Developments in medical law in the United Kingdom in 2005 and 2006

This article highlights and summarises the key developments in medical law in the jurisdictions of the United Kingdom in 2005 and to April 2006. Topics are mental health and mental capacity, data protection, freedom of information and the impact on health data, the Human Tissue Act, genetic research databanks, Human Fertilisation and Embryology Act--Review of the legislation, consultations and related case law, developments in embryo and embryonic stem cell research, clinical trials and human subject research, medical futility, and physician assisted dying.     

Which bank? A guardian model for regulation of embryonic stem cell research in Australia

In late 2005 the Legislation Review: Prohibition of Human Cloning Act 2002 (Cth) and the Research Involving Human Embryos Act 2002 (Cth) recommended the establishment of an Australian stem cell bank. This article aims to address a lack of discussion of issues surrounding stem cell banking by suggesting possible answers to the questions of whether Australia should establish a stem cell bank and what its underlying philosophy and functions should be. Answers are developed through an analysis of regulatory, scientific and intellectual property issues relating to embryonic stem cell research in the United Kingdom, United States and Australia. This includes a detailed analysis of the United Kingdom Stem Cell Bank. It is argued that a "guardian" model stem cell bank should be established in Australia. This bank would aim to promote the maximum public benefit from human embryonic stem cell research by providing careful regulatory oversight and addressing ethical issues, while also facilitating research by addressing practical scientific concerns and intellectual property issues.     

Global Privacy Concerns and Regulation-- Is the United States a World Apart?

The regulatory approach to privacy protection taken by many foreign jurisdictions is markedly different from that of the United States. The European Union (EU) best illustrates the international approach with its comprehensive privacy directive that applies to all EU members. By contrast, the approach regarding data privacy in the United States has been to pass industry-specific laws and often only in response to public outcry over some privacy concern. These fundamental differences have been the source of some conflict in international commercial transacting. Now that the global community is committed to eliminating terrorism, it remains to be seen if these different attitudes toward privacy by the United States and much of the rest of the world will affect global attempts to weed out terrorists. This article discusses the constitutional basis for most US policy approaches to privacy regulation. The article explains how the US constitution is the source for most of the differences between the US and international regulatory approaches to information privacy. Finally, the discussion addresses how new issues regarding privacy in the war on terrorism may be addressed by US Constitutional law.     

Harmonizing the international regulation of embryonic stem cell research: possibilities, promises and potential pitfalls

Despite near unanimous global opposition to human reproductive cloning, the United Nations has been unable to reach a consensus as to how cloning practices should be regulated at the international level. As a result, the U.N. objective of establishing binding international regulations governing cloning and stem cell research has yet to be achieved. Given the lack of consensus that exists within the global community on this topic, it seems that any attempt to harmonize the international regulation of cloning and stem cell science will face important obstacles. This paper seeks to illuminate the particular challenges to harmonizing international laws and policies related to stem cell research and human cloning, and to investigate potential methods for overcoming these challenges. By drawing on two other areas in which regulatory harmonization has been attempted, namely: environmental and human safety aspects of international trade, and pharmaceutical research and development, we study approaches to global regulatory harmonization. We conclude that while the challenges to harmonization are diverse and important, so too are the benefits of establishing uniformity in approaches to stem cell research worldwide. This paper proposes a model for harmonizing the regulation of stem cell research that focuses on broader norms and principles rather than specific rules. It further recommends that such harmonization should occur through a process initiated and developed by an independent international agency marked by diversity, both in terms of the cultural identities and perspectives represented, and the interdisciplinary expertise of its members.     

United States' and Australian principles on internet jurisdiction: A case for Australia to consider United States' hegemony on jurisdiction

The United States and Australia have been facing the issue of internet jurisdiction. The United States is an epitome of a country that has considered the challenges posed by the internet to the traditional law. It has developed its own tests to help resolve the issue, which have evolved over time and in comparison with other jurisdictions, and it has been successful. Conversely, the Australian legal system is in a stage of infancy regarding such challenges and has developed its own approach. This paper focuses on the anomalies between the United States' and Australian principles or approaches to internet jurisdiction by analysing and discussing the three leading cases that are benchmarks in the respective jurisdictions. Finding the fundamental difference between the two approaches, the paper elucidates the United States hegemony on internet jurisdiction by comparing the shortcomings of the respective cases. Finally, this paper makes a case for the Australian courts to consider an approach based on the one practised by the United States courts to tackle the ever-evolving issue of internet jurisdiction.     

Comparing public discourses in stem cell policy debates

Public policy debates surrounding stem cell research are becoming increasingly more complex as governance considerations move beyond the moral status of human embryos. This complexity is evident in the public discourses surrounding these debates globally. This article draws on the results of an analysis conducted on the media coverage of a recent stem cell policy episode in the United States to demonstrate the complexity of public discourses surrounding stem cell research and to reflect upon similar debates in Australia. Observations made from the public discourses in California are reframed within the Australian context to discuss ways in which future public policy debates surrounding stem cell research may be enriched.     

The problems and possibilities in regulating technological frontiers: the politics of the new anxiety?

The revolution in science, biotechnology and medicine of the past 30 years demands a revisitation of old institutional forms and responses, including those of law itself. Scientific citizenship requires that law develop a moral vision and vocabulary so that we shape the moral dimensions of the emergent bioeconomy. Chief among those in the field of biotechnology are technologies of human reproductive cloning, therapeutic cloning and stem cell research using human embryos. Where there are deep pluralist divisions is in relation to therapeutic cloning and embryonic stem cell research. Regulatory flexibility may be opportune in delimiting the extent to which government need stray into this realm of "moral politics". As Brownsword has written, an important developmental vector is what has become known in administrative and public law literature as the concept of "smart regulation". This concept is examined and an attempt to apply it to these fields is made. The enlarged nature of human action -- enlarged in magnitude, reach and novelty -- raises moral issues beyond interpersonal ethics and requires reflection; responsibility is centre stage and calls for lengthened foresight -- what has been called a "scientific futurology". This is also examined.     

The nanny state or responsible government?

The use of statutory regulation of medical treatments is always contentious. This is particularly so in the case of assisted reproductive technologies (ART), and the treatments offered through IVF and related procedures. These technologies challenge traditional understandings of the family and motherhood, but also raise questions about the status of the human embryo and how it should be treated. This article argues that governments do have a role to play in the regulation of ART, in addition to the professional guidelines governing such treatments. It looks at three different types of statutory regulation in the Australian context.     

Punishment's Legal Templates: A Theory of Formal Penal Change

The well‐known gap between law on the books and law in action often casts doubt on the significance of changes to law on the books. For example, the rise and fall of penal technologies have long been considered significant indicators of penal change in socio‐historical analyses of punishment. Recent research, however, has challenged the significance of apparently large‐scale penal change of this kind. This article clarifies the significance of penal technologies' rise and fall by offering an alternative account of formal penal change, introducing the analytical concept of “legal templates,” structural models of legal activity (e.g., punishment) available for authorization and replication across multiple jurisdictions. Analyzing punishment's templates explains how new penal technologies can be important harbingers of change, even when they fail to revolutionize penal practice and are not caused by a widespread ideological shift. This article locates the significance of punishment's legal templates in their constitutive power—their ability, over the long term, to shape cognitive‐cultural expectations about what punishment is or should be. This power appears only when the template is widely adopted by a plurality of jurisdictions, thereby becoming institutionalized. Ultimately, these institutionalized templates define the scope of future punishment.     

Embryonic stem cell research: one small step for science or one giant leap back for mankind?

At the forefront of modern debate over the ethical use of biotechnology is embryonic stem cell research. In this poignant analysis of its legitimacy, the author examines the history of this research in light of the United States' policy favoring the protection of human beings over scientific progress. Stem cells, which can divide in culture to create specialized cells in the human body, possess significant potential for curing disease, particularly when taken from human embryos. However, as evidenced by the research atrocities committed under the Nazi regime, the benefits of human research do not come without a cost to humanity. Recognizing this, the later trial of these scientists produced the Nuremberg Code, a set of natural law principles guiding future research on humans that continues to influence health policy decisions. Drawing on this background, the author first considers the appropriate legal status for a human embryo. Biologically, the characteristics of a human embryo place it between human tissue and a constitutional person. Judicially, the answer is even less clear. The author analyzes case law in the context of abortion and in vitro fertilization, as well as classifications by the common law, state legislation, and the National Bioethics Advisory Commission, to conclude that a human embryo should be subject to the same legal and ethical restrictions as any other "human subject." Accordingly, the author argues that embryonic stem cell research violates the ethical standards and purposes of the Nuremberg Code and should be banned by federal legislation. Such a prohibition will fulfill the societal policy choice of protecting potential life and vulnerable human subjects.     

CHILD RELOCATION: AN INTRACTABLE INTERNATIONAL FAMILY LAW PROBLEM

This article examines the current state of the law on child relocation across the major common law‐based jurisdictions, with particular emphasis on the contrasting approaches to the problem in Australia and the United Kingdom. It then goes on to suggest changes aimed at achieving more principled and predictable outcomes.     

Totipotent, pluripotent or unipotent stem cells: a complex regulatory enigma and fascinating biology

The search for sources of human stem cells has become a controversial topic from an ethical point of view primarily as it has required the destruction of human embryos. The development of alternative techniques that enable the generation of pluripotent stem cells from adult cells has opened new avenues of research but the generation of such cells has again been controversial since it requires the use of human eggs, using a technique called somatic cell nuclear transfer. Since the cells so generated have a very small potential to generate an "embryo" and since the production of the cell lines requires destruction of that "embryo", a further ethical issue arises. This article discusses these issues and suggests a framework that may assist their consideration. Finally, the article reviews some recent developments that have the potential to remove the need for the use of eggs or embryos in the generation of stem cell lines and highlights the danger of developing legislation on only our current knowledge.     

Party affiliation and support for capital punishment: An assessment of lawmakers from Canada and the United States

This article assesses the attitudes supporting capital punishment among lawmakers from two democratic countries — Canada and the United States. Accordingly, data were collected from three different populations responsible for legislating law either permitting or prohibiting the use of capital punishment in their respective jurisdictions — the Canadian House of Commons and the Michigan and Ohio state legislatures. These data were used to assess two general hypotheses: (1) Conservative parties will report higher levels of support for capital punishment; and, (2) Individual members from liberal political parties will report lower levels of support for capital punishment when compared to members of more conservative parties. The research findings supported both hypotheses.     

United States v Microsoft: High-tech Antitrust

'United States v Microsoft: High-tech Antitrust'. This article considers some of the substantive issues that have been raised by the case brought against Microsoft and that call into question the application of competition law to high-technology industries. Drawing arguments from both the United States and European Union jurisdictions the article focuses in particular on the relationship between intellectual property and competition law. Consideration is also given to product development and bundling, and to predation through innovation. In conclusion the author suggests that competition laws should continue to be applied to this sector, but that traditional analysis needs to be refined, and that intent should be more carefully considered.     

Manx Law: A Contribution from the Isle of Man*

This article provides a rare insight into the legal system and jurisprudence of the Isle of Man by the island's Second Deemster.

The author describes, inter alia, the judicial structure, sentencing and impact of international jurisprudence on the work of the judiciary of the Isle of Man, before outlining the island's constitutional position with the United Kingdom and with England and Wales.

The author argues against intellectual and judicial insularity: ‘Laws should be developed and problems solved by reaching out for knowledge and solutions that may be provided by approaches from jurisdictions beyond our local frontiers’. However, in reaching out to foreign jurisdictions, it is emphasised that account must be taken of local history, traditions, laws and needs.     

Life imprisonment: recent issues in national and international law

This article notes that, because understandings of what life imprisonment means are often ambiguous, the life sentence is sometimes perceived to be relatively uncontroversial. Life imprisonment without the prospect of parole for children under the age of 18 years is the most extreme form of this sentence that can be imposed. However, in the United States of America even such sentences have only recently become the subject of public debate. In contrast, in a small but growing number of jurisdictions all life sentences are regarded as constitutionally suspect and contrary to human rights, whilst in the majority of jurisdictions the imposition of life imprisonment is strictly limited. The article traces recent developments in the imposition and implementation of life imprisonment that have evoked some controversy. It pays particular attention to attempts that have been made in practice to ensure that life imprisonment produces punishment that is proportionate to the crime. It points out, however, that a renewed focus on combating dangerous offenders through indeterminate preventive sentences has blunted even this modest safeguard. It warns that this tendency increases the risk of life imprisonment being an unfairly harsh penalty.     

The Local Role in Homeland Security

There has been considerable discussion since September 11 of the enormous resource that local police potentially represent in the fight against terrorism. This article identifies limits to the local role in homeland security by analyzing a case study of Dearborn, Michigan. Partly because Dearborn is home to one of the largest concentrations of Arabs in the United States, its experience with homeland security highlights two kinds of burdens that cities incur when they engage in proactive surveillance to identify potential terrorists: damage to their reputation (since police surveillance implies that its objects are not trustworthy) and damage to police legitimacy (since new surveillance may undermine trust between police and the community). Because the benefits of efforts to identify terrorists typically accrue to jurisdictions other than the one that engages in it—unlike street crime, terrorism is a national or even international problem—local governments have little reason to pursue it. Instead, cities such as Dearborn have reason to emphasize what I call the "community protection" aspects of homeland security, such as target hardening and emergency response. This finding has more general implications for our understanding of the police role and the politics of policing, showing how both are shaped by the structural location police occupy in federalist systems of government.     

Ambiguity of the embryo protection in the Human Rights and Biomedicine Convention: experiences from the Nordic countries

Until 1998 research on in vitro human embryos concentrated on the issues related to assisted reproduction. The situation changed dramatically when the first scientific report on the laboratory culture of human embryonic stem cells was published. This scientific breakthrough with new therapeutic promises put human embryo into a new, more vulnerable position. Combined with creation of embryos via somatic cell nuclear transfer, it inveigles into mass production of embryos, first for scientific purposes, but later perhaps for the healing of people. This article examines the efficacy of the Convention on Human Rights and Biomedicine in protecting embryos in this new era of embryo research. The interpretative latitude of Article 18 of the Convention is demonstrated, and legislation in three Nordic countries with highly variable approach to embryo research regulation is analysed. I examine how this divergence is possible in the light of the Convention text. In the end, potential reasons for variation in regulation in the otherwise similar Nordic countries are discussed, as well as under what conditions harmonisation of regulation on embryo research, a highly value-charged matter, could be possible at the European level.     

Hospitals, finance, and health system reform in Britain and the United States, c. 1910-1950: historical revisionism and cross-national comparison

Comparative histories of health system development have been variously influenced by the theoretical approaches of historical institutionalism, political pluralism, and labor mobilization. Britain and the United States have figured significantly in this literature because of their very different trajectories. This article explores the implications of recent research on hospital history in the two countries for existing historiographies, particularly the coming of the National Health Service in Britain. It argues that the two hospital systems initially developed in broadly similar ways, despite the very different outcomes in the 1940s. Thus, applying the conceptual tools used to explain the U.S. trajectory can deepen appreciation of events in Britain. Attention focuses particularly on working-class hospital contributory schemes and their implications for finance, governance, and participation; these are then compared with Blue Cross and U.S. hospital prepayment. While acknowledging the importance of path dependence in shaping attitudes of British bureaucrats toward these schemes, analysis emphasizes their failure in pressure group politics, in contrast to the United States. In both countries labor was also crucial, in the United States sustaining employment-based prepayment and in Britain broadly supporting system reform.     

Universities and the teaching of forensic sciences to lawyers—a note *

This article presents the findings of the survey conducted among business and accountancy students of the Nanyang Business School, Singapore, on the teaching of business law. The article is organised in three main sections. Section 1 formulates the framework for the research by outlining the three basic approaches adopted across many jurisdictions for the legal education of business students—the traditionalist ("black‐letter law"), the environmentalist and mixed approaches. Section 2 briefly describes the survey questions drawn up in the light of four principal objectives that, according to legal educators, the teaching of business law should achieve. Section 3 presents and examines the findings. The article concludes that law teaching at the Nanyang Business School conforms to the traditional approach. The author accordingly makes recommendations for the transformation of current teaching and assessment medthods: an injection of a great deal of “environmental” content and context‐based education; more use of actual and current cases, practical examples and a link to the business environment.