Legal Studies Commons^™

Privacy And The Limits Of History, Neil M. Richards

Scholarship@WashULaw

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim

Scholarship@WashULaw

Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit …

How Should We Study District Judge Decision-Making?, Pauline Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

Scholarship@WashULaw

Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district …

The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …

No Future Without (Personal) Forgiveness: Reexamining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Scholarship@WashULaw

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Scholarship@WashULaw

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts …

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

The Sec In A Time Of Discontinuity., Joel Seligman

Scholarship@WashULaw

In Jack Coffee and Hillary Sale’s article, Redesigning the SEC: Does the Treasury Have a Better Idea?, the authors address the dominant reality today—that “[t]he natural superiority of the U.S. model for securities regulation is no longer an article of faith” and analyze whether the Department of the Treasury Blueprint provides a wiser structure of financial regulation.

Jim Cox in Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC similarly begins, “data bear witness to the fact that government agencies come and go,” but highlights the complexities of creating an international approach to accounting standards.

Judge Easterbrook begins …

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Peter A. Joy

Scholarship@WashULaw

The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such …

The C.A.P. Effect: Racial Profiling In The Ice Criminal Alien Program, Trevor George Gardner, Aarti Kohli

Scholarship@WashULaw

The goal of the Criminal Alien Program (CAP) is to improve safety by promoting federal-local partnerships to target serious criminal offenders for deportation. Indeed, the U.S. Congress has made clear that Immigration and Customs Enforcement (ICE) “should have no greater immigration enforcement priority than to remove deportable aliens with serious criminal histories from the United States…” The Warren Institute’s analysis of arrest data pursuant to an ICE-local partnership in Irving, Texas demonstrates that ICE is not following Congress’ mandate to focus resources on the deportation of immigrants with serious criminal histories.

This study also shows that immediately after Irving, Texas …

Judging The Judges, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati’s scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati.

We hope to advance the theoretical and empirical evaluation by incorporating different scales for …

Public Interest, Professional Bargains: Ethical Conflicts Between Lawyers And Professional Engineers, Elizabeth J. Hubertz

Scholarship@WashULaw

Environmental experts come from many fields, including biology, geosciences, ecology, chemistry, engineering, social science, and economics. Each discipline has its own set of norms, practices, ethics, guidelines, and procedures, which differ from those of the legal profession. Wherever the disciplines intersect, there is a potential for disagreement. This Article examines one such set of potential clashes — the conflict between a lawyer‘s duties of loyalty and confidentiality, and the engineer‘s paramount duty to the public health, safety, and welfare.

The Deterrent Effect Of Death Penalty Eligibility: Evidence From The Adoption Of Child Murder Eligibility Factors, Michael D. Frakes, Matthew Harding

Faculty Scholarship

We draw on within-state variations in the reach of capital punishment statutes between 1977 and 2004 to identify the deterrent effects associated with capital eligibility. Focusing on the most prevalent eligibility expansion, we estimate that the adoption of a child murder factor is associated with an approximately 20% reduction in the homicide rate of youth victims. Eligibility expansions may enhance deterrence by (1) paving the way for more executions and (2) providing prosecutors with greater leverage to secure enhanced non-capital sentences. While executions themselves are rare, this latter channel is likely to be triggered fairly regularly, providing a reasonable basis …

I'Ll Make You A Deal: How Repeat Informants Are Corrupting The Criminal Justice System And What To Do About It, Emily Jane Dodds

William & Mary Law Review

No abstract provided.

Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush

BYU Law Review

No abstract provided.

Teaching Tips: Personal Criminal History Analysis Paper, Gordon Crews, Angela Crews

Criminal Justice Faculty Research

Students often have difficulty visualizing the practical application of criminological theory. The following activity assists instructors to develop students‘ abilities in evaluating behaviors and determining the theoretical perspectives that potentially could be used to explain those behaviors. It also is designed to assist students in comprehending how their own experiences impact their views on law-violating behavior and its etiology. This exercise facilitates students‘ awareness of how their beliefs about the causes of law-violating behavior inevitably impact their beliefs about potential solutions or responses to this type of behavior. Eventually, students unfailingly begin to realize the artificial dichotomy between us, as …

Happiness And Punishment, Christopher J. Buccafusco, John Bronsteen, Jonathan S. Masur

All Faculty Scholarship

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

The Missing Lawyering Skill, Richard Leiter

Marvin and Virginia Schmid Law Library: Faculty Publications

Educating Lawyers, a new book from the Carnegie Foundation, analyzes our modern system of legal education, and, in some measure, finds it wanting. The authors set out to evaluate legal education's response to decades old criticisms that it fails t teach lawyering skills and legal ethics.

Ua12/8 Annual Report, Wku Police

WKU Administration Documents

A statement of current campus policies regarding procedures for students and others to report criminal actions or other emergencies occurring on campus and policies concerning the institution's response to such reports.

Sobriety Checkpoints: The Case For Implementation In Rhode Island, Scott Naso

Pell Scholars and Senior Theses

A survey was prepared and conducted to investigate the viability of implementing sobriety checkpoints in Rhode Island. The survey was designed to make a comparison between a state which has found sobriety checkpoints to be constitutional, Massachusetts, and a state that has found sobriety checkpoints to be unconstitutional, Rhode Island. The survey's findings indicate that Rhode Island would benefit from the implementation of sobriety checkpoints.

The Emerging Role Of Dna Analysis In The Criminal Justice System, Sandra Sherman

Pell Scholars and Senior Theses

Forensic science has evolved into the most advanced investigative tool used in the criminal justice field. DNA evidence is a strong component of forensic science and with constant advancements of DNA testing so that its evidence is more reliable and accepted in the criminal justice system will help provide justice for the quily and innocent alike.

The Cyber-Workplace – Identifying Liability Issues In The Information Age And Managing E-Risk, Nigel Wilson

Annual ADFSL Conference on Digital Forensics, Security and Law

The information age provides numerous opportunities for modern society but also presents significant challenges in identifying liability issues and in managing risk. Technological change has occurred rapidly and is continuing at the same time as other major trends and changes are taking place in society and, in particular, in the workplace. The prospect of global liability and the complexity of jurisdictional differences present a considerable hurdle to the uniform regulation of liability issues. General legislation and legal principles have been readily applied to the cyber-world and to modern business practices and the workplace. Where necessary, legislatures have introduced specific legislation …

Data Mining Techniques For Fraud Detection, Rekha Bhowmik

Annual ADFSL Conference on Digital Forensics, Security and Law

The paper presents application of data mining techniques to fraud analysis. We present some classification and prediction data mining techniques which we consider important to handle fraud detection. There exist a number of data mining algorithms and we present statistics-based algorithm, decision tree-based algorithm and rule-based algorithm. We present Bayesian classification model to detect fraud in automobile insurance. Naïve Bayesian visualization is selected to analyze and interpret the classifier predictions. We illustrate how ROC curves can be deployed for model assessment in order to provide a more intuitive analysis of the models.

Keywords: Data Mining, Decision Tree, Bayesian Network, ROC …

Simple - Rethinking The Monolithic Approach To Digital Forensic Software, Craig Valli

Annual ADFSL Conference on Digital Forensics, Security and Law

This paper outlines a collaborative project nearing completion between the sec.au Security Research Group at Edith Cowan University and Western Australian Police Computer Crime Squad. The primary goal of this project is to create a software tool for use by non-technical law enforcement officers during the initial investigation and assessment of an electronic crime scene. This tool will be designed as an initial response tool, to quickly and easily find, view and export any relevant files stored on a computer, establishing if further expert investigation of that computer is warranted. When fully developed, the tool will allow investigators unprecedented real …

How Virtualized Environments Affect Computer Forensics, Diane Barrett

Annual ADFSL Conference on Digital Forensics, Security and Law

Virtualized environments can make forensics investigation more difficult. Technological advances in virtualization tools essentially make removable media a PC that can be carried around in a pocket or around a neck. Running operating systems and applications this way leaves very little trace on the host system. This paper will explore all the newest methods for virtualized environments and the implications they have on the world of forensics. It will begin by describing and differentiating between software and hardware virtualization. It will then move on to explain the various methods used for server and desktop virtualization. Next, it will describe the …

The Virtual Digital Forensics Lab - Expanding Law Enforcement Capabilities, Mark Mccoy, Sean A. Ensz

Annual ADFSL Conference on Digital Forensics, Security and Law

Law enforcement is attempting to respond to the growing and complex need to examine all manner of digital evidence using stand-alone forensic workstations and limited storage solutions. Digital forensic investigators often find their cases stalled by cumbersome and inflexible technology limiting their effectiveness. The Virtual Digital Forensics Lab (VDFL) is a new concept that applies existing enterprise host, storage, and network virtualization technologies to current forensic investigative methods. This paper details the concept of the VDFL, the technology solutions it employs, and the flexibility it provides for digital forensic investigators.

Keywords: Virtual Digital Forensics, digital forensic investigations, law enforcement, virtual …

Digital Forensic Certification Versus Forensic Science Certification, Nena Lim

Annual ADFSL Conference on Digital Forensics, Security and Law

Companies often rely on certifications to select appropriate individuals in disciplines such as accounting and engineering. The general public also tends to have confidence in a professional who has some kinds of certification because certification implies a standard of excellence and that the individual has expert knowledge in a specific discipline. An interesting question to the digital forensic community is: How is a digital forensic certification compared to a forensic science certification? The objective of this paper is to compare the requirements of a digital forensic certification to those of a forensic science certification. Results of the comparison shed lights …

One Size Fits All? Ghanaian Perceptions Of Law Enforcement And The Importation Of American Community Policing, Angela West Crews, Gordon A. Crews, Kofi Boye-Doe

Criminal Justice Faculty Research

The purpose of this presentation was to introduce a research project that the authors have ongoing with the Ghana National Police Service (Accra, Ghana, Africa). This focus of this project is to assist the Ghanaian police in the development and implementation of a “community policing” program. In 2008, a new Director of Community Policing had been hired, although she expressed that she and the officers had absolutely no training or education in theories and practices related to community policing. This presentation showcased the authors’ initial efforts to help solve that problem. Three major aspects are covered in this presentation, 1) …

Cunningham V. California: The U.S. Supreme Court Painted Into A Corner, Jacob Strain

Brigham Young University Journal of Public Law

No abstract provided.