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Full-Text Articles in Law

Imprisoning Rationalities, Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz, Alex Steel Dec 2015

Imprisoning Rationalities, Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz, Alex Steel

David C. Brown

Imprisonment is a growth industry in Australia. Over the past 30-40 years all state and territory jurisdictions have registered massive rises in both the absolute numbers of those imprisoned and the per capita use of imprisonment as a tool of punishment and control. Yet over this period there has been surprisingly little criminological attention to the national picture of imprisonment in Australia and to understanding jurisdictional variation, change and continuity in broader theoretical terms. This article reports initial findings from the Australian Prisons Project, a multi-investigator Australian Research Council funded project intended to trace penal developments in Australia since about ...


Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe Dec 2011

Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe

San Diego Law Review

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are ...


Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan Dec 2011

Inchoate Crimes At The Prevention/Punishment Divide, Kimberly Kessler Ferzan

San Diego Law Review

In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense. It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in ...


A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen Dec 2011

A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen

San Diego Law Review

This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it ...


Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin Dec 2011

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk ...


Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak Dec 2011

Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak

San Diego Law Review

Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully ...


Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy Dec 2011

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy

San Diego Law Review

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or ...


Qatar, Al Jazeera, And The Arab Spring, Ahmed E. Souaiaia Nov 2011

Qatar, Al Jazeera, And The Arab Spring, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

No abstract provided.


“Impact” In 3d—Maximizing Impact Through Transactional Clinics, Praveen Kosuri Nov 2011

“Impact” In 3d—Maximizing Impact Through Transactional Clinics, Praveen Kosuri

Faculty Scholarship at Penn Law

In speaking about “impact” clinical legal education, it is almost always exclusively as litigation—innocence projects, representing Guantanamo detainees, human rights concerns, environmental issues. Though these clinical efforts target different societal ills, all try to use the legal system as a catalyst for change. Rarely do clinicians invoke the word “impact” in the same manner in discussing transactional legal work much less transactional clinics. Yet transactional clinics can and do perform impact work. This article describes the current landscape of transactional clinics, the distinct evolution of community economic development clinics from small business and organizations clinics and argues that both ...


La Presunción De Inocencia Como Proposición Sintética, Cesar A. Prieto Oct 2011

La Presunción De Inocencia Como Proposición Sintética, Cesar A. Prieto

Cesar A. Prieto

No abstract provided.


Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr Oct 2011

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its ...


Advance, Winter 2011, San Jose State University, Department Of Justice Studies Oct 2011

Advance, Winter 2011, San Jose State University, Department Of Justice Studies

Advance (Justice Studies)

News from the San Jose State University Record Clearance Project


Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse Oct 2011

Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse

Faculty Scholarship at Penn Law

This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the ...


The Nebraska Transcript 44:2, Fall 2011 Oct 2011

The Nebraska Transcript 44:2, Fall 2011

The Nebraska Transcript

Dean’s Message 2
Faculty Update Profile: Marty Gardner 4
Whistleblowing Dilemma 6
Faculty Notes 10
Mediation Turns Twenty 16
Medill Creator of New Book Series 19
Willborn Chair of LSAC 20
Beard Returns to Midwest 23
Moberly Appointed to New Role 25
Sheppard Brings Patent Law Back 26
Around the College Feature: Justice Clarence Thomas 28
Admissions Report 31
Presidential Management Fellows Program 33
LL.M. Report 36
Leiter Spends Semester At Harvard 38
2011 Commencement 42
ACLU President Delivers Lane Lecture 46
Judge Bennett & Implicit Bias 47
College Hosts ABA Regional Conference 48
“Futurama” Producer Visits College 49 ...


Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan Aug 2011

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must ...


Canada's Truth And Reconciliation Commission: Settling The Past?, Kim Stanton Aug 2011

Canada's Truth And Reconciliation Commission: Settling The Past?, Kim Stanton

The International Indigenous Policy Journal

The Indian Residential Schools (IRS) system has been referred to as “Canada's greatest national shame”. The IRS system is now the subject of the Canadian Truth and Reconciliation Commission (TRC). Unlike other truth commissions that have been created due to regime change, where a majority of citizens sought a truth-seeking process, Canada’s TRC arose as a result of protracted litigation by survivors of the IRS system against the government and churches that ran the schools. This article reviews the genesis of TRC in a legal settlement agreement, along with some of the challenges this origin entails.


Socioeconomic Rights And Theories Of Justice, Jeremy Waldron Aug 2011

Socioeconomic Rights And Theories Of Justice, Jeremy Waldron

San Diego Law Review

This Article considers the relation between theories of justice - such as John Rawls's theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly ...


Independent Counsel In Insurance, Douglas R. Richmond Aug 2011

Independent Counsel In Insurance, Douglas R. Richmond

San Diego Law Review

Mention the term "independent counsel" to many lawyers and they think immediately of the process whereby the Attorney General of the United States requests a panel of federal judges to appoint an Independent Counsel to investigate and prosecute crimes by government officials. Business lawyers may think of "independent counsel" in the context of counsel for independent directors on a corporate board in connection with select matters. For most litigators, however, the term "independent counsel" describes a lawyer engaged to defend an insured at a liability insurer's expense in a case in which the liability insurer has lost the right ...


The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell Aug 2011

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

San Diego Law Review

In this Article, I argue that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power--whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled.


Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan Jul 2011

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go ...


Executions In America: How Constitutional Interpretation Has Restricted Capital Punishment, Andrea Paone Jul 2011

Executions In America: How Constitutional Interpretation Has Restricted Capital Punishment, Andrea Paone

Pell Scholars and Senior Theses

In upholding the constitutionality of capital punishment, the United States Supreme Court has utilized a strict construction interpretation of the Fourteenth Amendment's Due Process Clause, which has led the opponents of capital punishment to abandon the Due Process approach and look to the Eighth Amendment, for which the justices utilize a loose construction interpretation.


Prevention Of Identity Theft: A Review Of The Literature, Portland State University. Criminology And Criminal Justice Senior Capstone Jul 2011

Prevention Of Identity Theft: A Review Of The Literature, Portland State University. Criminology And Criminal Justice Senior Capstone

Criminology and Criminal Justice Senior Capstone Project

With advances in technology and increases in impersonal electronic transactions, identity theft IT) is becoming a major problem in today’s society. One may ask why IT is growing in America. The answer is simple, as a review of literature reveals: IT is extremely hard to detect, prevent, and prosecute.

There are many ways people can protect themselves, their identities and secure their personal information; many do not concern themselves with this knowledge, however, until they become victims of this crime, themselves. With advances in technology, offenders are often turning to new methods to access information and use it for ...


Survey On Cloud Forensics And Critical Criteria For Cloud Forensic Capability: A Preliminary Analysis, Keyun Ruan, Ibrahim Baggili, Joe Carthy, Tahar Kechadi May 2011

Survey On Cloud Forensics And Critical Criteria For Cloud Forensic Capability: A Preliminary Analysis, Keyun Ruan, Ibrahim Baggili, Joe Carthy, Tahar Kechadi

Annual ADFSL Conference on Digital Forensics, Security and Law

In this paper we present the current results and analysis of the survey “Cloud forensics and critical criteria for cloud forensic capability” carried out towards digital forensic experts and practitioners. This survey was created in order to gain a better understanding on some of the key questions of the new field - cloud forensics - before further research and development. We aim to understand concepts such as its definition, the most challenging issues, most valuable research directions, and the critical criteria for cloud forensic capability.

Keywords: Cloud Forensics, Cloud Computing, Digital Forensics, Survey, Cloud Forensic Capability


Ios Mobile Device Forensics: Initial Analysis, Rita M. Barrios, Michael R. Lehrfeld May 2011

Ios Mobile Device Forensics: Initial Analysis, Rita M. Barrios, Michael R. Lehrfeld

Annual ADFSL Conference on Digital Forensics, Security and Law

The ability to recover forensic artifacts from mobile devices is proving to be an ever-increasing challenge for investigators. Coupling this with the ubiquity of mobile devices and the increasing complexity and processing power they contain results in a reliance on them by suspects. In investigating Apple’s iOS devices -- namely the iPhone and iPad -- an investigator’s challenges are increased due to the closed nature of the platforms. What is left is an extremely powerful and complex mobile tool that is inexpensive, small, and can be used in suspect activities. Little is known about the internal data structures of the ...


Forensic Analysis Of Smartphones: The Android Data Extractor Lite (Adel), Felix Freiling, Michael Spreitzenbarth, Sven Schmitt May 2011

Forensic Analysis Of Smartphones: The Android Data Extractor Lite (Adel), Felix Freiling, Michael Spreitzenbarth, Sven Schmitt

Annual ADFSL Conference on Digital Forensics, Security and Law

Due to the ubiquitous use of smartphones, these devices become an increasingly important source of digital evidence in forensic investigations. Thus, the recovery of digital traces from smartphones often plays an essential role for the examination and clarification of the facts in a case. Although some tools already exist regarding the examination of smartphone data, there is still a strong demand to develop further methods and tools for forensic extraction and analysis of data that is stored on smartphones. In this paper we describe specifications of smartphones running Android. We further introduce a newly developed tool – called ADEL – that is ...


Kindle Forensics: Acquisition & Analysis, Peter Hannay May 2011

Kindle Forensics: Acquisition & Analysis, Peter Hannay

Annual ADFSL Conference on Digital Forensics, Security and Law

The Amazon Kindle eBook reader supports a wide range of capabilities beyond reading books. This functionality includes an inbuilt cellular data connection known as Whispernet. The Kindle provides web browsing, an application framework, eBook delivery and other services over this connection. The historic data left by user interaction with this device may be of forensic interest. Analysis of the Amazon Kindle device has resulted in a method to reliably extract and interpret data from these devices in a forensically complete manner.

Keywords: forensics, digital forensics, kindle, mobile, embedded, ebook, ereader


Aacsb‐Accredited Schools’ Adoption Of Information Security Curriculum, Linda Lau, Cheryl Davis May 2011

Aacsb‐Accredited Schools’ Adoption Of Information Security Curriculum, Linda Lau, Cheryl Davis

Annual ADFSL Conference on Digital Forensics, Security and Law

The need to professionally and successfully conduct computer forensic investigations of incidents has never been greater. This has launched an increasing demand for a skilled computer security workforce (Locasto, et al., 2011). This paper examines the extent to which AACSB-accredited universities located in Virginia, Maryland and Washington, D.C. are working towards providing courses that will meet this demand. The authors conduct an online research of the information security courses and programs offered by the 27 AACSB-accredited business schools in the selected area.

The preliminary investigation revealed that eight of the 27 participating universities did not offer any courses in ...


Digital Forensics Investigation In A Collegiate Environment, Robert E. Johnston May 2011

Digital Forensics Investigation In A Collegiate Environment, Robert E. Johnston

Annual ADFSL Conference on Digital Forensics, Security and Law

Creating, building, managing a cost effective digital forensics lab including a team of qualified examiners can be a challenge for colleges [1] with multiple campuses in multiple towns, counties and states. Leaving such examination responsibilities to each of the campuses results in not only disparity in the results but more than likely excessive duplication of efforts as well as the potential for compromise of evidence. Centralizing the forensic efforts results in a team that is not subject to the political pressures of a campus and virtually eliminates the possibility of examiner favoritism. Learn what it takes to create a cost ...


Backtrack In The Outback - A Preliminary Report On Cyber Security Evaluation Of Organisations In Western Australia, Craig Valli, Andrew Woodward, Peter Hannay May 2011

Backtrack In The Outback - A Preliminary Report On Cyber Security Evaluation Of Organisations In Western Australia, Craig Valli, Andrew Woodward, Peter Hannay

Annual ADFSL Conference on Digital Forensics, Security and Law

The authors were involved in extensive vulnerability assessment and penetration testing of over 15 large organisations across various industry sectors in the Perth CBD. The actual live testing involved a team of five people for approximately a four week period, and was black box testing. The scanning consisted of running network and web vulnerability tools, and in a few cases, exploiting vulnerability to establish validity of the tools. The tools were run in aggressive mode with no attempt made to deceive or avoid detection by IDS/IPS or firewalls. The aim of the testing was to determine firstly whether these ...


Creating Realistic Corpora For Security And Forensic Education, Kam Woods, Christopher A. Lee, Simson Garfinkel, David Dittrich, Adam Russell, Kris Kearton May 2011

Creating Realistic Corpora For Security And Forensic Education, Kam Woods, Christopher A. Lee, Simson Garfinkel, David Dittrich, Adam Russell, Kris Kearton

Annual ADFSL Conference on Digital Forensics, Security and Law

We present work on the design, implementation, distribution, and use of realistic forensic datasets to support digital forensics and security education. We describe in particular the “M57-Patents” scenario, a multi-modal corpus consisting of hard drive images, RAM images, network captures, and images from other devices typically found in forensics investigations such as USB drives and cellphones. Corpus creation has been performed as part of a scripted scenario; subsequently it is less “noisy” than real-world data but retains the complexity necessary to support a wide variety of forensic education activities. Realistic forensic corpora allow direct comparison of approaches and tools across ...