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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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Louis J. Virelli, The (Un)Constitutionality of Supreme Court Recusal Standards, 2011 Wis. L. Rev. 1181 (2011)Clicking on the button will copy the full recommended citation.
Supreme Court recusal is one of the most timely and hotly contested issues in American law. Recent debate over when justices should be precluded from deciding certain cases has included public calls for the exclusion of Justices Thomas and Kagan from any future cases addressing the constitutionality of the controversial Affordable Care Act, the congressional testimony of two sitting justices, a letter from over 130 law professors successfully prodding Congress to introduce a new Supreme Court recusal reform bill, and numerous editorials in national print and electronic media outlets. Among the wide variety of voices in the discussion, a singular theme has emerged - more rigorous congressional regulation of Supreme Court recusal practice is needed to protect the integrity and legitimacy of the Court.
This discussion, however, misses the point. Lost in the impassioned debate about when justices should recuse themselves is a far more important and fundamental constitutional question: who should make that decision? This issue is at the core of our constitutional separation of powers and federalism principles, and should take center stage in the debate over Supreme Court recusal. This Article is the first to comprehensively apply separation of powers principles to the question of Supreme Court recusal, and argues that the Constitution requires that the Supreme Court be the sole arbiter of its own recusal standards. This argument shifts the focus of the debate from an ineffectual and unrealistic congressional command model, based primarily on notions of judicial ethics, to a more fundamental constitutional inquiry into the proper exercise of legislative and judicial authority. While this Article represents a significant break from current orthodoxy, it is imperative to situate the Court’s recusal decisions within the proper normative framework. Understanding the unconstitutionality of Supreme Court recusal standards should yield a more useful and transparent dialogue about the Court’s recusal practices going forward.
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Darryl Wilson, The Caribbean Intellectual Property Office (CARIPO): New, Useful and Necessary, 19 Michigan State Journal of International Law 551– (2011)Clicking on the button will copy the full recommended citation.
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Theresa J. Pulley Radwan, Sword or Shield: Use of Tithing to Establish Nondischargeability of Debt Following Enactment of Religious Liberties and Charitable Donation Protection Act, 19 Am. Bankr. Inst. L. Rev. 471 (2011)Clicking on the button will copy the full recommended citation.
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Darryl Wilson, Battle Galactica: Recent Advances and Retreats in the Struggle for Preservation of Trademark Rights on the Internet, 12 Journal of High Tech Law 1– (2011)Clicking on the button will copy the full recommended citation.
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Roy Balleste, Persuasions and Exhortations: Acknowledging Internet Governance and Human Dignity for All, 38 Syracuse J. Int'l L. & Com. 227 (2011)Clicking on the button will copy the full recommended citation.
The title of the article sums up the author’s desire to communicate and advocate on the importance of Internet governance. Internet governance is concerned with the laws and regulations related to the management of the Domain Name System (DNS), all Top Level Domains (TLDs), the Internet’s Root Zone, and other related subjects. The article provides background information on the subject before considering its importance to freedom of expression, corporate responsibility abroad, state responsibility and the rule of law under international law. The subject stands to identify Internet operations and the forces that manage those operations. The Internet, an Information and Communication Technology (ICT), has created a juncture that potentially equalizes governments, businesses, and civil society at the discussion table. The first part of the article considers that if Internet governance is to be understood, then it must be explored and studied by all academics in the legal field. The second part of the article presents a tribute to the efforts of those individuals that have participated on the common goal to discuss and discover international internet management standards that would be influential in the promotion of democracy, education, and ultimately human development.
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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 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.