Law Commons^™

Could Specialized Criminal Courts Help Contain The Crises Of Overcriminalization And Overincarceration?, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:

(1) a therapeutic jurisprudence model,

(2) a judicial monitoring model,

(3) an order maintenance model, and

(4) a decarceration model.

Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the …

Cyber Commodification, Miriam A. Cherry

All Faculty Scholarship

When it comes to commodification on the Internet, it is a wild, wild World Wide Web. Researching encyclopedia articles for Wikipedia is an unpaid labor of love, but connecting to your friends on Facebook is a $100 billion enterprise. Newspaper classified advertisements are definitely commercial, but their equivalent on Craigslist was mostly non-commercial – until the Delaware Chancery Court stepped in. Selling your organs is prohibited in the United States, whereas selling hair promises to rescue third-world citizens from poverty. Selling sex is illegal as prostitution, but selling adultery online is a hot new business model. And a small company …

The Law Review Games, Miriam A. Cherry, Paul M. Secunda

All Faculty Scholarship

A Parody in which The Hunger Games meet the law review submission process.

Plowing In Hope: A Three-Part Framework For Incorporating Restorative Justice Into Sentencing And Correctional Systems, Lynn S. Branham

All Faculty Scholarship

This essay proposes the adoption of a three-part framework to effectuate fundamental changes in conventional sentencing and correctional constructs, making restorative justice a mainstay of sentencing and correctional systems. First, federal, state, and local governments would authorize the imposition of what would be – in name, purpose, and content – “restorative sentences.” The growing, processing, and distribution of locally grown foods in low-income neighborhoods particularly afflicted by crime is an example of what could become a prevalent restorative sentence. The essay outlines a number of steps to be undertaken by jurisdictions in order to realize the goals of restorative sentencing. …

Follow The Leader: The Advisability And Propriety Of Considering Cost And Recidivism Data At Sentencing, Lynn S. Branham

All Faculty Scholarship

The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.

This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options …

The Mutability Of Public Reason, Chad Flanders

All Faculty Scholarship

Rawls's “public reason” has not been without its critics. One criticism is that public reason is “conservative.” Public reason must rely on those beliefs that are “widely shared” among citizens. But if public reason relies on widely shared beliefs, how can it change without departing from those beliefs, thus violating public reason? In part one of my essay, I introduce the conservatism objection and describe two unsatisfactory responses to it. Part two argues that there are aspects of public reason which diminish the force of the conservatism objection: first, that public reason is historical, and second, that it is mutable.

Shifting Public Health Priorities And The Global Effort To Prevent A Bird Flu Pandemic, Robert Gatter

All Faculty Scholarship

Global strategy to control highly pathogenic avian influenza (HPAI) has changed dramatically since 2003 when it was first reported that a confirmed bird flu jumped the species barrier to infect a human in Hong Kong. Evidence of this shift in priorities in the global fight against HPAI can be found most clearly in program funding trends. In late 2008 and into 2009, financial commitments from international donors for all HPAI programs dropped significantly. Meanwhile, within HPAI programs, funding shifted substantially away from animal biosecurity projects and into human response and preparedness work. This Article examines three reasons for this shift …

Duration Of Copyright In Audiovisual Works Under Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Calculating the duration of US copyright in audiovisual works can be a daunting task, complicated by issues of transitional law spanning the US Copyright Acts of 1909 and 1976 and the latter’s subsequent amendments. Readers with an inclination for complexity will find their tastes amply satisfied when inquiry turns to the questions of private international law that also come into play when foreign audiovisual works are at issue. Gluttons for punishment will further relish addressing the relationship of the duration of copyright in an audiovisual work to the duration of copyright in the underlying literary work on which the film …

Embracing Administrative Common Law, Gillian E. Metzger

Faculty Scholarship

This Foreword begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. Although governing statutes exert some constraining force on judicial creativity, the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged and often condemned by courts.

Turning from descriptive to more normative, …

Charles Dickens And Sovereign Debt, John V. Orth

Faculty Publications

No abstract provided.

Threading The Constitutional Needle With Care: The Commerce Clause Threat To The New Infrastructure Of Renewable Power, Steven Ferrey

Suffolk University Law School Faculty Works

To date, the federal initiatives for renewable energy primarily focus on tax incentives and credits. State incentives comprise most of the other renewable energy incentives. Chief among these are Renewable Portfolio Standards (RPSs), feed-in tariffs, net metering, and system benefit charges/trust funds (SBCs). Government lacks the power to do anything it chooses. And this is especially true with the current state policy to build a new power infrastructure. The new energy infrastructure is all about renewable energy. Both SBC and RPS programs raise revenue by a charge reflecting the amount of power produced or transacted, and then distribute that revenue …

Securities Class Actions Against Foreign Issuers, Merritt B. Fox

Faculty Scholarship

This Article addresses the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances. The bulk of payouts under the U.S. securities laws arise out of fraud-on-the-market class actions – actions against issuers on behalf of secondary market purchasers of their shares for trading losses suffered as a result of issuer misstatements in violation of Rule 10b-5. In the first decade of this century, foreign issuers became frequent …

Drinking Water And Exclusion: A Case Study From California’S Central Valley, Camille Pannu

Faculty Scholarship

The American West is notorious for its water wars, and California’s complex water allocation and governance challenges serve as a bellwether for contemporary water governance across western states. Policy makers and environmental advocates typically represent California’s water woes as a regulatory problem — a failure to balance the needs of growing urban populations with ecological preservation and agricultural irrigation. These debates, however, often elide the issue of water deprivation, and they do not adequately address the concerns of an important constituency: low-income, rural communities.

This Comment argues that a focus on regulation misses a fundamental feature of water inequality: the …

Sovereign Wealth Funds And Global Finance, Katharina Pistor

Faculty Scholarship

This chapter focuses on a number of specific sovereign wealth funds (SWFs) whose portfolios indicate strong interests in finance both in their home countries and abroad. It first reviews empirical evidence that shows SWFs having been major investors in Western financial intermediaries for decades. It then considers the organization and governance of SWFs, with particular emphasis on the three main schools of thought as well as the predictions one can derive from them vis-à-vis the behavior of individual actors in the global financial network: economic theories, economic sociology, and political economy. It also presents case studies that “test” these theories …

Would A Constitutional Amendment Protect And Promote Marriage In North Carolina? An Analysis Of Data From 2000 To 2009, Holning S. Lau

Faculty Publications

No abstract provided.

Religion And Public Reasons: Making Laws And Evaluating Candidates, Kent Greenawalt

Faculty Scholarship

This essay concerns religious reasons: how these compare with public reasons, and their appropriate place in the politics and law of the United States. Although I focus primarily on arguments about what this place should be, sound normative answers about these questions are closely connected to certain descriptive facts and estimates about what does happen and what is possible.

I tackle three separate questions. The first is the place of religious reasons in the formation and justifications of positions about what laws should be made. The second inquiry involves the place of such reasons in judicial decisions. The third question …

Who Watches The Watchers In Public Corruption Cases?, Richard E. Myers Ii

Faculty Publications

No abstract provided.

"Extraordinary Circumstances": The Legacy Of The Gang Of 14 And A Proposal For Judicial Nominations Reform, Michael J. Gerhardt, Richard Painter

Faculty Publications

No abstract provided.

Policing School Discipline, Catherine Y. Kim

Faculty Publications

No abstract provided.

Neuroscience And The Child Welfare System, Clare Huntington

Faculty Scholarship

Increasingly, scholars and policymakers are calling for programs that take a preventive approach to child abuse and neglect, rather than our current tendency to respond only after a crisis. There are significant social and economic arguments supporting this shift. The Nurse-Family Partnership, developed by David Olds and discussed in this symposium, illustrates how specific investments in family functioning can lower rates of child abuse and neglect, leading to a host of positive outcomes for children and society, from greater educational attainment to less involvement in the criminal justice system. Thinking about child well-being more broadly, the Nobel laureate James Heckman …

Vol. 15, No. 2: Full Issue, Water Law Review

Water Law Review

No abstract provided.

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus

Reviews

Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.

Building Resilience In Foster Children: The Role Of The Child's Advocate, Frank E. Vandervort, James Henry, Mark A. Sloane

Articles

This Article provides an introduction to, and brief overview of trauma, its impact upon foster children, and steps children's advocates" can take to lessen or ameliorate the impact of trauma upon their clients. This Article begins in Part 11 by defining relevant terms. Part III addresses the prevalence of trauma among children entering the child welfare system. Part IV considers the neurodevelopmental (i.e., the developing brain) impact of trauma on children and will explore how that trauma may manifest emotionally and behaviorally. With this foundation in place, Part V discusses the need for a comprehensive trauma assessment including a thorough …

Column: The Physics Of Digital Information-Part 2, Fred Cohen

Journal of Digital Forensics, Security and Law

In part 1 of this series (Cohen, 2011a), we discussed some of the basics of building a physics of digital information. Assuming, as we have, that science is about causality and that a scientific theory should require that cause(C) produces effect (E) via mechanism M (written C→ME), we explore that general theory of digital systems from the perspective of attributing effects (i.e., traces of activities in digital systems) to their causes. Full details of the current version of this physics are available online2 , and in this article, we explore a few more of them.

Comparing Android Applications To Find Copying, Larry Melling, Bob Zeidman

Journal of Digital Forensics, Security and Law

The Android smartphone operating system includes a Java virtual machine that enables rapid development and deployment of a wide variety of applications. The open nature of the platform means that reverse engineering of applications is relatively easy, and many developers are concerned as applications similar to their own show up in the Android marketplace and want to know if these applications are pirated. Fortunately, the same characteristics that make an Android application easy to reverse engineer and copy also provide opportunities for Android developers to compare downloaded applications to their own. This paper describes the process for comparing a developer’s …

An Overview Of The Jumplist Configuration File In Windows 7, Harjinder S. Lallie, Parmjit S. Bains

Journal of Digital Forensics, Security and Law

The introduction of Jumplists in Windows 7 was an important feature from a forensic examiners viewpoint. Jumplist configuration files can provide the examiner with a wealth of information relating to file access and in particular: dates/times, Volume GUIDs and unique file object IDs relating to those files. Some of the information in the Jumplist could be used to build a more precise timeline relating to system and file usage. In this article, we analyse the structure of a Jumplist configuration file and in particular a record from a Jumplist configuration file and highlight some of the important entries therein.

Pandora’S Email Box? An Exploratory Study Of Web-Based Email Forgery Detection And Validation., Richard Boddington, Grant Boxall, Jeremy Ardley

Journal of Digital Forensics, Security and Law

Web based email systems may be a source of pristine digital evidence because of the perceived difficulty of client tampering with messages stored inside the email account. We demonstrate that such assumption is wrong in the case of Windows Live Hotmail®1 . Windows Live Mail®1 synchronises message on client-side computers with the Hotmail® server, benefiting users wishing to synchronise their email accounts and personal devices. However, this synchronisation opens an exploit for wrongdoers to tamper with existing email messages and attachments as well as facilitating the insertion of fabricated messages. The exploit process enables persistent storage of tampered and fabricated …

Book Review: The Software Ip Detective's Handbook: Measurement, Comparison, And Infringement Detections, Diane Barrett

Journal of Digital Forensics, Security and Law

Do not the book title fool you into thinking that the book is only for those looking to detect software infringement detection. It is a comprehensive look at software intellectual property. The book covers a wide range of topics and has something to offer for just about everyone from lawyers to programmers.