Note: The Prosecution of Child Soldiers: Balancing Accountability with Justice

I saw some other SBU [Small Boys Unit] boys coming closer to me with another small boy and the boy was crying, screaming.  He asked them, “What have I done?”  They didn’t say anything to him, but the boy was screaming.  At first they had to put his right arm on a log.  They took a machete and amputated it at the wrist.  The boy was screaming and they took the left arm again and put it on the same log and sliced it off.  He was still screaming and shouting.  They took the left leg and put it on the same log and cut it off at the ankle.  At last they took the right leg again and put it on the same log and cut it off with a machete.  Some held him by his hand at that time now and I am speaking about the same SBU boys.  They are the same people doing this.  Some held his other hand, legs.  They were swinging the boy.  They threw him over into a toilet pit.  I was there, I saw it myself.[1]

Children are capable of committing atrocious crimes.  With an estimated 300,000 child soldiers currently participating in armed conflict around the world,[2] children are undoubtedly responsible for numerous deaths, rapes, mutilations, and other crimes.  However, the international community has failed to set an age at which these children can be held legally responsible for their actions.  In contrast, domestic courts have further complicated the issue by setting the minimum age of criminal responsibility anywhere from seven to eighteen-years-old.

The Convention on the Rights of the Child (“CRC”) provides the most widely accepted definition of childhood:[3]  a child “means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”[4]  Unfortunately, the CRC lacks support from any international treaties binding this definition as the proper age of criminal responsibility.  Nonetheless, it correctly appears to allow for a lower age of majority taking into account individual cultures and domestic laws.

In determining the proper age at which a child can be held criminally liable, many factors must be considered, including physical and mental maturity, traditions, and culture.  Victims of these atrocities must also receive proper consideration.  Their quest for justice cannot be secondary to the rehabilitation and forgiveness of a child soldier.  This delicate balance is difficult to accommodate and certain non-judicial mechanisms, such as truth and reconciliation commissions and cultural cleansing rites, have provided some relief for both the victims and perpetrators.

While rehabilitative measures are preferable to judicial measures for all individuals under eighteen, both international and domestic courts must continue to retain their discretion to prosecute juveniles for the most atrocious crimes.  To properly ensure these judicial systems promote equality and justice, not simply retribution, it is crucial that the international community determine a uniform age at which a child can be held responsible in a global forum and consequently begin to set a precedent for domestic courts.

Part I of this Note introduces the basic concepts of international law, including international criminal law and the legal protections that have been established for individuals under eighteen-years-old.  Part II examines the difficulties that arise when determining the roles of children in armed conflict and the extent to which they can be held responsible for their actions.  Additionally, this section suggests several possible defenses that should be made available to juveniles if they are prosecuted in an international tribunal.  Part III provides a case study of the only person under eighteen years of age who has been prosecuted for a war crime since World War II and further evaluates the United States’ role in this trial and their general perspective towards the treatment of minors in combat.  Finally, Part IV emphasizes the need for an international consensus regarding the minimum age of criminal responsibility in international courts.

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Erin Lafayette: Syracuse University College of Law, J.D. 2013.

[1].  Transcript of Record ¶¶ 699-700, Prosecutor v. Taylor, SCSL 2003-01 (Jan. 8, 2008).  The SBU was a group of approximately 10,000 children, generally between the ages of 8-10, who were recruited by the Revolutionary United Front as militants during the civil war in Sierra Leone.  This was a common form of mutilation by children.

[2].  Children of Conflict:  Child Soldiers, BBC, (last visited Jan. 12, 2012).  This number is unclear due to the difficulty in accurately counting children recruited into armed conflict.

[3].  Matthew Happold, Child Soldiers:  Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 62 (2008).  The CRC has been ratified by every State except the United States, Somalia, and South Sudan.

[4].  Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

Article: From Peoria to Peru: NLRB Doctrine in a Social Media World

The National Labor Relations Board’s (the “NLRB” or “Board”) interest in social media issues has surprised many practitioners.  Over a nine-month period spanning the end of 2011 and beginning of 2012, the Board’s Acting General Counsel (“AGC”) issued three reports, totaling eighty-three pages, analyzing dozens of potential cases involving social media matters.  Some of the cases involved sensational facts—for example, the ambulance company employee who called her supervisor a “scumbag” and compared him to a psychiatric patient on Facebook, or the auto dealership employee who lambasted his employer online over the “less than luxurious” food and drink offered to customers at a company event, or the bartender who complained on Facebook about the bar’s customers, calling them “rednecks” and hoping they choked on glass as they drove home drunk.  Other cases analyzed by the AGC dealt with more mundane matters, such as whether an employer’s social media policy was drafted in a manner that could potentially restrict an employee’s right to engage in protected concerted activity under the National Labor Relations Act (“NLRA” or the “Act”).

Given the dramatic rise in social media use in the United States, it is not surprising that the Board has expressed a strong interest in analyzing its use in light of established Board law.  By its nature, social media is the perfect vehicle both for “protected, concerted activity” and immeasurably idiotic and flippant statements.

The Board, like any adjudicative body, applies its established legal precedent to the facts at hand.  Nevertheless, law is a fluid principle.  This Article advances a theory that the Board’s application of its established “brick and mortar” case law in matters involving social media fails to appropriately acknowledge the very nature of social media.  Rather than merely apply old standards, the Board should make a creative effort to develop new standards that recognize an employer’s legitimate need to control employee outbursts in a digital age where “going viral” can dramatically alter public perception overnight.  Despite the Board’s attempt to fit these discussions into the traditional and comfortable box of “water cooler” discussions, the simple fact is that these are not “water cooler” discussions.  These are words and images that travel from Peoria to Peru in the proverbial nanosecond, capable of being stored and captured on a digital timeline forever.  The Board must respond to this reality or remain what former NLRB Chairwoman Wilma Liebman famously described as the “Rip Van Winkle” of administrative agencies.

Part I of the Article provides an overview of various social media platforms.  Part II outlines the traditional framework within which the Board has evaluated protected concerted activity, while Part III explains how the Board, Administrative Law Judges (“ALJs”), and the NLRB’s Division of Advice and AGC have attempted to apply these traditional tests to social media activity.  Part IV highlights the limitations of this approach and provides suggestions for a new applicable legal standard that properly acknowledges the risks associated with employee misuse of social media and distances itself from the ill-fitting “water cooler” analogy.

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Colin M. Leonard is a member and Tyler T. Hendry is an associate at Bond, Schoeneck & King, PLLC in the Firm’s Syracuse, New York office.  Both practice in the Firm’s Labor & Employment Law Department.

Article: Uncertainty Squared: The Right of Publicity and Social Media

The laws of probability tell us that the likelihood of a particular result goes down dramatically as the number of variables on which that result depends goes up.  So, for example, while the odds of rolling an even number on a six-sided die is ½, the odds of rolling two even numbers on two dice is ½ times ½, or only ¼.

Predicting the applicability of publicity rights law in the context of social media is a bit like that.  Each variable in the equation is itself the subject of greater-than-average uncertainty compared to other fields of law and technology.  The right of publicity, for example, is generally treated as a species of intellectual property (“IP”), yet it is a product of state (as opposed to federal) common law, and has only been acknowledged by barely more than half of the states.  It has as many sources of law as it does jurisdictions that recognize it—more, in fact—and many of its critical elements remain either disputed or undeveloped.  Likewise, social media—as we currently understand that term—has been in the public consciousness for not much longer than five years; yet it has already come to dominate the way that individuals and entire societies communicate worldwide.  At the same time, the technology behind, and precise expressions of social media remain incredibly fluid, with individual forums rising from obscurity to prominence and back again all within the space of a year.  The proper role of social media in civil society and the parameters of the law that governs it, therefore, are equally uncertain.

Keeping these caveats in mind, however, it is nevertheless both possible and fruitful to explore how the right of publicity—that is, the right of an individual to control the commercial exploitation of his or her identity—will manifest itself in social media.  This is actually quite an important inquiry, since the very thing that makes social media special is that it enables individuals to create and deepen interpersonal relationships with specific people—often, people they already know through other means.  The identities of our online “friends” and “followers,” therefore, are a crucial component of our social media experience.

The companies that provide these experiences realized this long ago.  Indeed, since social media users generally do not pay for the privilege of using the service, the service providers have based their entire business models on exploiting their unique access to our interpersonal relationships.  The initial, easiest, and still-predominant way that they profit from our use of their services is by selling advertisers access to our eyeballs.  But as social media services have become more sophisticated and the pressure to monetize the services has increased, service providers have dug deeper into the granular detail of our interactions in order to target their ads even more effectively.  In many cases, they are relying on the credibility of our friends to sell us goods and services.  As discussed below, that practice has given rise to legal action by social media users who argue that this amounts to a commercial exploitation of their identities in violation of the right of publicity.

At the same time, social media’s focus on interpersonal relationships naturally results in a lot more data about individuals being shared in digital form than had previously been done.  That, in turn, naturally increases the probability that some of that data will be exploited by commercial means—again implicating the right of publicity.

For several decades before the advent of the social internet and related forms of digital publishing, the right of publicity was a curious blend of privacy, IP, and First Amendment law that was litigated only infrequently and barely registered in the public consciousness.  Courts went so far as to explicitly hold that only “celebrities” could even possess the right, and the realities of pre-internet media imposed severe limits on the ability of any given person to achieve enough celebrity to make their identities worth exploiting commercially.  Social media—along with reality TV, self-publishing, and the internet in general—changed all that.  Perhaps, therefore, the example of rolling two dice is not as apt of an analogy as it may first seem because those two variables are completely independent of each other.  The development of publicity rights case law and social media, by contrast, may well depend in large part on each other.

The discussion below begins with a brief summary of the right of publicity, including its elements, development, and remaining areas of uncertainty.  It then examines several of the most likely ways that this body of law will influence, and be influenced by social media including:  the manner of measuring the “commercial value” in an individual’s identity; the proper amount of damages for misappropriations of that identity; the availability of defenses based on the First Amendment, the Copyright Act, and other related legal rights; and the role social media plays in fueling publicity rights violations.

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Brian D. Wassom: Partner and Chair of the Social, Mobile and Emerging Media Practice Group at Honigman Miller Schwartz and Cohn, LLP (Bloomfield Hills, MI); Instructor of Social Media Law and Ethics at Central Michigan University; law clerk to the Hon. Alice M. Batchelder, United States Court of Appeals for the Sixth Circuit (1999-2000); J.D. magna cum laude, Case Western Reserve University School of Law (1999).

Article: Why We Can’t Be Friends: Preserving Public Confidence in the Judiciary Through Limited Use of Social Networking

Judges occupy a special place in American society.  Their actions, both inside and outside the courthouse, play an integral role in the public’s respect for, and confidence in, the legal system.  The existence of an independent, fair, and impartial judiciary is the hallmark of the American legal system.  By necessity, judges are held to a higher standard of professional conduct than other members of the legal profession, and their personal and professional activities are subject to heightened scrutiny by members of the profession and the public.  Although judges are members of the larger community, they hold an elevated position as symbols of the law and justice.  As a result, a judge’s actions and behaviors have ramifications far beyond how members of the public view the judge as an individual.  What a judge does or says reflects directly on the integrity of the judicial system.

When a member of the judiciary utilizes social media to communicate with colleagues, friends, and family members, a legitimate risk exists that his or her actions or statements may undermine the public’s confidence in, and respect for, the judiciary.  In some ways, the use of social media is no different than direct communication because certain acts or statements would be construed as clearly improper regardless of the medium.  In either forum, a judge may actually say or do something that undermines the public’s confidence in the judicial system, such as divulge confidential information, comment on a pending case, or use the prestige of the bench for personal gain.  In clear cases, the method by which the message is delivered is irrelevant.  However, there is a more subtle but equally dangerous risk associated with the use of social networking.  Unlike direct person-to-person communication, online communication does not offer the benefit of context, emotion, or in many cases visual aids that provide clarity to the meaning and purpose behind a particular communication.  Rather, most online communication is static and heavily dependent on the recipient of the communication to discern the meaning, purpose, or intent behind the words used.  Thus, when individuals, including judges, post comments online there is a greater risk that those who read the comment will misunderstand the message and form erroneous and unfounded opinions.  Whether a judge’s words or actions are clearly improper or merely misconstrued, the impact can be substantial and serve to undermine judicial canons employed to promote public confidence in the judiciary.

Members of the legal profession, including judges, continue to embrace social networking in both their personal and professional lives.[1]  In one recent survey, 40% of responding judges reported that they engage in social media, such as Facebook.[2]  That number is expected to increase.[3]  Such use can promote the efficient and effective administration of services, but it can also present unique challenges for those individuals seeking to comply with professional rules of conduct.  Although the federal judiciary has not issued an ethics opinion on the use of social media by judges, the Committee on Codes of Conduct within the Judicial Conference of the United States has recognized the potential hazards and drafted proposed guidelines on the use of social media by judicial employees.[4]  The Committee acknowledged that the use of social media “raises ethical, security, and privacy concerns for courts and court employees.”[5]  It noted that the limited ability to effectively control or retrieve communication once released poses unique problems for courts.[6]  The inability to ever completely erase or delete comments, coupled with the ability to preserve and replicate posted messages exacerbates the potential risks.[7]  The Committee also noted that due to a perceived sense of anonymity, individuals may engage in conduct online that they might refrain from engaging in in person.[8]  These issues are problematic for judges who must carefully balance their role as members of the community with their elevated status as a symbol of the judicial system.

Technology plays a significant role in the provision of legal services, but its uses are not without risk.  As the use and influence of social media continues to grow, it is essential for the legal profession to understand how its members use and share content on these sites.  It is equally important to consider how society’s evolving perspective on privacy and online communication should apply to judges.  In 2011, the American Bar Association (“ABA”) Commission on Ethics 20/20 examined the use of new technologies in the practice of law and found that with some additional clarification the current rules governing attorney conduct are sufficient to address the use of that technology, including online communications.[9]  While these rules offer guidance on appropriate judicial behaviors, alone they are insufficient to address the unique challenges posed by social networking.

This Article considers the rapid rise in the use of social media and its use by members of the judiciary, and asserts that judicial canons drafted prior to the advent of social media outlets are inadequate to address the risk posed through the use of social media.  Part I provides a brief overview of the rapid emergence of social media as a primary mode of communication and the unique risks it poses for users.  Part II provides a brief summary of codes of judicial conduct that are relevant to a judge’s use of social media.  Part III evaluates recent state judicial ethics opinions addressing the use of social media.  Part IV argues that a restrictive approach to the use of social media, which has been adopted by several states, is necessary to protect the integrity of the judicial system.  Part V offers recommendations to balance the competing interests of protecting the judiciary and allowing judges to participate in the communities they serve.

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Helia Garrido Hull: Associate Professor of Law and Coordinator of Student Professionalism Enhancement Program, Barry University Dwayne O. Andreas School of Law; B.A. Providence College, J.D. Stetson University College of Law.

[1].  Nicole Black, A Look at Lawyers’ Use of Technology in 2011, Sui Generis (Oct. 4, 2011),

[2].  Conference of Court Pub. Info. Officers, Report of the New Media Comm. of the Conference of Court Pub. Info. Officers 19th Annual Meeting, New Media and the Courts:  The Current Status and a Look at the Future 7, 9 (released Aug. 26, 2010) [hereinafter CCPIO], available at

[3].  Id. at 10.

[4].  See generally Comm. on Codes of Conduct, Judicial Conference of the U.S., Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees (Apr. 2010), available at

[5].  Id. at 5.

[6].  Id.

[7].  Id. at 6.

[8].  See generally CCPIO, supra note 3.

[9].  Am. Bar Ass’n Comm’n on Ethics 20/20, Initial Draft Proposals—Technology and Confidentiality, (last modified May 2, 2011).

Note: The Tale of the E-Book: Library Lending’s Newest Edition

Imagine the scene.  As the last moments of sunlight filter through the partially drawn shade, a comfy armchair beckons while the winter’s fire sets the mood, its warm glow illuminating . . . . Wait a minute!  That glow is not coming from the fire.  It’s coming from an iPad loaded with the most recent New York Times bestseller!  Wait, what?  That doesn’t seem right.  Let’s try that again.  Picture this.  A dimly lit library hall, shelves lined with leather bound books, the smell of rich mahogany fills the air, and the Kindle Fire powers on, its screen displaying the latest Stephenie Meyer chicklit . . . . Hold up just one minute.  What’s going on here?  When did the trendy and cool realm of the techies’ hottest picks invade the tried and true world of the bespectacled bookworm?  Have the techno-gadget advancements introduced by innovators like Apple’s Steve Jobs and Amazon’s CEO Jeff Bezos roused an otherwise sleepy publishing industry?  With e-book sales skyrocketing throughout the consumer market, the answer would seem to be an enthusiastic “Yes!”  If that is the case, what is to come of the most traditional public face of the book industry, the public library, in this electronically driven world?

“[N]othing would do more extensive good at small expense than the establishment of a small circulating library in every county, to consist of a few well-chosen books, to be lent to the people of the county under regulations that would secure their safe return in due time.”[1]  In the 200 years since Thomas Jefferson wrote these words, even the most forward thinking of American pioneers could not have envisioned the vast potential of this “small circulating library.”[2]  Forget two centuries.  Just a few short years ago, the technology that may serve to launch the American library into a leading pop cultural position was disparaged as “going nowhere fast.”[3]  This potential springboard is none other than the e-book, of course.  This modern book format has not only reinvigorated an outdated publishing industry,[4] it has also provoked a tidal wave in the tranquil waters of an otherwise predictable library system.[5]

Virtual library branches have become routine.  They enable library patrons to forego that trek to the local library, in exchange for an online e-book checkout complete with all the comfort and ease afforded by a home computer.[6]  The combination of free lending and a dynamic e-book format is a novel phenomenon which has catapulted an unsuspecting public library system into the front lines of e-book battles between major players like publishing houses, authors, agents, and techno-manufacturers.  These battles have revived discussions over the Copyright Act.[7]  As library lending makes its most dramatic change in over 200 years with its sudden capacity to lend to patrons absent a visit to the premises, the effect on both the prominence of the public library and the e-book market will be systemic.[8]  The balance between the interests at stake may come down to which weighs more, the traditional hardcover embodied in and protected by the old style business model of publisher and author, or the e-reader as embraced by the unlikely ally of the public library.  This ongoing plot will surely be played out in the next best page-turner.

This Note will narrate the story of the e-book and the public library system.  It will position the evolution of these characters within their historical and legislative contexts, examine the legal doctrines that customarily structure this relationship, and address reasons for the ineffectiveness of these doctrines in the digital environment.  After comparing the competing interests of the two sides and identifying the parties’ current practices, this Note will analyze the appropriateness of creating a Digital First Sale Doctrine and suggest a solution to the current conflict between libraries and publishers.

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Marysia Wlazlo: Syracuse University College of Law, J.D. Candidate, 2013; Boston College, B.A., summa cum laude, 2008.

[1].  Brief for American Library Association et al. as Amici Curiae Supporting Petitioners, Golan v. Holder, 131 S.Ct. 1600 (2011) (No. 10-545), 2011 WL 2533007 (quoting Letter from Thomas Jefferson to John Wyche (May 19, 1809), in Thomas Jefferson:  A Chronology of His Thoughts, 223 (Jerry Holmes ed., 2002)).

[2].  Thomas Jefferson:  A Chronology of His Thoughts, 223 (Jerry Holmes ed., 2002).

[3].  Claire Elizabeth Craig, Lending Institutions:  The Impact of the E-Book on the American Library System, 2003 U. Ill. L. Rev. 1087, 1095 (2003).

[4].  See, e.g., Michael Kelley, New Statistics Model for Book Industry Shows Trade Ebook Sales Grew Over 1,000 Percent, Libr. J. (Aug. 9, 2011),

[5].  See Bruce Judson, eBook Universe:  What Role Will Libraries Play?, ForeWord (Oct. 2010), reprinted in

[6].  See Download Services for Public Libraries, OverDrive, Inc., (last visited Sept. 28, 2012).

[7].  See Craig, supra note 3, at 1092-93.

[8].  See id. at 1088.