Legal Studies Commons^™

Banker Loyalty In Mergers And Acquisitions, Andrew F. Tuch

Scholarship@WashULaw

When investment banks advise on merger and acquisition (M&A) transactions, are they fiduciaries of their clients, gatekeepers for investors, or simply arm’s-length counterparties with no other-regarding duties? Scholars have generally treated M&A advisors as arm’s-length counterparties, putting faith in the power of contract law and market constraints to discipline errant bank behavior. This Article counters that view, arguing that investment banks are rightly characterized as fiduciaries of their M&A clients and thus required to loyally serve client interests.

This Article also develops an analytical framework for assessing the liability rules that will most effectively deter disloyalty on the part of …

Addressing Systemic Discrimination: Public Enforcement And The Role Of The Eeoc, Pauline Kim

Scholarship@WashULaw

Cases challenging systemic discrimination have always constituted an important slice of litigation under Title VII. Early government enforcement efforts sought thorough-going reform of employment practices in major industries. Private litigants have also pursued cases alleging systemic discrimination through class action litigation. The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, however, made it considerably more difficult for private plaintiffs to pursue claims of systemic discrimination by raising the bar for certifying class actions. In the wake of the Court’s decision in Wal-Mart, many urged the Equal Employment Opportunity Commission (“EEOC”) to use its enforcement powers to take up the …

Digital Laws Evolve, Neil M. Richards

Scholarship@WashULaw

The essay from Wired Magazine (UK)'s special volume, "The Wired World in 2015," argues that although digital laws have lagged behind technological advances, they are starting to catch up, and this trend will continue in 2015. When it comes to privacy and technology, the law is catching up all over the world.

Information Privacy Law Scholars' Brief In Spokeo, Inc. V. Robins, Neil M. Richards, Julie E. Cohen, Chris Jay Hoofnagle, William Mcgeveran, Paul Ohm, Joel R. Reidenberg, David Thaw, Lauren E. Willis

Scholarship@WashULaw

This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and …

The Internet Grows Up?, Neil M. Richards

Scholarship@WashULaw

Danielle Citron’s Hate Crimes in Cyberspace is one of the most important publications to date in the emerging fields of privacy and cyberlaw. In her thoughtful and insightful book, Citron explains the uneven playing field and frequently shocking acts of abuse that women face online, and demonstrates practical steps that we can take to remedy the problem of online hate through law, education, and the development of better, more inclusive norms. Other contributors to this Symposium have examined these contributions in great detail, pointing out important nuances of Citron’s argument, urging her in at least one case to be even …

The First Amendment's Public Forum, John D. Inazu

Scholarship@WashULaw

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …

Re-Assembling Labor, John D. Inazu, Marion G. Crain

Scholarship@WashULaw

Organized labor’s judicial, political, and public image is often associated with violence and anarchy. These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism. But the assumptions underlying past judicial rhetoric and labor law doctrine have outlived their original context. Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature …

Perceptions Of Taxing And Spending: A Survey Experiment, Conor Clarke, Edward Fox

Scholarship@WashULaw

This paper presents the results of an original survey experiment on whether the public prefers “tax expenditures” to “direct outlays” — that is, whether members of the public are more likely to support government spending that takes the form of a tax credit rather than a check or cash. Using a survey that spans a wide variety of policy areas — and with important variations in wording and information — we show that the public strongly prefers tax expenditures even when the “economic substance” of the proposed policies is identical. We also show that the public views tax expenditures as …

Regulating Sex Work: Assimilationism, Erotic Exceptionalism And The Challenge Of Intimate Labor, Adrienne D. Davis

Scholarship@WashULaw

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This paper, instead, looks at debates within the pro-sex work camp, uncovering some unattended tensions and contradictions. It shows that, within this camp, some stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers, similar to others who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more anti-regulatory stance. They exceptionalize this form of labor, arguing that because …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

In Defense Of Empirical Legal Studies, Christina L. Boyd

Scholarship@WashULaw

The empirical legal studies movement, or ELS, is positioned to provide an important scholarly impact. As noted ELS scholar Theodore Eisenberg once put it, “[a]cross a broad range of legal issues, empirical studies can inform policymakers and the public. Legally trained social scientists have unique opportunities to enhance description and understanding of the legal system.” By all accounts, this influence is well underway. ELS scholarship has been present in law schools since at least the 1920s and is on the rise in recent years, with important empirical insights gained into legal subjects such as error rates in capital punishment convictions, …

Ethics In Criminal Advocacy, Peter A. Joy, Ellen Yaroshefsky

Scholarship@WashULaw

Several ethics issues in criminal advocacy came to the forefront again in 2014. Although the U.S. Supreme Court did not decide important cases that cut across criminal law and the ethical obligations of defense counsel or prosecutors in 2014, there were still several other important developments and stories in the news. For example, decisions of prosecutors in Missouri and New York that they did not have a conflict of interest in considering charges against police officers in the deaths of Michael Brown and Eric Garner, both unarmed African America men, led to outcries of injustice and double-standards favoring police. In …

Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar

Faculty Scholarship

Over the past decade and a half, a great deal of attention has rightfully been given to the issue of wrongful convictions. In 2003, Jim Dwyer, Peter Neufeld and Barry Scheck published Actual Innocence, an eyeopening treatise on the reality of wrongful convictions in the United States. In the years since, more than 1400 innocent persons have been exonerated, and a very diverse research community of attorneys, academics, social scientists, and activists has developed in response to the realization offlaws in our criminal justice system. In 2012, Brandon Garrett's Convicting the Innocent quantitatively evaluated the first 250 DNA exonerations and …

Fors 401: Forensic Biochemistry—A Peer Review Of Teaching Project Inquiry Portfolio, Ashley Hall

UNL Faculty Course Portfolios

Students who participate in active and experiential learning activities develop a better understanding of basic scientific principles and are also more likely to be retained in a STEM discipline. Developing such activities, however, can be difficult. In the present study, we sought to develop classroom activities to engage university students and increase understanding of the theory and practice of forensic science. One common accessory amongst the target audience was the ever-present media, both social and popular (entertainment). In fact, a majority of students report watching at least one of the many popular forensic science shows on TV. Therefore, we hypothesized …

Racism Vs. Social Capital: A Case Study Of Two Majority Black Communities, Bruce W. Strouble

Walden Dissertations and Doctoral Studies

Several researchers have identified social capital as a means to improve the social sustainability of communities. While there have been many studies investigating the benefits of social capital in homogeneous White communities, few have examined it in Black homogeneous communities. Also, there has been limited research on the influence of racism on social capital in African American communities. In this dissertation a comparative case study was used within a critical race theory framework. The purpose was to explore the role of racial oppression in shaping social capital in majority African American communities. Data were collected from 2 majority Black communities …

Abstract Uneducated Injustice: A Social Cognitive Approach To Understanding Juror Misconduct And Verdict Errors, Melinee Melissa Marie Calhoun

Walden Dissertations and Doctoral Studies

A continual problem in the adjudication of crime in the United States is the continued occurrence of erroneous convictions and acquittals. This problem impacts the victims of crimes as they endure emotional and mental distress of additional investigations and new trials. Defendants are impacted by errors in verdicts because of the loss of freedom while being factually innocent. These errors may occur because jurors may not be knowledgeable of their role, right and responsibilities. Without regard to the judge's minimum instruction, the jury is not provided direction on the purpose and limitations of their roles. Guided by the social cognitive …

Push, Pull, And Spill: A Transdisciplinary Case Study In Municipal Open Government, Jan Whittington, Ryan Calo, Mike Simon, Jesse Woo, Meg Young, Perter Schmiedeskamp

Articles

Municipal open data raises hopes and concerns. The activities of cities produce a wide array of data, data that is vastly enriched by ubiquitous computing. Municipal data is opened as it is pushed to, pulled by, and spilled to the public through online portals, requests for public records, and releases by cities and their vendors, contractors, and partners. By opening data, cities hope to raise public trust and prompt innovation. Municipal data, however, is often about the people who live, work, and travel in the city. By opening data, cities raise concern for privacy and social justice.

This article presents …

Can Americans Resist Surveillance?, Ryan Calo

Articles

This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Identification And Exploitation Of Inadvertent Spectral Artifacts In Digital Audio, N. C. Donnangelo, W. S. Kuklinski, R. Szabo, R. A. Coury, G. R. Hamshar

Journal of Digital Forensics, Security and Law

We show that modulation products from local oscillators in a variety of commercial camcorders are coupled into the recorded audio track, creating narrow band time invariant spectral features. These spectral features, left largely intact by transcoding, compression and other forms of audiovisual post processing, can encode characteristics of specific camcorders used to capture the audio files, including the make and model. Using data sets both downloaded from YouTube and collected under controlled laboratory conditions we demonstrate an average probability of detection (Pd) approaching 0.95 for identification of a specific camcorder in a population of thousands of similar recordings, with a …

Computer Forensic Projects For Accountants, Grover S. Kearns

Journal of Digital Forensics, Security and Law

Digital attacks on organizations are becoming more common and more sophisticated. Firms are interested in providing data security and having an effective means to respond to attacks. Accountants possess important investigative and analytical skills that serve to uncover fraud in forensic investigations. Some accounting students take courses in forensic accounting but few colleges offer a course in computer forensics for accountants. Educators wishing to develop such a course may find developing the curriculum daunting. A major element of such a course is the use of forensic software. This paper argues the importance of computer forensics to accounting students and offers …

Data Loss Prevention Management And Control: Inside Activity Incident Monitoring, Identification, And Tracking In Healthcare Enterprise Environments, Manghui Tu, Kimberly Spoa-Harty, Liangliang Xiao

Journal of Digital Forensics, Security and Law

As healthcare data are pushed online, consumers have raised big concerns on the breach of their personal information. Law and regulations have placed businesses and public organizations under obligations to take actions to prevent data breach. Among various threats, insider threats have been identified to be a major threat on data loss. Thus, effective mechanisms to control insider threats on data loss are urgently needed. The objective of this research is to address data loss prevention challenges in healthcare enterprise environment. First, a novel approach is provided to model internal threat, specifically inside activities. With inside activities modeling, data …

Rules Of Professional Responsibility In Digital Forensics: A Comparative Analysis, Filipo Sharevski

Journal of Digital Forensics, Security and Law

The consolidation of the rules of professional responsibility as recommended by the Committee on Identifying the Needs of Forensic Sciences Community (2009) accents the establishment of an uniform code of ethics emphasizing the importance of enforceability in strengthening the role the forensic science plays within the criminal justice system. Equally pertinent for the domain of digital forensics, this imperative entails a research commitment in comparing and contrasting the respective codes of ethics to illustrate their “variety, specificity and enforceability” in order to inform the discussion on the regulative aspects of the digital forensic discipline. Accordingly, this paper reviews the professional …

On The Network Performance Of Digital Evidence Acquisition Of Small Scale Devices Over Public Networks, Irvin Homem, Spyridon Dosis

Journal of Digital Forensics, Security and Law

While cybercrime proliferates – becoming more complex and surreptitious on the Internet – the tools and techniques used in performing digital investigations are still largely lagging behind, effectively slowing down law enforcement agencies at large. Real-time remote acquisition of digital evidence over the Internet is still an elusive ideal in the combat against cybercrime. In this paper we briefly describe the architecture of a comprehensive proactive digital investigation system that is termed as the Live Evidence Information Aggregator (LEIA). This system aims at collecting digital evidence from potentially any device in real time over the Internet. Particular focus is made …

The "Bring Your Own Device" Conundrum For Organizations And Investigators: An Examination Of The Policy And Legal Concerns In Light Of Investigatory Challenges, Carla J. Utter, Alan Rea

Journal of Digital Forensics, Security and Law

In recent years, with the expansion of technology and the desire to downsize costs within the corporate culture, the technology trend has steered towards the integration of personally owned mobile devices (i.e. smartphones) within the corporate and enterprise environment. The movement, known as “Bring Your Own Device” (hereinafter referred to as “BYOD”), seeks to minimize or eliminate the need for two separate and distinct mobile devices for one employee. While taken at face value this trend seems favorable, the corporate policy and legal implications of the implementation of BYOD are further complicated by significant investigatory issues that far outweigh the …

Plc Forensics Based On Control Program Logic Change Detection, Ken Yau, Kam-Pui Chow

Journal of Digital Forensics, Security and Law

Supervisory Control and Data Acquisition (SCADA) system is an industrial control automated system. It is built with multiple Programmable Logic Controllers (PLCs). PLC is a special form of microprocessor-based controller with proprietary operating system. Due to the unique architecture of PLC, traditional digital forensic tools are difficult to be applied. In this paper, we propose a program called Control Program Logic Change Detector (CPLCD), it works with a set of Detection Rules (DRs) to detect and record undesired incidents on interfering normal operations of PLC. In order to prove the feasibility of our solution, we set up two experiments for …

Factors Influencing Digital Forensic Investigations: Empirical Evaluation Of 12 Years Of Dubai Police Cases, Ibtesam Alawadhi, Janet C. Read, Andrew Marrington, Virginia N. L. Franqueira

Journal of Digital Forensics, Security and Law

In Digital Forensics, the number of person-hours spent on investigation is a key factor which needs to be kept to a minimum whilst also paying close attention to the authenticity of the evidence. The literature describes challenges behind increasing person-hours and identifies several factors which contribute to this phenomenon. This paper reviews these factors and demonstrates that they do not wholly account for increases in investigation time. Using real case records from the Dubai Police, an extensive study explains the contribution of other factors to the increase in person-hours. We conclude this work by emphasizing on several factors affecting the …

Cyber Black Box/Event Data Recorder: Legal And Ethical Perspectives And Challenges With Digital Forensics, Michael Losavio, Pavel Pastukov, Svetlana Polyakova

Journal of Digital Forensics, Security and Law

With ubiquitous computing and the growth of the Internet of Things, there is vast expansion in the deployment and use of event data recording systems in a variety of environments. From the ships’ logs of antiquity through the evolution of personal devices for recording personal and environmental activities, these devices offer rich forensic and evidentiary opportunities that smash against rights of privacy and personality. The technical configurations of these devices provide for greater scope of sensing, interconnection options for local, near, and cloud storage of data, and the possibility of powerful analytics. This creates the unique situation of near-total data …

Two Challenges Of Stealthy Hypervisors Detection: Time Cheating And Data Fluctuations, Igor Korkin

Journal of Digital Forensics, Security and Law

Hardware virtualization technologies play a significant role in cyber security. On the one hand these technologies enhance security levels, by designing a trusted operating system. On the other hand these technologies can be taken up into modern malware which is rather hard to detect. None of the existing methods is able to efficiently detect a hypervisor in the face of countermeasures such as time cheating, temporary self uninstalling, memory hiding etc. New hypervisor detection methods which will be described in this paper can detect a hypervisor under these countermeasures and even count several nested ones. These novel approaches rely on …

Data Extraction On Mtk-Based Android Mobile Phone Forensics, Joe Kong

Journal of Digital Forensics, Security and Law

In conducting criminal investigations it is quite common that forensic examiners need to recover evidentiary data from smartphones used by offenders. However, examiners encountered difficulties in acquiring complete memory dump from MTK Android phones, a popular brand of smartphones, due to a lack of technical knowledge on the phone architecture and that system manuals are not always available. This research will perform tests to capture data from MTK Android phone by applying selected forensic tools and compare their effectiveness by analyzing the extracted results. It is anticipated that a generic extraction tool, once identified, can be used on different brands …

Exploring The Use Of Plc Debugging Tools For Digital Forensic Investigations On Scada Systems, Tina Wu, Jason R.C. Nurse

Journal of Digital Forensics, Security and Law

The Stuxnet malware attack has provided strong evidence for the development of a forensic capability to aid in thorough post-incident investigations. Current live forensic tools are typically used to acquire and examine memory from computers running either Windows or Unix. This makes them incompatible with embedded devices found on SCADA systems that have their own bespoke operating system. Currently, only a limited number of forensics tools have been developed for SCADA systems, with no development of tools to acquire the program code from PLCs. In this paper, we explore this problem with two main hypotheses in mind. Our first hypothesis …