Legal Studies Commons^™

Do You Know How Your Children Are? International Perspectives On Child Abuse, Mistreatment, And Neglect, Gordon A. Crews, Angela D. Crews

Criminal Justice Faculty Publications

In the early 1980s, televised public service announcements in the United States queried, “Parents …it is 10:00 pm, do you know where your children are?” These were launched through the media as reminders for American parents to take a moment and think about their children and to strive to inform themselves of their children‟s activities. Similar broadcasts to urge parents to interact with their children and to provide simple parenting tips have followed in various forms since this time. An interesting realization is that almost all of these “messages” were directed towards the parents by the government for the children. …

Regulating The Use Of Genetic Information: Perspective From The U.S. Experience, Pauline Kim

Scholarship@WashULaw

This essay comments on an empirical study documenting the policies, practices, and attitudes of Australian employers regarding the use of genetic information from the U.S. perspective. The U.S. Congress recently enacted the Genetic Information Nondiscrimination Act of 2008 (GINA), which, among other things, prohibits employment discrimination on the basis of genetic information and restricts employers’ access to their employees’ genetic information. Just as the Australian study found no evidence of systematic use of genetic testing or screening by employers, GINA was passed in the absence of any evidence of widespread employment discrimination on the basis of genetic characteristics. Although it …

Reply: Exploring Panel Effects, Pauline Kim

Scholarship@WashULaw

This Reply responds to methodological criticisms of an earlier empirical study of panel effects on the United States Court of Appeals, Deliberation and Strategy on the United States Courts of Appeals, which appeared in the University of Pennsylvania Law Review. That study found that federal appellate judges appeared to be more or less open to influence by their panel colleagues depending upon how the preferences of the panel members align with the preferences of the circuit as a whole. On the other hand, their willingness to avoid dissents and go along with their panel colleagues seemed unaffected by their relative …

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Scholarship@WashULaw

This article argues that the Supreme Court’s categories of expressive and intimate association first announced in its 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. These indefensible categories matter deeply to groups that have sought to maintain an unpopular composition and message in the face of antidiscrimination laws. These groups have been denied associational protections. They have been forced to change their composition - and therefore their message. They no longer exist in the form they once held and desired to maintain.

The Roberts categories of intimate and expressive association are at least partly to blame. …

"Lawfare" In The War On Terrorism: A Reclamation Project, Melissa A. Waters

Scholarship@WashULaw

In the nine years since Major General Charles Dunlap first coined the term, “lawfare” has strayed considerably from its non-partisan, ideologically neutral origins. Nowhere is this clearer than in the war on terror, where the term is often used as a pejorative label by political pundits who decry as “lawfare” virtually any attempt to apply the rule of law to the conduct of the United States’ war on terror. This essay considers the prospects for reclaiming “lawfare” as a useful term in the war on terror. It explores various conceptions of the term, noting that a more ideologically neutral usage …

Film Review: Masculinity & Interracial Intimacy In 'Star Trek' And 'Gran Torino', Adrienne D. Davis

Scholarship@WashULaw

Race has long been a central object of political reflection. The salience of racial difference remains hotly debated, figuring in both “utopian” and “dystopian” visions of America’s political future. If race is a primary configuration of “difference” and inequality in the nation, then intimacy between the races is often construed as either a bellwether of equality and political utopia or a re-inscribing of political dominance, typically represented as sexual predation by men against women. Quite expectedly, these political fantasies and fears are often played out at the multiplex, and we can see them in stark relief in two recent films …

The Voting Rights Act’S Secret Weapon: Pocket Trigger Litigation And Dynamic Preclearance, Travis Crum

Scholarship@WashULaw

Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. This Note makes a two-part argument. First, the pocket trigger should be used to alleviate the NAMUDNO Court’s anxiety over the coverage formula’s differential treatment of the states. The Justice Department and civil rights groups …

Disputing Limited Liability, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

This project presents six years of hand-collected federal district court data to analyze the first representative sample of veil piercing litigation. Our method identifies veil piercing complaints through Westlaw's trial pleadings database and codes each case through a detailed examination of PACER records. We test a variety of hypotheses to understand how such litigations are resolved. We find that plaintiffs succeed quite often in veil piercing litigation, if success is defined as winning on motions that do not terminate a case. A variety of legal and extra-legal factors predict such interstitial veil piercing successes. Voluntary creditor causes of action promote …

Constructing Systemic Safeguards Against Informant Perjury, Peter A. Joy

Scholarship@WashULaw

Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.

The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is …

Countering The Majoritarian Difficulty, Stefanie A. Lindquist, Amanda Frost

Scholarship@WashULaw

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape.

This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are …

Rational Understanding In Competency To Stand Trial: A Qualitative Study And Development Of An Assessment Instrument, Kenneth C. Cole Jr.

Antioch University Dissertations & Theses

Mental competency as a prerequisite for due process was established by the United States Supreme Court‟s Dusky decision (1960). The Court mandated that a defendant must possess reasonable levels of factual and rational understanding in order to competently participate in the adjudication process. The precise definitions of competence were not included in any of the Court‟s decisions regarding the concept of Competency to Stand Trial (CST). The original purpose of this research was to contribute knowledge regarding the psychological dimensions of CST and to suggest definitions of the psychological dimensions of CST and the standardization of the CST evaluation process. …

“Messin’ With Drugs…You Could Lose Your Life”: The Effect Of Victimization On Routine Activities And Risk Management, J. Michael Vecchio

Criminal Justice & Criminology: Faculty Publications & Other Works

Decades of research have helped to identify that victims and offenders are not opposing parts of the crime equation (Esbensen & Huizinga, 1991), but often are intertwined as part of a homogeneous population (Lauritsen & Laub, 2007). Those with the greatest likelihood of experiencing personal or property victimization are those who report offending or substance using behaviors (Gottfredson, 1984; Jensen & Brownfield, 1986; Sampson & Lauritsen, 1990). This increased victimization risk is commonly related to the amount of time spent in situations with greater proximity to motivated offenders and a lack of supervision (Cohen & Felson, 1979; Hindelang, Gottfredson, & …

Study Methodology, Jody Miller, Mark Debarr, Hyan Namgung, J. Michael Vecchio, Stephanie Wiley

Criminal Justice & Criminology: Faculty Publications & Other Works

Data for this investigation come from 36 qualitative in-depth interviews completed between February and April 2010. The aim of the research was to conduct a process evaluation of Gateway Foundation programming for state probation and parole clients in St. Louis and jointly produce a final report for the organization. The specific research questions focused on (1) the challenges men face as they attempt to overcome substance abuse; (2) how those challenges are related to past experiences with crime, including offending and victimization; and (3) the effectiveness of Gateway programming, from the points of view of program participants, including whether there …

Computer Forensic Functions Testing: Media Preparation, Write Protection And Verification, Yinghua Guo, Jill Slay

Journal of Digital Forensics, Security and Law

The growth in the computer forensic field has created a demand for new software (or increased functionality to existing software) and a means to verify that this software is truly forensic i.e. capable of meeting the requirements of the trier of fact. In this work, we review our previous work---a function oriented testing framework for validation and verification of computer forensic tools. This framework consists of three parts: function mapping, requirements specification and reference set development. Through function mapping, we give a scientific and systemized description of the fundamentals of computer forensic discipline, i.e. what functions are needed in the …

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

Clustering Spam Domains And Destination Websites: Digital Forensics With Data Mining, Chun Wei, Alan Sprague, Gary Warner, Anthony Skjellum

Journal of Digital Forensics, Security and Law

Spam related cyber crimes have become a serious threat to society. Current spam research mainly aims to detect spam more effectively. We believe the identification and disruption of the supporting infrastructure used by spammers is a more effective way of stopping spam than filtering. The termination of spam hosts will greatly reduce the profit a spammer can generate and thwart his ability to send more spam. This research proposes an algorithm for clustering spam domains extracted from spam emails based on the hosting IP addresses and tracing the IP addresses over a period of time. The results show that many …

Developing Voip Honeypots: A Preliminary Investigation Into Malfeasant Activity, Craig Valli

Journal of Digital Forensics, Security and Law

30 years ago PABX systems were compromised by hackers wanting to make long distance calls at some other entities expense. This activity faded as telephony became cheaper and PABX systems had countermeasures installed to overcome attacks. Now the world has moved onto the provision of telephony via broadband enabled Voice over Internet Protocol (VoIP) with this service now being provided as a replacement for conventional fixed wire telephony by major telecommunication providers worldwide. Due to increasing bandwidth it is possible for systems to support multiple voice connections simultaneously. The networked nature of the Internet allows for attackers of these VoIP …

Adaptation Of Pyflag To Efficient Analysis Of Seized Computer Data Storage, Aleksander Byrski, Wojciech Stryjewski, Bartłomiej Czechowicz

Journal of Digital Forensics, Security and Law

Based on existing software aimed at investigation support in the analysis of computer data storage seized during investigation (PyFlag), an extension is proposed involving the introduction of dedicated components for data identification and filtering. Hash codes for popular software contained in NIST/NSRL database are considered in order to avoid unwanted files while searching and to classify them into several categories. The extension allows for further analysis, e.g. using artificial intelligence methods. The considerations are illustrated by the overview of the system's design.

Avoiding Sanctions At The E-Discovery Meet-And-Confer In Common Law Countries, Milton Luoma, Vicki Luoma

Journal of Digital Forensics, Security and Law

The rules of civil procedure in common law countries have been amended to better deal with the requirements of electronic discovery. One of the key changes in case management is the scheduling of a meet-and-confer session where the parties to litigation must meet early in the case before any discovery procedures have begun to exchange information regarding the nature, location, formats, and pertinent facts regarding custody and control of a party’s electronically stored information (ESI). Failure to abide by the rules and participate in good faith at the meet-and-confer session can have dire consequences for the parties and lawyers involved. …

Malware Forensics: Discovery Of The Intent Of Deception, Murray Brand, Craig Valli, Andrew Woodward

Journal of Digital Forensics, Security and Law

Malicious software (malware) has a wide variety of analysis avoidance techniques that it can employ to hinder forensic analysis. Although legitimate software can incorporate the same analysis avoidance techniques to provide a measure of protection against reverse engineering and to protect intellectual property, malware invariably makes much greater use of such techniques to make detailed analysis labour intensive and very time consuming. Analysis avoidance techniques are so heavily used by malware that the detection of the use of analysis avoidance techniques could be a very good indicator of the presence of malicious intent. However, there is a tendency for analysis …

Digital Records Forensics: A New Science And Academic Program For Forensic Readiness, Luciana Duranti, Barbara Endicott-Popovsky

Journal of Digital Forensics, Security and Law

This paper introduces the Digital Records Forensics project, a research endeavour located at the University of British Columbia in Canada and aimed at the development of a new science resulting from the integration of digital forensics with diplomatics, archival science, information science and the law of evidence, and of an interdisciplinary graduate degree program, called Digital Records Forensics Studies, directed to professionals working for law enforcement agencies, legal firms, courts, and all kind of institutions and business that require their services. The program anticipates the need for organizations to become “forensically ready,” defined by John Tan as “maximizing the ability …

Solid State Drives: The Beginning Of The End For Current Practice In Digital Forensic Recovery?, Graeme B. Bell, Richard Boddington

Journal of Digital Forensics, Security and Law

Digital evidence is increasingly relied upon in computer forensic examinations and legal proceedings in the modern courtroom. The primary storage technology used for digital information has remained constant over the last two decades, in the form of the magnetic disc. Consequently, investigative, forensic, and judicial procedures are well-established for magnetic disc storage devices (Carrier, 2005). However, a paradigm shift has taken place in technology storage and complex, transistor-based devices for primary storage are now increasingly common. Most people are aware of the transition from portable magnetic floppy discs to portable USB transistor flash devices, yet the transition from magnetic hard …

Book Review: Digital Forensic Evidence Examination (2nd Ed.), Gary C. Kessler

Journal of Digital Forensics, Security and Law

On the day that I sat down to start to write this review, the following e-mail came across on one of my lists: Person A and Person B write back and forth and create an email thread. Person A then forwards the email to Person C, but changes some wording in the email exchange between A & B. What is the easiest way (and is it even possible) to find out when that earlier email message was altered before sent to Person C? Before you try to answer these questions, read Fred Cohen's Digital Forensic Evidence Examination. His book won't …

Identifying A Computer Forensics Expert: A Study To Measure The Characteristics Of Forensic Computer Examiners, Gregory H. Carlton, Reginald Worthley

Journal of Digital Forensics, Security and Law

The usage of digital evidence from electronic devices has been rapidly expanding within litigation, and along with this increased usage, the reliance upon forensic computer examiners to acquire, analyze, and report upon this evidence is also rapidly growing. This growing demand for forensic computer examiners raises questions concerning the selection of individuals qualified to perform this work. While courts have mechanisms for qualifying witnesses that provide testimony based on scientific data, such as digital data, the qualifying criteria covers a wide variety of characteristics including, education, experience, training, professional certifications, or other special skills. In this study, we compare task …

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

The Interpretation-Construction Distinction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by …

The Unity Of Interpretation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novels when they investigate the deep and sometimes unconscious motivations of the author. Conductors interpret a score when they make decisions about meter, tempo, and dynamic range. Actors interpret a screenplay when they improvise new lines based on their understanding of the characters. Judges interpret statutes …

Residual Voting In Florida, James Hicks, Paul Gronke, Charles Stewart Iii

Scholarship@WashULaw

The residual vote rate is a metric that can be used to evaluate the comparative performance of election systems, particularly voting technology and ballot design. If collected at the appropriate levels of disaggregation (county- or more preferably precinct-level) and by different modes of balloting (in person, absentee, and early voting), the residual vote rate can identify ways that voter demographics, voting technology, and the time and place of casting the ballot may influence varying levels of voting errors.

This report describes a project that examined the residual vote rates in the state of Florida’s 2008 presidential preference primary, taking advantage …

"Kneecapping" Academic Freedom, Robert R. Kuehn, Peter A. Joy

Scholarship@WashULaw

As universities increasingly seek to educate students through service learning courses, law school clinics may be the bellwether for determining if faculty’s traditional academic freedom of teaching will transcend the traditional classroom or be left at the classroom door. Recent legislative and corporate efforts to interfere in the operations of law clinics indicate that academic freedom is at risk when hands-on student learning bumps up against “real world” disputes. This article examines why attacks on law school clinics are a harbinger of how academic freedom is treated when it moves out of the classroom.

The authors discuss the role of …