Journal of Law, Information and Science
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by PETER SIVIGLIA
New York Lawyers Co-Operative 397 pgs
This is a delightful book which should be read by all lawyers and business people who are involved in the drafting and preparation of commercial legal documents. It is written by an experienced and witty New York lawyer and although the examples are exclusively from the US, the common sense principles of good drafting have universal application. Also, the examples utilised involve standard commercial agreements which are in wide use in most countries. They include: guarantees, partnership agreements, commercial letters of credit, promissory notes, license agreements, shareholders' agreements, acquisition agreements, options, purchase and sale of goods and other assets, and corporate authorisations. Two other notable features of the book are two chapters on negotiation and a chapter which provides exercises in drafting with suggested solutions.
As a teacher of Contract Law, I have read many books on drafting, but Siviglia's stands apart from most because of the wit, charm and humour with which the author makes his points. In essence, this book uses the art of story telling and clear examples to teach the practicalities of commercial drafting.
I conclude with two examples from the text, which will give readers a 'feel' for what is in store. The first is from the author's discussion of basic principles.
Following is one example of careful drafting. An employee was entitled to certain payments "on termination of her employment by the Company". The employee quit her employment and moved, claiming the payments. She read "by the company" as modifying "employment". The Company, on the other hand, argued that the prepositional phrase modified "termination", and since the employee left voluntarily, she was not entitled to the payments. Grammatically, the employee has the better argument. An adjectival prepositional phrase generally modifies the noun to which it is closer. But the issue is not free from doubt. From the employee's point of view, the language should have read "on termination of her employment with the Company." From the Company's point of view, the language should have read "on termination by the Company of her employment. Nitpicking? Yes! But one case and one party's money turned on this issue.
The difficulty in drafting is that the draftsman will tend to interpret the words which he writes to say what he intends them to mean rather than what they actually mean.
The second example comes from the author's 'Ten Commandments" of drafting:
4. Be extremely careful in the placement of modifiers, especially clauses and propositional phrases. . . .
Also, note the difference between the two statements below. It was only after the second or third reading, when I read the provision aloud, that I realized the "which" clause in the first statement might be construed to modify "contracts" instead of "renewals or extensions" as intended:
A. the fee will not be payable with respect to renewals or extensions of contracts which are concluded after the year 2000;
B. the fee will not be payable with respect to a renewal or extension of any contract if the renewal or extension is concluded after the year 2001.
Dr Eugene Clark, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
by CHRIS REED (Second Edition)
Blackstone Press 1993 329 pgs plus index
This second edition of Computer Law provides a valuable and up-to-date overview of legal developments in the computer law field. As such it nicely compliments the more comprehensive UK treatises exemplified by Colin Tapper's Computer Law and Stephen Saxby's Encyclopedia of Information Technology Law.
Individual chapters cover the following topics: Introduction to computer law, hardware contracts, software contracts, liability, copyright, patentability of computer software, design right and semiconductor chip protection, confidentiality, computer crime, challenges made by information to the law of evidence, electronic data interchange, data protection and EC Computer law developments. However, two important topics--electronic banking law and telecommunications law--have been omitted from the text because of their complexity and the author's view that the subject area was too large for a useful overview to be provided.
This is an especially useful text given the fact that computer law is no longer the province of a few experts who are trained in both law and computing. Not only have lawyers themselves made great advances in their use of technology, but technological developments have impacted almost every area of society. All lawyers--whether they specialise in an area like criminal law, commercial law, or administrative law; or work as general practitioners, will at some time need to be aware of the law relating to computers. Computer Law serves as a very useful introduction to lawyers, administrators and academics who want to learn about developments in this important area of law.
Dr Eugene Clark, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
by MARY ANN ALTMAN and ROBERT WEIL
Matthew Bender 1992 1000+ pages plus appendices fax: 518 462-3788
This text was first published 20 years ago and after numerous subsequent editions has now become a 'classic' in its field. This new edition is especially timely given rapid developments in the delivery of legal practice and increased competitive pressures on law firms.[1] Not only do the professional lives of lawyers depend upon good management, but poor management of legal services also detracts from the quality of services provided and frustrates the societal ends to which the legal profession aspires. While this book is a US text, the management literature and practical suggestions discussed are will be of interest to and have some relevance for lawyers everywhere.
Among the topics covered are: a general review of management principles applicable to the practice of law; legal organisations and their structure; organisation of the corporate and government legal departments; legal fees; controlling and planning for growth; time management for lawyers; professional corporations; personnel administration in the law office and other legal settings; office systems--what makes an office run smoothly or badly; legal practice finance and bookkeeping; computers and their application to law practice; word processing, fax, and other technology utilised in legal practice; legal secretaries and other legal assistants; changes impacting upon the legal profession; and the marketing of legal services.
Illustrative of the general relevance and usefulness of this text is s. 1.03 in the chapter on 'Management for Lawyers. The functions of management are described thus:
Good management for a professional legal services organization insures that:
(1) The work of clients is promptly and properly completed.
(2) Services are economical for the client and economically rewarding for the lawyers.
(3) The professional staff is kept informed of developments in law, and specialized learning is fostered and properly used;
(4) The staff is evenly loaded with work and each member of the staff has an opportunity for professional fulfillment.
(5) New lawyers are recruited in a planned and coordinated way, trained and integrated into the organization.
(6) Trained supporting staff is available and properly motivated and supervised
(7) Systems and procedures are developed and maintained effectively for the organization's needs; new employees are indoctrinated in them.
(8) Work is delegated downward through the professional, semi-professional, and supporting staff to the lowest competent level.
(9) Budgets, cash flow, salaries, and distributions are thoughtfully dealt with and unnecessary crises are avoided.
(10) The organization has a proper 'home' with changing needs properly anticipated.
(11) There is effective organizational and marketing planning and that adverse trends are spotted early and dealt with effectively.
(12) The efforts of all the individuals who make up the organization are given recognition.
(13) Compensation and other profit programs provide incentives to work for the good of the whole rather than for self interest only.
Subsequent chapters demonstrate how these management goals can be achieved. Similarly, the authors suggest that the following personal characteristics should be sought for managing lawyers:
(1) Interest. For better or worse, many lawyers are simply uninterested in the whole topic of management. Those who are not interested will not make good managers.
(2) Decisiveness. It's better to make some errors than to avoid making decisions. A good manager will assess a situation, make and implement a decision promptly, and move on to the next problem. A poor manager will make an inappropriate decision; or no decision--which is worse.
(3) Intellect. It requires intelligence to be a good manager. That is not usually the trait in which lawyer-managers are lacking.
(4) Controlled emotions. A manager cannot afford to become emotional or angry in business affairs. The manager must be able to make and implement difficult decisions, like terminating someone, and cannot let personal feelings stand in the way.
(5) Time commitment. It takes time and energy to manage an organization. Management time must take priority over other responsibilities like practicing law. Decisions may not always take long to make, but they generally must be made promptly.
(6) Training and experience. Universities confer advanced degrees in management as well as in law. Management involves many varied skills, drawing from such disciplines as economics, psychology, sociology and accounting. Experience enhances the manager's training, just as practice adds to the lawyer's knowledge. Self-administered training through reading and course attendance is a useful supplement to formal education.
(7) Leadership. Force of personality is required to obtain compliance with policies and decisions. Some have this ability, others do not. Those who wished to be loved and admired rarely make good leaders.
(8) Analytical ability. A manager must have the ability to analyze fact situations and arrive at an acceptable resolution to problems. A good manager does not act on hearsay or rumor, but instead searches out the facts before acting or reacting.
(9) Willingness to use power. A manager must be willing to assume and use authority. This does not mean controlling through dictatorial means, but rather utilizing power to get things done. A manager who is unwilling to use power is ineffective.
(10) Genuine interest in people. People are the building blocks that make an organization work. Thus, to be effective a manager must have a genuine interest in the people within the organization. If all the other desirable characteristics are present but good human relations skills are missing, the manager is likely to fail. Training in the techniques of managing people should be acquired if it is needed.
(11) Ability to communicate with others. A good manager must be able to communicate with, train and teach others. He or she must enjoy communicating knowledge to others and training other managers within the organization.
(12) Ability to receive communications from others. A manager must be a receiver of information from others. To perform this function successfully, he or she must be a good listener. A manager must be able to look beyond the words spoken to the actual message being conveyed so that the response will address the real issue needing attention.
I agree with the comments in the forward which proclaim that this is a book to be read and re-read periodically by practicing lawyers, whether they be in private, corporate or government practice.
Dr Eugene Clark, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
by V. MITAL and L. JOHNSON
Chapman and Hall London 1992 distributed in Australia by Thomas Nelson Australia
The two authors, one a lawyer, the other a computer scientist have set out to explain to practising solicitors and barristers, law and computing students and those involved with the development of artificial intelligence systems, the use of computer software within the judiciary.
Chapter one offers a general introduction to the area. This part is an excellent overview of the subject and to someone unfamiliar with the area, such as this reviewer, provided a solid foundation to the basic principles.
The book is then divided into two major parts.
The first, headed Technological Foundations covers the tenets behind knowledge systems and object-orientated representations. For example chapter three covers rule-based systems which while extremely popular do have serious limitations particularly in more complex matters. The manner in which these limitations can be overcome is discussed. The final two chapters in this part considers the issues behind the practical development of knowledge systems. These matters are how the information is to be acquired, what principles need to be followed in design, what commercially available tools are available for development and how the development is likely to occur.
The second major part of the book concentrates on the practical applications of computer systems in the legal office. Four major aspects are discussed; document assembly systems, litigation support systems, legal reasoning systems and neutral networks. Each area contains a summary of the benefits for the advocate in the use of computer systems and each chapter begins with a detailed abstract of the area to be covered.
This book is described as being concerned with the way lawyers work with information. It achieves far more than a simple discussion of this. It constitutes a very detailed expose of the many possibilities of the use of computer systems in a legal office. The book will appeal to the computer illiterate as well as those with detailed knowledge. The subjects are traversed in such a way as to be readable to those with no background knowledge but still detailed sufficiently for people with technical expertise.
The formatting of the test is to be applauded. The use of summaries, headings, diagrams, flow charts and the signposting of what is ahead makes the book enjoyable to read and easy to follow.
Overall the book is highly recommended to people working in either the legal or science field.
Lynden Griggs, Lecturer in Law, University of Tasmania.
BOOK REVIEW
by BB SOOKMAN
Carswell Toronto (Looseleaf service, regularly updated) Cdn $170.00
There is no doubt that computers are a part of our everyday lives. As the author states “From the cradle to the grave our activities are influenced, tracked, recorded, and controlled by computers.”(p.1-1). What this looseleaf service does in to comprehensively address many of the legal issues that have arisen because of the arrival of computer technology. The service whilst being Canadian in origin does include significant case law from other jurisdictions thus giving the service a wider focus than just Canada. Included are a number of appendices including the European Community Council Directive on the Legal Protection of Semiconductor Products, The Copyright (Computer Programs) Regulations 1992 (United Kingdom), the Canada - United States Free Trade Agreement and the Copyright Amendments Act of 1990 (United States). The text also contains a chapter of definitions which for the uninitiated in this area is exceedingly important.
The substantive part of the service consists of chapters on Contracting for Computer Hardware and Software and Related Services; Copyright Protection; Trade Secret Protection; Trade-Marks, Passing Off and Unfair Competition; Patent Protection for Computer - Related Technology and Criminal Law Protection.
The expansive detail of the monograph can be seen by noting the contents of just one chapter. The part on Trade Secrets Protection includes an introduction, the advantages and disadvantages of trade secret protection, bases for protection, an analysis of to whom the duty is owed, what secrets are protected, the status of computer software and hardware, the secrecy requirement for protection, the rights and obligations of employees and remedies for misuse of trade secrets. Each chapter is treated with similar comprehensiveness.
The chapters contain numbered paragraphs with many sub-headings, thus allowing the reader to quickly find the areas of interest. The style of writing is to provide some commentary followed by detailed discussion of the important cases.
This looseleaf service is a very professional, quality production. People who are directly involved in this area will find it an invaluable reference.
Lynden Griggs, Lecturer in Law, University of Tasmania.
BOOK REVIEW
by MEAGHER GUMMOW and LEHANE (THIRD EDITION)
Law Book Company 1992 960 pages
To the law student, equity is regarded as one of the most difficult subjects of the law degree. Unconscionability, estoppel, fiduciary relations, confidential information, the fusion debate and equitable remedies continue to confound and confuse the most able undergraduate. This comment cannot be limited to students; legal practitioners, academics all struggle to understand the principles of equity. Whilst no text on equity can ever hope to clear the muddy waters, this book goes a long way towards alleviating many of the problems.
The book is divided into eight parts; the background of equity, the basic concepts of equity, assurances and assignments, unconscionable transactions, remedies, deceased estates, equitable defences and miscellaneous doctrines.
In part one a detailed introduction is given to the history of equity, the Judicature Act and the maxims of equity. Consideration is given, not only in this chapter, but throughout the book to differences between state jurisdictions.
In part two equitable estates and the fiduciary relationships are discussed. In this part, as with the whole treatise, the standard of the text is exemplary. There are detailed references to the primary authorities with citations given to the subsidiary precedents. The use of sub-headings, lists of propositions all assist the reader in obtaining an understanding of the law.
In considering equitable assignments the authors have carefully structured the chapter so as to guide the student, lawyer and academic through an extremely difficult area. Attention is also provided to some of the lesser known doctrines such as subrogation, contribution and marshalling.
In the category of unconscionable transactions the authors consider fraud in equity, innocent misrepresentation, mistake in equity, undue influence, catching bargains, estoppel in equity and penalties and forfeiture. In the chapter on estoppel the authors state that the task was "to identify the roots of various distinct species of estoppel, to discuss those with which equity has been particular concerned, and to attempt to indicate what sure footing is provided by the recent authorities." As any teacher of equity realises, this is no easy chore, but this treatise, as far as possible, completes the task.
Part five gives a detailed account of the equitable remedies including restitution, damages in equity, account, delivery-up and receivers.
The section of the book dealing with deceased estates looks at the Rule in Strong v Bird, Donations Mortis Causa, Satisfaction, Ademption and Performance, the equitable defences are considered in part seven and in part eight a number of miscellaneous doctrines including confidential information, passing-off and restrictive covenants are raised.
There is no doubt that this text continues to maintain the high standard of previous editions. The depth of coverage in terms of the case-law and the statute is significant, the exposition of relevant principles clear and thorough. For practitioners of equity, students of the subject, and their teachers, the book is an invaluable reference. For students studying equity for the first time its comprehensiveness will be somewhat daunting; but this is only a reflection of the complete coverage given to equitable doctrines and remedies in this outstanding monograph.
Lynden Griggs, Lecturer in Law, University of Tasmania
BOOK REVIEW
by MICHAEL BRIDGE
Blackstone Press Ltd 1993 158pp
The author comments in the preface that “Personal property constitutes a great part of the nation’s wealth and personal property law is a vital part of the law curriculum. Although it is an indispensable foundation for the study of core subjects, such as trusts and crime, as well as the commercial law options, and a necessary complement to the study of land law, personal property law has not been given the attention it deserves.”(p. vii) This is a comment that the reviewer entirely agrees with. Indeed the increasing importance given to personal property can be reflected with the law curriculum at the Faculty of Law, University of Tasmania. In the last three years the full year Land Law course was altered to a full year Property Law course encompassing real and personal property. Having been given the role of teaching in this area, one quickly appreciates the lack of suitable texts on personal property, whilst real property is covered more than adequately.
Chapter one considers the meaning of personal property. It discusses the distinction between real and personal property and progresses to consider the various categories of personal property, such as choses in possession, choses in action, pure intangibles and documentary intangibles. Money as an item of property is also given special attention. The chapter concludes with a discussion of what is a property right.
The structure of this first chapter, and indeed the whole text, is clear with numbered paragraphs, sub-headings and further references being incorporated into the body of the text. The commentary is simply written and followed by a discussion of relevant cases. Importantly sufficient facts of the cases are given to obtain an appreciation of the holding; a point that is lost on many textbooks.
Chapter two is titled “Interests in chattels” and looks at the topics’ possession, ownership, bailment and transferring possession.
The next chapter examines the protection of property interests and chapter four the conveyance. The actions of trespass and conversion are discussed as are the remedies. Bridge considers the means by which chattels are conveyed under the headings of sale, gratuitous consensual transfers and transfers by operation of law.
The chapter on transfer of title examines the issue of whether a transferor can pass a title superior to that which he/she holds to a transferee. In this context the nemo dat principle is raised as are the exceptions to that rule.
Chapter six considers the issue of the transfer of intangible property and chapter seven provides a brief introduction to security interests such as liens, pledges and mortgages.
Overall this monograph provides an excellent introduction to the law pertaining to personal property. It was designed to provide the core principals of the subject and this is a mission that it fills admirably. The text being English its relevance to Australia is limited, (the majority of authorities being English) and as such it could only be used as a reference in this country. What the text does is to emphasise the need for publications of this sort to be produced in Australia.
Lynden Griggs, Lecturer in Law, University of Tasmania.
BOOK REVIEW
by ALAN PANNETT
Blackstone Press 1992 163 pgs $A38
This book is part of Blackstone's Legal Practice Handbooks series. Other titles cover: Advocacy, Effective Communication, Effective Interviewing, Legal Research, Legal Writing and Drafting, Negotiation Skills, and Personal Management Skills.
Managing the Law Firm provides a very useful introduction to the issues involved in the management of a law firm. Individual chapters cover: 1) the foundations of management as applied to legal practice; 2) human resources (planning, recruitment and selection); 3) professional development and appraisal; 4) communications; 5) information technology; and 6) finance and business planning. Chapter 7 brings together all of the previous chapters in the form of a series of checklists which can be utilised to conduct a management audit of a law practice.
Dr Eugene Clark, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
by IWAN DAVIES
Blackstone Press 1992 501 pgs $A49.50
This student text is divided into six major parts reflecting the various stages in the distribution process. Part 1 looks at the historical development and conceptual framework of commercial law. Part 2 examines the sale and supply of goods. Part 3 considers the topics of credit and payment. Part 4 deals with secured financing. Part 5 covers corporate insolvency and Part 6, resolution of commercial disputes.
Textbook on Commercial Law is a highly readable text which will serve as an invaluable aid to students in law, accountancy, economics and business as well as to practitioners in these disciplines who want to update their knowledge of commercial law.
Dr Eugene Clark, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
GRAHAM GREENLEAF and ANDREW MOWBRAY
Australian Institute of Judicial Administration Carlton South Vic 1993 Bibliography
This Report was funded by the National Crime Authority and prepared under the aegis of the Australian Institute of Judicial Administration. Its purpose is to investigate and make recommendations concerning the application of information technology by Australian courts in complex criminal trials. However, as pointed out in the Forward to the Report, its practical implications extend far beyond that context and are of relevance to any complex type of litigation. The Report is intended to be complementary to the recent AIJA Publication by Professor Mark Aronson on reforming the rules of evidence and procedure in complex criminal trials (Aronson (1992)). It therefore proceeds on the basis that Professor Aronson's recommendations will be implemented. The Report does not involve any new empirical research into the uses of particular information technologies. Rather, its recommendations are based upon existing research and experience, both international and Australian.
The Report commences by explaining its own parameters, and justifying its focus on 'complex' criminal trials rather than complex fraud trials. It notes that complex criminal cases encompass both 'witness cases' and 'document cases', and that the complexities of both types of case may be reduced by reliance upon computerised information technologies, although there may be differences between the two categories in the technology most appropriately utilised. Brief consideration is given in this part of the Report to the problems generated by complex trials, the implications of these problems for the parties involved, for the operation of the criminal justice system and for public confidence in that system, and the possible causes of these problems. Significantly, the Report notes that a multitude of factors have been identified as possibly contributing to the problems of complex trials, only a small percentage of which are likely to be ameliorated through the use of information technology. The Report, therefore, makes no grandiose claims for the extent to which information technology may alleviate the overall problem in these cases. Instead, it recommends a follow-up investigation of the use of such technology in selected complex trials like the Rothwells trial in Western Australia. The major benefits identified as deriving from the employment of information technology fall into six broad categories: efficiencies in pre-trail preparation; increased understanding of the case by the parties; efficiencies in managing court time; efficiencies in presentation of the evidence; increased understanding of the evidence by the jury, and increased understanding of the case by the judge. These different categories are discussed in subsequent Chapters of the Report.
Next, the Report briefly surveys the key technologies usefully employed in complex cases, giving a basic introduction for those unfamiliar with these technologies. Again, each of these technologies are examined in detail in subsequent chapters. Chapter 4 deals with the provision of transcript in computerised form; Chapter 5 with the management of exhibits and other documents (document control data bases, free text retrieval and image retrieval); Chapter 6 deals with the use of presentation graphics and summaries to simplify issues for the jury; and Chapter 7 details procedural matters concerning document management. Finally, Chapter 8 considers three matters fundamental to the successful implementation of the Report's earlier recommendations: first, how those involved can best be educated in the use of court technologies; secondly, how and what standards should be set in their use; and thirdly, how court rooms can start to accommodate the technologies appropriate to complex trials.
In all, the Report makes 58 recommendations concerning all the matters dealt with. Their basic thrust (simplified to the power of forty) is that each jurisdiction in Australia should have one court equipped with standardised technology for handling complex criminal trials, and that agencies involved in complex criminal trials should co-operate in and co-ordinate their use of information technology to advance developments throughout Australia.
A useful summary of the matters contained in the Report, mentioned here has been provided by its authors for the Australian Law Journal, 'Information Technology and the Law' column (Greenleaf and Mowbray, (forthcoming at the time of writing this Review)). Accordingly, this information will not be repeated here. Instead, I will briefly mention three particular problems which may arise from the use of information technology in complex criminal trials. I stress, however, that the Report does not gloss over or attempt to dodge any of the difficult issues arising in this area. Nevertheless, some of the difficulties alluded to may have warranted consideration in great depth to allay any fears they may generate. One of the major problems posed by the use of information technology in criminal trials is its potential unequal availability to prosecution and defendants. The report stresses that, unless considerations of fairness to the defendant are kept firmly to the forefront, the Courts will reject the use of information technology by the prosecution. For example, where the use of presentation graphics and computerised summaries of the evidence are concerned, the Report notes that to prevent injustice the defence may need to use its own presentation techniques. To overcome the difficulties posed for many defendants by inadequate financial resources the Report recommends that the prosecution should consider making available to the defence any software it intends to use for presentation in court. The Report argues that the use by the defence of its own presentation techniques may not only be desirable in its own right but will also assist to counter any jury impressions of David vs Goliath contests.
Access to facilities, however, is only the beginning to achieving equity between defence and prosecution in this regard. Prosecutorial agencies which utilize such facilities on a regular or even on a semi-regular basis are likely to achieve a degree of expertise in their tactical as well as technical operation. Legal practitioners, on the other hand, who do not have equivalent experience in their operation may not be able to utilise them to their full advantage either in the construction of their own case or in the destruction of the prosecution's. In such cases, not only does the use of such technology potentially place the defendant at a disadvantage, it also provides law enforcement agencies with another weapon in their burgeoning armoury. It is the writer's view that the Report does not sufficiently address this aspect of the problem or how it might be overcome.
With regard to litigation support facilities, similar problems arise where non-financial defendants or small legal practices are concerned. In this regard, the Report recommends that legal aid providers should make available litigation support facilities on a 'bureau' basis to members of the private profession acting in legally aided cases. In other cases, departments or agencies responsible for the provision of information technology to courts should be encouraged to provide parties with access to litigation support facilities developed for the Courts on a cost recovery basis. These recommendations forget the vast number of defendants who neither qualify for legal aid nor are able to afford anything but the bare minimum in legal representation, if that.
Another matter of concern raised by the use of information technology in criminal trials is the juries' access to computerised material. The Report deals with a range of problems this poses including the possibly improper use the jury might make of such material, and the danger that jury deliberations may be skewed in favour of computer literate jurors. One problem which the Report does not address in this regard, however, is the problem of undue weight being accorded to computerised material simply because it is computerised. This problem probably arises particularly where presentation graphics and summaries simplifying complex evidence are concerned. The problem of juries according undue weight to particular types of evidence simply because of the form it takes has long been recognized. Such has been the case with certain documentary, technical and expert evidence. There must be a very real danger that this same problem could arise with computerised material. In other words, juries may be mesmerised by the technology, (i.e. by the presentation of the material) and abandon their critical faculties when considering its substance. They may assume the accuracy of the material or evidence because of the technology marshalled to present it. Such a problem may be overcome partially if trial judges are alert to the possibility of its existence and give appropriate directions to the jury. It is a concern which is also likely to dissipate over time as computer technology becomes more widely utilised in the community.
Finally, there is the problem which the Report does address in detail - the overcoming of resistance to the use of information technology by the legal profession. The establishment, in accordance with the Report's recommendations, of an Information Technology Service with, inter alia, educational, information dissemination, consultancy and standard setting functions, should do much to overcome this problem. However, it is this reviewers contention that the success or failure of all recommendations contained in the Report hinge upon the successful implementation of this particular recommendation. Without this, familiarity with and understanding of information technology will remain the preserve of a minority in the legal profession. Its application to complex criminal trials will be in danger of proceeding in an ad hoc, non-integrated fashion generating more long-term problems (including financial ones) than it solves.
Apart from the few problems raised here there are no doubt others which will emerge during any debate which it is hoped that this very impressive Report will generate.
This Report has many strengths. It is lucid and readily understandable, even by those who have limited computer literacy. Its recommendations are practical and clearly based upon a sound and thorough knowledge of the subject matter, its problems as well as its benefits. It deserves to be widely read, widely debated and its recommendations widely implemented.
The final matter to note is that this is the first AIJA publication to be published in computerised form as well as print. On disc, the Report can be searched with free text retrieval and browsed in hypertext using the DataLex Workstation provided by the authors to the AIJA.
References:
Aronson, Mark I. (1992) Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure, Australian Institute of Judicial Administration, Carton South, Vic.
Terese Henning,. Lecturer in Law, Law School, University of Tasmania.
by COMEGYS WALKER B
New York City Practising Law Institute 1992 399pgs plus indexes
In a world market which is becoming increasingly competitive, a practical book on compliance with competition or antitrust law is both timely and relevant.
The book is divided into eight chapters. Chapter 1 presents a basic overview of US antitrust law within a context of economic theory and regulation. Chapter 2 turns from substance to procedure in examining the enforcement of antitrust laws by federal and state governments as well as by individual and private plaintiffs.
Chapter 3 makes a very persuasive argment for the adoption of compliance programs by small and medium size businesses as well as large organisations.
The implementation of a compliance program begins with a competition law 'audit.' Chapter 4 discusses the procedures entailed in such an audit and describes how such an audit would be conducted in small, medium and large organisations. The points discussed are illustrated with many apt examples. The author also provides readers with a very useful antitrust audit checklist.
Having conducted the initial competition law audit, the next step is the construction of an effective competition law compliance program--the subject of Chapter 5. Again, the author distinguishes between compliance programs appropriate for large, medium and small organisations.
Chapter 6 presents some model written antitrust or compliance statements; while chapters 7 and 8 addresses the practice of antitrust compliance programs from the perspective of inside the organisation and the rewards of an effective compliance program.
The book concludes with very useful appendices which present a schedule of compliance forms and sample documents.
The author is to be commended for writing a book which appeals to audiences at three levels. This Antitrust Compliance Manual is a very useful and practical work which should be on the shelf of antitrust lawyers, business executives and members of professions who will increasingly be concerned with competition law issues. Tthough based upon US antitrust law, it will nevertheless also be of interest to legal and business professionals in other countries, such as Australia and the EEC, as they come more and more to compete in a domestic and world markets in which compliance with competition laws becomes increasingly important.
Dr Eugene Clark, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
by TOM COCHRANE HD ELLIS SL JOHNSTON
Canberra, Australian Government Publishing Service 1993 140 pages including appendices.
As we forged into the next century, the usage of computers in education is continually increasing from primary school through to higher education. In the recent past and now, computer based education (CBE) has been the subject of debate - Is it cost effective? Do we replace teachers? Should we implement CBE?. And the debate goes on. One university is no longer debating the issue but has taken action to implement CBE.
This book is a report based on an investigation and evaluation of computer based education in Australian higher education. The focus of the study was on Queensland University of Technology (QUT), a university in centre city Brisbane during the period 1986 - 1991. The book is divided into six chapters.
Chapter 1, The Establishment of Computer Based Education at the Queensland University of Technology, is an introductory chapter that describes the development of CBE at QUT. The chapter begins with a brief discussion of higher education and information technology followed by some biographical information about QUT. The balance of the chapter is about the development of CBE for the period 1985 - 91. It began with a survey of 600 universities throughout the world. On the basis of the survey, it was decided that the pedagogical role of the computer would be secondary and not primary. The emphasis would focus on support and partial replacement for tutorial activities in large introductory classes and not a substitution for lectures. In the concluding pages of the chapter favourable results of an evaluation are presented.
Experience Elsewhere - A Mixed Verdict, chapter 2, was a literature review of other CBE programs around the world. The themes centred on overall effectiveness of the application of computers to the educational process and concerns of cost effectiveness and educational productivity. QUT undertook a nationwide survey as well in 1991. The results of which were presented in the chapter. The study explored a number of areas including student usage, academic staff involvement, hardware used, discipline areas and staff involvement in production and delivery. The general response was that CBE had been successful.
Another area of great importance is the student perspective, the subject area of Chapter 3. As part of the evaluation of CBE at QUT, the student perspective was explored using focus groups and by survey. The purpose was to identify who the student is, what they used and how the used it, their likes and dislikes and their overall assessment of CBE. In general, students were happy with CBE but wanted more and better facilities.
Next, The Academic Staff Member's Perspective, Chapter 4, investigated QUT's teaching staff. They were surveyed and interviewed as well. The lecturing staff positive comments included the benefit of students working at their own pace, immediate feedbacks, its flexibility, freeing of lecturer and tutor time and demonstration of difficult material. There were also some drawbacks. They included the time taken to develop a project, bugs in programs, physical facilities, and lack of student collaboration when using the material.
QUT - The Management Perspective, Chapter 5, deals with management issues, particularly, the financial aspects of implementing and running a CBE program. Some of QUT's financial background was presented along with a comment that any attempt to justify a CBE program on economic grounds only was shortsighted. The central issue should be based on one of productivity, ie getting better quality education for the same dollars.
The purpose of the study was to assess the impact of computer based education on higher education by examining a particular university and Chapter 6, the Conclusion, provides a very brief comment of the study.
In summary, Computer Based Education in Australian Higher Education represents a current study in the area and should furnish other institutions of higher learning who are contemplating a move in that direction or seeking to improve an existing situation some valuable insights into computer based education. It will also provide some interesting reading for those who are interested in education and the direction that new technology is taking.
Pat Clark, Department of Accounting and Finance, University of Tasmania.
BOOK REVIEW
by JA KEUSTERMANS and IM ARCKENS
Matthew Bender ( contact Erin Breslin) 1992 looseleaf volume (updated) $160.00 (US) Fax No. 518-462-3788
The cover to this looseleaf text describes it as a practical guide to the International Distribution and Protection of Software and Integrated Circuits. The volume more than adequately fulfils this objective.
The volume is divided into six Parts. Part 1 deals with the technological background and provides a useful summary for persons not familiar with computer terminology. This part, combined with the glossary, is a welcome introduction to what can be complex area of law.
Part II deals with general legal issues in International Distribution of Software and Integrated Circuits. There is a detailed discussion on export controls with particular emphasis on the position in the United States. The chapter on import issues concentrates on the basic principles pertaining to government action against predatory pricing and subsidies by foreign governments. Special attention is given to the United States and the European Community. An overview is then given of the antitrust laws in the United States, the European Communities and Japan. This part concludes with a chapter on international taxation.
Part III considers the International Protection of Software. The various methods of the protection of proprietary interests in computer software, such as the criminal law, patent, trademark, copyright and trade secret laws are discussed. The national copyright protection systems of over 50 countries is also briefly analysed. Furthermore the primary clauses in the international copyright conventions, such as the Universal Copyright Convention, the Berne Convention and the Buenos Aires Convention are analysed. Particular attention is given to the protection of software by copyright.
Part IV is titled International Protection of Integrated Circuits. Closely examined is the Semiconductor Chip Protection Act of 1984 (US), the European Community Council Directive on the Legal Protection of Topographies of Semiconductor Products as well as the Japanese provisions. Consideration is also given the protection in 11 other countries.
Part V contains sample agreements for international software contracts. This, for the practising solicitor and business person is extremely important.
Part VI looks at the area of the protection of privacy. International regulations in this area such as the Council of Europe Convention, the O.E.C.D. guidelines and the EEC policy are discussed. There is no doubt that this area has become increasingly important as society has moved from an industrial based society to an information based community.
For any person working in this area this volume is essential. It provides a summary of the basic principles in this area as well as directing the reader to more detailed articles and texts. Furthermore the very extensive appendix and detailed bibliography are an excellent resource aid. The referencing throughout this volume is of a high standard. Overall this volume can only be highly recommended.
Lynden Griggs, Lecturer in Law, University of Tasmania.
BOOK REVIEW
HUGUES G. RICHARD and LAURENT CARRIERE(eds)
Carswell, Toronto, 1993 (Can$265) Ph: (416) 298 5094
Given the long-recognized and increasingly important international dimension of copyright law, the Canadian Copyright Act, Annotated is likely to find a wide audience, not only in Canada but worldwide. The Canadian Copyright Act, Annotated is a looseleaf, three volume set which adopts a practical approach to copyright law and is intended to complement the more academically-oriented works presently available.
The work proceeds through the Canadian Copyright Act, subsection by subsection. Each subsection is set out and then dealt with under the following ten headings:
(1) Related sections
(2) Related regulations
(3) Prior legislation
(4) Purpose
(5) Commentary
(6) Case law
(7) List of cases
(8) List of authors
(9) Comparative legislation
(10) Varia
This arrangement enables the authors to present a vast amount of material in a logical and user-friendly manner.
Heading (5), Commentary, discusses the application and interpretation of the subsection under Canadian law. The real strength of the publication, however, lies in the comparative approach which it adopts, particularly in headings (6) to (9) inclusive. Under these headings, the authors present case summaries or extracts, case lists, bibliographies and legislation covering not only Canada but also the United Kingdom, the United States, Australia and New Zealand, and, occasionally India and South Africa. Hundreds of leading cases from all jurisdictions are summarized or extracted. Of the thousands of cases and reference materials listed, well over half are from common law jurisdictions outside Canada. Sections of foreign copyright legislation equivalent to the Canadian section being considered are extensively reproduced.
As the authors note, the globalization of the marketplace for copyright materials means that it is increasingly important for Berne Convention members to be aware of developments in other jurisdictions. The Canadian Copyright Act, Annotated serves that end by providing a valuable comparative reference to copyright law in Canada and other leading common law jurisdictions.
Anne M. Fitzgerald, Lecturer in Law, University of Tasmania at Hobart
[1] For example, in Australia, the Trade Practices Commission has just released a major report on the legal profession and the need to remove barriers to competition.
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URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/1993/27.html