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Luz Estella Nagle, Child Soldiers and the Duty of Nations to Protect Children from Participation in Armed Conflict, 19 Cardozo Journal of International and Comparative Law 1 (2011)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Introduction, Chief Justice Roberts’ Influence on the Supreme Court, 40 Stetson L. Rev. 661 (2011)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, The Biology of Possession, 20 Widener L.J. 291 (2011)Clicking on the button will copy the full recommended citation.
Possession is a foundational idea in property law. Recent scholarship has suggested that respect for possession may be an innate aspect of human behavior. Jeffrey Evans Stake argued in 2004 that there is an evolutionary basis for an instinct to respect possession. More recently, Ori Friedman and Karen Neary have published the results of psychological studies suggesting that both adults and children tend to associate prior possession with ownership. These studies suggest that the respect for possession that is at the center of our property law may be consistent with – and, indeed, may have its basis in – basic human behavioral tendencies.
In this Essay, I consider the relevance of this behavioral research to normative issues in property law. Along the way, I discuss the broader issue of the potential relevance of biological facts about human behavior to the law. I argue that facts about actual human behavior, like those discussed in Friedman & Neary’s research, are potentially relevant to property and other legal issues. In contrast, I argue that evolutionary arguments like those made by Stake are not relevant to property or other legal issues. I criticize Stake’s evolutionary argument on two levels. First, I argue Stake’s evolutionary claims lack evidentiary support and fail to connect in subtle but important ways with substantive property law. Second, drawing in part on arguments recently developed by Brian Leiter and Michael Weisberg, I argue that evolutionary facts, even if scientifically well founded, have little or no relevance to normative legal issues, in property or otherwise.
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Jaclyn Lopez, Too Much Oil for the Rubber-Stamp: The Government’s Role in the BP Oil Spill, 6 Fla. A&M U. L. Rev. 201 (2011)Clicking on the button will copy the full recommended citation.
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Marco Jimenez, Finding the Good in Holmes’s Bad Man, 79 Fordham L. Rev. 2069 (2011)Clicking on the button will copy the full recommended citation.
This Article critically examines Holmes’ widely influential but controversial “bad man” theory of law from its inception during a speech Holmes gave for the dedication of a new hall of the Boston University School of Law in 1897, through its development over the next century, to its current influence over legal fields as diverse as contract law, tort law, and modern punitive damages jurisprudence. Despite its extraordinary influence, this Article will argue that Holmes’ theory has been widely misunderstood, and can be more profitably understood, by both supporters and critics alike, not as supporting the bad man but the good, by providing an effective counterpart to the traditional positivist theory of law for which Holmes’ bad man theory of law has so often been associated. Indeed, Holmes’ theory, which has been portrayed by some as supporting the argument for the strict separation of law and morality, has been attacked by its critics both descriptively (as providing an incomplete picture of the law) and normatively (as providing an immoral or, at best, amoral theory of law), and has been accused of artificially driving a wedge between law, on the one hand, and justice or morality, on the other. Far from overlooking this relationship, however, a careful reading of Holmes suggests that he was himself well aware of the intimate relationship between law and morality, and seems to have recognized, somewhat surprisingly, that only by engaging in an analytical separation of these two concepts can they then be normatively reunited in an intellectually consistent and satisfying manner. In short, Holmes’ theory supports the idea that only by recognizing the differences between the concepts of law and justice, rather than by stressing their similarities, can the two be brought together and integrated into the social fabric upon which law must necessarily rest.
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D. Benjamin Barros, The Complexities of Judicial Takings, 45 U. Rich. L. Rev. 903 (2011)Clicking on the button will copy the full recommended citation.
In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.
In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.
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Lance Long and William F. Christensen, Does the Readability of Your Brief Affect Your Chance of Winning an Appeal? An Analysis of Readability in Appellate Briefs and Its Correlation with Success on Appeal, 12 J. App. Prac. & Process 145 (2011)Clicking on the button will copy the full recommended citation.
The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related to the outcome of an appeal in a statistically significant manner. Our study did show, however, that the opinions of judges and justices are less readable than lawyers’ briefs and that the opinions of dissenting judges or justices are the least readable of all the appellate writing we analyzed. Ultimately, we conclude that readability, as determined by the Flesch Reading Ease scale, is a non-issue for legal writing at the appellate level. Although readability did not appear to be related to outcome, there was a statistically significant relationship between the readability of the courts’ majority and dissenting opinions. Dissenting opinions are decidedly less readable than majority opinions.
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Roy Balleste, A Primer on Internet Governance: A New Field of Study Emerges in the Internet Age, 15 AALL Spectrum 8 (2011)Clicking on the button will copy the full recommended citation.
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Kirsten K. Davis, Legal Forms as Rhetorical Transaction Competency in the Context of Information and Efficiency, 79 UMKC L. Rev. 667 (2011)Clicking on the button will copy the full recommended citation.
The increased production of legal forms by commercial publishers, the electronic availability of lawyer-produced documents through subscription-based and free Internet sites, and the increasing number of institutionally approved forms is creating a paradoxical and challenging environment for principled form use by lawyers. On the one hand, courts, legislatures, and administrative agencies, for example, encourage, and even require, the use of forms in the practice of law. Commercial publishers tout the benefits of form use to sell legal formbooks and to entice lawyers to access subscription databases filled with contracts, pleadings, briefs, and motions. On the other hand, the same entities that encourage form use in some circumstances sternly admonish lawyers for using or relying on forms in others.
As the time constraints on lawyers become greater, legal practice becomes more global and multi-jurisdictional, and information increases exponentially and becomes more difficult to manage, lawyers, particularly lawyers new to practice or new to a particular practice area need to develop a principled approach to legal form use to ensure forms are used competently. This article explores legal forms and proposes a rhetorical approach to understanding and using forms. This approach is unique because it uses rhetorical theory to define and categorize legal forms, and it offers specific suggestions for competent legal form use based on rhetorical theory.
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Judith A.M. Scully, Book Review, Raised by the Courts: One Judge’s Insight into Juvenile Justice (2010), 35 Champion 61 (2011)Clicking on the button will copy the full recommended citation.