Will the European Commission be able to standardise legal technology design without a legal method?

Privacy by Design (PbD) is a kind of precautionary legal technology design. It takes opportunities for fundamental rights without creating risks for them. Now the EU Commission “promised” to implement PbD with Art. 23(4) of its proposal of a General Data Protection Regulation. It suggests setting up a committee that can define technical standards for PbD. However the Commission did not keep its promise. Should it be left to the IT security experts who sit in the committee but do not have the legal expertise, to decide on our privacy or, by using overly detailed specifications, to prevent businesses from marketing innovative products? This paper asserts that the Commission's implementation of PbD is not acceptable as it stands and makes positive contributions for the work of a future PbD committee so that the Commission can keep its promise to introduce precautionary legal technology design.     

The concept of exceptionality: a legal farce?

How do we decide which treatments should be offered by the National Health Service (NHS) when we cannot afford to fund them all? In the absence of a positive appraisal by the National Institute for Health and Clinical Excellence (NICE), which mandates the provision of a treatment by the NHS, Primary Care Trusts (PCTs) are free to decide whether to provide a particular drug to some, or all, of their population. However, as public bodies, it is a well-established principle of Administrative Law that PCTs are not at liberty to fetter the exercise of their own discretion. They must recognise the possibility that some patients will have exceptional circumstances, and as a consequence, any general policy prohibiting the funding of a drug cannot be absolute. In the absence of statutory guidance on what might constitute exceptional, clinicians are left guessing as to whether their patients might be eligible for funding on the grounds of exceptionality. Using the context of expensive cancer drugs, I will examine the concept of exceptionality from clinical, moral, and legal perspectives, focussing particularly on the role of social factors in determining exceptionality. I will review the cases where PCTs' decisions not to fund cancer drugs were subject to legal action and argue that the courts have provided little guidance on interpreting the term exceptional, and that the concept has a limited role to play in the allocation of scarce health resources at a local level.     

Surrogacy: is there a case for legal prohibition?

Surrogacy arrangements are a complex and challenging issue for legal regulation. On the one hand, if we wish to promote personal autonomy and enable the infertile to experience parenthood, there is a case for allowing these arrangements to proceed. However, objections to legal sanctioning of surrogacy include concerns for the surrogate and the child born through the surrogacy arrangement. Legally sanctioning surrogacy may also adversely affect social conceptions of women's roles or may be considered a form of commodifying women's reproductive capacities. This article examines these challenges to allowing surrogacy, but concludes that surrogacy should not be legally prohibited.     

European legal history – a new field of research in Germany

John Austin's essay, ‘A Note on Interpretation’, appears in his Lectures on Jurisprudence or the Philosophy of Positive Law.¹ At the end of the essay is a note by Austin's wife, Sarah. The note states that the conclusion of the essay is missing. In this paper I argue that the conclusion of the essay appears 363 pages earlier as a fragment following Lecture XXXVII.     

Internet of things – Need for a new legal environment?

The Internet of Things as an emerging global, Internet-based information service architecture facilitating the exchange of goods in global supply chain networks is developing on the technical basis of the present Domain Name System; drivers are private actors. Learning from the experiences with the “traditional” Internet governance it is important to tackle the relevant issues of a regulatory framework from the beginning; in particular, the implementation of an independently managed decentralized multiple-root system and the establishment of basic governance principles (such as transparency and accountability, legitimacy of institutional bodies, inclusion of civil society) are to be envisaged.     

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (“empirical facts”). Legal education needs to prepare our students for this broader legal context. This paper examines how “empirical facts” are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.     

An examination of the effectiveness of Readers’ Theatre as a teaching strategy in legal education

ABSTRACT

The effectiveness of the case method of legal education in preparing for the practice of law has been questioned for more than a century. Students are encouraged to conceive conflict in a manner that often does not provide adequate context for the application of their personal perceptions of justice. A resulting criticism of the case method, then, is that it fails to adequately teach students how to act “with ethical substance” in the professional circumstances for which they are being prepared. As a means of addressing this perceived gap, North American law schools have been increasing their use of experiential education methods. In this paper, the utility of Readers’ Theatre (RT) is examined as an experiential teaching strategy to expose law students to the interpersonal and ethical dynamics of legal problem-solving communications.     

Intervening in domestic violence as a police task: legal reform and policing versus citizens’ perspective

Violence in Western societies has received increased public and legal attention during the past few decades, while simultaneously, evidence of decreased violent behaviour has been identified. A specific type of violence that has undergone changes in visibility and increased legal intervention is domestic violence (DV). Have people become more sensitive to all kinds of violence? In this case, DV would not stand out as a crime demanding increasing police intervention. In this article, the public’s perceptions of the importance of intervening in DV as a police task are analysed. Comparisons with the assessed importance of other types of police tasks are made to evaluate the changes in a broader attitudinal context, and official police statistics are reflected against the trends identified from the survey data. In the results, DV stands out in the comparison of change in the importance of police tasks. The hypothesis of increased cultural sensitivity is not confirmed concerning all types of crimes – or even violent crimes. The results can be understood to support the theory about increased cultural sensitivity concerning an issue previously seen as a private matter rather than a criminal act and police matter – DV.     

Digital identity – The legal person?

This paper examines the concept of digital identity which the author asserts is now evident in the United Kingdom as a consequence of the Identity Cards Act (UK) 2006 and the National Identity Scheme it establishes. The nature and functions of the concept, particularly the set of information which constitutes an individual's transactional identity, are examined. The paper then considers the central question of who, or what, is the legal person in a transaction i.e. who or what enters into legal relations. The analysis presents some intriguing results which were almost certainly not envisaged by the legislature. The implications extend beyond the United Kingdom to similar schemes in other jurisdictions, and to countries, like Australia, which may implement such a scheme.     

Lawyers’ wellbeing and professional legal education

Abstract

THIS PAPER examines the wellbeing and satisfaction levels of lawyers in the workplace. It argues that research suggesting a crisis in the legal profession in the United States is comparable with research on wellbeing and levels of satisfaction for lawyers in Australasia. Some reports in both jurisdictions are critical of conventional legal education and practical legal training programs, which do not encourage students to develop personal and interpersonal skills that can improve self‐awareness, communication skills and the capacity to manage stress and anxiety. Consequently, law students are allowed to assume that these “soft skills” are less important for lawyers compared with cognitive skills such as “knowing the law” and “thinking like a lawyer”.

The paper describes the preliminary results of research conducted with graduates of the School of Law at the University of Newcastle Australia. The results confirm existing research to show that clinical legal education programs that expose law students under supervision to clients with real cases may promote the development of interpersonal skills, which in turn may help them cope with stressors in legal practice, especially in the first few years post‐admission.     

Formation of procedural beliefs about legal arenas: Do people generalize from loosely related past legal experiences?

Few studies have addressed how people develop beliefs about legal authorities' neutrality and fairness. Using a cross-sectional survey of taxpayers (N = 147), this study examines the sources and processes underlying the formation of these beliefs. Controlling for significant contributions of media stories about audits and past audit experiences, past loosely related negative legal events (traffic court) also shape perceptions that tax auditors are more biased and unfair. Information about police officers exchanged in conversations also creates perceptions that tax auditors are more biased. These generalization effects occur only when people do not have prior direct experience with tax auditors. For taxpayers with prior audit experience, positive experiences are related to more positive perceptions of auditors and media stories about tax audits produce more negative perceptions. The findings suggest that positive and negative past experiences shape beliefs only when they disconfirm prior perceptions based on imagination or indirect sources. Implications and future research directions are discussed.