Law Commons^™

What Color Is The Number Seven? Category Mistakes Analysis And The "Legislative/Non-Legislative" Distinction, John Martinez

Brigham Young University Journal of Public Law

No abstract provided.

Essay: Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority, Paul J. Larkin Jr.

Brigham Young University Journal of Public Law

No abstract provided.

Eric Holder's Recent Curtailment Of Mandatory Minimum Sentencing, Its Implications, And Prospects For Effective Reform, Alan Dahl

Brigham Young University Journal of Public Law

No abstract provided.

Documenting Mass Rape: Medical Evidence Collection Techniques As Humanitarian Technology, Jaimie Morse

Genocide Studies and Prevention: An International Journal

Aim: Emerging global networks of human rights activists, doctors, and nurses have advocated for increased collection of medical evidence in conflict-affected countries to corroborate allegations of sexual violence and facilitate prosecution in international and domestic courts. Such initiatives are part of broader shifts in human rights advocacy to document human rights violations using rigorous, standardized methodologies. In this paper, I consider three principal forms of medical evidence to document sexual violence and their use in these settings: the patient medical record, the medical certificate, and the sexual assault medical forensic exam (commonly known as the “rape kit”).

Methods: Combining archival …

From The Editor-In-Chief, Ibrahim A. Baggili

Journal of Digital Forensics, Security and Law

We are proud to share with you this special edition issue of the JDFSL. This year, JDFSL partnered with both the 6th International Conference on Digital Forensics and Cyber Crime (ICDF2C) and Systematic Approaches to Digital Forensic Engineering (SADFE)–two prominent conferences in our field that were co-hosted. Fifty-three papers were submitted, and the Technical Program Committee accepted only 17 after a rigorous review process.

The Punishment Should Fit The Crime—Not The Prior Convictions Of The Person That Committed The Crime: An Argument For Less Impact Being Accorded To Previous Convictions, Mirko Bagaric

San Diego Law Review

The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first-time offenders, are dealt with by a bond, probation, or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offender and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders …

Games Of Life And Death: The Judicial Uses Of Dice In Eighteenth And Nineteenth-Century Sweden, Per Binde

UNLV Gaming Research & Review Journal

Gambling studies should take a broad view of the field and consider activities that are not strictly gambling but similar to it, such as cleromancy and secular uses of drawing of lots, to give us perspective on societal and cultural aspects of gambling. This paper presents historical data on judicial uses of throwing dice in eighteenth and nineteenth-century Sweden. The focus is on cases of manslaughter with multiple perpetrators who were considered equally guilty and were forced by the criminal court to throw dice to determine who should be executed and who should receive lesser penalties. Three principles are distinguished …

Can Retributivism Be Saved?, Chad Flanders

BYU Law Review

Retributive theory has long held pride of place among theories of criminal punishment in both philosophy and in law. It has seemed, at various times, either much more intuitive, or rationally persuasive, or simply more normatively right than other theories. But retributive theory is limited, both in theory and practice, and in many of its versions is best conceived not as a theory of punishment in its own right, but instead as shorthand for a set of constraints on the exercise of punishment. Whether some version of retributive theory is a live possibility in the contemporary world remains very much …

Attitudes Toward The Way Courts Deal With Criminals, Chelsea Van Aken

Themis: Research Journal of Justice Studies and Forensic Science

The way courts treat criminals depends on a variety of factors. This paper examines how age, sex, and race affect an offender’s treatment during sentencing. These variables were collected using the 2010 General Social Survey and were tested using the SPSS 20.0 Student Version Statistical Software. The independent variables include age, race, and sex, while the dependent variable is the way courts deal with criminals. The hypotheses that were tested stated that older individuals, nonwhite persons, and men would believe that courts deal too harshly with criminals. The conclusion found that none of the variables showed a significant correlation; therefore, …

The Unfair Sentencing Act: Racial Disparities And Fiscal Consequences Of America's Drug Laws, Kristin Zimmerman

Themis: Research Journal of Justice Studies and Forensic Science

In 1986, the United States government attempted to combat the perceived war on drugs by enacting mandatory drug laws, with a primary focus on incarcerating crack offenders. The result of this was a mass influx of African Americans to US penitentiaries and minimal to zero reduction of crack convictions. Because the Anti-Drug Abuse Act of 1986 recognized 100 grams of cocaine as equivalent to one gram of crack, it has been perceived not as a war on drugs, but as a war on a war on minorities. The mass incarceration of drug offenders also led to severely damaging fiscal consequences …

Indeterminacy, Value Pluralism, And Tragic Cases, David Wolitz

Buffalo Law Review

No abstract provided.

Natural Law, Equality, And Same-Sex Marriage, Perry Dane

Buffalo Law Review

No abstract provided.

National Geographics: Toward A “Federalism Function” Of American Tort Law, Riaz Tejani

San Diego Law Review

This Article will situate the federalism function among existing scholarly frameworks and assess the “contoured” approach to federal and state power balancing across the existing subject matter of torts. Part II will assess conflicting characterizations of tort law as on one hand “private” and on the other “public” law. Part III will define and explain competing functions of tort law with an eye to whether federalism fits the common criteria of these coexisting objectives, goals, purposes, and methods for adjudication. In Part IV, the Article will explore historical and contemporary roles of federalism to understand why this process becomes so …

The Best Interest Is The Child: A Historical Philosophy For Modern Issues, Lahny R. Silva

Brigham Young University Journal of Public Law

A little over a century after the creation of the first juvenile court in America, the states and the federal government continue to try to find an effective and practical solution to juvenile delinquency. Beginning with the “Best Interest of the Child Standard” in 1899, juvenile justice policy has evolved into a mixed bag of philosophies. State statutes littered with “Best Interest” rhetoric, have interestingly resulted in state policies that are retributive in nature and disproportionately affect minority communities. The disconnect between theory and practice is the product of decades of socio-political influence on juvenile justice policy as well as …

False Speech: Quagmire?, Christopher P. Guzelian

San Diego Law Review

Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their …

A Modern King Solomon’S Dilemma: Why State Legislatures Should Give Courts The Discretion To Find That A Child Has More Than Two Legal Parents, Ann E. Kinsey

San Diego Law Review

This Comment reviews the current state of parental rights and proposes statutory clarifications that would provide courts with the power to find that a child has more than two legal parents. Part II provides background information on the decline of the traditional family. The Part reviews how the law of parentage has progressed over time and provides an overview of the laws of several states and Canada that provide rights to, and impose duties on, a third parent. Part III discusses California Senate Bill 1476, which, had Governor Jerry Brown signed it into law in 2012, would have given California …

Should Public Law Accommodate The Claims Of Conscience?, William A. Galston

San Diego Law Review

In the end, it seems to me, the matter boils down to a single issue. Many individuals consider themselves bound by two sources of authority, public law and conscience, whose demands do not always coincide. Is the state prepared to take cognizance of this fact, and if so, how should it respond? Unlike other regimes, liberal democracies should not find these questions unduly challenging. To be a liberal state is to recognize limits on the legitimate scope of public authority; to be a liberal democracy is to recognize limits on the authority of the people and on the writ of …

Overseas Lawful Permanent Resident Terrorists: The Novel Approach For Revoking Their Lpr Status, Daniel Pines

San Diego Law Review

This Article seeks to break the silence by examining the issue of overseas LPRs and offering a mechanism by which the U.S. government could take affirmative action to file cases in immigration courts to strip out-of-status LPR terrorists of their LPR status. As the United States legally can, and routinely does, revoke the LPR status of out-of-status LPRs who appear at U.S. borders, the United States could also take away such status for those who have resorted to terror, without having to wait—perhaps in vain—for them to appear on the United States’ doorstep. The purpose of granting an individual LPR …

Creating Crimmigration, César Cuahtémoc García Hernández

BYU Law Review

No abstract provided.

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

BYU Law Review

No abstract provided.

Book Review: The Basics Of Digital Forensics: The Primer For Getting Started In Digital Forensics, Stephen Larson

Journal of Digital Forensics, Security and Law

The Basics of Digital Forensics: The Primer for Getting Started in Digital Forensics is well-named–it really is very basic. And it should be, as the book’s intended audience includes entry-level digital forensics professionals and complimentary fields such as law enforcement, legal, and general information security. Though the copyright is 2012, some of the data is from 2009, and there is mention of estimates for 2010.

Understanding Computer Forensics Requirements In China Via The “Panda Burning Incense” Virus Case, Frank Law, K. P. Chow, Y. H. Mai

Journal of Digital Forensics, Security and Law

In March 2012, Mainland China has amended its Criminal Procedure Law, which includes the introduction of a new type of evidence, i.e., digital evidence, to the court of law. To better understand the development of computer forensics and digital evidence in Mainland China, this paper discusses the Chinese legal system in relation to digital investigation and how the current legal requirements affect the existing legal and technical usage of digital evidence at legal proceedings. Through studying the famous “Panda Burning Incense (Worm.WhBoy.cw)” virus case that happened in 2007, this paper aims to provide a better understanding of how to properly …

Multi-Stakeholder Case Prioritization In Digital Investigations, Joshua I. James

Journal of Digital Forensics, Security and Law

This work examines the problem of case prioritization in digital investigations for better utilization of limited criminal investigation resources. Current methods of case prioritization, as well as observed prioritization methods used in digital forensic investigation laboratories are examined. After, a multi-stakeholder approach to case prioritization is given that may help reduce reputational risk to digital forensic laboratories while improving resource allocation. A survey is given that shows differing opinions of investigation priority between Law Enforcement and the public that is used in the development of a prioritization model. Finally, an example case is given to demonstrate the practicality of the …

Evidentiary Power And Propriety Of Digital Identifiers And The Impact On Privacy Rights In The United States, Michael Losavio, Deborah Keeling

Journal of Digital Forensics, Security and Law

Media and network systems capture and store data about electronic activity in new, sometimes unprecedented ways; computational systems make for new means of analysis and knowledge development. These new forms offer new, powerful tactical tools for investigations of electronic malfeasance under traditional legal regulation of state power, particular that of Fourth Amendment limitations on police searches and seizures under the U.S. Constitution. But autonomy, identity and authenticity concerns with electronic data raise issues of public policy, privacy and proper police oversight of civil society. We examine those issues and their implications for digital and computational forensics

Developing A Conceptual Framework For Modeling Deviant Cyber Flash Mob: A Socio-Computational Approach Leveraging Hypergraph Constructs, Samer Al-Khateeb, Nitin Agarwal

Journal of Digital Forensics, Security and Law

In a Flash Mob (FM) a group of people get together in the physical world perform an unpredicted act and disperse quickly. Cyber Flash Mob (CFM) is the cyber manifestation of flash mob coordinated primarily using social media. Deviant Cyber Flash Mob (or, DCFM) is a special case of CFM, which is categorized as the new face of transnational crime organizations (TCOs). The DCFM phenomenon can be considered as a form of a cyber-collective action that is defined as an action aiming to improve group’s conditions (such as, status or power). In this paper, we conduct a conceptual analysis of …

Idiographic Digital Profiling: Behavioral Analysis Based On Digital Forensics, Chad M. Steel

Journal of Digital Forensics, Security and Law

Idiographic digital profiling (IDP) is the application of behavioral analysis to the field of digital forensics. Previous work in this field takes a nomothetic approach to behavioral analysis by attempting to understand the aggregate behaviors of cybercriminals. This work is the first to take an idiographic approach by examining a particular subject's digital footprints for immediate use in an ongoing investigation. IDP provides a framework for investigators to analyze digital behavioral evidence for the purposes of case planning, subject identification, lead generation, obtaining and executing warrants, and prosecuting offenders.

Personal Denial Of Service (Pdos) Attacks: A Discussion And Exploration Of A New Category Of Cyber Crime, Michael R. Bartolacci, Larry J. Leblanc, Ashley Podhradsky

Journal of Digital Forensics, Security and Law

The growth of the Internet has created a corresponding growth in Internet-based crimes and online misbehavior, particularly among younger computer-savvy people. Younger generations have grown up in a world where internet access, social networking, e-commerce and smartphones are commonplace. Given this fact, they have learned how to use, and how to abuse, technology. This leads us to define a new category of cybercrime called a Personal Denial of Service attack (PDOS). A PDOS is a cyber-crime in which an individual deliberately prevents the access of another individual or small group to online services such as email or banking. Due to …

On Cyber Attacks And Signature Based Intrusion Detection For Modbus Based Industrial Control Systems, Wei Gao, Thomas H. Morris

Journal of Digital Forensics, Security and Law

Industrial control system communication networks are vulnerable to reconnaissance, response injection, command injection, and denial of service attacks. Such attacks can lead to an inability to monitor and control industrial control systems and can ultimately lead to system failure. This can result in financial loss for control system operators and economic and safety issues for the citizens who use these services. This paper describes a set of 28 cyber attacks against industrial control systems which use the MODBUS application layer network protocol. The paper also describes a set of standalone and state based intrusion detection system rules which can be …

Using Internet Artifacts To Profile A Child Pornography Suspect, Marcus K. Rogers, Kathryn C. Seigfried-Spellar

Journal of Digital Forensics, Security and Law

Digital evidence plays a crucial role in child pornography investigations. However, in the following case study, the authors argue that the behavioral analysis or “profiling” of digital evidence can also play a vital role in child pornography investigations. The following case study assessed the Internet Browsing History (Internet Explorer Bookmarks, Mozilla Bookmarks, and Mozilla History) from a suspected child pornography user’s computer. The suspect in this case claimed to be conducting an ad hoc law enforcement investigation. After the URLs were classified (Neutral; Adult Porn; Child Porn; Adult Dating sites; Pictures from Social Networking Profiles; Chat Sessions; Bestiality; Data Cleaning; …