Digital identity – From emergent legal concept to new reality

Over the past decade, digital identity has gone from a largely unrecognized emergent legal concept to something that is now well known, but still not fully understood. Most individuals now know that they have a digital identity but its legal nature, its transactional functions, and its implications now and for the future, are not generally well understood.This article tracks the emergence of digital identity from the time it was recognized as a new legal and commercial concept to the present time; and outlines its impact and significance for individuals, governments, the private sector and even what is means to be a nation and a citizen in the digital era. The author recounts her experience in recognizing the implications of digital identity in 2006 to its current importance and the implications of future evolutions including an international digital identity, the groundwork for which is being laid now.     

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.     

The changing landscape of legal practice – some of the challenges ahead

In recent years, there has been a rapid growth in the number of multinational law firms. These firms have offices in various jurisdictions worldwide. At the same time, we have seen a growth in the outsourcing of certain legal work to countries, such as India and SE Asia. This is indicative of the globalisation of law. However, it raises problems, especially in terms of the potential for conflicts of interest. This article looks at these developments in light of existing professional practice rules as they apply in Australia as well as other selected jurisdictions. The author concludes that there is a need for a more international regulatory framework in order to respond to these changes.     

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.     

Comparative law in legal education – building a legal mind for a transnational world

This paper considers the role of comparative law in contemporary legal education. The discussion builds on an idea according to which it is helpful to make a distinction between educating lawyers and doing comparative research. It is suggested that we should pay more attention to comparative law pedagogics in today’s world, where law graduates must be prepared for working in a global context. Whereas in academic comparative research the goal is to reach a deep cultural understanding of foreign law, in legal education the goal is to learn to “think like a lawyer”. It is argued that by means of teaching foreign law, it is possible to transfer the focus of legal learning away from detailed rules and instead concentrate on general principles. Comparative law-based material and teaching ought to be regarded as a stimulus that sets the learning process into motion. Moreover, it is claimed that more significance ought to be given to the transnational dimensions of law as part of legal education within all branches of law.     

Agile programming – Introduction and current legal challenges

Within the realms of software development, customers must specify the requirements of their new software before the start of the project. Today, this leads to considerable delays with respect to the start of the project. In addition, the integration of new requirements into a system already developed in parts is becoming increasingly time-consuming and cost-intensive. Yet the specifically necessitated functions of a software are often only revealed through the process of development. By means of agile programming, changes in the requirements of a software product can be handled flexibly in shorter development cycles. In the following, the framework of agile software development projects as it applies under German law is described and current legal problems of such projects – in particular, the issue of contract type and the new building contract law – are considered. The unplanned project design appears contrary to the legal approach. The article shows, however, that agile software products development provides customers with dynamic and quickly scalable products and that customers can leave the project after individual project steps. The new development of building contract law, which focuses on subunits and approvals, is also very much in line with the above-mentioned programming.     

Digital provenance – interpretation,verification and corroboration

This paper defines the attributes that are required to provide ‘good’ provenance. The various sources that may be used to verify the provenance of digital information during the investigation of a Microsoft^® Windows^® based computer system are presented. This paper shows how provenance can be corroborated by artefacts which indicate how a computer system was connected to the outside world and the capabilities that it provided to a user. Finally consideration is given to a number of commonly used forensic tools and shows how they represent the provenance of information to an investigator.     

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.     

The Legal Education and Training Review: regulating socio-legal and liberal legal education?

The Legal Education and Training Review (LETR) which reported in June 2013 conceded that undergraduate law degrees are generally outside the remit of the review other than when there is a direct impact on the provision of legal services. On first glance therefore the review has few implications for those of us interested in delivering a liberal legal education and developing socio-legal approaches to law and legal study. However, on closer reading, the report contains a number of suggestions which, if taken up by the regulators, have significant potential to change law degrees, even if regulation remains “light touch”. This article explores those issues with a particular focus on the implications for liberal law degrees and socio-legal approaches to law teaching. In particular the article will explore issues around possible changes to foundation subjects; the creation of a framework of learning outcomes; the possible strengthening of legal writing and research in the curriculum and the opportunities offered for the introduction of more socio-legal material; and the trickle-down effect likely to be felt by providers of undergraduate law degrees of changes in regulation of legal services and as a result of student, employer and other stakeholder expectations.     

The House of Lords – Into the Future?

The idea for presenting these opinions on the future of the House of Lords as an article grew out of a seminar held in the House of Lords in February 2006, an event that itself grew from the contributions to the book Parliament in the Twenty-First Century, a collection of 30 essays from academics, commentators and politicians.1 1. N. D. J. Baldwin (ed.), Parliament in the Twenty-First Century (London: Politico's, 2005). The seminar saw presentations from Lord Howe, Lord McNally and Lord Carter, and it is their observations that follow here.2 2. Lord Howe: Geoffrey Howe was Chancellor of the Exchequer (1979–83), Foreign Secretary (1983–89) and Deputy Prime Minister (1989–90); Lord McNally: Tom McNally is Leader of the Liberal Democrats in the House of Lords; Lord Carter: Denis Carter, Government Chief Whip in the House of Lords from 1997 to 2002. Sadly, Denis Carter died on the 18th December 2006. A skilled practitioner in the role of Chief Whip, he won respect from all sides of the House for his knowledge and understanding of the way the House operates and for his forthright and honest approach both to the business of the House and to his fellow peers. He is much missed by all those who knew him.      

The Trip – A Case of Problematic Friendship?

In Sweden, there have been several cases in recent years where local politicians and officials have been accused of corrupt behaviour. This article concerns one such case, where a Chairman of the Municipal Board and a County Governor were invited by a wealthy business man to the inauguration of a vacation facility abroad. Their travel costs and lodgings were paid for by the business man, whose firm also sold equipment to the municipality as well as the county. When the trip became known to the prosecutors at the Swedish National Anti-Corruption Unit, a police investigation was conducted and charges raised against them for giving (the business man) and receiving (the Chairman and the County Governor) bribes. Eventually, after two trials (District Court and Court of Appeal), the Chairman, County Governor, and the business man were cleared of all charges against them. The trip was viewed by the courts as a gift, not a bribe. It is argued that the case raises interesting questions about entangled friendship relations and the blurred boundaries between private and professional roles which are important for understanding local corruption (and allegations of corruption) in Sweden. Therefore, the article's main focus concerns what could be described as actions in the grey zone.     

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.