Law Commons^™

Reforming Reimbursement For The Us Food And Drug Administration’S Accelerated Approval Program To Support State Medicaid Programs, Rachel Sachs, Julie M. Donohue, Stacie B. Dusetzina

Scholarship@WashULaw

Importance The US Food and Drug Administration (FDA) has an accelerated approval program that has become the subject of scholarly attention and criticism, not only for the FDA’s oversight of the program but also for its implications for payers.

Observations State Medicaid programs’ legal obligations to provide reimbursement for accelerated approval products have created fiscal challenges for Medicaid that have been exacerbated by industry’s changing use of the accelerated approval program over time. Although strategies for accelerated approval reforms have been proposed, most focus on reforming the FDA’s accelerated approval pathway and product regulation without taking into account the implications …

The Further Erosion Of Investor Protection: Expanded Exemptions, Spac Mergers, And Direct Listings, Andrew F. Tuch, Joel Seligman

Scholarship@WashULaw

This Article examines the decades-long decline of investor protections enshrined in the Securities Act of 1933, most notably Section 11, which imposes near strict liability on corporate insiders and certain secondary actors, primarily underwriters. The provision, the most potent in the federal securities regulatory arsenal, popularized the concept of outside gatekeepers and transformed practices in securities offerings, making due diligence a byword for careful investigation of facts whether required by legal process or otherwise. The measures required by Section 11 restored confidence in US capital markets in the wake of the Great Depression and have been instrumental in these markets’ …

Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps

Scholarship@WashULaw

Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any …

Torture In Our Schools?, Leila Nadya Sadat

Scholarship@WashULaw

America’s kids are not okay. As gun violence surges and politicians dither, school shootings are traumatizing a generation of youth. While only one manifestation of America’s gun violence crisis, school shootings are shocking in their ferocity, the senseless and random nature of the violence, and their impact upon millions of young, captive, and vulnerable individuals. This Essay makes the claim that the suffering of America’s school children from uncontrolled gun violence may be significant enough in scale and kind to rise to the level of ill-treatment under international law, violating U.S. treaty obligations and customary international law. If so, their …

Political Ideology And Judicial Administration: Evidence From The Covid-19 Pandemic, Kyle Rozema, Adam Chilton, Christopher Anthony Cotropia, David L. Schwartz

Scholarship@WashULaw

We study the effect of political ideology on the administration of the judiciary by investigating how the chief judges of federal district courts set courthouse policies in response to the COVID-19 pandemic. To do so, we use novel data on the geographic boundaries of federal courts and on the contents of pandemic orders. We account for state and local conditions and policies by leveraging district courts in states that have multiple judicial districts and that have courthouses in multiple counties, and we isolate the effect of chief ideology by using simulations that difference out unobserved district-level effects. We find no …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

Scholarship@WashULaw

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

The Promise Of Radical Crime Policy, Trevor George Gardner

Scholarship@WashULaw

To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.

In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Coming Debates To Advance New Treaty On Crimes Against Humanity Will Require Skillful Leadership, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

The resolution adopted recently at the United Nations General Assembly’s legal committee on draft articles for a treaty on crimes against humanity creates a two-year process for debate and discussion of the proposal within the committee. This opens the door for the possible adoption of a new, critically needed, global treaty on crimes against humanity within the next three or four years. Such a treaty would close several gaps in the legal architecture of atrocity crimes — particularly the legal obligation to prevent crimes against humanity, a duty not imposed by complementary regimes, including the Rome Statute of the International …

How International Justice Can Succeed In Ukraine And Beyond, Leila Nadya Sadat, Christopher Hale

Scholarship@WashULaw

Depictions of gruesome and heartbreaking mass atrocities resulting from Russia’s invasion of Ukraine have injected discussions of war crimes trials into common discourse the world over. World leaders and government spokespersons in major capitols now field a steady stream of media questions on how crimes in Ukraine will be confronted. An unprecedented number of States Parties (41) of the International Criminal Court (ICC) referred the crimes in Ukraine to the ICC Prosecutor for investigation, and a video statement from the last living prosecutor of the Nuremberg era, 102-year-old Ben Ferencz, was played at one of the most-watched United Nations …

On Crimes Against Humanity, Protect The Un Sixth Committee’S Integrity With Action, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Enthusiasm for negotiating and adopting a new global treaty on the prevention and punishment of crimes against humanity has been growing since the issuance of a model draft treaty 16 years ago, particularly after the United Nations International Law Commission (ILC) submitted a final set of draft articles to the General Assembly on Aug. 5, 2019. Although paragraph 42 of the ILC’s report recommended the “elaboration of a convention by the General Assembly or by an international conference of plenipotentiaries on the basis of the draft articles,” progress on this important treaty has stalled in the U.N. General Assembly’s Sixth …

A Low-Cost Machine Learning Based Network Intrusion Detection System With Data Privacy Preservation, Jyoti Fakirah, Lauhim Mahfuz Zishan, Roshni Mooruth, Michael L. Johnstone, Wencheng Yang

Annual ADFSL Conference on Digital Forensics, Security and Law

Network intrusion is a well-studied area of cyber security. Current machine learning-based network intrusion detection systems (NIDSs) monitor network data and the patterns within those data but at the cost of presenting significant issues in terms of privacy violations which may threaten end-user privacy. Therefore, to mitigate risk and preserve a balance between security and privacy, it is imperative to protect user privacy with respect to intrusion data. Moreover, cost is a driver of a machine learning-based NIDS because such systems are increasingly being deployed on resource-limited edge devices. To solve these issues, in this paper we propose a NIDS …

Human-Controlled Fuzzing With Afl, Maxim Grishin, Igor Korkin, Phd

Annual ADFSL Conference on Digital Forensics, Security and Law

Fuzzing techniques are applied to reveal different types of bugs and vulnerabilities. American Fuzzy Lop (AFL) is a free most popular software fuzzer used by many other fuzzing frameworks. AFL supports autonomous mode of operation that uses the previous step output into the next step, as a result fuzzer spends a lot of time analyzing minor code sections. By making fuzzing process more focused and human controlled security expert can save time and find more bugs in less time. We designed a new module that can fuzz only the specified functions. As a result, the chosen ones will be inspected …

The Amorphous Nature Of Hackers: An Exploratory Study, Kento Yasuhara, Daniel Walnycky, Ibrahim Baggili, Ahmed Alhishwan

Annual ADFSL Conference on Digital Forensics, Security and Law

In this work, we aim to better understand outsider perspectives of the hacker community through a series of situation based survey questions. By doing this, we hope to gain insight into the overall reputation of hackers from participants in a wide range of technical and non-technical backgrounds. This is important to digital forensics since convicted hackers will be tried by people, each with their own perception of who hackers are. Do cyber crimes and national security issues negatively affect people’s perceptions of hackers? Does hacktivism and information warfare positively affect people’s perception of hackers? Do individual personality factors affect one’s …

The Implications Of A Militarized Police Force In The United States, Nhat Dang

Themis: Research Journal of Justice Studies and Forensic Science

The police model in America is slowly changing. From the early days of America, the police were modeled after the London Metropolitan Police. Over time, this has changed from a civilian police model into a more militaristic one. Police militarization in America can be traced to the implementation of the 1033 program, which granted local law enforcement agencies surplus military equipment such as weapons, surveillance gadgets, and armored vehicles. This research paper examines the effects of increasing police militarization on public perception and public trust of police.

Justice In Hybrid-Democracy: Blood Feuds And Albania Post Communism, Isabella Mahan

Themis: Research Journal of Justice Studies and Forensic Science

In 1991, Albania shifted from severe communist rule to a regime claiming to be democratic. However, to this day, Albania maintains undemocratic elements. This paper analyzes the impact of hybrid state capacity in the context of state-led justice and the implications for citizen compliance. Albanian culture possesses a deep history of reliance on Kanun and traditional justice in conjunction with the state's inconsistency and unreliability. It further establishes the disconnect between people and the state. Despite attempts to progress towards modernity, traditions of blood feuds reemerged with the movement away from communism. The failure to properly transition from authoritarianism to …

Digital Forensics For Mobility As A Service Platform: Analysis Of Uber Application On Iphone And Cloud, Nina Matulis, Umit Karabiyik

Annual ADFSL Conference on Digital Forensics, Security and Law

Uber is a ride-hailing smartphone application (app) that allows users to order a ride in a highly efficient manner. The Uber app provides Mobility as a Service and allows users to easily order a ride in a private car with just a few clicks. Uber stores large amounts of data on both the mobile device the app is being used on, and in the cloud. Examples of this data include geolocation data, date/time, origin/destination addresses, departure/arrival times, and distance. Uber geolocation data has been previously researched to investigate the privacy of the Uber app; however, there is minimal research relating …

Smart Home Forensics: Identifying Ddos Attack Patterns On Iot Devices, Samuel Ho, Hope Greeson, Umit Karabiyik

Annual ADFSL Conference on Digital Forensics, Security and Law

Smart homes are becoming more common as more people integrate IoT devices into their home environment. As such, these devices have access to personal data on their homeowners’ networks. One of the advantages of IoT devices is that they are compact. However, this limits the incorporation of security measures in their hardware. Misconfigured IoT devices are commonly the target of malicious attacks. Additionally, distributed denial-of-service attacks are becoming more common due to applications and software that provides users with easy-to-use user interfaces. Since one vulnerable device is all an attacker needs to launch an attack on a network, in regards …

Microsoft Defender Will Be Defended: Memoryranger Prevents Blinding Windows Av, Denis Pogonin, Igor Korkin, Phd

Annual ADFSL Conference on Digital Forensics, Security and Law

Windows OS is facing a huge rise in kernel attacks. An overview of popular techniques that result in loading kernel drivers will be presented. One of the key targets of modern threats is disabling and blinding Microsoft Defender, a default Windows AV. The analysis of recent driver-based attacks will be given, the challenge is to block them. The survey of user- and kernel-level attacks on Microsoft Defender will be given. One of the recently published attackers’ techniques abuses Mandatory Integrity Control (MIC) and Security Reference Monitor (SRM) by modifying Integrity Level and Debug Privileges for the Microsoft Defender via syscalls. …

Detection Of Overlapping Passive Manipulation Techniques In Image Forensics, Gianna S. Lint, Umit Karabiyik

Annual ADFSL Conference on Digital Forensics, Security and Law

With a growing number of images uploaded daily to social media sites, it is essential to understand if an image can be used to trace its origin. Forensic investigations are focusing on analyzing images that are uploaded to social media sites resulting in an emphasis on building and validating tools. There has been a strong focus on understanding active manipulation or tampering techniques and building tools for analysis. However, research on manipulation is often studied in a vacuum, involving only one technique at a time. Additionally, less focus has been placed on passive manipulation, which can occur by simply uploading …

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

Criminal Justice Expertise, Benjamin Levin

Scholarship@WashULaw

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions; and (2) the democratic, which treats criminal policy as insufficiently responsive …

Criminal Law Exceptionalism, Benjamin Levin

Scholarship@WashULaw

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Human Trafficking Of People With A Disability: An Analysis Of State And Federal Cases, Andrea Nichols, Erin Heil

Dignity: A Journal of Analysis of Exploitation and Violence

The current academic discourse examining human trafficking is lacking in focus on survivors with a disability. The increased likelihood of abuse experienced by people with a disability is well documented in the research literature, and a small body of research indicates heightened sex trafficking victimization of minor girls with a disability. Yet, very little research specifically examines sex and/or labor trafficking of people with a disability, and no systematic research analyzes prosecuted cases of trafficking with disability as the focal point of analysis. Drawing from a content analysis of 18 federal and 17 state cases of human trafficking, the current …

Johnson V. M'Intosh: Christianity, Genocide, And The Dispossession Of Indigenous Peoples, Cynthia J. Boshell

Cal Poly Humboldt theses and projects

Using hermeneutical methodology, this paper examines some of the legal fictions that form the foundation of Federal Indian Law. The text of the U.S. Supreme Court’s 1823 Johnson v. M’Intosh opinion is evaluated through the lens of the Convention on the Prevention and Punishment of the Crime of Genocide to determine the extent to which the Supreme Court incorporated genocidal principles into United States common law. The genealogy of M’Intosh is examined to identify influences that are not fully apparent on the face of the case. International jurisprudential interpretations of the legal definition of genocide are summarized and used as …

Foreword To The Symposium: The Life And Work Of Robert M. Cover, Samuel J. Levine

Touro Law Review

No abstract provided.

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Touro Law Review

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

Evaluating A Test For Shedding Propensity Using Tape Lifts From Different Skin Locations, Xiao M. Chen

Student Theses

The shedding propensity of a person can assist data interpretation in casework when assessing the possibility of passive transfer for DNA analysis. Past studies on shedding propensity evaluated palmar skin (washed and unwashed) deposits. This study compared different skin locations with respect to shedding propensity, and explored the potential of tape-lifts as a skin surface collection method. Eight different skin types and samples were collected with adhesive tape disks from 28 participants over three non-consecutive days; the washed and unwashed fingers from both hands, toe, and arm, neck below ear, and nape. Samples were extracted, quantified, amplified, genotyped, and evaluated …