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Toni Lester - One of the best experts on this subject based on the ideXlab platform.

  • finding the public in public disrepute would the Cultural Defense make a difference in celebrity and sports endorsement contract disputes the case of michael vick and adrian peterson
    Pace Intellectual Property Sports & Entertainment Law Forum, 2016
    Co-Authors: Toni Lester
    Abstract:

    This article will explore this issue by engaging in case studies of the Vick and Peterson scandals to see what would have happened had the two men taken their claims against Nike to court. Part One will discuss the cases in more depth and elaborate on how they might be viewed through the lens of Cultural relativity theory and the Cultural Defense. Part Two will elaborate on what morals clauses are and the legal standards courts use to enforce them. In addition to examining the Mendenhall decision, several other court cases will be discussed, each of which places differing levels of emphasis on how much evidence is needed to meet the public disrepute requirement. Except for the judge in the Mendenhall case, all of the judges in these additional cases were white. This is mentioned because it is possible that the race of the judge may bear some relation to the level of openness they may have to entertaining the Cultural Defense. Part Three will apply the aforementioned legal standards to the Vick and Peterson cases, with special attention paid to the extent to which courts discussed in Part Two might be open to entertaining the Cultural Defense in these kinds of

  • finding the public in public disrepute would the Cultural Defense make a difference in celebrity and sports endorsement contract disputes the case of michael vick and adrian peterson
    Social Science Research Network, 2016
    Co-Authors: Toni Lester
    Abstract:

    Those who endorse the "Cultural Defense" argue that courts should take into account Cultural differences when the culture of origin of a minority person accused of criminal behavior might condone their behavior, even as majority white culture does not. Some feminists and human rights activists believe, however, this approach risks giving unfair protection to men who abuse women. While the Cultural Defense has not directly been examined in the context of morals clauses in celebrity endorsement contracts, this area is ripe for discussion, especially with respect to two recent, controversial cases involving termination of the endorsement contracts of two well-known black professional football players, Michael Vick (who was accused of illegal dogfighting) and Adrian Peterson (who was accused of inappropriately disciplining his child by hitting him with a tree switch). The public was deeply divided along racial lines about their behavior, with many blacks arguing it was an acceptable part of black culture, whereas many whites contended it was reprehensible. Morals clauses can be terminated when companies decide that a celebrity has engaged in immoral behavior subject to public disrepute. This article explores if application of the Cultural Defense would make a different in cases such as Vick's and Peterson's, by first examining current case law on how morals clauses are interpreted in court, and then making predictions about how they might be interpreted in the future. Particular focus will be on the 2012 court case brought by former black pro-football player, Rashad Mendenhall, who entered into an out of court settlement with Hanesbrands when it terminated his endorsement contract because of tweets he made to his twitter account about Osama Bin Laden that were both supported and criticized by the public.

Mitra Sharafi - One of the best experts on this subject based on the ideXlab platform.

  • justice in many rooms since galanter de romanticizing legal pluralism through the Cultural Defense
    2008
    Co-Authors: Mitra Sharafi
    Abstract:

    Marc Galanter's article, 'Justice in Many Rooms' (1981) was prescient in recognizing that nonstate law was not necessarily kinder and gentler than state law. While many writing in the 1970s and 80s celebrated nonstate law as more egalitarian and less coercive than state law, Galanter held back. Post-1980s critiques of the Cultural Defense, particularly by Asian American feminist lawyers, have also contributed to a shift in the scholarly perception of nonstate law. In the spirit of Galanter's piece, the Cultural Defense debate should be read not just as a discussion about multiCultural tolerance, but also as an integral part of the legal pluralism literature.

  • justice in many rooms since galanter de romanticizing legal pluralism through the Cultural Defense
    Law and contemporary problems, 2008
    Co-Authors: Mitra Sharafi
    Abstract:

    In the 1970s and 80s, a spirit of aggressive celebration permeated the study of legal pluralism. The romantic assumption that nonstate law was more egalitarian and less coercive than state law subtended terms like "people's law" and "folk law," and became enshrined in the names of organizations like the Netherlands-based Folk Law Circle (Volksrechtskring) and the International Union of Anthropological and Ethnological Sciences' International Commission of Folk Law and Legal Pluralism.1 Legal pluralism was more than a methodological stance intended to help lawyers and anthropologists talk to each other. It was an ideological commitment.2

Israel Herrera - One of the best experts on this subject based on the ideXlab platform.

Cynthia Lee - One of the best experts on this subject based on the ideXlab platform.

  • Cultural convergence interest convergence theory meets the Cultural Defense
    Social Science Research Network, 2007
    Co-Authors: Cynthia Lee
    Abstract:

    Much has been written about the so-called Cultural Defense or, more accurately, the proffer of Cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of Cultural evidence, but argue it should be limited to cases where such evidence is used to negate the mens rea element of the charged offense. Others feel that the admission of Cultural evidence violates the principle of equal protection and favors immigrant and minority defendants over American defendants, and therefore the practice should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition of an official Cultural Defense. In Cultural Convergence, Professor Lee neither defends nor criticizes the practice of using culture in the criminal courtroom. Rather, she seeks to illuminate why some uses of culture in the criminal courtroom seem to be more successful than others. Generally speaking, immigrants and minority defendants who seek to proffer Cultural evidence in their Defense are not successful. Either the judge deems the evidence irrelevant or the jury is not persuaded that the defendant's Cultural background should be grounds for leniency. An extensive review of the Cultural Defense literature, however, suggests that immigrant and minority defendants who successfully introduce Cultural evidence in their Defense have one thing in common. The Cultural norms underlying their claims are either similar to or complement American Cultural norms, including retrograde, e.g., racist and sexist, norms. Borrowing from Derrick Bell's interest convergence theory, Lee argues that Cultural convergence is one way to explain these results. Cultural convergence is the idea that the Cultural Defense claims of minority and immigrant defendants are more likely to receive accommodation when there is convergence between the Cultural norms relied upon by the immigrant or minority defendant and American Cultural norms. This article proceeds in three parts. Part I provides the reader with an overview of the major legal issues surrounding the use of Cultural evidence in the criminal courtroom. Part II provides a comprehensive taxonomy of the ways Derrick Bell's interest convergence theory has been applied by legal scholars. Part III demonstrates how Lee's theory of Cultural convergence can help explain many of the successful uses of culture in the criminal courtroom.

Alison Dundes Renteln - One of the best experts on this subject based on the ideXlab platform.

  • corporal punishment and the Cultural Defense
    Law and contemporary problems, 2010
    Co-Authors: Alison Dundes Renteln
    Abstract:

    I INTRODUCTION When individuals move to new societies with different ways of life, there are inevitably culture clashes. Collisions between normative systems involve a wide range of substantive matters, and the resolution of these disputes has generated a vast, new, multiCultural jurisprudence. (1) Many Cultural conflicts are related to children as there are widely divergent child-rearing practices across the globe. (2) One of the classic examples of Cultural conflict is the use of physical force to socialize children. (3) In this article I focus on the jurisprudence concerning the use of corporal punishment by immigrant parents, which Anglo American courts often deem to be excessive. (4) In this article I offer an exploration of the reasons why parents consider it appropriate to impose this type of punishment and the different forms it takes when administered. The fundamental question is whether discipline of this sort is inherently unreasonable and, if so, whether it rises to the level of violating children's rights as defined in domestic and international law. In the twenty-first century we must decide on the most suitable policy to adopt with respect to corporal punishment given existing Cultural variation in its usage. I begin with an overview of some of the conceptual and definitional issues associated with this topic. Next, I take up the theory of Cultural relativism, which highlights the importance of understanding the inner Cultural logic of a community--here as regards the socialization of children. I then discuss the potential for misinterpreting Cultural traditions as child abuse and possible criteria for investigating allegations of child maltreatment. Next, to demonstrate the challenges courts face, I present a series of examples of cases in which judges have addressed the appropriateness of administering corporal punishment. These cases are divided into intervention and prosecution, as legal reactions occur in both civil and criminal processes. After this review of decisions, I analyze what constitutes reasonable behavior given a particular Cultural context. When Cultural collisions occur, it is important to know what latitude judges have to mitigate the full impact of the law on immigrant families. Finally, I consider the jurisprudence on international children's rights as it pertains to the question of corporal punishment by scrutinizing the best-interests-of-the-child principle in the context of international human rights. II BACKGROUND Before I take up the substantive questions, a word about nomenclature is in order. Child abuse refers to the (usually) deliberate act of harming a child, whereas neglect refers to an omission, the failure to care for a child properly. Some favor the term child maltreatment as it is sufficiently broad to encompass both abuse and neglect. The literature on the subject of corporal punishment employs many different terms. In the anthropological scholarship the key question is when the discipline or socialization of children is so severe as to be classified as abuse. Indexes for books in this field sometimes do not even list the terms abuse, corporal punishment, or discipline. In philosophy, corporal punishment may refer to the punishment of either adults or children. (5) In the social sciences, the term corporal punishment may refer to various institutional settings: to the discipline of children at home and in schools as well as to the punishment of prisoners. Although some commentators assume that it is cruel to use physical force under any circumstances, for many others the question is when minimal use of force associated with discipline crosses the line to unacceptable corporal punishment. Corporal punishment often appears to involve the use of birching, flogging, belting, or other tools. The term refers to physical discipline of various sorts accomplished by such instruments or by hands only. The techniques employed to educate children about proper conduct in their communities are surprisingly varied. …

  • multiCultural jurisprudence comparative perspectives on the Cultural Defense
    2009
    Co-Authors: Marieclaire Foblets, Alison Dundes Renteln
    Abstract:

    As individuals travel across borders, societies have become more and more pluralistic. The result of increased migration is the interaction among Cultural communities and inevitably clashes between state law and customary law. These Cultural conflicts have given rise to a new multiCultural jurisprudence. In this volume scholars grapple with the immense challenges judges are currently experiencing everywhere. To what the extent can and should courts accommodate litigants' request by taking their Cultural backgrounds into account? This collection brings together powerful examples of the Cultural Defense in many countries in Western Europe, North America, and elsewhere. It shows the ubiquity of this Defense, contrary to the mistaken impression that it has been invoked principally in the United States. This book makes the case for undertaking studies of the use of the Cultural Defense in jurisdictions all over the world where this has not been previously documented. Many of the essays concentrate on criminal cases including homicide in the context of honour crimes, provocation based on "loss of face" or witchcraft killings. Some deal with other areas of law such as asylum jurisprudence, family law, and housing policy. They show in concrete cases how Cultural claims have arisen and how legal systems wrestle with these arguments. It is clear that judges have had considerable difficulty handling many of the Cultural claims. The authors demonstrate persuasively the need to reconsider the proper use of Cultural evidence in legal proceedings. Those interested in the ways in which expertise influences the disposition of cases will find this book compelling.

  • the use and abuse of the Cultural Defense
    Canadian Journal of Law and Society, 2005
    Co-Authors: Alison Dundes Renteln
    Abstract:

    Invoquer la Defense culturelle est devenue une strategie judiciaire populaire bien que controversee. Expliquant dans un premier temps que la portee de la Defense culturelle est plus vaste que generalement comprise et qu'elle sert aussi bien a attenuer des sentences, a creer des exceptions a des politiques etablies qu'a augmenter les montants de dommage et interets accordes, j'identifie ensuite les principes normatifs qui justifient ce type de Defense. Meme si elle peut etre appuyee fonde sur des principes, si la Defense culturelle a une chance d'etre adoptee formellement, des politiques doivent etre etablies pour prevenir des abus. Je propose des criteres d'application de la Defense culturelle qui sont illustres par quelques cas. La presentation d'exemples ou la Defense culturelle est appropriee est suivie d'une demonstration des abus potentiels, a partir de cas particuliers dans lesquels les arguments culturels avances ne remplissaient pas les criteres du test propose. L'article se termine sur des recommandations pour assister les tribunaux a trouver les experts qui peuvent authentifier les requetes culturelles. Invoking a Cultural Defense has become a popular but controversial legal strategy. After explaining that the scope of the Cultural Defense is broader than is often understood and that it is used to mitigate punishment, create exemptions from policies, and increase the size of damage awards, I identify the normative principles that justify such a Defense. Although it may be defended as a matter of principle, if this Defense has any chance of being formally adopted, policies must be established to prevent its misuse. I propose a Cultural Defense test and show how it could be applied appropriately in a few cases. Following the analysis of its proper use, I demonstrate the potential for abuse by showing how in particular cases Cultural arguments failed to meet the requirements of the Cultural Defense test I propose. Finally I recommend ways to assist courts in finding Cultural experts who can authenticate the Cultural claims.

  • the Cultural Defense
    2004
    Co-Authors: Alison Dundes Renteln
    Abstract:

    In what ways and to what extent should Cultural background be taken into consideration in response to legal problems? This study of the topic provides a comprehensive overview of the debate surrounding the admissibility of Cultural evidence in the courtroom. Documenting an extraordinary range of cases in which individuals have attempted to invoke a Cultural Defense, this book provides an in-depth look at the complexities of invoking Cultural arguments in the diverse bodies of law under which the cases fall. Cases considered include homicide and rape prosecutions, child abuse cases, drug use cases, the treatment of animals, and custody battles. Disputing contemporary practices, the author contends that the Cultural Defense should, in both criminal and civil matters, be given formal recognition.