EU developments in IP,IT & telecommunications law

This is the latest edition of Baker & McKenzie's column on developments in EU law relating to IP, IT and telecommunications. This article summarises recent developments that are considered important for practitioners, students and academics in a wide range of information technology, e-commerce, telecommunications and intellectual property areas. It cannot be exhaustive but intends to address the important points. This is a hard copy reference guide, but links to outside web sites are included where possible. No responsibility is assumed for the accuracy of information contained in these links.     

Determining security level in forensic psychiatry: a tug of war between the DUNDRUM toolkit and the HoNOS-Secure

ABSTRACT

Criteria to determine in which level of security forensic patients should receive treatment are currently non-existent in Belgium. Research regarding the assessment of security level is minimal, and limited instruments are available. This study investigated the instruments that measure the need for security level: DUNDRUM-1 and the HoNOS-Secure. The psychometric properties of the DUNDRUM-1, DUNDRUM-2 and the HoNOS-Secure were investigated.

A random selection was made of 100 male forensic patients in prison. The DUNDRUM-1, DUNDRUM-2 and the HoNOS-Secure were scored retrospectively. A subsample of the files was rated by four researchers (n?=?38). Comparisons were made with the security level as decided by the court.

The DUNDRUM-1 achieved excellent inter-rater reliability, and the HoNOS-Secure and DUNDRUM-2 got a moderate score. The internal consistency was highest for DUNDRUM-1 followed by the HoNOS-Secure and was low for the DUNDRUM-2. Both the DUNDRUM-1 and the HoNOS-Secure predicted allocations by the court to high security.

The DUNDRUM-1 outperforms the HoNOS-Secure on psychometric properties and provides clear instructions with regard to the assessment of the security level. Training seems to be important for scoring the DUNDRUM-1. The current study provided more evidence for the applicability of the DUNDRUM-1 in Belgian settings with regard to determining the need for security.     

The Road to Uluru: Constitutional Recognition and the UN Declaration on the Rights of Indigenous Peoples

Aboriginal and Torres Strait Islander peoples have campaigned for reform to the Australian state for generations. Over the last decade, debate over constitutional recognition has assumed mainstream prominence as a series of parliamentary and expert bodies designed to raise awareness of the need for change, propose options for that change, and build a community consensus around those proposals, have been established. This article assesses the five public processes undertaken between 2010 and 2017. It explains that constitutional reform has been hampered by state ambivalence towards the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). However, it argues that that same state ambivalence created space for Aboriginal and Torres Strait Islander peoples to eventually take control of the debate, reframe it along their own priorities, and re-energise the movement for constitutional recognition. Even if prospects for a referendum remain uncertain, the Uluru Statement from the Heart has succeeded in building community consensus for a clear proposal because the UNDRIP informed and influenced its development.     

Interview, diagnostic, and legal aspects in the forensic psychiatric assessments of deaf persons

Forensic psychiatric assessments rely on many underlying presumptions concerning the language development and abilities of their subjects. Although these assumptions may apply across a culturally diverse group of hearing subjects, they probably do not apply to those who are prelingually deaf because such deaf persons never developed verbal language. In this article, a review of the range of literature focusing upon the unique aspects of interviews, diagnosis, and legal understanding of the deaf is conducted. An attempt to illuminate those features believed to be most relevant to forensic assessments of this unique population is made. The demands of interviews conducted in manual language are discussed and particular attention is paid to the impact of the interpreter upon confidentiality, privilege, agency, and the dynamics of the interview. It is also suggested that many of the baseline behaviors of the deaf may, at least partly, result from differences in communication style between the deaf and hearing. This article reports that many major mental disorders occur with the same frequency among the deaf and hearing and include many of the same symptoms. However, organic mental disorders may occur at a somewhat greater rate among the deaf because of the organic basis of deafness. Finally, the ways in which deafness and the use of an interpreter may influence the deaf person's ability to understand and relate to legal concepts and process are discussed. It is noted that many of these problems may arise from a deaf persons inexperience or undereducation about legal matters rather than psychopathology.     

American forensic psychiatrists who work in state institutions

The authors surveyed a sample of American forensic psychiatrists who work in state institutions. As a group, their respondents tended to be middle-aged, white men, who had little formal training in forensic psychiatry, felt somewhat alienated from their peers, yet who were Board certified in general psychiatry. They tended to be involved primarily in the direct treatment of patients, and most often expressed concerns about the care-and prominent lack of aftercare--received by forensic patients. They also perceived a sense of patient futility in the institutional forensic setting. The authors conclude by recommending that AAPL take a more active role in appealing to and representing such forensic psychiatrists.     

The new chain gang: Corrections in the next century

This article examines the operations and excesses of the correctional chain gang as a group of prisoners working outside a penal facility under armed correctional supervision and wearing chains or other restraining devices to prevent escape. We detail the operations and excesses of earlier chain gangs, identifying variables that contributed to the contemporary phase that emerged in 1995. Predicated on vengeance, retributive justice, and punitiveness, the chain gang represents yet another devolving standard of human decency in correctional policies. Future scenarios are explored.     

Natural gas deregulatin: The need for further reform

Like attempts at achieving effective regulation of economic activity where it is warranted, deregulation can entail hidden complexities and produce unintended outcomes. The principle that deregulation begets “second order” effects that may necessitate further regulatory reform is epitomized in the case of natural gas. This article shows how the partial deregulation of natural gas wellhead markets under the Natural Gas Policy Act of 1978 caused a variety of distortions to emerge in other segments of the industry. Because the distortions are mutually reinforcing, no single policy, such as immediate decontrol of “old” gas or subjecting pipeline companies to common carrier obligations, will solve all of them; rather an integrated program of regulatory reform is required. The article concludes by outlining such a program and commenting on how its implementation through administrative and legislative actions should be carried out in order to reduce the need for further reform in the future.     

Section 1983 litigation: An effective remedy to police misconduct or an insidious federalism?

In recent years the federal courts have experienced a dramatic increase in civil suits alleging police misconduct under the federal provision, 42 U.S.C. Section 1983, which was originally enactd as part of the Civil Rights Act of 1871. Section 1983, presently the second most litigated provision of the United States Code, grants a private right of action for redressing violations of federal and Constitutional rights committed by persons (including municipalities) acting under color of state law. The recent development of Section 1983 as a mechanism for controlling police misconduct has profound implications for New Federalism, public official conduct and traditional legal doctrines (such as the exclusionary rule). This study reviews the legal basis for civil liability remedies, examines the impact of recent developments on police behavior, and explores the policy considerations underlying an assessment of this expanding legal remedy as a viable option in preventing police misconduct.