Announcements

The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.


Table of Contents

Is Gattaca Already Here? An Interdisciplinary Approach to the Forensic Landscape of Biobanks

Rossana Ducato, Faculty of Law, University of Trento
Ilaria Marchi, University of Trento

The Prediction of Criminal Recidivism Using Routinely Available File Information

Diana Fries, University of Konstanz - Department of Psychology
Astrid Rossegger, University of Konstanz - Department of Psychology
Jérôme Endrass, University of Konstanz - Department of Psychology
Jay P Singh, Global Institute of Forensic Research, Høgskolen i Molde

The History of Firearms Magazines and of Magazine Prohibition

David B. Kopel, Independence Institute, Denver University - Sturm College of Law

Unauthorized Expression: Does 'Hacktivism' Have a Viable First Amendment Defense?

Jerrod D. Simpson, Thomas M. Cooley Law School

An IEP for the Juvenile Justice System: Incorporating Special Education Law Throughout the Delinquency Process

Lisa M. Geis, DC Law Students In Court Program

Limits on the Search for Truth in Criminal Procedure: A Comparative View

Jenia Iontcheva Turner, Southern Methodist University - Dedman School of Law

Going on the Offensive: Legitimacy and Fairness Inside the Military Justice 'Trinity' of Interests

Daniel D. Maurer, Government of the United States of America - Army


LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law

"Is Gattaca Already Here? An Interdisciplinary Approach to the Forensic Landscape of Biobanks" Free Download
originally published inTexts and Articles from the 5th ICIL 2012. Dedicated to the memory of Evi Laskari, Nomiki Bibliothiki, 2013, pp. 370-398

ROSSANA DUCATO, Faculty of Law, University of Trento
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ILARIA MARCHI, University of Trento
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In the film Gattaca Andrew Niccol describes a dystopian society whose basic law is genetic code. All citizens are catalogued in a database and selected for both professional and personal relationships on the basis of their genetic makeup. In the society of Gattaca, DNA is also used to conduct criminal investigations: because of a lash found at the crime scene, the main character Vincent Freeman will be falsely accused of manslaughter…

For some years, this scenario no longer belongs to the realm of science fiction. With advances in technology, the double helix of DNA is showing an arsenal of potentialities on the medical, scientific and social scenes. However, the use of genetics in the forensic field has raised several concerns from a legal point of view. On the one hand, lawyers are called upon to face an ever-evolving technology that challenges the traditional categories of law; on the other hand, technology itself allows lawyers to pursue the objectives of law in a more efficient way. This complex relationship can be appreciated only with a multidisciplinary approach, connecting exponents of the different disciplines that come into play.

Furthermore, two different areas of law that are often considered separate and uncommunicating worlds have also been called into this particular context: private and criminal law. We shall see that the forensic use of bioinformation has not only crucial procedural and criminal law aspects to be investigated, but it has also a heavy impact in civil law. Moreover, the interactions between these two branches of law could benefit the provision of a more efficient and homogeneous policy with regard to forensic biobanks, familial searching and the investigation access to research biobanks.

Hence, in the first paragraph we will outline a general overview of the use of bioinformation in the criminal investigation context. Since biological samples and genetic data are stored in dedicated structures, we will analyse the legal landscape of forensic biobanks, as delineated by international and regional regulations, and explain the main models adopted in the EU. After that, we will focus on the most crucial aspects emerging in criminal law with regard to the seizure of anonymised DNA samples, the practice of DNA dragnets and familial searching, and the potential return to a deterministic trend in evaluating the social dangerousness of a person under investigation or already convicted of a crime. Finally, we will point out the possible impacts of such practices in a civil law perspective, with regard to the right to privacy and data protection. The map of the issue will become more complicated if we consider the use of non-forensic biobanks for investigative purposes.

"The Prediction of Criminal Recidivism Using Routinely Available File Information" Free Download
Fries, D., Rossegger, A., Endrass, J., & Singh, J. P. (2013). The prediction of criminal recidivism using routinely available file information. International Journal of Psychological Research, 6, 8-14.

DIANA FRIES, University of Konstanz - Department of Psychology
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ASTRID ROSSEGGER, University of Konstanz - Department of Psychology
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JÉRÔME ENDRASS, University of Konstanz - Department of Psychology
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JAY P SINGH, Global Institute of Forensic Research, Høgskolen i Molde
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Objective: The aim of the present study was to cross-validate the investigation of Buchanan and Leese (2006) into the prediction of criminal recidivism.

Method: The sample comprised offenders in the criminal justice system of the Canton of Zürich – Switzerland, who were discharged to the community. Participants were followed, and evidence of subsequent charges and convictions for both general and serious recidivism was investigated at fixed periods of 2.5, 6.5, and 10.5 years. The predictive validity of socio-demographic, criminal history, and legal class information was assessed using logistic regression as well as log-likelihood, receiver operating characteristic curve, and contingency analyses.

Results: A multivariable model including age and criminal history information was found to produce the highest rates of predictive validity for general and serious recidivism.

Conclusion: Information regularly accessible in forensic practice may be able to guide clinicians as to the recidivism risk level of their patients.

"The History of Firearms Magazines and of Magazine Prohibition" Free Download
Albany Law Review, Vol. 88, 2015 Forthcoming

DAVID B. KOPEL, Independence Institute, Denver University - Sturm College of Law
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In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition.

Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries.

Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms are “in common use? and are “Typically possessed by law-abiding citizens for lawful purposes,? the Article also pays attention to whether and when particular guns and their magazines achieved mass market success in the United States. The first time a rifle did so was in 1866, and the first time a handgun did so was in 1935.

The detailed history of various firearms and their magazines stops in 1979 — a year which is somewhat ancient in terms of the current gun control debate. Back in 1979, revolvers still far outsold semi-automatic handguns. No-one was trying to ban so-called “assault weapons,? although such guns were already well-established in the market.

For the post-1979 period, Part I briefly explains technological improvements in recent decades have fostered the continuing popularity of magazines holding more than 10 rounds.

Part II of the article describes the history of magazine prohibition in the United States. Such prohibitions are of recent vintage, with an important exception: during Prohibition, Michigan, Rhode Island, Ohio, and the District of Columbia banned some firearms which could hold more than a certain number of rounds. The Michigan and Rhode Island bans were later repealed, while the Ohio ban has been modified and interpreted so that it bans no magazines. The D.C. ban, however, remains in force today, with some revisions.

"Unauthorized Expression: Does 'Hacktivism' Have a Viable First Amendment Defense?" Free Download

JERROD D. SIMPSON, Thomas M. Cooley Law School
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This is a working draft of some legal research on the question of whether political acts of expression done via computers or computer networks (often referred to as hacktivism) could have any viable First Amendment defenses.

It analyzes (1) the open access movement and the case of Aaron Swartz; (2) the Computer Fraud and Abuse Act (CFAA) and its potential to suppress speech through the criminalization of computer access point restrictions and the chilling effects on cybersecurity research; (3) the First Amendment generally and (a) software-as-speech theory, (b) the functional aspects of software analogized to expressive conduct, (c) the right to access information, and (d) a forum analysis of computers and the Internet.

The article suggests that the current application of the CFAA has chilling effects on speech that is of great public concern. Therefore, courts applying the CFAA should no longer brush aside the First Amendment because all computer activity on the Internet is inherently communicative; software is a form of speech and even the functional aspects of software (in certain cases) could be covered by the First Amendment under the principals of expressive conduct; people have fundamental rights to access certain types of information; and certain computer networks are public forums entitling certain expressive behaviors in those forums to constitutional protection.

"An IEP for the Juvenile Justice System: Incorporating Special Education Law Throughout the Delinquency Process" Free Download
University of Memphis Law Review, Vol. 44, No. 1, 2014

LISA M. GEIS, DC Law Students In Court Program
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In correctional institutions, the number of youth with special education needs is nearly three times the national average of all school-aged children identified as having a disability. This article encourages and attempts to demystify the use of special education law and its “byproducts? (e.g., Individual Education Programs and Independent Education Evaluations) throughout the delinquency process. Part I of this article explores the probable causes for the disproportionate representation of juveniles with special needs who come into contact with the delinquency system. Part II identifies key players in the juvenile justice system and discusses their responsibility for ensuring that a child’s special education needs — and rights — are being addressed as the child moves throughout the system. Part III applies case law and the statutory provisions of the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act (“Section 504?) as they apply to youth involved with the juvenile justice system. The practical application of special education law and the use of special education records and evaluations throughout the delinquency process is also illustrated in this section.

"Limits on the Search for Truth in Criminal Procedure: A Comparative View" Free Download
RESEARCH HANDBOOK ON COMPARATIVE CRIMINAL PROCEDURE (Jacqueline Ross & Stephen Thaman eds., Edward Elgar Pub., 2014, Forthcoming)

JENIA IONTCHEVA TURNER, Southern Methodist University - Dedman School of Law
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Across diverse legal traditions, the search for truth is a basic function of the criminal process. Uncovering the truth about the charged crime is regarded as an essential precondition to achieving justice, enforcing criminal law, and legitimating the verdict. Yet while truthseeking is a broadly accepted goal in the criminal process, no system seeks the truth at all costs. The search for truth must on occasion yield to considerations related to efficiency, democratic participation, and protection of individual rights.

Different jurisdictions around the world show different preferences with respect to the tradeoffs between these values and the search for truth in criminal procedure. In an effort to promote efficiency, enhance democratic participation, or protect individual rights, many legal systems tolerate certain procedures that are known to heighten the risk of inaccurate outcomes. Such truth-impairing procedures include the exclusion of unlawfully obtained evidence, plea bargaining, and unreviewable jury verdicts. To some degree, the extent to which a legal system embraces these procedures can be explained with reference to the influence of the adversarial and inquisitorial traditions. But the distinction between adversarial and inquisitorial systems on this point is not always clear. Great variation exists within these two traditions, and common approaches can be seen across the divide.

Some truth-limiting procedures, such as those related to the exclusionary rule and the protection of individual rights, have been adopted largely across the globe and have proven amenable to adjustments that accommodate the concern for truth. Other measures, such as lay participation in the criminal process, have retained their hold in some countries but have not spread to many others. Finally, one category of practices generally acknowledged to conflict with truthseeking — plea bargaining and other methods of negotiated justice — have become increasingly prevalent, but have proven the most difficult to regulate and to align with the search for truth.

"Going on the Offensive: Legitimacy and Fairness Inside the Military Justice 'Trinity' of Interests" Free Download
Ohio State Journal of Criminal Law, Vol. 11, No. 2, 2014

DANIEL D. MAURER, Government of the United States of America - Army
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Nineteenth Century Prussian military officer and theorist Carl von Clausewitz famously described the nature of war as a “wrestling match,? a “duel,? a “gamble,? and a “pulsation of violence.? Any professional member of the modern Armed Forces, however, knows intimately the truth that war fighting is as much about life at home station — training, rehearsing, preparing, and waiting — as it is about the physical and risky “management of violence? against a gun-wielding enemy. Such a life, working and living in pressurized, close-knit fraternities and communities is, in many ways, alien to civilian lifestyles and expectations just outside the military installation’s front gates. Yet, “pulsations of violence? occur inside these gated communities by service-members in much the same way and for many of the same reasons that crime occurs on the outside — in apartments, college dorm rooms, and city alleyways. Crime — just as much as chow halls, saluting superior-ranking officers, scrub brush-lined firing ranges, mowed parade grounds, and flapping American flags — characterizes the experiences lying upon the backs of professional military soldiers and officers.

The toxic effect of crimes on unit cohesion, general discipline, esprit de corps, and military combat preparedness drive the very purpose, scope, and detail of the American military justice system, including the Uniform Code of Military Justice [UCMJ] and its collection of Executive Orders assembled as the Manual for Courts-Martial (including the Military Rules of Evidence and Rules for Courts-Martial). In this world, justice is not merely the adversarial difference between a victim’s harrowing experience and a defendant’s due process rights and presumption of innocence. Rather, military justice is framed by much more. It is framed by the procedural ability of a service member to self-identify as a victim and expect due diligence by law enforcement and command authorities. It is also framed by the opportunity of the accused service member to defend himself vigorously with all the weight of due process the Constitution demands. And, finally, it is framed by the needs of the military command in which this drama plays out, colored by combat exigencies, the discretion and personality of the commander, the effect of the investigation and trial on the unit, the victim, and the accused, and a host of other considerations not commonly accounted for by civilian criminal prosecutions. And so Clausewitz’s other description of war as “a conflict of human interests? seems most suitable at capturing the nature of war holistically — that is, an all-encapsulating sum of those soldiers, both home and abroad, who will fight or have fought and the organizational culture in which both victim and accused reside. It is this “trinity? of interests — victim, accused, military unit and culture — that so marks the military justice system as distinct, foreign, and unfamiliar to many critical observers.

There is, perhaps, no other class of crime currently subject to critical review and affecting military preparedness, justice, leader attention, and the institutional soul — and so ripe with a Clausewitzian trinity of conflicting human interests — as sexual assault. This Symposium of the Ohio State Journal of Criminal Law makes a timely detour off the main highway of criminal procedure and law into the less well-known, but perhaps more exotic back-country road that is military justice. For the first time, a civilian law journal will devote its pages, and multiple perspectives, to a critical examination of this specific and pernicious socio-cultural-political crisis affecting nearly every aspect of modern American military life. These articles — written by current and former officer-lawyers with extensive experience teaching and practicing criminal law — touch not only on the convoluted substantive law that seeks to punish those who commit sexual assault, but also on the culture that may enable it, the system dynamics that may fail to mitigate the effects of it, the policies that fail to prevent it, and the external pressures and politics that may obscure and hamper all of the above.

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About this eJournal

Sponsored by: Indiana University Maurer School of Law.


This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.

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Directors

LAW & SOCIETY EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal

ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law

JEANNINE BELL
Professor of Law, Indiana University Maurer School of Law

PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School

KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law

LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology, President, Law and Society Association, Review Section Editor - Law & Social Inquiry, Director - Institute for Legal Studies, University of Wisconsin Law School

LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law

MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

MICHAEL GROSSBERG
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law

WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law

ANNA-MARIA MARSHALL
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

LYNN MATHER
Professor of Law and Political Science, SUNY Buffalo Law School

JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law