Pondering personal privacy: a pragmatic approach to the Fourth Amendment protection of privacy in the information age

As technology with surveillance capacities has advanced, the debate over the rights of the citizenry to be free from governmental breaches of personal privacy has intensified. Within the United States, government actions legally challenged as intrusions into personal privacy have been analyzed under the Fourth Amendment, but Supreme Court rulings in such cases lack a clear and consistent rationale. Additionally, while more than a dozen federal privacy statutes have been enacted, each piece of legislation pertains to a specific type of information (e.g. driver’s license information, education records, and financial records). There is no overarching federal legislation which protects the individual’s private affairs from warrantless government inspection. A key issue underlying the scope of the debate and the variation in court decisions and public policies pertinent to invasions of privacy by government agencies is the lack of a clear and cogent definition of ‘privacy.’ By means of a review of the evolution of legal protections of privacy under the Fourth Amendment and a review of the evolution of technology with surveillance applications, it is suggested that there is a need for a sound operational definition of privacy. As a starting point for an informed and pragmatic dialogue on this matter, an operational definition of privacy built upon extant case and statutory law is provided.     

Dimensions of criminal justice policy: The Supreme Court,the Fourth Amendment and the trial court system

A full understanding of the role of the U.S. Supreme Court’s supervisory authority over the criminal justice process must recognize that the political and social environment affects local responses to Supreme Court directives. This paper reviews the development of Supreme Court Fourth Amendment decisions in which criminal court deliver justice. The authors suggest that future treatment of problems in Supreme Court’s supervisory role and the prospects of demands for Reform being generated from the larger political community.     

人格混同与法人独立地位之否认*--评最高人民法院指导案例15号

15号指导案例反映了最高人民法院慎重适用、从严掌握法人独立地位否认的立场,但存在三点不足:一是偏重人格混同之构成的论述,而对人格混同为何严重损害债权人缺乏说明和论证。由此可能产生鼓励法院轻易否认法人独立地位的负面效果。二是参照适用《公司法》第20条第3款不符合类推适用的要求。三是将关联公司作为认定横向人格混同进而否认法人独立地位的约束条件,合理性和可操作性不足。     

Confronting Religion: Veiled Witnesses,the Right to a Fair Trial and the Supreme Court of Canada's Judgment in R v N.S.

The Supreme Court of Canada's decision in R v N.S. is significant because the majority seems to endorse an understanding of confrontation that assumes a defendant's right to a fair trial is imperilled by a witness who seeks to give evidence while wearing the niqab. The case is of interest because it permits reflection upon the interrelationship between the right to a fair trial and the right to confront witnesses enshrined in Article 6 of the European Convention on Human Rights. Given that the European Court of Human Rights conceptualises confrontation in epistemic terms, it is argued that it would be unlikely to find that a conviction based upon evidence from a niqab‐wearing witness would infringe the right to a fair trial. This note examines the value of demeanour evidence and whether the majority in R v N.S. was correct that the abrogation of the ability to assess demeanour evidence necessarily undermines trial fairness.     

合资企业股权确认／变更争议为民事案件非行政案件——评最高人民法院（2002）民四终字第14号民事裁定书

中外合资/作经营企业股权确认及/或变更争议案件为平等主体之间的民商事案件,可以通过仲裁或民事诉讼得以解决.对此,人民法院不应裁定通过行政复议或者行政诉讼予以解决.行政机关不予审批的不作为行为以及当事人的意思自治是提起行政许可诉讼的两个基本要件.当事人对行政机关的正常行政许可行为不服不构成行政诉讼的标的,但构成行政复议的内容.当事人通过虚假或欺骗行为获得的行政许可,如本案的股权变更等,依法可通过向行政部门申请撤销得到补救.当事人只有在行政机关不作为不予撤销以欺骗行为获得的行政许可/审批时才应提起行政诉讼.     

Battle in the name of privacy and security: A comment on Tencent vs. Qihoo (Supreme People's Court of China 2014)

One strategy for companies competing in Internet industries is to attack the privacy and security problems of products or services provided by a competitor and then to deliver remedial software to attract consumers. The recent ruling of the Supreme People's Court of China (SPC) establishes legal constraints on this strategy, recognising that a company owes a high duty of care when criticising the privacy and security policies of its competitors and identifying the line between legal technological innovation and unfair interference with the business of competitors. This article provides a summary of the background, facts and court conclusions as well as relevant comments on the impact of this judgement and identifies the issues that require further clarification.