current government reports, legislation, and case law, but ultimately reveals them as wanting and unfounded from a legal standpoint. The implication of this is that the protection of donor anonymity cannot find support in appeals to donors’ privacy interests, and that the legal defensibility of the practice — if it can be defended at all — must be found elsewhere.

The Politics of Patronage: Lawyers, Philanthropy, and the Mexican American Legal Defense and Educational Fund by Benjamin Márquez

The Politics of Patronage: Lawyers, Philanthropy, and the Mexican American Legal Defense and Educational Fund by Benjamin Márquez

Attempting to Mitigate COVID-19: Does the Public Readiness and Emergency Preparedness Act Provide Patent Infringement Immunity?

Abstract This article analyzes various legal defenses and immunities against patent infringement liability during COVID-19 under the Public Readiness and Emergency Preparedness Act (“PREPA” or “Act”). Although initially enacted in response to the 2001 Anthrax attacks, PREPA was once again invoked in response to COVID-19 under the authority of the Secretary of Health and Human Services (the “Secretary”). Through declarations issued by the Secretary, the scope of the original Act inferably expanded in a pursuit to mitigate the public health emergency of COVID-19. The nature of this review primarily focuses on the uncertainties surrounding the extent and practical legal applications of this expansion.

CUMULATIVE PROVOCATION AND PARTIAL DEFENCES IN ENGLISH CRIMINAL LAW

The term cumulative provocation is used to describe cases involving a prolonged period of maltreatment of a person at the hands of another, which culminates in the killing of the abuser by her victim. Since the early 1990s there has been a plethora of academic commentary on the criminal law’s response to such cases. More recently, the debate has been re-opened following the publication of the Law Commission’s proposals on the Partial Defences to Murder. This article examines doctrinal issues that arise in relation to claims of extenuation stemming from the circumstances of cumulative provocation. It is argued that, given the scope and limitations of the provocation defence, one should view the circumstances of cumulative provocation as likely to bring about the conditions of different legal excuses. Identifying the relevant legal defence would require one to reflect on the nature of the excusing condition or conditions stemming from the circumstances of each particular case.

The Practice of Ideals: Erich Honecker, Rudolf Bahro, and East Germany's Socialist Imaginary

In July 1992, nearly two years after the demise of the German Democratic Republic (GDR/East Germany), Erich Honecker, former general secretary of the ruling Socialist Unity Party (SED) was arrested in Berlin for his complicity in the murder of citizens fleeing his country. Yet his subsequent imprisonment brought forth unexpected help: former SED member Rudolf Bahro, who had been imprisoned by Honecker's regime a decade earlier for publishing a party-critical text, Die Alternative. Bahro wrote to his former jailer on August 17, ironically to offer support for his legal defense. Now, Bahro also expressed hope for a “human understanding … about the substance of our undoubtedly still existing difference of opinion about the path of the GDR” and enclosed his recently published article connecting his support for Honecker with the GDR's founding ideals. In the article, Bahro rejected reducing East German history to the SED's abuses, arguing that “our impulse was conceived with the heart, and no such impulse is ever entirely lost.” That impulse, for Bahro, ultimately emanated from antifascism, its entwined relationship with socialism on German soil, and those who fought for both. Though he acknowledged that “a German revolutionary continuity did not exist en masse” after the Nazi seizure of power in 1933, it did survive among the few socialists, like Honecker, who struggled against fascism and “rightly wanted a new German state” after 1945. For his role in building this alternative to capitalism, Bahro argued that Honecker should be allowed to retire in peace.