Cloud computing and its implications for cybercrime investigations in Australia

The advent of cloud computing has led to a dispersal of user data across international borders. More than ever before, law enforcement investigations into cybercrime and online criminal activity require cooperation between agencies from multiple countries. This paper examines recent changes to the law in Australia in relation to the power of law enforcement agencies to effectively investigate cybercrime insofar as individuals and organisations make use of cloud infrastructure in connection with criminal activity. It concludes that effective law enforcement operations in this area require harmonious laws across jurisdictions and streamlines procedures for granting assistance between law enforcement agencies. In conjunction with these mechanical developments, this paper posits that law enforcement officers require a systematised understanding of cloud infrastructure and its operation in order to effectively make use of their powers.     

The legal status of abortion in the states if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators-on both sides of the issue-believe. More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable. Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions. This is (1) because the laws, by their express terms or as interpreted, allow abortion on demand, for undefined health reasons or for a broad range of reasons (including mental health), or (2) because of state constitutional limitations. In yet other States, the pre-Roe laws prohibiting abortion may have been repealed by implication, due to the enactment of comprehensive post-Roe laws regulating abortion. In sum, no more than twelve States, and possibly as few as eight, would have enforceable laws on the books that would prohibit most abortions in the event Roe, Doe and Casey are overruled. In the other States (and the District of Columbia) abortion would be legal for most or all reasons throughout pregnancy. Although the long-term impact of reversing Roe could be quite dramatic, the author concludes that the immediate impact of such a decision would be very limited. This article is current through May 1st, 2007.     

An exploration of the legal and socio-ethical implications of predictive genetic testing of children

This article explores the current position in relation to predictive genetic testing of children, highlighting some of the legal and socio-ethical issues and complexities that such testing presents. It evaluates the existing regulatory framework for predictive genetic testing of children in Australia, including the possible role of the Family Court in protecting children from inappropriate testing, and suggests that introducing a more interventionist approach would create its own difficulties. The article also considers a particular issue arising in the context of predictive genetic testing of children which the ALRC/AHEC inquiry canvassed concerning disclosure obligations to insurers. The article argues that creating an exception to established principles of disclosure would mitigate the impact of predictive genetic testing of children and would be consistent with international instruments which seek to protect against unfair genetic discrimination.     

Jain lives of Haribhadra: An inquiry into the sources and logic of the legends

Conclusions I have attempted here to trace the development of Haribhadra's biography. My contention throughout has been that there is a basic incongruity between what one can discern from the actual works about the author Haribhadra and the legends that came to be associated with him. I have argued that the legends initially came from elsewhere in part from the legends of the arrogant monk who challenges the schismatic Rohagutta, and in part from the stories told of Akalanka, who probably was Haribhadra's contemporary. The question must inevitably arise as to why these stories were attached to Haribhadra, when they so poorly match what we can clearly know to be the attitudes displayed by the writer of the works associated with his name. That is a question I cannot satisfactorily answer, although I suspect that in general the hostile attitude of the prabhadhas and related texts towards Buddhism is a late, deliberately contrived and very political stance.³⁰ It would seem that these legends of Haribhadra and the stories told of others which are also replete with examples of Jain hostility to the Buddhists came to take shape around the 12th century A.D., during a period when Jainism was making significant Hindu conversions, particularly among royalty. We know that the prabandhas were primarily written for royal audiences or for ministers close to the kings. A natural question is then whether we can discern anything specific in the relationship between Buddhism and royal power during the 12th century in India that might have led Jain writers deliberately to cast the Buddhists in an unfavourable light and portray Jains as the extirpators of the Buddhist menace and thus as champions of the true faith. In fact the mid -12th century was a low period for the fortunes of Buddhism in its final stronghold in Bengal. Valllasena of the Sena dynasty came to power c. 1158 A.D. His Dnas-agara was completed in 1169 A.D. and gives ample evidence of the strong emphasis on orthodox Hinduism and promotion of the cause of the Brahmins that historians have associated with the Senas.³¹ It is tempting to see in the prabandhas, which were addressed to the ruling class, and in the legends of Jain religious and intellectual leaders which emphasize the conflict between Jainism and Buddhism, a continued attempt to separate Jainism radically from Buddhism which was anathema to these kings in Bengal. Hindus had historically regarded Jains and Buddhists as equally outside the Hindu fold and outside the fold of civilization. That Jains in the 12th century devise biographies with a distinct emphasis on the Jain triumph over a Buddhist enemy requires some explanation. That the collections of these biographies were usually addressed to kings and their ministers suggests that courting the royal court may have had something to do with the tone of the biographies. The most obvious historical circumstance that suggests itself by way of explanation for the anti-Buddhist tone of medieval Jain biographies is the contemporary Hindu revival in Bengal with its decidedly anti-Buddhist stance. Perhaps Jain writers in seeking to win royal patronage for their faith and indeed royal converts felt the need to divorce Jainism from the religion with which it had been so closely associated and which became so obviously out of royal favour elsewhere in the country. I offer this only as a suggestion which must await further research for confirmation.     

Natural justice and its political implications: legal philosophy revealed in the doctrine of the mean

The Doctrine of the Mean is one of the major Confucian classics focusing on natural justice and its political implications via cosmic dynamics and its harmonious eternity. The rule of the saints modeling themselves after the heaven’s virtue is advocated as the so-called rule of man, or the rule of virtue, in which natural harmony in the cosmos is believed to be the manifestation of eternal and universal justice. Both the editors of The Doctrine of the Mean in pre-Qin dynasty and its commentators in the Tang dynasty have availed themselves in repudiating the legalist utilitarianism abused in the despotic Qin dynasty and empty-world thoughts of Buddhism prevalent in the Tang dynasty by virtue of natural justice and cosmic fairness in heaven-mandated- nature theory. Their academic endeavors are directed at consolidating cosmological faith and moral fairness for Confucian political ideology in self-disciplining, family establishing, country ruling, and world harmonizing.     

鉴定结论的证据地位与当事人的质询权

我国民事诉讼法中关于司法鉴定制度的规定很少且可操作性差,而法院对鉴定结论的随意取舍更加严重影响了司法公正的实现,我们在现有的鉴定制度条件下,应正确认识鉴定结论的证据地位和当事人在鉴定阶段的诉讼权利,从程序方面保证鉴定结论的公正性,充分运用司法鉴定的手段,审查判断证据,及时查明争议事实,正确发挥司法鉴定结论的证据作用。     

Kumho, Daubert, and the nature of scientific inquiry: implications for forensic anthropology

In the last 15 years, the US Supreme Court has implemented major changes concerning the admittance of expert testimony. In 1993, Daubert v. Merrell Dow Pharmaceuticals superseded the Frye ruling in federal courts and established judges, not the scientific community, as the gatekeepers regarding the credibility of scientific evidence. In 1999, a lesser-known but equally important decision, Kumho Tire v. Carmichael, ruled that technical expert testimony needed to employ the same rigor as outlined in Daubert, but experts can develop theories based on observations and apply such theories to the case before the court. Anthropology has never been defined as a hard science. Yet, many recent publications have modified existing techniques to meet the Daubert criteria, while none have discussed the significance of Kumho to anthropological testimony. This paper examines the impact of Daubert and Kumho on forensic anthropology and illustrates areas of anthropological testimony best admitted under Kumho's guidance.     

Crime,unemployment, and social structures of accumulation: An inquiry into historical contingency

This article examines whether prior inconsistency in findings about the impact of unemployment on crime is the result of historical contingency caused by changes in the social structures of accumulation (SSAs) associated with the development of twentieth-century U.S. capitalism. We explore this question by comparing the relationship between official measures of unemployment and the crimes of burglary, robbery, assault, and homicide during four phases of recent U.S. economic development identified by SSA theorists: economic exploration from 1933 to 1947, economic consolidation from 1948 to 1966, economic decay from 1967 to 1979, and a new period of exploration from 1980 to 1992. We propose that the unemployment-crime (U-C) relationship is shaped not merely by the fact of unemployment, but rather by its social meaning within developmental stages of social structures of accumulation. Time-series analysis of the U-C relationship within each SSA stage from 1933 to 1992 supports our hypothesis that periods of structural unemployment will be characterized by a stronger U-C relationship than those in which unemployment is primarily frictional. We then validate the periodization of shifts in the U-C relationship suggested by SSA theory by applying time-varying parameter analysis to the entire series from 1933 to 1992. On the basis of these findings we conclude that crime control policies and future research into the relationship between unemployment and crime should take into consideration the historically contingent nature of the U-C relationship.     

Compiling the ethical, legal and social implications of nanotechnology

This paper maintains that although there is much interest at the moment in exploring the Ethical, Legal and Social Implications (ELSI) of nanotechnology, the ability to do so in a critical and reflective way, in part, depends on how nanotechnology's future is envisioned. It is argued that, at present, this vision is articulated through the novum, a narrative device borrowed from the science fiction (SF) genre. The paper concludes by arguing that the widely shared narratives about nanotechnology's future, structured by the novum, not only limit the types of ELSI questions that can be addressed but also lead to a polarized debate. It is also suggested that the device of the novum also obscures the heterogeneous nature of nanotechnology itself.     

论人类基因及基因信息的法律地位

明确人类基因及基因信息的法律地位是对其进行法律规制的前提。基因属于物质的范畴,而基因信息是一种信息,二者是构成世界的两种不同的元素,因此,在法律上需要对二者区别对待。基因在没有与特定的人体分离的时候,是身体权的客体;而当其与人体分离之后,则可以成为财产权的客体。基因信息可以分为整个人类共同所有的不具有差异性的基因信息、某一人类族群所共同拥有的基因信息和标志着个人特征的基因信息三类;前二者分别属于人类共同继承的财产和国家财产;第三类则既可以成为财产权的客体,又可以成为人格权中的隐私权的客体。     

国际人权条约缔约国义务与实施机制

国际人权条约中缔约国义务与实施机制有着密切的联系，实施机制中包含了缔约国义务。故本文将此二者放在一起阐述。现行有效人权条约几十项，本文只就有独立实施机构的几项条约来作分析。…….     

Disclosure obligations of the newly public healthcare company: practical strategies for the company and its counsel

Founders of healthcare companies, like entrepreneurs in general, dream of the opportunity to take their companies public. The benefits flowing from access to the public markets, however, carry with them additional responsibilities that are enforceable both by the regulatory authorities and the well-organized plaintiffs' securities bar. The authors of this Article provide the newly public company and its counsel extensive guidance for the navigation of this regulatory maze.     

大陆法系民事诉讼鉴定人的法律定位及相关问题研析

大陆法系国家及地区的民事审判实行"职权进行主义(Verhandlungsmaxime)".在其诉讼程序中,以自己专业知识辅助法官查明案件事实的案外人被称为"鉴定人",其口头或书面陈述被称为"鉴定意见".就鉴定人的诉讼地位识别而言,大陆法系的通说为"折衷论",即侧重于将鉴定人视为一种"法官的专业辅助人",仅在有限的程度上才会兼顾其另一属性—"证据方法".大陆法系民事诉讼的具体制度一贯强调"鉴定人不偏不倚的中立性",极力排斥其"党派性".在鉴定人制度方面,大陆法系主要存在两大缺陷:一是在案件事实判断方面,法官过于依赖其指定的鉴定人,存在后者非法篡夺前者事实认定权的问题和现象;二是由于交叉询问制度(the cross-examination)的缺乏,再加上私人鉴定人过于弱小的诉讼地位,使大陆法系的法律系统无法有效地控制和评估鉴定人的意见.这两大缺陷都与识别鉴定人地位的"折衷论"有关.     

An analysis of the fundamental tensions between copyright and social media: the legal implications of sharing images on Instagram

ABSTRACT

Copyright is inherently intertwined with the development of technology and none more so than the advent of the Internet and sharing technologies. More recently, social media platforms have become the latest challenge for copyright law and policy. This article builds on the literature that recognises the underlying conflict between copyright and social networking sites (SNSs); namely that the basic implication of copyright is the restriction of copying, whereas the ethos of social networking is the promotion of sharing. In particular, this article focuses on the disparity between the restricted acts of copying and communication to the public under copyright law and the encouragement of sharing on SNS Instagram. In doing so, it contextualises the debate surrounding copyright and social media and provides an understanding of the legal implications of using Instagram. As such this paper analyses (1) the infringement of copyright protected work on Instagram, and (2) the user-agreement and licensing of copyright material on Instagram. This study concludes that the disparity between the principles of copyright and social media lead to confusion and vulnerability of users. Therefore, it is suggested that Instagram should better inform its users of the implications of sharing third-party content as well as the terms of its user agreement. This could be done by implementing a copyright strategy, which includes a notice and takedown system as well as investing in producing educational content for users. Perhaps SNSs, such as Instagram might be more motivated to take steps to recognise intellectual property rights if they were considered Internet Services Provides such as YouTube.