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JILT 2002 (2)


Contents

1.

Introduction - Issue 2002 (2) and the BIALL 2002 Award

2.

Consolidating Legal Education and Practice

3.

Research Skills in the Legal Classroom

4.

Privacies and Freedoms

5.

Authenticating Electronic Documentation

6.

Online Dispute Resolution

7.

Knowledge Management in Law Firms

8.

When Software Goes Bad

9.

Something for the Libraries

10.

Concluding Comments


Julie Moreton
BSc (Hons), Dip.IT
Production Editor, JILT
University of Warwick
j.moreton@warwick.ac.uk
 

1. Introduction - Issue 2002 (2) and the BIALL 2002 Award

Welcome to the second edition of JILT for 2002.

Firstly we are delighted to share with you the news that in June, JILT was awarded the BIALL (British and Irish Association of Law Librarians) Legal Serial Publication of the Year for 2002.

Barbara Tearle, President of BIALL and Chair of the adjudication panel, said at the award ceremony at the 2002 BIALL Annual conference, that JILT has:

'a real claim to originality in its conception, and pioneering in the use of the internet for quality journal publishing. It is a niche market journal whose content is varied, topical and of excellent quality within its specialism. It is relevant to various sections of the legal and information communities, and has articles of international appeal.

The presentation is crisp, clear and unfussy, and takes full advantage of the medium by being easily navigated and searched'.

The judges also drew attention to the fact that the publication was free of charge (BIALL Press Release, June 2002).

We would like to take this opportunity to thank the many authors for their excellent contributions and all the hard work that has gone into them over the years (including those that have not been published), the editorial and advisory team, and the referees who work so tirelessly to help to maintain the quality of the journal, and of course the readers (for obvious reasons!), without whom all this award would not have been possible. However, we do not see this as an excuse to rest on our laurels, and are always looking at ways in which can improve things further, so if you have any comments or suggestions, we would certainly be very pleased to hear them.

Well with that bit of good news out of the way, let us tell you what this issue has in store for you. This issue should be of particular interest to academics, practitioners and librarians, and includes seven refereed articles, six commentaries, a case note, some conference papers from the recent SubTech conference, book reviews, and software reviews. The authors, this time, are associated with institutions in Australia, Germany, Hong Kong, Iceland, Italy, The Netherlands, Norway, the UK, the US and Zimbabwe.

2. Consolidating Legal Education and Practice

'In Internet Galaxy, Manuel Castells observes that the information age challenges us to find avenues through which we as 'educators' can empower each individual in this new global communication enterprise with the capacity to process information and generate knowledge so that we may be able to realise our goals both as individuals and as members of a new global community' (Savirimuthu, 2002).

In July, SubTech 2002, the Seventh International Conference on Substantive Technology in Legal Education and Practice, took place at the University of Warwick. This is a major international conference that takes place every two years by invitation only. It is a chance for prominent academics, librarians and legal practitioners to come together to discuss the latest developments in law and IT.

Joseph Savirimuthu, Director of Law and Business at the Liverpool Law School, in his conference report gives an excellent summary of the conference proceedings.

The two keynote addresses were given by Professor Peter Martin, Director of the Cornell Legal Information Institute, and Professor Richard Susskind (OBE), the IT advisor to the Lord Chief Justice of England.

Peter Martin looked at some ways in which digital technology may improve access to education. In his paper 'From Seats of Learning to Globally Distributed Virtual Learning', Peter envisions a time when universities will have to creatively re-mold and re-market themselves as globally distributed virtual learning cells in order to keep functioning and evolving.

Susskind in his paper, 'Clicks and Mortals: Transformations in Legal Practice and Legal Education', examines how things have changed over the last few years in legal education and practice and what could be the possible outcomes for the next few years. He believes that we are not actually in 'the information society', as yet, but currently in a difficult transitional phase between the traditional print-based society and the IT-based society. A change in the 'information sub-structure', ie; the dominant means of creating and disseminating information will inevitably impact on legal practice and educational systems.

3. Research Skills in the Legal Classroom

There is a perception in academia and within law firms that students do not currently possess enough essential legal research skills by the time they graduate. This issue has been addressed by the Law Society's/Bar Council Joint Statement on Qualifying Law Degrees and the Quality Assurance Agency's Benchmark Standards for Law, which have both emphasised the need to improve research skills training at HE level. It is within this context, that the Centre for Law and Computing at Durham University was approached to develop a computer assisted learning package to provide students with more advanced training on the skills necessary for working on large legal research projects. Robin Widdison shows how Durham took the principle of the Iolis cd-rom authoring tool developed by the Law Courseware Consortium and attempted to customise it for the web.

IT enhances the learning process in many exciting and variable ways, and students and researchers in particular benefit from the speed and efficiency in which they can now obtain, collate and disseminate data - the 'information sub-structure' that Susskind refers to perhaps? The cut-and-paste facility has surely transformed the processes of information gathering and distribution like nothing else, but also brings with it new major issues such as the ability to plagiarise with impunity. Orlan Lee of the Hong Kong University of Technology and Science highlights how he has come across quite blatant plagiarism in some of his students' work and how for many students this practice is perceived as perfectly acceptable when obtaining the relevant qualification is seen as more important than the learning processes and skills involved.

4. Privacies and Freedoms

As the issues surrounding privacy become broader and more pertinent for companies and institutions involved in holding and using personal electronic data, the academic discussion moves into more specific arenas. We include several articles here highlighting some interesting international perspectives.

Firstly we go to Iceland. Einar Arnason, a Professor of Evolutionary Biology and Population Genetics, at the Institute of Biology, University of Iceland, examines personal identifiability in light of the Icelandic Bill and Act on the Health Sector Database (HSD). If the data is personally identifiable, the law dictates that a priori consent must be obtained from patients for the use of their personal medical information. However, the HSD Act presumes that one-way coding renders the data non-personally identifiable and therefore a priori consent is not required. Consequently this raises a number of significant potential problems that ?rnason investigates.

On the same theme, we have Philip Leith's review of Graeme Laurie's book - Genetic Privacy: A Challenge to Medico-legal Norms. The very ethos underpinning medical ethics is based on the liberal concept of 'the autonomy of the individual' (Leith). With genetic information, however, the emphasis is no longer purely focused on the individual but on the 'family of individuals' who may share certain genetic information, be it a traditional nuclear version, or the whole of a community - for example Iceland and Estonia have collated much significant research on their respective populations as they have recognised 'genetic purity'. Laurie goes into some detail about the dramatic changes occuring in genetic privacy, and although the book does not fundamentally change Leith's personal scepticism about the subject, he feels it provides a very valuable addition to the topic.

Next we move to Zimbabwe. Caroline B Ncube, from the Rowland Commercial Law Institute at the University of Zimbabwe provides an interesting overview of how the copyright protection laws in Zimbabwe apply to Computer Programs, Computer- generated Works and Databases. The law in this area is new and therefore has not been tested by litigation to date, but Ncube suggests some possible legal approaches, which are most likely to be influenced by European, US and Japanese legal decisions.

Then it's on to Germany where we look at the work of Wolfgang Schulz and Thorsten Held of the Hans-Bredow-Institute, Hamburg. The Institute, together with the Institut f?r Rundfunk?konomie in Cologne, have carried out some research on behalf of the ARD (The German Association of Public Broadcasters) on the prospects of guaranteeing free public communication for non-commercial services on the basis of German constitutional law. This brief commentary reviews the work but is not the final report which will become available in due course from the website of the Hans-Bredow Institute.

A view from the US is provided by Eric Bohlman, a solicitor from Swift, Popuch and Bohlman in Chicago, who through his article 'Privacy in the Electronic Age' gives a worrying account of how databases and personal information is or may be used if proper legal structures are not put in place.

And finally on this topic, we look at the delicate balance between individuals' privacy and corporations' attempts to protect their own name and reputation against defamation. Gregory J Naples, from the Department of Accounting, Marquette University in Milwaukee, along with Meredith Maher, a Graduate Research Assistant, examine the problem of 'cybersmearing' - the act of anonymously communicating false information about a corporation over the Internet, in an attempt to cause economic loss. First Amendment rights ensure that Internet users can communicate freely, but US States' Tort law ensures that corporations also have the right to protect their reputations. Although subpoenas are being issued to Internet Service Providers (ISPs) to reveal the identity of certain users, the courts are also having to be stricter in protecting First Amendment rights.

5. Authenticating Electronic Documentation

A fundamental precept of an efficient electronic commercial system is an inbuilt secure and reliable electronic authentication procedure and this is why electronic signatures have become such a significant part of the discourse.

Christina Spyrelli, from Strathclyde University compares the European and US legal approaches to digital signatures and asks whether there is a transatlantic bridge. She analyses the EU Directive on electronic signatures (1999) and the US E-Sign Act (2000) and assesses the transatlantic co-operation on both the governmental and business levels in relation to the possibility of achieving a full and working global consensus on electronic transactions.

Tommaso Scannicchio, from Bari, Italy and a Visiting Fellow at the University of Essex highlights a very important decision of the Italian Supreme Court of Cassazione. The admission of electronic evidence was proving problematic to practitioners and businesses engaging in international business, as the law provided for two different effects. After the judgment, it seems that electronic evidence now has the same value attributed to faxes, photocopies, etc, even if it does not bear any signature, whether that be digital or electronic.

6. Online Dispute Resolution

When businesses start trading online, they will inevitably have to re-address their branding issues. They need to ensure that their domain name is unique, and instantly recognisable as part of their trademark. This can be a particular problem when there are many companies trading with similar names in their URLs. J Rossa McMahon, from University College Cork examines ICANN's Uniform Dispute Resolution Policy (UDRP) and suggests that the the UDRP panellists have not been nearly rigorous enough in their consideration of 'confusing similarity and the non-distinctiveness of domain names', which could lead to a spate of international conflicts if not resolved properly.

Another angle on the online dispute resolution issue is offered by Julia Hornle, from Queen Mary College, University of London, in her article Online Dispute Resolution in Business to Consumer E-commerce Transactions. She looks at why e-commerce transactions with a consumer can be problematic and why an effective regulatory legal framework needs to be put in place to ensure due process in online dispute resolution, although she concedes it may be too early to implement at this stage.

7. Knowledge Management in Law Firms

A law firm can be understood as a social community specialising in the speed and efficiency in the creation and transfer of legal knowledge. Knowledge management was introduced to law firms to help them to create, share, and use knowledge more effectively. Information technology can play an important role in successful knowledge management initiatives (Gottschalk, 2002).

Petter Gottschalk examines the processes of knowledge management within law firms using a 'stages of growth' model. This comprises four stages: 1) the tools the knowledge worker uses, 2) information about who knows what in a firm 3) information from the knowledge workers and 4) the information systems solving knowledge problems. The model is useful for understanding where a particular firm is at with their knowledge management strategy and for developing future strategies for IT use within the firm.

Also in this edition we have details of Petter Gottschalk's new book, 'Knowledge Management Through Information Technology', as reviewed by Charles Oppenheim of Loughborough University. According to Oppenheim, the book offers some useful insights into IT strategy in Norwegian law firms. The book has been well researched and contains some original research into attitudes to IT within law firms and their clients and includes many citations which would certainly be useful to those with an interest in this specialised area.

8. When Software Goes Bad

When software fails to work as it should, this can have profound immediate, primary and secondary effects for many organisations and individuals who have come to rely on a system in which they have invested a great deal of time and money. The costs can be substantial to many parties and consequently huge legal lawsuits may ensue.

However, Mayur Desai et al, from Indiana University and the University of North Texas, in their article Information Technology Litigation and Software Failure, think that turning to the law to remedy these situations may be widely misunderstood. The problem may lie instead with the failure of the parties involved to fully understand the limitations of both their own and the other parties' products. The constant up-grades and slightly amended versions of software and hardware being released, can often result in minor misunderstandings as to the ability of a product to perform at a specified level, which can then become a major problem for the end user.

On this subject there is a pertinent review of Clarisse Girot's book - 'User Protection in IT Contracts: A Comparative Study of the Protection of the User Against Defective Performance in Information Technology', which is reviewed by Antoni Brack, of the University of Twente.

Girot asks if IT users are being adequately protected against computer malfunctioning? She suggests that there is an imbalance in most IT contracts where the layman is inexperienced in both IT and legal matters. Parties do not really negotiate IT contracts, they are in fact 'contracts of adhesion', and this therefore effectively allows such companies as Microsoft license to release less than perfect versions of their software. Brack has a few criticisms of the book, but generally he believes the book to be 'very well written with a professional wisdom that is seldom seen by an author of this age' (Brack).

9. Something for the Libraries

Finally we have three items that law librarians may find particularly interesting. The first one is an article from Peter Clinch, with details of the new FLAG project (the Foreign Law Guide). FLAG, created as a joint venture between the Institute of Advanced Legal Studies, the Bodleian Law Library, the British Library, the Squire Law Library and the School of Oriental and African Studies, is an internet database containing the holdings of foreign, international and comparative law in the national and university libraries in the UK. The article describes the background to the project, the structure and content of the database, along with future developments.

Following Clinch's overview, we also have an independent review of FLAG by Michael Dunne, the Law Librarian at Lancaster University. Although the database is described as a prototype, it has number of unusual features, such as being able to download software such as Microsoft's Virtual Machine. There are three searches available including, collection, advanced and library search and Dunne goes into the pros and cons of each. Generally Dunne found the database to be well designed and easy to use, his only main concern being whether enough resources could be found to keep it up to date.

Nicola Harwood, until recently, the Law Librarian at the University of Warwick provides a review of two other electronic law resources and these are Early English Books Online (EEBO) and the British Official Publications Collaborative Reader Information Service (BOPCRIS). Although EEBO is not strictly a legal resource, it does provide a lot of useful material for the legal researcher and is a good example of how technology can be used to enhance access to rare and fragile resources and BOPCRIS is another project which facilitates access to early British Official Publications (Parliamentary and non-Parliamentary), and as an RSLP/British Library Project the database is free.

10. Concluding Comments

As usual, we certainly hope you enjoy this issue, and of course we welcome any comments you may have on any of the articles or any other point.

The final issue for 2002 will be published in November. We are as ever keen to highlight new and important areas of research, so please contact us if you have a paper you would like to be considered for publication, be it an academic paper, commentary, information paper, a work in progress or book or IT review.

Please contact the Production Manager if you would like to discuss anything further or see the Submission Standards for further information. Papers for the next edition should be submitted by mid September 2002.


This Editorial was published on 20 August 2002.

Citation: 'Editorial', 2002 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/02-2/editorial.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/editorial/>.


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