Law Commons^™

The First Amendment's Public Forum, John D. Inazu

Scholarship@WashULaw

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …

Institutions In Context, John D. Inazu

Scholarship@WashULaw

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to …

Re-Assembling Labor, John D. Inazu, Marion G. Crain

Scholarship@WashULaw

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature …

‪Measuring The Effects Of Legal Precedent In Us Federal Courts‬, Jens Frankenreiter, Daniel L. Chen, Susan Yeh

Scholarship@WashULaw

Using data for 2000-2004, our results suggest that new precedent has a strong effect on district court judges’ decision standards. Results are stronger when we focus on decisions in the same area of law. Extending the data to 2012, our results get blurred or even change direction.

Perceptions Of Taxing And Spending: A Survey Experiment, Conor Clarke, Edward Fox

Scholarship@WashULaw

This paper presents the results of an original survey experiment on whether the public prefers “tax expenditures” to “direct outlays” — that is, whether members of the public are more likely to support government spending that takes the form of a tax credit rather than a check or cash. Using a survey that spans a wide variety of policy areas — and with important variations in wording and information — we show that the public strongly prefers tax expenditures even when the “economic substance” of the proposed policies is identical. We also show that the public views tax expenditures as …

The New Financial Order: An Essay For Alan Bromberg - Tributes To Professor Alan R. Bromberg, Joel Seligman

Scholarship@WashULaw

In the aftermath of the 2008-2009 financial crisis, I characterized its causes broadly:

First, there was an ongoing economic emergency, initially rooted in the housing and credit markets, which has been succeeded by the collapse of several leading investment and commercial banks and insurance companies, dramatic deterioration of stock market indices, and a rapidly deepening recession.

Second, there were serious breakdowns in the enforcement and fraud deterrence missions of federal financial regulation, notably as illustrated by matters involving Bear Stearns and the other four then independent investment banks subject to the SEC's former Consolidated Supervised Entities program, the government creation …

Measuring Clinical Legal Education's Employment Outcomes, Robert R. Kuehn

Scholarship@WashULaw

This Article examines evidence of a possible link between learning opportunities in law school and J.D. employment outcomes. It responds to a paper by Jason Yackee that finds, using 2013 data from top 100 ranked schools, “not much evidence” that law clinic opportunities are likely to improve a school’s graduates’ employment outcomes and suggesting that those opportunities may even harm employment prospects.

The Article reexamines Yackee’s methodological approach and then looks beyond both law clinics and his statistical models. The expanded empirical analysis finds it is not possible to draw any reliable conclusion from his models about the likely effects …

In Defense Of Empirical Legal Studies, Christina L. Boyd

Scholarship@WashULaw

The empirical legal studies movement, or ELS, is positioned to provide an important scholarly impact. As noted ELS scholar Theodore Eisenberg once put it, “[a]cross a broad range of legal issues, empirical studies can inform policymakers and the public. Legally trained social scientists have unique opportunities to enhance description and understanding of the legal system.” By all accounts, this influence is well underway. ELS scholarship has been present in law schools since at least the 1920s and is on the rise in recent years, with important empirical insights gained into legal subjects such as error rates in capital punishment convictions, …

Regulating Sex Work: Assimilationism, Erotic Exceptionalism And The Challenge Of Intimate Labor, Adrienne D. Davis

Scholarship@WashULaw

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This paper, instead, looks at debates within the pro-sex work camp, uncovering some unattended tensions and contradictions. It shows that, within this camp, some stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers, similar to others who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more anti-regulatory stance. They exceptionalize this form of labor, arguing that because …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

Race Matters In Jury Selection, Peter A. Joy

Scholarship@WashULaw

Whatever the lawyer fears, whether it is an issue of race in the case or unconscious biases in jurors that may affect how they decide the case, the lawyer must address the fears during jury selection. If the lawyer does not explore what the lawyer fears about the case during jury selection, the lawyer has failed to increase the odds that the jury will consider the client’s case fairly. If the defense lawyer does not mention race during jury selection when race matters in a case, racial bias can be a corrosive factor eating away at any chance of fairness …

Ethics In Criminal Advocacy, Peter A. Joy, Ellen Yaroshefsky

Scholarship@WashULaw

Several ethics issues in criminal advocacy came to the forefront again in 2014. Although the U.S. Supreme Court did not decide important cases that cut across criminal law and the ethical obligations of defense counsel or prosecutors in 2014, there were still several other important developments and stories in the news. For example, decisions of prosecutors in Missouri and New York that they did not have a conflict of interest in considering charges against police officers in the deaths of Michael Brown and Eric Garner, both unarmed African America men, led to outcries of injustice and double-standards favoring police. In …

Tactical Police Officers, Romantic Attachment And Job-Related Stress: A Mixed-Methods Study, Natalie Fagan

Theses and Dissertations--Sociology

Stressors stemming from tactical policing such as social isolation and increased work responsibilities often spill over into the home and affect personal relationships. Using attachment theory as the guiding framework, this mixed methods study aimed to obtain a better understanding of the factors involved in maintaining long-term relationships between tactical officers and their romantic partners. Phase I consisted of surveys administered to tactical officers in Kentucky and measured romantic partner attachment, organizational and operational police stressors. Research questions examined how operational and organizational stress correlated with attachment while controlling for demographics. Analysis indicated that holding a rank above an officer …

Conduct Of Business Regulation, Andrew F. Tuch

Scholarship@WashULaw

This chapter provides a survey and comparative analysis of conduct of business (COB) regulation. COB regulation governs financial intermediaries’ conduct toward their clients, that is, toward the actors – whether individuals or institutions – with whom financial intermediaries transact in providing financial products and services. Modal regulatory strategies include anti-fraud rules, and duties of care, loyalty, fair-dealing and best-execution – and variants of these duties.

The chapter describes the justifications for COB regulation, the modal regulatory strategies used and the complex frameworks within which COB regulation operates. It then generally assesses US COB regulation, focusing on the regulation of broker-dealers …

Disclaiming Loyalty: M&A Advisors And Their Engagement Letters, Andrew F. Tuch

Scholarship@WashULaw

Are investment banks fiduciaries of their merger and acquisition clients? If not, what rules, if any, constrain the conflicts of interest M&A advisors may face when advising their clients? These questions are rarely asked but central to the regulation of investment banking activities. In their article Bankers and Chancellors, 93 TEX. L. REV. 1 (2014), Professors William W. Bratton & Michael L. Wachter contend that M&A advisors effectively contract out of fiduciary duties in their client engagement letters, “emerging] in practice as arm’s-length counterparties constrained less by rules of law than by a market for reputation.” They also regard recent …

Powerlessness Within A Budget-Driven Paradigm: A Grounded Theory Leadership Study From The Perspective Of Michigan Corrections Officers, Timothy Michael Eklin

Antioch University Dissertations & Theses

This study explored the lived-experiences of 15 correctional officers and 5 sergeants working in adult state-operated prison facilities in Michigan. In particular, this qualitative grounded theory study revealed the impact that budget driven decision-making had on the lives of correctional officers: its effect on institutional custody, security, and safety. The study finds that many recent policy changes resulted in a sense of powerlessness expressed by the participants of the study. Participants found themselves in a precarious position, situated in between the prison population and the administration. Having an understanding of how correctional officers make meaning of their work in relation …

A Survey Of Botnet Detection Techniques By Command And Control Infrastructure, Thomas S. Hyslip, Jason M. Pittman

Journal of Digital Forensics, Security and Law

Botnets have evolved to become one of the most serious threats to the Internet and there is substantial research on both botnets and botnet detection techniques. This survey reviewed the history of botnets and botnet detection techniques. The survey showed traditional botnet detection techniques rely on passive techniques, primarily honeypots, and that honeypots are not effective at detecting peer-to-peer and other decentralized botnets. Furthermore, the detection techniques aimed at decentralized and peer-to-peer botnets focus on detecting communications between the infected bots. Recent research has shown hierarchical clustering of flow data and machine learning are effective techniques for detecting botnet peer-to-peer …

Data Loss Prevention Management And Control: Inside Activity Incident Monitoring, Identification, And Tracking In Healthcare Enterprise Environments, Manghui Tu, Kimberly Spoa-Harty, Liangliang Xiao

Journal of Digital Forensics, Security and Law

As healthcare data are pushed online, consumers have raised big concerns on the breach of their personal information. Law and regulations have placed businesses and public organizations under obligations to take actions to prevent data breach. Among various threats, insider threats have been identified to be a major threat on data loss. Thus, effective mechanisms to control insider threats on data loss are urgently needed. The objective of this research is to address data loss prevention challenges in healthcare enterprise environment. First, a novel approach is provided to model internal threat, specifically inside activities. With inside activities modeling, data …

To License Or Not To License Reexamined: An Updated Report On State Statutes Regarding Private Investigators And Digital Examiners, Thomas Lonardo, Alan Rea, Doug White

Journal of Digital Forensics, Security and Law

In this update to the 2012 year's study, the authors examine statutes that regulate, license, and enforce investigative functions in each US state. As before, the authors find that very few state statutes explicitly differentiate between Private Investigators and Digital Examiners. There is a small trend in which some states are changing definitions or moving to exempt DE from PI licensing requirements. However, we look at some additional information in terms of practicing attorney exemptions that may cloud the licensing waters.

As with the previous research studies (Lonardo et al., 2008, 2009, 2012) the authors contacted all state regulatory agencies …

On The Network Performance Of Digital Evidence Acquisition Of Small Scale Devices Over Public Networks, Irvin Homem, Spyridon Dosis

Journal of Digital Forensics, Security and Law

While cybercrime proliferates – becoming more complex and surreptitious on the Internet – the tools and techniques used in performing digital investigations are still largely lagging behind, effectively slowing down law enforcement agencies at large. Real-time remote acquisition of digital evidence over the Internet is still an elusive ideal in the combat against cybercrime. In this paper we briefly describe the architecture of a comprehensive proactive digital investigation system that is termed as the Live Evidence Information Aggregator (LEIA). This system aims at collecting digital evidence from potentially any device in real time over the Internet. Particular focus is made …

A 3-D Stability Analysis Of Lee Harvey Oswald In The Backyard Photo, Srivamshi Pittala, Emily Whiting, Hany Farid

Journal of Digital Forensics, Security and Law

Fifty years have passed since the assassination of U.S. President Kennedy. Despite the long passage of time, it is still argued that the famous backyard photo of Oswald, holding the same type of rifle used to assassinate the President, is a fake. These claims include, among others, that Oswald’s pose in the photo is physically implausible. We describe a detailed 3-D stability analysis to determine if this claim is warranted.

Computer Forensic Projects For Accountants, Grover S. Kearns

Journal of Digital Forensics, Security and Law

Digital attacks on organizations are becoming more common and more sophisticated. Firms are interested in providing data security and having an effective means to respond to attacks. Accountants possess important investigative and analytical skills that serve to uncover fraud in forensic investigations. Some accounting students take courses in forensic accounting but few colleges offer a course in computer forensics for accountants. Educators wishing to develop such a course may find developing the curriculum daunting. A major element of such a course is the use of forensic software. This paper argues the importance of computer forensics to accounting students and offers …

Identification And Exploitation Of Inadvertent Spectral Artifacts In Digital Audio, N. C. Donnangelo, W. S. Kuklinski, R. Szabo, R. A. Coury, G. R. Hamshar

Journal of Digital Forensics, Security and Law

We show that modulation products from local oscillators in a variety of commercial camcorders are coupled into the recorded audio track, creating narrow band time invariant spectral features. These spectral features, left largely intact by transcoding, compression and other forms of audiovisual post processing, can encode characteristics of specific camcorders used to capture the audio files, including the make and model. Using data sets both downloaded from YouTube and collected under controlled laboratory conditions we demonstrate an average probability of detection (Pd) approaching 0.95 for identification of a specific camcorder in a population of thousands of similar recordings, with a …

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

Factors Influencing Digital Forensic Investigations: Empirical Evaluation Of 12 Years Of Dubai Police Cases, Ibtesam Alawadhi, Janet C. Read, Andrew Marrington, Virginia N. L. Franqueira

Journal of Digital Forensics, Security and Law

In Digital Forensics, the number of person-hours spent on investigation is a key factor which needs to be kept to a minimum whilst also paying close attention to the authenticity of the evidence. The literature describes challenges behind increasing person-hours and identifies several factors which contribute to this phenomenon. This paper reviews these factors and demonstrates that they do not wholly account for increases in investigation time. Using real case records from the Dubai Police, an extensive study explains the contribution of other factors to the increase in person-hours. We conclude this work by emphasizing on several factors affecting the …

Tracking And Taxonomy Of Cyberlocker Link Sharers Based On Behavior Analysis, Xiao-Xi Fan, Kam-Pui Chow

Journal of Digital Forensics, Security and Law

The growing popularity of cyberlocker service has led to significant impact on the Internet that it is considered as one of the biggest contributors to the global Internet traffic estimated to be illegally traded content. Due to the anonymity property of cyberlocker, it is difficult for investigators to track user identity directly on cyberlocker site. In order to find the potential relationships between cyberlocker users, we propose a framework to collect cyberlocker related data from public forums where cyberlocker users usually distribute cyberlocker links for others to download and identity information can be gathered easily. Different kinds of sharing behaviors …

Data Extraction On Mtk-Based Android Mobile Phone Forensics, Joe Kong

Journal of Digital Forensics, Security and Law

In conducting criminal investigations it is quite common that forensic examiners need to recover evidentiary data from smartphones used by offenders. However, examiners encountered difficulties in acquiring complete memory dump from MTK Android phones, a popular brand of smartphones, due to a lack of technical knowledge on the phone architecture and that system manuals are not always available. This research will perform tests to capture data from MTK Android phone by applying selected forensic tools and compare their effectiveness by analyzing the extracted results. It is anticipated that a generic extraction tool, once identified, can be used on different brands …

Forensic Acquisition Of Imvu: A Case Study, Robert Van Voorst, M-Tahar Kechadi, Nhien-An Le-Khac

Journal of Digital Forensics, Security and Law

There are many applications available for personal computers and mobile devices that facilitate users in meeting potential partners. There is, however, a risk associated with the level of anonymity on using instant message applications, because there exists the potential for predators to attract and lure vulnerable users. Today Instant Messaging within a Virtual Universe (IMVU) combines custom avatars, chat or instant message (IM), community, content creation, commerce, and anonymity. IMVU is also being exploited by criminals to commit a wide variety of offenses. However, there are very few researches on digital forensic acquisition of IMVU applications. In this paper, we …

Plc Forensics Based On Control Program Logic Change Detection, Ken Yau, Kam-Pui Chow

Journal of Digital Forensics, Security and Law

Supervisory Control and Data Acquisition (SCADA) system is an industrial control automated system. It is built with multiple Programmable Logic Controllers (PLCs). PLC is a special form of microprocessor-based controller with proprietary operating system. Due to the unique architecture of PLC, traditional digital forensic tools are difficult to be applied. In this paper, we propose a program called Control Program Logic Change Detector (CPLCD), it works with a set of Detection Rules (DRs) to detect and record undesired incidents on interfering normal operations of PLC. In order to prove the feasibility of our solution, we set up two experiments for …

Open Forensic Devices, Lee Tobin, Pavel Gladyshev

Journal of Digital Forensics, Security and Law

Cybercrime has been a growing concern for the past two decades. What used to be the responsibility of specialist national police has become routine work for regional and district police. Unfortunately, funding for law enforcement agencies is not growing as fast as the amount of digital evidence. In this paper, we present a forensic platform that is tailored for cost effectiveness, extensibility, and ease of use. The software for this platform is open source and can be deployed on practically all commercially available hardware devices such as standard desktop motherboards or embedded systems such as Raspberry Pi and Gizmosphere’s Gizmo …