Legal Studies Commons^™

Confidentiality And Common Sense: Insights From Philosophy, Thomas Morawetz

San Diego Law Review

In this Article, I will consider two aspects of the controversy that help explain why it is static. I will consider the significance of empirical evidence that lawyers and clients find the rules morally troubling. Zacharias plausibly assumes that such evidence carries compelling weight. I will also look at the nature of morality itself and the extent to which professional rules should be expected to conform to morality.

Globalization And Eligibility To Deliver Legal Advice: Inbound Legal Services Provided By Corporate Counsel Licensed Only In A Country Outside The United States, Carol A. Needham

San Diego Law Review

The regulation of cross-border delivery of legal services remains in flux. Clients in the United States, particularly sophisticated corporate clients, should be allowed to utilize the special expertise possessed by lawyers licensed outside the United States. Key reforms that at this point are gaining traction include the following: allowing lawyers licensed outside the United States to qualify for limited licenses as in-house counsel; broadening the scope of practice so that all foreign legal consultants are allowed to give legal advice related to third-country and international law; and allowing fly in, fly out practice while temporarily present in the host state. …

Facing The Unfaceable: Dealing With Prosecutorial Denial In Postconviction Cases Of Actual Innocence, Aviva Orenstein

San Diego Law Review

This Article develops a question that intrigued Fred: prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

Part II of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part III documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. …

Three Concepts Of Roles, W. Bradley Wendel

San Diego Law Review

There is something distinctive about the law, legal reasoning, and the role of lawyers. That distinctiveness is captured by the idea that normative reasoning by citizens in communities is necessarily aimed at discovering what rights and obligations everyone ought to have, consistent with the interests of other citizens. It is implausible to believe that ordinary moral reasoning is well-suited to working out a scheme of public entitlements that is suited to regulating the interactions among citizens who disagree about what their entitlements ought to be. The law has authority to the extent it enables people to do better than they …

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

The Limits Of Constructivism: Can Rawls Condemn Female Genital Mutilation?, Andrew Koppelman

Faculty Working Papers

The strategy for coping with value pluralism that Rawls has proposed is to permit political decisions, at least with respect to basic rights, to depend only on those goods that can be inferred from the bare requirements of respectful relations between persons. His account offers such a parsimonious conception of the good that it cannot cognize some atrocities. I focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, it is well established, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A …

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

Correlates And Consequences Of Pre-Incarceration Gang Involvement Among Incarcerated Youthful Felons, Sean P. Varano, Beth M. Huebner, Timothy S. Bynum

Justice Studies Faculty Publications

Objective: The primary aim of the study is to document the prevalence and variation in types of pre-incarceration gang membership among a sample of incarcerated felons. The second goal is to consider if and how pre-incarceration gang involvement affects institutional behavior. Materials and Methods: This study builds on the existing literature by considering if and how different types of pre-incarceration gang involvement effect prison misconduct. This relationship is examined while controlling for attitudinal measures and pre-prison social characteristics that may condition entrance into gangs and involvement in serious prison misconduct. The study includes a sample of 504 youthful adults incarcerated …

Head-Of-State And Foreign Official Immunity In The United States After Samantar: A Suggested Approach, Christopher Totten

Faculty Articles

This Article consists of four parts. Part I addresses the US approach to immunity for current and former foreign heads of state as well as the related issue of foreign official immunity. Part I includes a discussion of the 2010 US Supreme Court case of Samantar, which addresses foreign official immunity. Part II explores head-of-state and official immunity under international law, including a discussion of Democratic Republic of the Congo v. Belgium decided by the International Court of Justice ("ICJ"), the Charles Taylor immunity decision of the Special Court for Sierra Leone, the ongoing case by the ICC against Sudanese …

Kindle Forensics: Acquisition & Analysis, Peter Hannay

Journal of Digital Forensics, Security and Law

The Amazon Kindle eBook reader supports a wide range of capabilities beyond reading books. This functionality includes an inbuilt cellular data connection known as Whispernet. The Kindle provides web browsing, an application framework, eBook delivery and other services over this connection. The historic data left by user interaction with this device may be of forensic interest. Analysis of the Amazon Kindle device has resulted in a method to reliably extract and interpret data from these devices in a forensically complete manner.

Column: The Consortium Of Digital Forensics Specialists (Cdfs), Christopher Kelly

Journal of Digital Forensics, Security and Law

Digital forensic practitioners are faced with an extraordinary opportunity. In fact, we may never again be faced with such an opportunity, and this opportunity will challenge us in ways we may never again be challenged. At this point in the history of the Digital Forensics profession, digital forensic specialists have the unique opportunity to help this profession emerge from its infancy. But for this profession to mature -- and to flourish -- individuals and organizations integral to the practice must assemble and shape its future. This is our opportunity. In fact, this is our mandate.

Judges’ Awareness, Understanding, And Application Of Digital Evidence, Gary C. Kessler

Journal of Digital Forensics, Security and Law

As digital evidence grows in both volume and importance in criminal and civil courts, judges need to fairly and justly evaluate the merits of the offered evidence. To do so, judges need a general understanding of the underlying technologies and applications from which digital evidence is derived. Due to the relative newness of the computer forensics field, there have been few studies on the use of digital forensic evidence and none about judges’ relationship with digital evidence. This paper describes a recent study, using grounded theory methods, into judges’ awareness, knowledge, and perceptions of digital evidence. This study is the …

Technology Corner: Analysing E-Mail Headers For Forensic Investigation, M. T. Banday

Journal of Digital Forensics, Security and Law

Electronic Mail (E-Mail), which is one of the most widely used applications of Internet, has become a global communication infrastructure service. However, security loopholes in it enable cybercriminals to misuse it by forging its headers or by sending it anonymously for illegitimate purposes, leading to e-mail forgeries. E-mail messages include transit handling envelope and trace information in the form of structured fields which are not stripped after messages are delivered, leaving a detailed record of e-mail transactions. A detailed header analysis can be used to map the networks traversed by messages, including information on the messaging software and patching policies …

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 …

Gangs And Gang Activity In America: A Prevention Report, Portland State University. Criminology And Criminal Justice Senior Capstone

Criminology and Criminal Justice Senior Capstone Project

This report covers information on gangs, gang activity, and gang prevention. The report reveals information such as the history of gangs in the U.S., the definition of “gang,” data on prevalence, persons affected by gang activity, demographics of gangs and their members, criminal activity committed by gangs, gang hierarchical structure, prevention strategies, and effectiveness of gang prevention programs.

Using Discourse Analysis Methodology To Teach "Legal English", Craig Hoffman

Georgetown Law Faculty Publications and Other Works

In this study, I propose a curriculum focused on raising students’ linguistic awareness through rigorous discourse analysis and reflective writing in a legal context. Students analyze authentic, full-text legal documents using discourse analysis methodology. By carefully analyzing the language in legal opinions, appellate briefs, law review articles, law school exams, typical commercial contracts, and statutes, students become experts in analyzing and evaluating legal texts. Students learn to manipulate legal language to achieve various desired linguistic and legal effects. This approach has three primary advantages. First, it forces the students to carefully read authentic legal texts. Second, it gives students the …

Column: File Cabinet Forensics, Simson Garfinkel

Journal of Digital Forensics, Security and Law

Researchers can spend their time reverse engineering, performing reverse analysis, or making substantive contributions to digital forensics science. Although work in all of these areas is important, it is the scientific breakthroughs that are the most critical for addressing the challenges that we face. Reverse Engineering is the traditional bread-and-butter of digital forensics research. Companies like Microsoft and Apple deliver computational artifacts (operating systems, applications and phones) to the commercial market. These artifacts are bought and used by billions. Some have evil intent, and (if society is lucky), the computers end up in the hands of law enforcement. Unfortunately the …

Column: Putting The Science In Digital Forensics, Fred Cohen

Journal of Digital Forensics, Security and Law

In a recent study, digital forensics was found to lack a consensus around even the most basis notions and terminology of the field. To quote: “These two preliminary studies individually suggest that (1) scientific consensus in the area of digital forensic evidence examination is lacking in the broad sense, but that different groups within that overall community may have limited consensus around areas in which they have special expertise, and (2) that the current peerreviewed publication process is not acting to bring about the sorts of elements typically found in the advancement of a science toward such a consensus. ... …

Technology Corner: Internet Packet Sniffers, Nick V. Flor, Kenneth Guillory

Journal of Digital Forensics, Security and Law

The best way to understand an internet packet sniffer, hereafter “packet sniffer”, is by analogy with a wiretap. A wiretap is a piece of hardware that allows a person to eavesdrop on phone conversations over a telephone network. Similarly, a packet sniffer is a piece of software that allows a person to eavesdrop on computer communications over the internet. A packet sniffer can be used as a diagnostic tool by network administrators or as a spying tool by hackers who can use it to steal passwords and other private information from computer users. Whether you are a network administrator or …

Sampling: Making Electronic Discovery More Cost Effective, Milton Luoma, Vicki Luoma

Journal of Digital Forensics, Security and Law

With the huge volumes of electronic data subject to discovery in virtually every instance of litigation, time and costs of conducting discovery have become exceedingly important when litigants plan their discovery strategies. Rather than incurring the costs of having lawyers review every document produced in response to a discovery request in search of relevant evidence, a cost effective strategy for document review planning is to use statistical sampling of the database of documents to determine the likelihood of finding relevant evidence by reviewing additional documents. This paper reviews and discusses how sampling can be used to make document review more …

Column: The Physics Of Digital Information, Fred Cohen

Journal of Digital Forensics, Security and Law

No abstract provided.

Developing A Forensic Continuous Audit Model, Grover S. Kearns, Katherine J. Barker, Stephen P. Danese

Journal of Digital Forensics, Security and Law

Despite increased attention to internal controls and risk assessment, traditional audit approaches do not seem to be highly effective in uncovering the majority of frauds. Less than 20 percent of all occupational frauds are uncovered by auditors. Forensic accounting has recognized the need for automated approaches to fraud analysis yet research has not examined the benefits of forensic continuous auditing as a method to detect and deter corporate fraud. The purpose of this paper is to show how such an approach is possible. A model is presented that supports the acceptance of forensic continuous auditing by auditors and management as …

Analysis Of Data Remaining On Second Hand Adsl Routers, Patryk Szewczyk

Journal of Digital Forensics, Security and Law

In theory, an ADSL router can provide an additional layer of security to a wired and wireless network through; access control, wireless encryption, firewall rule sets, and network event logging. An ADSL router may also contain the users’ usage habits and broadband account credentials. However, end-users may be unaware of the intricacies of the security measures available and the potentially confidential information stored on their device. As a result a second hand ADSL router may contain a wealth of user-specific information if not wiped and disposed of in a secure manner. This paper shows the data that was acquired from …

Book Review: Online Privacy: Issues In The Digital Age, Darlene M. Tester

Journal of Digital Forensics, Security and Law

This book is one of a series of books Currie has written about online areas of concern. This is the sixth book in the series. The purpose of the book is to act as a primer for people in the IT field who may need a point of reference for Internet issues such as gaming, security and privacy. The book takes a high level look at the complexities of privacy online from social networking to hackers and provides insight into what the most pressing issues of privacy are online today.

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

Technology Corner: Virtual Crime Scene Reconstruction: The Basics Of 3d Modeling, Nick V. Flor

Journal of Digital Forensics, Security and Law

Digital crime scenes take place in the context of physical crime scenes. Virtual crime scene reconstruction is an activity where investigators create a 3- dimensional (3-D) model of an actual crime scene for the purpose of determining the events that lead to the crime. While virtual crime scene reconstruction is currently used for analyzing physical scenes, it can also help investigators visualize and explore ways digital media could have been used to perpetrate a crime. In this technology corner we explore one of the technologies underlying virtual crime scene reconstruction: 3-D modeling.

Working Inside The Box: An Example Of Google Desktop Search In A Forensic Examination, Timothy J. Latulippe

Journal of Digital Forensics, Security and Law

Information and the technological advancements for which mankind develops with regards to its storage has increased tremendously over the past few decades. As the total amount of data stored rapidly increases in conjunction with the amount of widely available computer-driven devices being used, solutions are being developed to better harness this data. These types of advancements are continually assisting investigators and computer forensic examiners. One such application which houses copious amounts of fruitful data is the Google Desktop Search program. Coupled with tested and verified techniques, examiners can exploit the power of this application to cater to their investigative needs. …

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.