Law Commons^™

Global Lawmakers: International Organizations In The Crafting Of World Markets: Book Review, Melissa (M.J.) Durkee

Scholarship@WashULaw

Susan Block-Lieb and Terence Halliday gradually build up an empirically grounded, meticulously realized argument that individual lawmakers matter. When one allows facts to inform theory rather than the other way around, the authors show, what becomes clear is that individual lawmakers are not just governmental delegates, but a whole variety of professionals, industry association representatives, and others with some stake in the lawmaking process. These actors work not just through formal processes, but also through an array of informal ones. Most importantly, their presence matters to the content of the legal norms that take hold around the world.

The book …

Data Mining And The Challenges Of Protecting Employee Privacy Under U.S. Law, Pauline Kim

Scholarship@WashULaw

Concerns about employee privacy have intensified with the introduction of data mining tools in the workplace. Employers can now readily access detailed data about workers’ online behavior or social media activities, purchase background information from data brokers, and collect additional data from workplace surveillance tools. When data mining techniques are applied to this wealth of data, it is possible to infer additional information about employees beyond the information that is collected directly. As a consequence, these tools can alter the meaning and significance of personal information depending upon what other information it is aggregated with and how the larger dataset …

The Pathologies Of Digital Consent, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Consent permeates both our law and our lives — especially in the digital context. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally mediated businesses we interact with regularly. We are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions …

Holmes, Humility, And How Not To Kill Each Other, John D. Inazu

Scholarship@WashULaw

Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed — some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes at times gestured toward a foundationless relativism. But even …

Informal Judicial Hierarchies: Case Assignment And Chamber Composition At The European Court Of Justice, Jens Frankenreiter

Scholarship@WashULaw

Is there a rationale behind non-random case assignment at the European Court of Justice (ECJ)? I argue that the flexible system of case assignment acts as a surrogate for a full-fledged judicial hierarchy, ensuring that the decision-making of the Court reflects the preferences of the majority of judges absent many hierarchical elements commonly observed in other judicial systems. I empirically test this hypothesis using Monte Carlo simulations of the composition of chambers during the time period 2009-2012 under alternative case assignment regimes. To proxy for judicial ideology, I use information on the political preferences of appointing Member State governments vis-à-vis …

Law School Specialty Program Rankings: Is The Tail Wagging The Dog?, Robert R. Kuehn

Scholarship@WashULaw

In addition to its annual ranking of law schools, U.S. News ranks nine law school specialty programs. This year, U.S. News asked survey participants to rate specialty programs on a new 5-point scale mirroring the method used to assess the academic reputation of schools among peers and lawyers/judges. The program rankings show a noticeable bunching of law schools ranked highest by U.S. News also at the top of most specialty programs and an overpopulation of lowest ranked schools at the bottom.

To examine the strength of the relationship between a school’s peer assessment and specialty program reputation, scores for each …

Challenges To Legal Education, Clinical Legal Education, And Clinical Scholarship, Peter A. Joy

Scholarship@WashULaw

This essay analyzes the challenges to legal education and what those challenges may mean both to clinical legal education and to clinical scholarship. Since the Great Recession, several law schools have closed, some have merged, and still other law schools approved by the American Bar Association (ABA) have been found out of compliance with ABA Accreditation Standards and either have been directed to take specific remedial action, have been placed on probation, or have lost ABA-approval. While enrollment has rebounded at some law schools, other law schools have continued to experience much smaller entering classes than the entering class in …

Special Counsel Investigations And Legal Ethics: The Role Of Secret Taping, Peter A. Joy

Scholarship@WashULaw

In July 2016, Michael Cohen, then presidential candidate Donald Trump’s lawyer, secretly recorded Trump discussing how they would use the publisher for the National Enquirer to purchase former Playboy model Karen McDougal’s story about an alleged affair with Trump in order to stop it from becoming public before the 2016 presidential election. The National Enquirer’s publisher purchased McDougal’s story in August 2016. In a similar move to quash another alleged affair from going public in October 2016, Cohen set up a corporation to purchase adult film star Stormy Daniels’s story of her affair with Trump. Trump was elected President in …

Judges' Misuse Of Contempt In Criminal Cases And Limits Of Advocacy, Peter A. Joy

Scholarship@WashULaw

This article examines the conduct of Judge Julius Hoffman and the defense lawyers, William Kunztler and Leonard Weinglas, in the Chicago Eight Trial. The article presents lessons from the Chicago Eight Trial about the limits of a judge's contempt authority against defense lawyers in criminal matters, and how far a defense lawyer may go in advocating for a client without being liable for contempt of court.

A Study Of The Relationship Between Law School Coursework And Bar Exam Outcomes, Robert R. Kuehn

Scholarship@WashULaw

The recent decline in bar exam passage rates has triggered speculation that the decline is being driven by law students taking more experiential courses and fewer bar-subject courses. These concerns arose in the absence of any empirical study linking certain coursework to bar exam failure.

This article addresses speculation about the relationship between law school coursework and bar exam outcomes. It reports the results of a large-scale study of the courses of over 3800 graduates from two law schools and the relationship between their experiential and bar-subject coursework and bar exam outcomes over a ten-year period. At both schools, the …

Corporate Stewardship, Danielle D'Onfro

Scholarship@WashULaw

Harnessing strategies both ancient and modern — hostages, surety, gatekeepers, and blame — this Article proposes a new tool for achieving more efficient corporate compliance. It begins with the premise that a handful of well-known factors, including agency costs, misaligned time-horizons, cognitive biases, and insufficiently deterrent legal regimes sometimes cause companies to ignore important public safety obligations even when those obligations are cost-effective and welfare-maximizing. The result is systemic undercompliance with certain regulatory obligations. Despite the seriousness of this problem, currently available options for motivating compliance mostly fail to make public-safety regulations sufficiently salient to the individuals who perform the …

Immigrant Sanctuary As The 'Old Normal': A Brief History Of Police Federalism, Trevor George Gardner

Scholarship@WashULaw

Three successive presidential administrations have opposed immigrant sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigration enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular history of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridical fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driving this longstanding …

Right At Home: Modeling Sub-Federal Resistance As Criminal Justice Reform, Trevor George Gardner

Scholarship@WashULaw

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments. This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform. In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition. The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law …

The Use Of Public Consultation To Construct Sex Work Related Policies, Ryan Horan

Theses and Dissertations (Comprehensive)

The present study is a qualitative analysis of the Online Public Consultation of Prostitution -Related Offences (OPCPRO), conducted by the Canadian Department of Justice in 2014. This research describes themes that arose within the discourses of respondents to the OPCPRO, and offers a critical examination of the use of online consultations in the production of public policy. I argue that respondents to the OPCPRO, regardless of their support or opposition for criminalization of sex work, strategically draw on values echoed within the Charter of Rights and Freedoms to frame their policy propositions as consistent with sex workers individual rights. I …

The Structural Dimensions Of Race: Lock Ups, Systemic Chokeholds, And Binary Disruptions, Cedric Merlin Powell

Faculty and Staff Scholarship

Disrupting traditional conceptions of structural inequality, state decision making power, and the presumption of Black criminality, this Essay explores the doctrinal and policy implications of James Forman, Jr.’s Pulitzer Prize winning book, Locking Up Our Own, and Paul Butler’s evocative and transformative book, Chokehold. While both books grapple with how to dismantle the structural components of mass incarceration, state legitimized police violence against Black bodies, and how policy functions to reify oppressive state power, the approaches espoused by Forman and Butler are analytically distinct. Forman locates his analysis in the dynamics of decision-making power when African American officials wield power …

Dismantling Structural Inequality: Lock Ups, Systemic Chokeholds, And Race-Based Policing - A Symposium Summary, Cedric Merlin Powell, Laura R. Mcneal

Faculty and Staff Scholarship

The prominence of the carceral state in American society serves to undermine basic principles of democracy and justice, disproportionately displacing people of color and excluding them from all viable avenues of citizenship.

Deliberation's Demise: The Rise Of One-Party Rule In The Senate, Kathleen Clark, Tiefer Charles

Scholarship@WashULaw

Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of …

Fiduciary Principles In Banking Law, Andrew F. Tuch

Scholarship@WashULaw

When are banks fiduciaries of their customers and clients? This question is of more than theoretical interest given the organizational structure of modern financial institutions and the broad-ranging functions they perform. In this chapter of the Oxford Handbook of Fiduciary Law, I canvass fiduciary principles in banking law. I consider when fiduciary duties exist and what they require, the range of remedies available for breach, and the various techniques banks use to exclude or modify fiduciary duties. One puzzling feature of the legal landscape is that clients bring actions less often than banks’ size and conduct might suggest, which contributes …

Federally Funded Slaving, Rafael I. Pardo

Scholarship@WashULaw

This Article presents a new frame of reference for thinking about the federal government’s complicity in supporting the domestic slave trade in the antebellum United States. While scholars have accounted for several methods of such support, they have failed to consider how federal bankruptcy legislation during the 1840s functionally created a system of direct financial grants to slave traders in the form of debt discharges. Relying on a variety of primary sources, including manuscript court records that have not been systematically analyzed by any published scholarship, this Article shows how the Bankruptcy Act of 1841 enabled severely indebted slave traders …

Interstitial Space Law, Melissa (M.J.) Durkee

Scholarship@WashULaw

Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this “attributed lawmaking.”

Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, …

Mens Rea Reform And Iis Discontents, Benjamin Levin

Scholarship@WashULaw

This article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …

Immunity Incorporated: All The Injustice That Jeffrey Epstein Can Buy, Janice G. Raymond

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

An Analysis Of Selected Clusters Of Fires In Florida (1996 - 2018), Thomas Riley Hall

Theses and Dissertations

Hidden within the day-to-day routine responses of fire departments are possible multiple fires set by individuals in a small area with an unusual frequency. These fires may be the initial announcement of an emerging serial offender who is declaring a wound, an intolerable life situation, or is triggered by unknown events. This study sought to predict incendiary fires within a known cluster by using observable variables, both prior to and after the cluster event. This was done to further our understanding of the characteristics of clusters of intentionally lit fires. This was accomplished by examining the Florida Fire Information Reports …

Sentencing Length Disparities: Assessing Why Race And Gender Influence Judges’ Decisions, Janna Akers

Scripps Senior Theses

The purpose of this study is to assess why the race and gender of defendants influence judges’ decisions using the focal concern theory. This study will require around 84 participants. Participants will be federal judges who will be recruited via email. In an online survey, participants will be randomly assigned to one of four conditions . Participants will all read a vignette which an individual was convicted for in trafficking of Xanax. The vignette will be manipulated by the name and accompanying a mugshot based on the race (Black/White) and gender (male/female) of the defendant. The expected result is that …

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

All Faculty Scholarship

Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.

The Long Wait For An Improbable Death: A Look At Delays In Executions In Kansas And Possible Reforms To Capital Punishment, Amy M. Memmer, Melanie K. Worsley, Brenda I. Rowe

Criminology and Criminal Justice Faculty Publications (Archived)

This article uses Kansas as a case study to show how in Kansas, as in many other states in the United States, the execution of a death sentence is so improbable, and the delays that precede it so extraordinary, that any arguable deterrent or retributive effect capital punishment might once have had has been severely diminished. This article considers possible reforms to the capital punishment system aimed at reducing the delay between sentencing and execution, and the risks that would accompany those reforms. This article also considers whether capital punishment should still be considered a viable option for states in …

Prisoner, Prison And Situational Characteristics And Their Relationship With The Prevalence, Incidence And Type Of Prison Offending Recorded By A Sample Of Prisoners Within Western Australian Prisons, Catharine Phillips

Theses: Doctorates and Masters

The importance that researchers and prison administrators have placed on ensuring that the good governance, security and safety of prisons are maintained has generated a number of studies of prison offending. Previous studies have identified several prisoner, prison and situational characteristics as relevant in regard to their relationship with the prevalence, incidence and type of prison offences committed. However, no studies have been conducted in Australia, and therefore no studies have included Aboriginal prisoners in their prisoner samples. In addition, the differences in regard to legislation pertaining to prison offending between jurisdictions is also of importance when considering the generalisability …

Terrorism In The Middle East: Implications On Egyptian Travel And Tourism, Tamer Z.F Mohamed, Tamer S. Elseyoufi

International Journal of Religious Tourism and Pilgrimage

This paper attempts to shed the light on challenging issues affecting travel and tourism industry especially in the Middle East such as political, socio-economic and security instability. Due to its geopolitical and historical importance, the paper focuses on the situation in Egypt as a descriptive case study. The methodology relies on historical review and impact assessment to understand the roots and extended branches of instability in the Middle East that led to the Arab Spring, by focusing on the Egyptian case in the last half century. The assessment explains the negative effect of Western and Egyptian policy on extending the …

Optimizing A Method For Dna Recovery While Preserving Latent Prints On Paper, Niti Dalal

Student Theses

Paper evidence is commonly encountered in cases of kidnapping, threatening letters, extortion, and bank robbery, and the optimal workflow between latent print processing and DNA collection is of interest to the forensic community. The overall aim of this project was to achieve optimal amounts of DNA for typing without destroying the fingerprint. The first study compared two collection techniques—tape-lifting by Scotch Removable Poster Tape and dry swabbing with FLOQSwabs— using prints deposited in defined locations. Samples were processed for DNA and developed with 1,2-indanedione. The second aim was to determine if visualizing print locations with fingerprint powder prior to DNA …