Legal Studies Commons^™

The Uneasy Case Against Auer And Seminole Rock, Conor Clarke

Scholarship@WashULaw

The deference regimes of Auer and Seminole Rock give an agency's interpretation of its own regulation "controlling weight unless [the interpretation] is plainly erroneous or inconsistent with the regulation." This doctrine has long been criticized for giving agencies an incentive to promulgate vague regulations. In this essay I critically review these objections to Auer and Seminole Rock against the backdrop of plausible alternative regimes and recent developments in the lower courts.

Merging And Dissolving Special Districts, Conor Clarke

Scholarship@WashULaw

Special district governments exist in every state, providing services ranging from protection against fire to protection against fire ants. These governments are easy to form, but often they are difficult to dissolve or consolidate. Nevertheless, in many states, the number of special district governments is declining. This Comment draws on statistical analyses and interviews with government officials to explain the cause of this decline. It also discusses how existing legal frameworks may be revised to facilitate the efficient consolidation and dissolution of special district governments.

Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke

Scholarship@WashULaw

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …

Pricing Clinical Legal Education, Robert R. Kuehn

Scholarship@WashULaw

Some blame the cost of clinical legal education for high law school tuition. They argue that, regardless of the educational and employment benefits to students, clinical legal education, and law clinics in particular, are too expensive to expand or require for all students in a time of decreasing law school enrollments and revenues. This Article is an empirical examination of these claims. Reviewing tuition, curricular and enrollment data from all law schools, this Article demonstrates that 84% of law schools already have the capacity to provide a clinical experience to every student without adding courses or faculty, although only 18% …

Racial Profiling As Collective Definition, Trevor George Gardner

Scholarship@WashULaw

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to …

The Undue Hardship Thicket: On Access To Justice, Procedural Noncompliance, And Pollutive Litigation In Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

This Article offers new insights into understanding the complexities and costs of the litigation burden that Congress has imposed on debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that necessitates litigation as the path for obtaining certain types of bankruptcy relief, this Article focuses on the particular example of debtors who seek to discharge their student loans in bankruptcy. Such debt may be discharged only if the debtor can establish through a full-blown lawsuit that repaying the loans would impose an undue hardship. The procedure and burdens of proof governing …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Scholarship@WashULaw

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Financial Conglomerates And Information Barriers, Andrew F. Tuch

Scholarship@WashULaw

The organizational structure of financial conglomerates gives rise to fundamental regulatory challenges. Legally, the structure subjects firms to multiple, incompatible client duties. Practically, the structure provides firms with a huge reservoir of non-public information that they may use to further their self-interests, potentially harming clients and third parties. The primary regulatory response to these challenges and a core feature of the financial regulatory architecture is the information barrier or Chinese wall. Rather than examine measures to strengthen information barriers, to date legal scholars have focused on the circumstances in which to deny them legal effect, while economists have focused on …

Four Privacy Myths, Neil M. Richards

Scholarship@WashULaw

Any discussion about privacy today inevitably confronts a series of common arguments about the futility of privacy in our digital age. "Privacy is Dead," we hear, and "people (especially young ones) don’t care about privacy." What’s more, privacy just protects bad behavior because those of us with "nothing to hide have nothing to fear." And anyway, the argument goes, new privacy laws would be bad policy since "privacy is bad for business."

There are other common claims, but these four are perhaps the most common. They are also myths, and in this essay I show why. First, privacy can’t be …

Intellectual Freedom And Privacy, Neil M. Richards, Joanna Cornwell

Scholarship@WashULaw

This essay offers an account of the complex ways intellectual freedom and privacy are interrelated. We pay particular attention to both the constitutional dimensions of these important values, as well as the important roles that social and professional norms play in their protection in practice. Our examination of these issues is divided into three parts. Part I lays out the law and legal theory governing privacy as it relates to intellectual freedom. Part II examines a special context in which law and professional norms operate together to protect intellectual freedom through privacy–the library. Finally, Part III discusses how government actions …

Education And Training Of Specialist Sexual Offence Investigators In Victoria, Australia From 2009 To 2011, Jennifer Anne Turnley

Theses: Doctorates and Masters

The topic of training specifically designed for investigators of sexual offences has received little attention from academic researchers to date. Previous studies have not described training provided to police investigators of sexual offences in Australia. This thesis developed Turnley’s Framework for the Examination of Police Training in Sexual Assault Investigation, to examine and describe a Sexual Offences and Child Abuse Investigative Teams (SOCIT) Course, provided to Victorian Police from 2009 to 2011. This entailed triangulation of findings from non-participant observations of one SOCIT Course, with quantitative and qualitative data sourced though an in-depth interview with course trainers; feedback sheets voluntarily …

The Accessibility Of In-Prison Programming For Female Offenders And Their Gender Specific Needs, Kelli Reynolds

Honors Program Theses and Projects

With the rates of female incarcerations on the rise, it is important that we examine programs available to female offenders in prison, and programs available to female offenders as they exit prison and re-enter society. Programs developed specifically for these females to fit their needs are important in their rehabilitation progress and should help in keeping their recidivism rates low. I expect to find a disconnect between the needs of female offenders and the programs meant to serve and rehabilitate them. I also expect the review of literature to support that a majority of female offenders have histories of victimization …

How Do Specialized Units Affect The Outputs Of Police Organizations?: Investigating The Effect Of Community Policing Units On Community Policing Activities In Local Police Departments, Hyon Namgung

Dissertations

A review of modern police history shows the trend of increased division of labor within police agencies. However, police organizations are often criticized for creating specialized police units when they are faced with specific problems or are not effectively tackling local problems. Other challenges from within the profession include potential inter-unit conflicts or indifference of officers from other units that may hinder program implementation by specialized units. The present study looked into the changing characteristics of specialized units within police departments between 2000 and 2007. This research also examined whether creation of specialized community policing units (CP Units) influences the …

Lightning Strikes Twice: An Examination Of The Political Factors Associated With State-Level Death Sentences And Executions In The United States, 1930-2012, Ethan Christopher Amidon

Dissertations

Over the course of the last 50 years, scholars have emphasized the role that political processes play in shaping the nature of capital punishment practices. Empirical studies that have examined the relationship between political factors and capital punishment have attributed variation in the imposition of death sentences and the execution of offenders across jurisdictions in the United States to the politicization of criminal justice policies and practices and the shift in public sentiment towards more punitive ideologies that began in the 1970s. Even though historians have argued that capital punishment practices have always been shaped by political considerations, empirical research …

Brave New World Reloaded: Advocating For Basic Constitutional Search Protections To Apply To Cell Phones From Eavesdropping And Tracking By Government And Corporate Entities, Mark Berrios-Ayala

HIM 1990-2015

Imagine a world where someone’s personal information is constantly compromised, where federal government entities AKA Big Brother always knows what anyone is Googling, who an individual is texting, and their emoticons on Twitter. Government entities have been doing this for years; they never cared if they were breaking the law or their moral compass of human dignity. Every day the Federal government blatantly siphons data with programs from the original ECHELON to the new series like PRISM and Xkeyscore so they can keep their tabs on issues that are none of their business; namely, the personal lives of millions. Our …

A Historical View Of Cuban Immigration Policy, Sarah Castro

HIM 1990-2015

Cuba is a communist country an estimated population of 11,075,244(2013), Cuba is located about ninety-three miles south of Key West, Florida. Cuba has been ruled by the communist regime of Fidel Castro, and now his younger brother Raul Castro. For over fifty years this regime has forced a major increase in the amount of people migrating to the United States. The regime has been disregarding basic human rights for decades and oppressing Cuba’s citizens. Hundreds of thousands of Cubans have come to the United States using boats, rafts, or any means available. The Cuban Adjustment Act of 1966 (amended in …

Sensitivity And Species Specificity Of Bisulfite Modification And Pyrosequencing Technology Used To Identify Tissue-Specific Dna Methylation Patterns In Common Biofluids Foudn In Crime Scenes, Sitara Christian Shirwani

Master's Theses

In order to convict the guilty or exonerate the innocent in criminal cases, it is crucial to reconstruct the crime scene and/or determine the nature of the crime. Identifying the different biofluids found at a crime scene can help shed light on these aspects of forensic casework. Recently, DNA methylation has been used as a means of identifying biological materials, as opposed to conventional protein/enzyme based methods. DNA methylation is the addition of a methyl group to the 5' carbon on a cytosine base (C), which is directly followed by a guanine base (G) and are called CpG sites. The …

The Effects Of Family Structure On Juvenile Delinquency, Alisha B. Parks

Electronic Theses and Dissertations

Studies show that family structure is an important factor in explaining delinquency among adolescents (Price & Kunz, 2003). There is a lack of research, however, pertaining to cohabitation. The main goals of this study are to determine if there are variations in delinquency between cohabitating and other family types, and to examine the extent to which parental social control measures account for the variation in delinquency by family structure. Data from the National Longitudinal Study of Adolescent Health (Add Health) are used for the purposes of this study (n = 4,389). While there are no significant differences in violent delinquency …

Eternal Recurrence In A Neo-Kantian Context, Michael S. Green

Faculty Publications

In this essay, I argue that someone who adopted a falsificationism of the sort that I have attributed to Nietzsche would be attracted to the doctrine of eternal recurrence. For Nietzsche, to think the becoming revealed through the senses means falsifying it through being. But the eternal recurrence offers the possibility of thinking becoming without falsification. I then argue that someone who held Nietzsche’s falsificationism would see in human agency a conflict between being and becoming similar to that in empirical judgment. In the light of this conflict only the eternal recurrence would offer the possibility of truly affirming life. …

Examining Juvenile Delinquency Contributors Through Life-Course And Strain Theory, Caitlin E. Burns

Electronic Theses and Dissertations

For years the causes of juvenile delinquency have drawn a lot of attention from the scientific community and have become a widely studied concept in research literature. Causes of juvenile delinquency have become an important aspect of criminological study because with the knowledge of what contributes to delinquency, the scientific community can possibly slow down the continuous act of offending, also known as continuity, through implementation of prevention strategies. Criminological theory is used to define and help understand why certain contributors are the foundation for juvenile delinquency, along with the continuity of crime for an adolescent but also what factors …

Political Motive And Bail: The Effect Of Prosecutorial Strategies On Pretrial Decisions In Federal Terrorism Trials, Michael John Clanton

Graduate Theses and Dissertations

The purpose of this study is to understand how prosecutorial strategies affect pretrial decisions in U.S. terrorism trials and how pretrial decisions in turn affect the disposition of those trials. This research builds off of the work of Smith and Damphousse (1996) which compared terrorism indictees to traditional federal offenders. They found that the use of explicit politicality as a prosecution strategy was a significant predictor of both disposition and the sentence length in terrorism trials. This study focuses on the question of whether the use of an explicitly political prosecution strategy impacts pretrial decisions in terrorism cases and whether …

A Historical Comparative Analysis Of Executions In The United States From 1608 To 2009, Emily Jean Abili

UNLV Theses, Dissertations, Professional Papers, and Capstones

The death penalty has been a contested issue throughout American history. The United States has been executing offenders since Jamestown became a colony in 1608 (Allen & Clubb, 2008). Since that time, many issues have been raised about the death penalty including whether or not it is moral, discriminatory, or a deterrent.

This study examines the history of executions, including lynchings, in the United States from 1608 to 2009 using a variety of sociological theories on law and society. Some of the research questions that guide this project are:

* What is the nature of change in the relative prevalence …

The Hotel Manager’S Perceived Conflict Of Providing For Hospitality And Security: Can The Two Exist In Harmony?, Silvano Cozzini

UNLV Theses, Dissertations, Professional Papers, and Capstones

The hospitality industry relies upon regular and repeat customers for its survival. No traveler or visitor will return to a hotel property where a bad incident occurred. Would a diner go back to any restaurant where they were sickened by their meal? Would a hotel guest return to any property where they were a victim of a crime? Bad experiences make us tell ourselves, “I will never go back there again!”

This same psychology holds true for criminals. At places where they have been deterred by a high security presence, it is unlikely that they would return there, either. A …

Judicial Behavior And Litigant Success In Environmental Cases At The United States Court Of Appeals, Elizabeth Wheat

Dissertations

This dissertation tests the legal model of judicial behavior and uses party capability, or litigant resource, theory to explain litigant success in the Court of Appeals for environmental cases and help understand the role litigant type and resources play. Environmental law has received little attention in judicial politics, and I examine which judicial behavior model explains case outcomes. The legal model argues case characteristics best explain judicial outcomes, whereas litigant resource theory posits judicial a litigant’s resources, or lack thereof, explain outcomes.

Galanter’s (1974) party capability theory focuses on advantages repeat players, the “haves,” possess and how these advantages enable …

Using The Massachusetts Youth Screening Instrument–Version 2 On A Community Sample Of African American And Latino/A Juvenile Offenders To Identify Mental Health And Substance Abuse Treatment Needs, Kendell Coker, Jamie Wernsman, Uduakobong N. Ikpe, Jeannie S. Brooks, Lynn Bushell, Barbara Kahn

Psychology Faculty Publications

The Massachusetts Youth Screening Instrument-Version 2 (MAYSI-2) is a brief screening tool used to identify youth in the juvenile justice system that are at-risk for mental health related difficulties. The MAYSI-2 was administered to 5,205 African American and Latino/a youth throughout Chicago, Illinois who were on probation and residing in the community. This study investigated differences (i.e., legal status, gender, age, race/ethnicity) in reporting of mental health symptoms and substance use on the MAYSI-2. Females scored above the clinical cutoffs more frequently than males and there were few differences found between diverted and adjudicated youth. Age comparisons revealed mixed results. …

Formative Assessment In Law Doctrinal Classes: Rethinking Grade Appeals, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

This article describes a practice I began several years ago to encourage students to review their midterm exams and to learn formatively from their exam and their review of it. The practice involves encouraging midterm grade appeals coupled with a high success rate (what I term, "robust" grade appeals). The practice has a number of ancillary benefits, I believe, in addition to the central benefits—getting students to learn more about law, learn from their mistakes and write better exams by meaningfully engaging and critiquing their own work on exams. This article describes and discusses the advantages and disadvantages of such …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 46, Number 2, Fall 2013

Nebraska Transcript

Dean’s Message, pg. 2

Faculty Updates

Profile: Richard Duncan, pg. 4

Profile: Glenda Pierce Retires, pg. 6

Faculty Notes, pg. 10

Schmidt Granted Tenure, pg. 20

Hurwitz Uses Computer Science Training, pg. 22

Sullivan Joins Civil Clinic Faculty, pg. 24

Feature:

College Opens Doors to New Clinical Experience, pg. 26

Around the College

Admissions: Introducing the Class of 2016, pg. 30

Poser Tours Air Force Base, pg. 33

CSO: Behind the Statistics, pg. 34

Levick’s Perry Fuller Program Lecture, pg. 38

Cline Williams Jurist in Residence:

Hon. Randall Rader, pg. 40

Pound Lecture Delivered by Levinson, pg. 42

Student Accolades, …

Edward Byrne Memorial Justice Assistance Grant (Jag) Program: Evaluation Report, Ryan E. Spohn, Sommer L. Fousek, Mike Behm, Lisa Stamm

Reports

The Consortium for Crime and Justice Research (CCJR) at the University of Nebraska – Omaha is conducting an evaluation of projects supported by Nebraska’s 2012 Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program funds. The primary goal of the evaluation is to provide the Nebraska Commission on Law Enforcement and Criminal Justice (Crime Commission) a summary of the law enforcement, training, prevention, and associated activities occurring as a direct or indirect result of the infusion of Bryne JAG funds. In other words, the intent of the evaluation is to provide a summary of the funded activities and resulting products …

Editorial, Willard M. Oliver

Qualitative Criminology (QC)

"In light of this being the second issue of the new journal and the last issue of Volume 1, I have many people to thank for making this issue – this volume – this journal – a reality."

Eugene Debs, Walls & Bars: Prisons & Prison Life In The “Land Of The Free”, Edward L. W. Green

Qualitative Criminology (QC)

"This piece reviews a largely overlooked account of prison experience written by Eugene V. Debs, concerning observations of prisons around the turn of the 20th century in the US. The book Walls and Bars: Prisons & Prison Life in the “Land of the Free” contributes many insights consistent with contemporary knowledge for criminology and criminal justice. It is not, however, without notable limitations. The subject-position of this account is clearly political and biased in a Protestant brand of morality and humanism. Debs expresses himself substantively throughout the book between the polemics of the sacred and the profane, although not in …