Law Commons^™

The Progressive Presidency And The Shaping Of The Modern Executive, Andrea Scoseria Katz

Scholarship@WashULaw

The contemporary presidency, with its expanded foreign policy, administrative and public duties, is largely a brainchild of the Progressive Era. The Progressives envisioned an enlarged executive, one outside the original guidelines of the U.S. Constitution, which they deemed “archaic,” “undemocratic,” and unsuited to the demands of the modern age, in which mass capitalism dislocated, alienated and disenfranchised the common man. The Progressives wanted to bring about a more energetic, streamlined, and unified state at the helm of which stood the presidency, an office of popular leadership and swift action. To accommodate this new, active figure, some Progressives believed it necessary …

A New Uniform Code Of Consumer Credit, Danielle D'Onfro

Scholarship@WashULaw

This Essay provides an overview and criticism of predatory lending laws then proposes a new Uniform Code of Consumer Credit (UCCC) to work alongside the Truth in Lending Act. The proposed UCCC would provide a complete and behaviorally informed system of consumer financial protection that strives to keep credit affordable and to encourage innovative credit products. The Essay argues that a uniform law will create sufficient state-to-state consistency to reduce the need for federal preemption and thereby bring the benefits of federalism - protection from agency capture, legislative responsiveness and experimentation at the state level - into consumer financial protection. …

Rationing Justice By Rationing Lawyers, Peter A. Joy

Scholarship@WashULaw

The number of lawyers in the United States continues to increase, but low and middle-income persons still find it difficult, if not impossible, to afford legal assistance. National and state surveys reveal that more than 80 percent of the civil legal needs of the poor go unmet, as do a majority of the needs of middle-income persons. Legal representation can often dramatically increase a person’s ability to win at trial or to negotiate a favorable outcome, and the lack of access to lawyers effectively closes the courthouse doors for millions. This Article focuses on the crisis in Missouri's public defender …

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

The Multiple-Stage Process Of Judicial Review: Facial And As-Applied Constitutional Challenges To Legislation Before The U.S. Supreme Court, Stefanie A. Lindquist, Pamela C. Corley

Scholarship@WashULaw

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the …

Judicial Dialogue In Roper: Signaling The Court’S Emergence As A Transnational Legal Actor? A Response To Professor Mark Tushnet, Melissa A. Waters

Scholarship@WashULaw

Professor Mark Tushnet contends that Roper v. Simmons is consistent with a long line of U.S. Supreme Court precedent utilizing foreign authority in constitutional interpretation. Given this consistency, he asserts that the controversy over Roper, "must rest on something new in constitutional discourse," and finds the, "something new," in two sources: The rise of originalism and renewed, "concern for the place of the United States in the modern international order."

This response essay suggests two additional sources for the controversy over Roper. First is the emerging transnational judicial dialogue among the world's constitutional courts on human rights issues, and the …

Vicki C. Jackson, Constitutional Engagement In A Transnational Era, Melissa A. Waters

Scholarship@WashULaw

This essay reviews and critiques Vicki C. Jackson's book on constitutional engagement and comparative constitutional law.

Over the past decade, the debate over the use of foreign authority in interpreting the U.S. Constitution has fallen prey to an unfortunate “Crossfire” phenomenon, reminiscent of the old (and much maligned) CNN news commentary program. Serious discourse on this important issue has been obscured by an increasingly rancorous public debate in the news media, the blogosphere, and even before Congress. In this Crossfire debate, it seems, everyone must “choose up sides.” So-called “nationalists” deplore even most modest citations to foreign authority in constitutional …

The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …

American Legal Theory And American Legal Education: A Snake Swallowing Its Tail?, John Henry Schlegel

Journal Articles

No abstract provided.

Reconceptualizing Present-Value Analysis In Consumer Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

During the three decades following the enactment of the Bankruptcy Code, courts and commentators have been vexed by the problem of determining the present value of future payments to creditors proposed in a debtor’s repayment plan. The central issue to this problem has been the discount rate to be applied when conducting present-value analysis. While the Code unmistakably requires the discounting of future payments as part of the process for confirming a repayment plan, the Code does not explicitly specify the rate itself or the manner in which the rate should be calculated. No uniform rule of decision has emerged …

Improving Criminal Justice: How Can We Make The American Criminal Justice System More Just?, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

No abstract provided.

Space Tourism, Private Spaceflight And The Law: Key Aspects, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The arrival of ‘space tourism,’ or more appropriately ‘private spaceflight,’ requires the law of outer space to change and adapt to this revolutionary development, as deriving precisely from the principled private participation in these activities. After defining the proper concepts, this paper discusses key legal aspects of authorization and supervision, liability and registration, and how they re.ect and impact on space tourism. Key legal aspects related to certification of craft, crew and passengers, while not yet much articulated at the international level will also be touched upon precisely in order to demonstrate that the law could well be driven first …

The Family Capital Of Capital Families: Investigating Empathic Connections Between Jurors And Defendants' Families In Death Penalty Cases, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

Potential Responses To The Melendez-Diaz Line Of Cases, Richard D. Friedman

Articles

Criminal prosecution is increasingly dependent on proof of the results of forensic laboratory tests. They are used, for example, to prove that a given substance contains cocaine; the prove what a driver’s blood alcohol content was; and to demonstrate that the DNA profile of some substance found at the crime scene matches that of the accused.

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the United States Supreme Court resolved a question that had divided the lower courts in the wake of Crawford v. Washington, 541 U.S. 36 (2004). The Melendez-Diaz Court held by a 5-4 vote that forensic laboratory …

Wrongful Convictions As A Result Of Public Defender Representation., Annie Elizabeth Ross

Electronic Theses and Dissertations

Our criminal justice system works very hard to prevent criminals from harming other individuals; however, unfortunately mistakes happen. One wrongful conviction is one too many. There are multiple factors that can be assumed to be the cause of wrongful convictions. However, due to the lack of directly related research, the determents are not well established. The following research addresses wrongful convictions as a result of public defender representation. Through the process of theory construction, the research uses critical race theory and social disorganization theory to show the relationship between court appointed representation and wrongful convictions. A new theory is also …

Law Clerks Out Of Context, Parker B. Potter Jr.

The University of New Hampshire Law Review

[Excerpt] “In a previous article, I examined judicial opinions in cases in which law clerks have gone wild, principally by doing things that law clerks just aren‘t supposed to do, such as convening court, conducting independent factual investigations into matters before their judges, or leaking drafts of opinions to the press. Here, I focus on opinions in federal cases that discuss two other categories of unusual law-clerk activity, serving as a source of evidence, and going to court, as a litigant.

The article is informed by my ten years of experience as a trial court law clerk in the state …

Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan

Faculty Publications and Presentations

An inquiry that seeks truth by accepting only natural answers excludes the possibility of the sacred or supernatural, building a wall that forecloses a complete exploration for the truth it seeks. Without analysis, critics dismiss sources presenting supernatural explanations, and those who believe sacred works have no factual foundation accept without investigation any popular theory that appears attractive. The rules of evidence expressly seek truth, wherever it lies. Noted legal scholar Simon Greenleaf used evidentiary principles to demonstrate the factual credibility of the Gospels in his Testimony of the Evangelists. This Article examines Greenleaf’s analysis, applying current rules of evidence …

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Preservation Ethics In The Case Of Nebraska's Nationally Registered Historic Properties, Darren Michael Adams

Department of Geography: Dissertations, Theses, and Student Research

This dissertation focuses on the National Register of Historic Places and considers the geographical implications of valuing particular historic sites over others. Certain historical sites will either gain or lose desirability from one era to the next, this dissertation identifies and explains three unique preservation ethical eras, and it maps the sites which were selected during those eras. These eras are the Settlement Era (1966–1975), the Commercial Architecture Era (1976–1991), and the Progressive Planning Era (1992–2010). The findings show that transformations in the program included an early phase when state authorities listed historical resources pertaining to the settlement of the …

The Defiance College Undergraduate Major In Digital Forensic Science: Setting The Bar Higher, Gregg H. Gunsch

Annual ADFSL Conference on Digital Forensics, Security and Law

This paper provides background information to accompany the panel discussion on Curriculum Design and Implementation in Computer Forensics Education. It is specifically focused on the content and delivery of Defiance College’s undergraduate (B.S.) program majoring in Digital Forensic Science (DFS). The genesis and evolution of the Defiance College DFS program are described, along with its successes, challenges and known opportunities for improvement. The desired outcomes of the panel discussion include articulating the necessary components of an undergraduate program, refining expectations of knowledge and skills required of students upon graduation, and suggesting strategies for achieving those expectations despite inevitable resource limitations …

Computer Forensics For Graduate Accountants: A Motivational Curriculum Design Approach, Grover S. Kearns

Annual ADFSL Conference on Digital Forensics, Security and Law

Computer forensics involves the investigation of digital sources to acquire evidence that can be used in a court of law. It can also be used to identify and respond to threats to hosts and systems. Accountants use computer forensics to investigate computer crime or misuse, theft of trade secrets, theft of or destruction of intellectual property, and fraud. Education of accountants to use forensic tools is a goal of the AICPA (American Institute of Certified Public Accountants). Accounting students, however, may not view information technology as vital to their career paths and need motivation to acquire forensic knowledge and skills. …

Digital Records Forensics: A New Science And Academic Program For Forensic Readiness, Luciana Duranti, Barbara Endicott-Popovsky

Annual ADFSL Conference on Digital Forensics, Security and Law

This paper introduces the Digital Records Forensics project, a research endeavour located at the University of British Columbia in Canada and aimed at the development of a new science resulting from the integration of digital forensics with diplomatics, archival science, information science and the law of evidence, and of an interdisciplinary graduate degree program, called Digital Records Forensics Studies, directed to professionals working for law enforcement agencies, legal firms, courts, and all kind of institutions and business that require their services. The program anticipates the need for organizations to become “forensically ready,” defined by John Tan as “maximizing the ability …

A Layered Framework Approach To Mitigate Crimeware, Mathew Nyamagwa

Annual ADFSL Conference on Digital Forensics, Security and Law

Crimeware attacks are growing at such an alarming rate and are becoming so prevalent that the FBI now rank cybercrime among its top priorities after terrorism and espionage. New studies estimate cyber crimes cost firms an astounding $1 trillion annually. But the good news? Over 80% of them are preventable. Crimeware is not a purely technical threat but more or a socio-technical affair. This clearly brings out the fact that computers do not commit a crime, but we (humans) do! In this paper I propose a layered approach that involves all stakeholders from end-users to service-providers and law enforcement to …

Canvass - A Steganalysis Forensic Tool For Jpeg Images, Jennifer L. Davidson, Jaikishan Jalan

Annual ADFSL Conference on Digital Forensics, Security and Law

Steganography is a way to communicate a message such that no one except the sender and recipient suspects the existence of the message. This type of covert communication lends itself to a variety of different purposes such as spy-to-spy communication, exchange of pornographic material hidden in innocuous image files, and other illicit acts. Computer forensic personnel have an interest in testing for possible steganographic files, but often do not have access to the technical and financial resources required to perform steganalysis in an effective manner. This paper describes the results of a funded effort by a grant from the National …

Measuring Whitespace Patterns As An Indication Of Plagiarism, Ilana Shay, Nikolaus Baer, Robert Zeidman

Annual ADFSL Conference on Digital Forensics, Security and Law

There are several different methods of comparing source code from different programs to find copying1 . Perhaps the most common method is comparing source code statements, comments, strings, identifiers, and instruction sequences. However, there are anecdotes about the use of whitespace patterns in code. These virtually invisible patterns of spaces and tabs have been used in litigation to imply copying, but no formal study has been performed that shows that these patterns can actually identify copied code. This paper presents a detailed study of whitespace patterns and the uniqueness of these patterns in different programs.

Keywords: Copyright Infringement, Intellectual Property, …

Electronic Discovery: A Fool’S Errand Where Angels Fear To Tread?, Milton Luoma, Vicki Luoma

Annual ADFSL Conference on Digital Forensics, Security and Law

Electronic discovery has transformed the discovery phase of civil litigation in recent years. The expectations of lawyers and parties were initially established in the Rowe and Zubulake cases that led to a complete revision of the electronic discovery rules contained in the Federal Rules of Civil Procedure. Subsequent cases have underscored the importance of document search methodologies and implications for attorneys, IT professionals, and digital forensics professionals. The authors review how electronic discovery has evolved thus far and offer recommendations regarding the electronic discovery process.

Keywords: Electronic discovery, e-discovery, keyword search, concept search,

Social Networking: A Boon To Criminals, Tejashree D. Datar, Richard Mislan

Annual ADFSL Conference on Digital Forensics, Security and Law

With the world getting more and more digitized, social networking has also found a place in the cyber world. These social networking sites (SNSs) which enable people to socialize, and build and maintain relationships are attracting attention of all kinds of people such as teens, adults, sports persons, and even businesses. But these SNSs are also getting unwanted attention from people like sexual predators, spammers, and people involved in criminal and illegal activities. This paper talks about SNSs and how these sites are exploited for criminal or illegal activity. The SNSs are discussed in detail with respect to user profiles, …

Hard Disk Storage: Firmware Manipulation And Forensic Impact And Current Best Practice, Gareth Davies, Iain Sutherland

Annual ADFSL Conference on Digital Forensics, Security and Law

The most common form of storage media utilized in both commercial and domestic systems is the hard disk drive, consequently these devices feature heavily in digital investigations. Hard disk drives are a collection of complex components. These components include hardware and firmware elements that are essential for the effective operation of the drive. There are now a number of devices available, intended for data recovery, which can be used to manipulate the firmware components contained within the drive. It has been previously shown that it is possible to alter firmware for malicious purposes, either to conceal information or to prevent …

Organizational Handling Of Digital Evidence, Sheona A. Hoolachan, William B. Glisson

Annual ADFSL Conference on Digital Forensics, Security and Law

There are a number of factors that impact a digital forensics investigation. These factors include: the digital media in question, implemented processes and methodologies, the legal aspects, and the individuals involved in the investigation. This paper presents the initial idea that Digital Forensic Practice (DFP) recommendations can potentially improve how organizations handle digital evidence. The recommendations are derived from an in-depth survey conducted with practitioners in both commercial organizations and law enforcement along with supporting literature. The recommendations presented in this paper can be used to assess an organization’s existing digital forensics practices and a guide to Digital Forensics Improvement …

A Framework To Integrate The Data Of Interview Investigation And Digital Evidence, Fahad Alshathry

Annual ADFSL Conference on Digital Forensics, Security and Law

The physical interview process in crime investigation produces an extremely large amount of data, particularly in big cases. In comparison, examiners of digital evidence have enormous amounts of data to search through whilst looking for data relating to the investigation. However, the links between their results are limited. Whilst investigators need to refute or support their hypothesis throughout, digital evidence examiners often use search based keywords. These keywords are usually created from evidence taken from the physical investigation reports and this basic method has been found to have many shortcomings and limitations. This paper proposes a highly automatic framework to …