Legal Studies Commons^™

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel

Faculty Scholarship

This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Book Review: Placing The Suspect Behind The Keyboard: Using Digital Forensics And Investigative Techniques To Identify Cybercrime Suspects, Thomas Nash

Journal of Digital Forensics, Security and Law

In this must read for any aspiring novice cybercrime investigator as well as the seasoned professional computer guru alike, Brett Shaver takes the reader into the ever changing and dynamic world of Cybercrime investigation. Shaver, an experienced criminal investigator, lays out the details and intricacies of a computer related crime investigation in a clear and concise manner in his new easy to read publication, Placing the Suspect behind the Keyboard. Using Digital Forensics and Investigative techniques to Identify Cybercrime Suspects. Shaver takes the reader from start to finish through each step of the investigative process in well organized …

Automating Vendor Fraud Detection In Enterprise Systems, Kishore Singh, Peter Best, Joseph Mula

Journal of Digital Forensics, Security and Law

Fraud is a multi-billion dollar industry that continues to grow annually. Many organizations are poorly prepared to prevent and detect fraud. Fraud detection strategies are intended to quickly and efficiently identify fraudulent activities that circumvent preventative measures. In this paper, we adopt a DesignScience methodological framework to develop a model for detection of vendor fraud based on analysis of patterns or signatures identified in enterprise system audit trails. The concept is demonstrated by developing prototype software. Verification of the prototype is achieved by performing a series of experiments. Validation is achieved by independent reviews from auditing practitioners. Key findings of …

Book Review: Professional Penetration Testing: Creating And Learning In A Hacking Lab 2e, Joshua Bartolomie

Journal of Digital Forensics, Security and Law

Organizations often strive for proactive information security programs in an effort to limit occurrence and impact of security breaches. However, traditional security programs run the risk of being unable to provide adequate insight and proactive awareness into real attack vectors that may exist within their organizations. With attack methods and efforts becoming increasingly aggressive, and effective, organizations must take equally assertive measures to protect their critical information and assets. Penetration testing is one of those tools that is often misunderstood, overlooked, and undervalued. A true adversary would not hesitate to exploit every potential to gain entry or cause a disruption …

Technology Corner: Calculating The Number Of Android Lock Patterns: An Unfinished Study In Number Theory, Gary C. Kessler

Journal of Digital Forensics, Security and Law

Although one is unlikely to ever want to brute-force an Android lock pattern, many do wonder about the relative strength of the lock pattern versus a multidigit personal identification number (PIN). It becomes obvious pretty quickly that there are many more lock patterns than the 10,000 possible four-digit PINs.

Science Column: Reconstruction: The Experimental Side Of Digital Forensics, Fred Cohen

Journal of Digital Forensics, Security and Law

Many in digital forensics seem to forget that the science part of digital forensics means experimentation and that implies a whole lot of things that most practitioners never learned.

Book Review: Iphone And Ios Forensic: Investigation, Analysis And Mobile Security For Apple Iphone, Ipad And Ios Devices, Simson Garfinkel

Journal of Digital Forensics, Security and Law

In April 2011 news outlets around the world revealed shocking news about Apple’s iPhone: for reasons that were not apparently clear, every iPhone contained a small SQLite database that logged where and when the user had been whenever the phone was turned on, and those records went back for pretty much as long as the user had owned their phone. Apple eventually declared that the data cache was the result of a bug and issued a software update to prune the database (it had previously grown without limit). Privacy activists rejoiced that their beloved iPhones were once again trustworthy. But …

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

Ethical Implications Of Intellectual Property In Africa, Dick Kawooya

Faculty Publications

No abstract provided.

Rethinking The Principal-Agent Theory Of Judging, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Essay offers new insights into understanding the relationship between higher and lower courts and responds to the extant literature that has characterized the relationship as one involving a principal and an agent. We challenge the underpinnings of the principal-agent understanding of judicial hierarchies and identify problems with the theory’s applicability in this context. While principals ordinarily select their agents, higher court judges usually do not select lower court judges. Moreover, while lower court judges may cast votes with an eye to the possibility of elevation to a higher court, the higher court judges who review the lower court’s decisions …

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

Scholarly Works

This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for …

Examining The Role Of Race, Gender, And Class In African-American Police Perceptions In Rural Kentucky, Paul Maxwell Blackhurst

Online Theses and Dissertations

Prior research has consistently demonstrated the role of race in understanding racial and ethnic differences in perceptions of the police. This research has overwhelmingly shown that Blacks and Latinos hold lower levels of trust and confidence in the police than do Whites and other racial minorities. The increased skepticism of the police expressed by minority citizens is commonly associated with racial profiling and documented racial disparities in police behavior. Although policing research has empirically demonstrated the influence of race on perceptions of the police, few studies have explored police perceptions from a rural context. By employing the Citizen's Attitudes Towards …

A Deconstruction Of Dexter: An Analysis Of Noble Cause Corruption Within A Crime Drama, Alyssa Lawrence

Online Theses and Dissertations

The literature on corruption within law enforcement typically addresses factors such as brutality, dishonesty, accepting bribes, and using falsified evidence. This research project examines noble cause corruption (NCC), an area that scholarship has ignored until the last ten years. NCC is defined by Crank and Caldero (2007) as using illegal means to achieve good ends. Although NCC is not a new phenomenon it has become of greater focus in television and movies. Many recent television shows have represented NCC in a positive light, almost disguising it as if it were not present. Therefore the topic of this paper is not …

Police Deception: A Survey Of Eku Students, Jason Anthony Nicholson

Online Theses and Dissertations

Abstract

Police deception has been both good and bad for society. Deceptive interrogation is an effective method of gaining confessions and convictions. It is also dangerous in that it raises the potential for false confessions, damages police-citizen relationships, damages case strength, and encourages lying in other aspects of policing. The purpose of the study was to gauge the opinions of students regarding deceptive interrogation by police. A survey was administered to a purposive sample of undergraduates at Eastern Kentucky University. The survey asked questions regarding the students' level of approval toward different scenarios of police deception. It also asked some …

Concepts Of Law, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

No abstract provided.

Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

This chapter turns to the response of the criminal justice system to neighborhood violence, in particular examining to what extent persistently high levels of incarceration can depress economic well-being and human capital in disadvantaged and racially segregated communities. A panel analysis of New York City neighborhoods between 1985 and 1996, a period in which the city's violent-crime rates both rose and fell sharply, provides evidence that high incarceration rates reduce income growth, educational attainment, and work experience in disadvantaged and racially segregated neighborhoods. To rectify this, targeted micro investment and housing development in such areas can break the connection between …

Persuasion Treaties, Melissa (M.J.) Durkee

Scholarship@WashULaw

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Scholarship@WashULaw

In an effort to re-examine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue non-state actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities …

Keep Your Update To Yourself, Neil M. Richards

Scholarship@WashULaw

An essay from Wired Magazine (UK)'s special edition, The Wired World in 2013. The essay makes the argument that frictionless sharing of reading habits should decline in 2013.

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

Scholarship@WashULaw

In this essay, I examine and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily under-gird a determination of “guilt”. My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this symposium. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a …

The Dangers Of Surveillance, Neil M. Richards

Scholarship@WashULaw

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our culture is full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices have made this problem more urgent. Although we have …

Three Paradoxes Of Big Data, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decision making can now give us better predictions in areas ranging from college admissions to dating to hiring to medicine to national security and crime prevention. But much of the rhetoric of big data contains no meaningful analysis of its potential perils, only the promise. We don’t deny that big data holds substantial potential for the future, and that large dataset analysis has …

The Perils Of Social Reading, Neil M. Richards

Scholarship@WashULaw

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.

This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but …

The Freedom Of The Church (New Revised Standard Version), John D. Inazu

Scholarship@WashULaw

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”

The existing debate …

Virtual Assembly, John D. Inazu

Scholarship@WashULaw

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups. The Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal …

Building A Taxonomy Of Litigation: Clusters Of Causes Of Action In Federal Complaints, Christina L. Boyd, David A. Hoffman, Zoran Obradovic, Kosta Ristovski

Scholarship@WashULaw

This project empirically explores civil litigation from its inception by examining the content of civil complaints. We utilize spectral cluster analysis on a newly compiled federal district court dataset of causes of action in complaints to illustrate the relationship of legal claims to one another, the broader composition of lawsuits in trial courts, and the breadth of pleading in individual complaints. Our results shed light not only on the networks of legal theories in civil litigation but also on how lawsuits are classified and the strategies that plaintiffs and their attorneys employ when commencing litigation. This approach permits us to …

Economic Theory Lost In Translation: Will Behavioral Economics Reshape The Compelled Commercial Speech Doctrine, Kyle Rozema

Scholarship@WashULaw

This Article consolidates the economic and legal theory needed to properly analyze the impact of salience measures on the commercial speech doctrine. By walking through various First Amendment scenarios, this Article describes and differentiates between the two main governmental interests motivating graphic image requirements on cigarette labels: reducing smoking and informing consumers. The Article then sets up a game-theoretic model of the compelled commercial speech doctrine and uses Bayesian inference to make assumptions about how the Supreme Court would rule if it eventually rules on similar graphic images placed on cigarette labels. Solving the model by way of forward induction …

Litigating Toward Settlement, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially non-discovery motions, can substantially shape parties’ knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process, including that the filing of a motion significantly speeds case settlement, that granted motions are more immediately critical to settlement timing than motions denied, and that plaintiff victories have a stronger effect than defendant victories. These results provide …