Gogarty, Brendan --- "Editorial" [2011] JlLawInfoSci 1; (2011) 21(1) Journal of Law, Information and Science i

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Editorial

We are very pleased to be publishing the first issue of volume 22 of the Journal of Law, Information & Science. This issue covers a wide range of topics which fall under the rubric of technology and science regulation: from intellectual property, consumer law, e-conveyancing social science and climate science. The breadth of articles reflects the expanding remit of the journal over the last thirty years, since it was first published in 1981. This broadening perspective is discussed by Roger Brown (pp 1-6) who looks back at the journal’s history and considers its future. As his paper notes, this journal was originally designed to foster legal discussion of technological advances in a discipline which had traditionally prided itself on ‘ignorance of matters scientific’.

That said, law, science and certainly information science have long played a part in legal practice and have been core catalysts for its development, whether the legal fraternity has recognised it or not. So much is evident in Soren Friedrekson’s work, which reviews the 1856 trial of William Palmer, one of the first cases to place scientific evidence before a jury as the primary evidence to support a charge of murder. The case caught the attention of an international audience and marked the early integration of science, technology and law. What Friedrekson’s work reveals though, is that despite the novelty of that case, and the revolution it would bring about ‘many of the elements that are associated with today’s scientific testimony were present in this Victorian case’. He concludes that current controversies about scientific evidence are not particularly unique or novel, but rather echo earlier ones.

Indeed, despite the legal fraternity’s conservatism, the modernisation of law has been a necessary response to the advancement of science and technology, albeit one that lags behind a little. If there is one theme in this edition it is that technology rarely creates completely unique legal problems, despite initial perceptions to the contrary. It is therefore sometimes better to respond to such advances by modifying or extending existing legal systems, rather than creating new, specific or bespoke ones.

Dianne Nicol (pp 7-36) dedicates her work in this edition to the problem of counterproductive technological regulation — or, at the very least, a counterproductive debate about it — specifically as it pertains to gene patenting. Despite longstanding regulatory deliberation about the patenting of DNA, and many attempts to regulate or prohibit it, many attempts at law reform have been stymied to date. She argues that much of the reason for the regulatory failure is that the debate has not been informed by a proper evidence base. It seems that many have, perhaps erroneously, treated the patenting of DNA as a completely novel and unique issue, whereas it may not be. As she rightly argues, ‘[r]eform of the law must be considered against the backdrop of practical real world events as well as policy, theory and doctrine’. She frames her work against the backdrop of a decade’s worth of research which indicates that many of the concerns are misplaced and the desire to deal with DNA differently than other subject matters unjustified. As such, she questions whether concerns about DNA patents are based on any real risks posed by the technology and asks whether or not it is better to move on from an ‘ultimately futile debate’ and ‘let the market decide’.

Michael D’rosario, Andrew Torre, Danuta Mendelson and Lynden Griggs (pp 37-61) also examine the problems with overly specific and compartmentalised regulatory regimes, specifically those relating to software development. They point out that modern electronic/information technology markets are multi-sided and traditional, platform specific regulation is hindering cross platform application development. They argue that more flexible and more expansive regulatory and monitoring approaches of software development practices need to be designed for the benefit of both the consumer and the software developer community.

Gogarty’s work on climate change displacement similarly warns about adopting specific legal regimes when an existing framework already exists to deal with a scientific subject matter. He examines the new climate science data, which indicates that massive human population displacement is an inevitable consequence of climate change and, if unchecked, will have dramatic global humanitarian, security and environmental consequences. Whilst the most recent data is alarming, the displacement problems presented by climate change have been the subject of some discussion in recent years, with a number of authors arguing that a specific climate change displacement convention is the most appropriate way forward. Gogarty argues that this would be both futile and would serve to fracture existing frameworks on climate change which, subject to some modifications, are already capable of dealing with the problem.

That is not to say that we should sit idly by and not adapt the law to the problems posed by advances in technology and scientific knowledge. As lawyers and academics we must make considered, evidence based responses to the challenges presented by new technologies. Matthew Rimmer’s paper (pp 128-166) on trade mark law and counterfeiting identifies regulatory problems created by online auction houses selling products across international borders. By reviewing a variety of trade mark disputes against eBay Inc in a variety of countries, Rimmer is able to highlight major inconsistencies and loopholes created by the litigation of like offences in differing jurisdictions. He argues that this creates serious problems for consumers, vendors and governments and argues for a revision of trade mark law to take better account of the electronic marketplace.

Eugene Clark’s work (pp 62-88) on the other hand examines how technology can support the law rather than undermine it. He analyses and considers developments to the Australian National Electronic Conveyancing System (NECS). Clark considers the wide reform agenda of the NECS and how it promises to revolutionise the way conveyancers, legal practitioners, financial institutions, mortgage processors and other players involved in conveyancing go about their business. He does, however point out that there are some serious substantive and procedural challenges to the effective implementation of the system. These challenges can be extrapolated to e-government more generally and are indicative of the fact that, as much as we should be cautious about overstating the extent of the legal problems created by new technology, we must be cautious about its revolutionary benefits.

Finally Eric Fink’s paper (pp 89-111) examines the problems created by a technological system outside of jurisdiction, specifically the tensions created by people operating in the virtual world of second life. In particular, Fink examines the form of disruptive behaviour known as ‘griefing’ and how residents of second life have utilised and responded to it in the maintenance of social order there.

This is then an edition covering a wide range of subject matters across a range of jurisdictions, countries and even virtual worlds. What unifies these articles is the sense that science, technology and information have an increasing penetration into all aspects of human society and existence. Moreover, it is clear that previously separate fields are converging into mainstream life so that normative distinctions are generally meaningless. It is therefore nearly impossible for lawyers to either be, or pretend to be, ignorant of all matters scientific. Nor can law exist in a technological vacuum when the very society it oversees has become so reliant upon and integrated with technology.

These articles however, show us that we cannot become complacent about technological change or scientific knowledge. We must be mindful of their potential impacts and adopt an informed, appropriate legal response to them. We must remember in adopting that response that, despite how new technology is, it rarely creates completely new problems or completely new risks. Ultimately we must ensure that the law grows, expands and converges like its subject matter for the benefit of the society that both it and technology are meant to serve. For us, as a journal we will also endeavour to grow, expand and respond to emergent technology, but also recognise its increasing convergence and synthesis into mainstream life. That is why the remit of the journal has expanded beyond that of which Roger Brown speaks of thirty years ago.

We will continue to expand and adapt the journal, to ensure that it responds to the variability and unpredictability of its subject matter. We hope you will stay with us throughout all of our transitions and we hope you enjoy reading this current edition.

Brendan Gogarty

Editor