IT and Law,and Law Schools

If 'computing and law' as a discipline is to push forward and develop, it will do so best within the context of the law school rather than as a joint enterprise between law and other disciplines. It is in the law school that the understanding of the nature of law is at its height. Yet there are problems here-law schools have a strained relationship with technology and their concept of the breadth of 'legal scholarship' can be limited by conventional (or ideologically-biased) views of law and an undergraduate-oriented view of the law school's purpose. There are also problems arising from the nature of communications between lawyers and computer scientists. In this article, I highlight these problems and also argue for a more developed and extended view of legal scholarship which will be able to incorporate study and research of the impact of the computer upon legal society as well as the legal control of the unwanted elements arising from these new technologies. Most writings on IT and the law school concentrate upon its use as an educational tool. My interest here is not so much in this side of things, but in the research culture of the law school. Whilst there is sometimes a view that the linkage of law school and IT is purely related to the use of technology in legal education, the remit is wider and includes the understanding of the link between substantive law and the context of the new computerized world and also the impact of the computer in the practice of law. This latter aspect is becoming increasingly important with the Woolf reforms and computerization of the procedural elements of law, but also in substantive law: for example, administrative systems are becoming more and more mediated by technology, and administrative law must be reviewed and re-worked in this context.     

Two generations of Sutherland’s white-collar war crime data and beyond

Edwin Sutherland published his famous White Collar Crime in 1949 where he excoriated leaders of American firms for their war crimes. The names of all corporations were deleted, however, from the book by the threat of legal action. The unabridged version was published in 1983 when the Sutherland files at Indiana University were unsealed. These files can now be compared with both the 1949 and 1983 book, as well as with other evidence of corporate war crimes during World War II.     

The Problem of Emergency in the American Supreme Court

Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt and Agamben in order to come to a better understanding of this important set of cases.     

Realism about the Nature of Law

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non‐cognitivists, and who maintained that conceptual analysis (in a fairly broad sense) is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti‐metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non‐cognitivism on the part of the Scandinavians and its implications for their view of the nature of law. I argue (i) that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and (ii) that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, (iii) that the objection to non‐naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values (the ‘world of the ought’) and the world of time and space—is convincing, and (iv) that Kelsen's introduction of a so‐called modally indifferent substrate does nothing to undermine this objection. In addition, I argue (v) that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue (vi) that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms.     

“Great Men,” Law,and the Social Construction of Technology

Is Alexander Graham Bell's fame owed to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles (Stathis Arapostathis and Graeme Gooday , Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain [2013]; Christopher Beauchamp , Invented by Law: Alexander Graham Bell and the Patent That Changed America [2015]). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle “great man” narratives of invention. A tale of a recent patent war is a case study in the persistence of such narratives, highlighting the uses of legal storytelling (Ronald K. Fierstein , A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War [2015]). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth finding in Anglo‐American law .     

Building a post-war justice system in Afghanistan

This paper examines key dimensions of justice in post–war Afghanistan. These areshari'a(Islamic law), traditional institutions of informal justice (jirga), the Afghan interim legal framework, and human rights principles. It is argued that despite their apparent incompatibility, these various dimensions of justice could be integrated within a coherent framework of a new justice system in post–war Afghanistan –– a framework that would promote interaction between local institutions of informal justice and a district level court of justice, on the one hand, and between these two and a proposed human rights unit, on the other. On the basis of this analysis, an experimental model of a system of justice is proposed, which integrates local jirga and human rights units into the existing formal justice (based on shari'a and positive law) and law–enforcement institutions. This experimental model provides a multi–dimensional framework that both reflects the cultural and religious values of Afghan society, and at the same time, has the capacity to draw on human rights principles. It is maintained that the model has the capacity to deliver justice expeditiously and in cost–effective ways; it also has a strong potential to act as a channel of communication between ordinary people and a modern participatory state in post–war Afghanistan. However, in order to test the applicability of this model in the real world, it needs first to be thoroughly discussed among Afghan and international legal experts as well as among ordinary Afghan people, and then piloted in selected districts in Afghanistan.     

论计算机软件反向工程的合法性问题

计算机软件产业的发展对各国的知识产权法体系提出了挑战。从各主要发达国家的立法与司法实践看 ,计算机软件反向工程的合法化已经成为趋势 ,我国应借鉴这一思路 ,在计算机软件保护立法中规定反向工程问题 ,以使软件权利人的权利与对其的限制达致平衡。     

Don't Mention the War! R. v Bottrill,ex parte Kuchenmeister (1946) Revisited

R. v Bottrill, ex parte Kuchenmeister (1946) established that a ministerial certificate is determinative of whether a state of war exists between the United Kingdom and another state. But of the ‘Aryan’ German, Kuchenmeister, long a resident in Britain and with a British family, virtually nothing is known. The present paper seeks to uncover the complex story of Kuchenmeister's business activities in the British armaments industry before the war, MI5’s determination to have him interned on the not wholly convincing footing of his loyalty to Germany during the war, and Kuchenmeister's prolonged legal battles with the Home Office. A distinction between the law in books and the law in action may be sharply drawn from the affair.     

From devil’s advocate to crime fighter: confirmation bias and debiasing techniques in prosecutorial decision-making

ABSTRACT

This research examines the role of confirmation bias in prosecutorial decisions before, during and after the prosecution. It also evaluates whether confirmation bias is reduced by changing the decision maker between arrest and prosecution. In Experiment 1, Swedish prosecutors (N?=?40) assessed 8 scenarios where they either decided themselves or were informed about a colleague’s decision to arrest or not arrest a suspect. Participants then rated how trustworthy the suspect’s statement was as well as the strength of new ambiguous evidence and the total evidence. They also decided whether to prosecute and what additional investigative measures to undertake. In Experiment 2 the same method was used with Law and Psychology students (N?=?60). Overall, prosecutors’ assessments before the prosecution indicated that they were able to act as their own devil’s advocate. Also, their assessments while deciding about whether to prosecute were reasonably balanced. However, after pressing charges, they displayed a more guilt-confirming mindset, suggesting they then took on the role as crime fighters. This differed from the student sample in which higher levels of guilt confirmation was displayed in relation to arrested suspects consistently before, during and after a prosecution decision. The role of prosecutors’ working experience is discussed.     

Story interface and strategic design for new law curricula

This article argues for the essential value of stories and strategic thinking in crafting new law curricula – the re-imagination of which is compelled by the rise of information technology and the virtual age. In canvassing the stuff of curriculum, it argues for the restoration of the notion of law as a community of discourse, rather than as a body of rules and content. It highlights the Ramist influence giving rise to the conventional notion of curriculum and its emergence in concert with printing press technology. This influence, in turn, spawned the centrality of the textbook to university education. A new notion of curriculum is proposed as something emerging in concert with cyberspace, framing a journey of personal transformation, a process of initiation or a rite of passage. Strategic design is then identified as the kind of thinking necessary for crafting new law curricula, with observations about some of the central opportunities and constraints presented by the virtual age. Finally, the notion of “story interface” is proposed, drawing upon Joseph Campbell’s monomyth and hero’s journey for supporting students through their initiation into the discipline. Such initiation clothes students with a new identity and a developed capability for serving not only the community of legal discourse, but the stabilising core of democratic society at large.     

Expert systems and the law

ABSTRACT

The project discussed here involved an online debating activity between intellectual property (IP) law students in Egypt and the UK, using a closed group on Facebook. The aim was to harness freely available online social media technology to create a space in which valuable discussions and learning could take place. We showed that Facebook can be a powerful educational tool to encourage active learning and usefully connect learners across continents. In enabling the exchange of views between students in different jurisdictions, Facebook provides exposure to different cultures and different perspectives as well as different legal cultures and different legal systems, while also, importantly, enabling participants to identify commonalities. This debate focused on IP law, which is of increasing international importance, and specifically on the topic of access to medicines, which is highly contentious. Through the activity, students learned that they need not only to learn the law, but also to appreciate the socio-cultural and political complexity underlying policy issues in different jurisdictions. On reflection, the Facebook debate definitely enhanced the study of IP law through an interesting and enjoyable international, intercultural activity, led by staff and students, which successfully extended the classroom experience.     

Merger—the name of the FE game

In the Australian legal environment today the overwhelming importance of laws made by Parliament is obvious, yet many first year law programmes pay insufficient attention to the coordinated teaching of statutory interpretation (SI). This project formed part of a collaborative initiative between an educational developer and the coordinator of legal research methods (LRM) to introduce statutory interpretation into a first year unit of study. Our study used a qualitative research framework – a questionnaire was administered to students at two intervals throughout the first semester. In Week 3, 160 students participated in the questionnaire and at Week 4, a keystone module on statutory interpretation using a building block approach was introduced in LRM. Since the nature of assessment in LRM is largely reflection, this unit lent itself well to investigating the language and literacy challenges of statutory interpretation, in particular, to students monitoring their own progress in this regard. The overall aim of the project was to establish a framework for students to build on their knowledge and understanding of statutory interpretation throughout their undergraduate studies, and in the interests of improved learning and teaching outcomes, for staff to be able to document the changes in student thinking. This paper focuses on the preliminary stage of our investigation into the language and literacy challenges involved in introducing statutory interpretation into a first year unit of study.

I know of only one authority which might justify the suggested method of construction. “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

(Alice Through the Looking Glass, c. vi.)

After all this long discussion, the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.

(Lord Atkin in Liversidge v Anderson [1942] AC 206)     

Learning to be A Peacemaking Lawyer: Law Student Perspectives on Building Peacemaking into Law School Curricula,Building Paths to Practice for New Lawyers,and Interdisciplinary Training

From our perspectives as students, we reflect on the teachings of Lawyer as Peacemaker, a Winter 2015 course taught at UCLA School of Law — the school's course devoted to peacemaking lawyering. Utilizing our newfound peacemaking worldview, we share our collective reactions to the Lawyer as Peacemaker course and the ten articles in the Family Court Review Special Issue on Peacemaking for Divorcing Families. We then advocate for integrating peacemaking into law school curricula and experiential learning offerings and make recommendations on how law schools today can prepare students to practice peace.

Key Points for the Family Court Community:
• This article is a collaborative work product of three students who come from an array of work experience, backgrounds and interests and from their newly founded peacemaking worldview, the three students collaboratively analyzed ideas presented in the Lawyer as Peacemaker course and the articles from this issue.
• The peacemaking mediation allows the parties more control over their legal disputes and allows the control of the costs that come with litigation.
• Peacemaking involves a holistic and collaborative method, involving mental health professionals to financial advisors as well as legal professionals.
• However, peacemaking skill courses are not readily available to many law students while studying in law school.
• This valuable asset should be made available more extensively to law students interested in family law.

     

Hawala--A Vestige of the Past in the Service of Globalization

V.G. Khoros: Evgenii Maksimovich, your political biography took shape during both the Soviet and the post-Soviet periods. Over the last fifteen years, a lot has changed on our planet. The second world has become a thing of the past. The first world—that is, the most highly developed countries—has entered the postindustrial stage. Today, it dominates the world market in technology, finance, and information and acts as a conductor of international relations (for instance, the policy of NATO expansion). As a person who has met many leaders of the West and the East, how do you perceive this difference in the times? How do you assess the impact of globalization, which proceeds primarily from the center to the rest of the world, the so-called periphery (to which Russia, unfortunately, increasingly belongs)?     

An Integrated Model of Legal and Moral Reasoning and Rule-Violating Behavior: The Role of Legal Attitudes

Legal socialization theory predicts that attitudes mediate the relation between legal reasoning and rule-violating behavior [Cohn, E. S., & White, S. O. (1990). Legal Socialization: A Study of Norms and Rules. New York: Springer-Verlag]. Moral development theory predicts that moral reasoning predicts rule-violating behavior directly as well as indirectly [Blasi, A. (1980). Bridging moral cognition and moral action: A critical review of the literature. Psychological Bulletin, 88, 1–45]. We present and test an integrated model of rule-violating behavior drawing on both theories in a longitudinal study of middle school and high school students. Students completed questionnaires three times during the course of 1 year at 6-month intervals. Legal and moral reasoning, legal attitudes, and rule-violating behavior were measured at times one, two, and three respectively. Structural equation models revealed that while moral and legal reasoning were directly and indirectly related to rule-violating behavior among high school students, legal reasoning bore no direct relation to rule-violating behavior among middle school students. The implications for an integrated model of reasoning and rule-violating behavior are discussed.     

Requirement‐Sensitive Legal Moralism: A Critical Assessment

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed.     

A qualitative study of the impact of law clinics on students’ perceptions of emotional labour expectations

The benefits to students of being given some form of clinical legal education are well documented. Research has been conducted in the area of legal education and emotion, emotional intelligence and clinical legal education. There have also been studies which explore emotional labour in the legal profession. However, there is currently no research into the role of clinical legal education in advancing law students’ understanding of emotional labour expectations in the legal profession. This Legal Education Research Network (LERN) funded project aims to fill that gap by examining the contribution law clinics make to the development of law students’ emotion management skills in preparation for entry into the legal profession. The project seeks to achieve this by considering the changes to law students’ perceptions of emotional labour expectations as a result of undertaking this type of clinical legal education. The paper offers insights into the types of emotional labour as well as the perceived drivers of emotional labour, which are regarded as necessary to fulfil the role of the solicitor. The paper will also analyse the potential consequences of performing emotional labour identified by participants.     

The Constitution of Violence Through the Language of Law: Legal Hermenutics in Second‐Century Roman Egypt

Bryen, Ari Z. 2013. Violence in Roman Egypt: A Study in Legal Interpretation . Philadelphia, PA: University of Pennsylvania Press. Pp. 376. $75.00 cloth; $75.00 eBook. This essay examines the linguistic anthropological themes emergent in Violence in Roman Egypt (2013). Viewing law as a discourse, it explores how language is constitutive of law and is the primary modality of acting upon, and enacting the world(s) that it shapes, giving meaning to the lives of people who engage each other in and through it. Violence petitions in second‐century Egypt are a fundamental mode of sense making and problem solving, calling on legal authorities to interpret claims of iniuria, or legal battery, into a language that they understand and remedy. In doing so, law changes the discourse of violence, specifically, and social life, more broadly.     

The Role of Narratives in Legal Education

The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings, but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school.