Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

This chapter argues that the fortunes of feminism in the Australian legal academy are closely intertwined with the prevailing political ideology. Social liberalism, with its commitment to egalitarianism, a robust civil society and a modicum of tolerance for the Other coincided with the flowering of second wave feminism. This led to the appointment of feminist academics in law schools and the incorporation of feminist perspectives into their teaching. In contrast, neoliberalism, with its aggressive entrepreneurialism and promotion of the self, encouraged sloughing off a commitment to feminist values. Taking its cue from neoliberalism and reacting against the second wave, postfeminism initially also resulted in a depoliticisation and a turning away from collective action, but signs of a revived feminism caused neoliberalism to move in quickly and colonise it. Mirroring the values of neoliberalism, this incarnation of postfeminism, which one might term ‘neoliberal feminism’, encouraged entrepreneurialism and productivity, particularly on the part of upwardly mobile individual women. It also resonated with the neoliberal law school where students were anxious to secure a position on the corporate track in light of mounting tuition debts and increased competition. More recently, there has been a reaction against neoliberalism which has, once again, brought with it a revived incarnation of feminism and a progressive understanding of the ‘post’.

The fandango in the title carries with it not only the idea of different movements, but also variations in tempo, and even a change of partners. The metaphor is designed to encapsulate the character of the dance between the prevailing political ideology and feminism, and the way that it is reflected in the legal academy. The fandango also refers to the more fluid relationship between feminism and its ‘post’. With postfeminism, we see a constellation of performers, some moving backwards and others forward, often at the same time, which highlights its ambiguity and elusiveness. In adopting a temporal trajectory, this chapter seeks to problematise the ‘post’ in postfeminism, underscoring how it may be simultaneously both reactive and progressive according to the constellation of values that prevail at a particular moment in time.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Towards the Uberisation of Legal Practice

Author(s): Margaret Thornton

Uber and Airbnb signify new ways of working and doing business by facilitating direct access to providers through new digitalised platforms. The gig economy is also beginning to percolate into legal practice through what is colloquially known as NewLaw. Eschewing plush offices, permanent staff and the rigidity of time billing, NewLaw offers cheaper services to clients to compete more effectively with traditional law firms. For individual lawyers, autonomy, flexibility, a balanced life, well-being and even happiness are the claimed benefits. The downside appears that NewLaw favours senior and experienced lawyers while disproportionately affecting recent graduates. This article draws on interviews with lawyers in Australian and English NewLaw firms to evaluate the pros and cons of NewLaw.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Women Judges, Private Lives: (In)Visibilities in Fact and Fiction

Author(s): Margaret Thornton, Heather Roberts

Once unseen, women are now visible in increasing proportions on the bench in common law courts, although this reality has generally not percolated into fictional worlds, where ‘the judge’ is invariably male. Fiona, cast by Ian McEwan as the protagonist, in The Children Act, is a notable exception. In the novel, McEwan directs our gaze beyond the traditional separation of judicial identity into public/private (visible/invisible) facets of life and raises questions regarding the impact of life on law, and law on life. This article draws on McEwan’s work to illuminate a study of how judicial swearing-in ceremonies tell the stories of Australian women judges. At first glance, this may seem an unusual pairing: The Children Act is an international best-selling work of fiction whereas the official records of court ceremonial sittings are a somewhat obscure body of work largely overlooked by scholars. However, the speeches made in welcome in open court on these occasions by members of the legal profession and by the new judge in reply, offer glimpses of the attributes of women judges not discernible in formal judgments. These ‘minor jurisprudences’ challenge the familiar gendered stereotypes found in the sovereign body of law.

Read on SSRN

Centre: PEARL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Law, Governance and Development, Legal Education, Legal History and Ethnology, Private Law, The Legal Profession

Social Status: The Last Bastion of Discrimination

Author(s): Margaret Thornton

Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

New Directors for Law in Australia

New Directions for Law in Australia

Editor(s): Ron Levy, Molly Townes O'Brien, Pauline Ridge, Margaret Thornton

For reasons of effectiveness, efficiency and equity, Australian law reform should be planned carefully. Academics can and should take the lead in this process. This book collects over 50 discrete law reform recommendations, encapsulated in short, digestible essays written by leading Australian scholars. It emerges from a major conference held at The Australian National University in 2016, which featured intensive discussion among participants from government, practice and the academy. The book is intended to serve as a national focal point for Australian legal innovation. It is divided into six main parts: commercial and corporate law, criminal law and evidence, environmental law, private law, public law, and legal practice and legal education. In addition, Indigenous perspectives on law reform are embedded throughout each part. This collective work—the first of its kind—will be of value to policy makers, media, law reform agencies, academics, practitioners and the judiciary. It provides a bird’s eye view of the current state and the future of law reform in Australia.

Free download or order a printed copy

Centre: LRSJ, PEARL

Research theme: Law and Social Justice

How the Higher Education 'Industry' Shapes the Discipline of Law

Author(s): Margaret Thornton

This article argues that a constellation of factors combine to encourage law graduates to pursue a career in corporate law at the expense of alternative destinations. Most notable are the increasingly high tuition fees law students are charged, but the respective roles of government, the admitting authorities, law schools and the profession cannot be discounted. Each change in policy renders resistance more difficult. The proposed higher education changes contained in the 2017 Australian Federal Budget are exemplary. As it is already assumed that law can be offered cheaply while charging high fees, the Budget cuts could induce universities to increase the number of law students as well as the cost of discretionary law degrees, such as the Juris Doctor. This would not only increase competition for law-related jobs in the labour market, but it would also effect a more vocational orientation to the law curriculum.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Achieving the Sustainable Development Goals: Promoting Cooperation and Sustainability

Author(s): Molly Townes O'Brien

To combat the complex problem of world poverty, the United Nations General Assembly set out eight Millennium Development Goals (MDGs), but as poverty decreases, energy consumption and pollution increase. Largely due to this complication, the MDGs were replaced in September 2015 with the Sustainable Development Goals (SDGs). The SDGs include new priorities such as climate change, economic inequality, innovation, sustainable consumption, and peace and justice. Successful development involves more than avoiding poverty. To achieve the sustainable development goals, we have to know what they are and why they were introduced. We need to teach them to our students, who will carry the goals into their future work places.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

Challenging the Legal Profession A Century On: The Case of Edith Haynes

Author(s): Margaret Thornton

This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Being Well in the Law

Being Well in the Law

Author(s): Tony Foley, Vivien Holmes, Stephen Tang, Colin James, Ian Hickey

When it comes to wellbeing, NSW Young Lawyers, the Australian National University and the Law Society of New South Wales are keen to lead. Being Well in the Law is a toolkit for lawyers. It draws on expert and multidisciplinary knowledge about the breadth of mental health problems and offers ideas to help everybody, young and old, deal with depression, anxiety and stress and learn to better manage the business and pressures of work and life. We all share a responsibility to continue the conversation about mental health. In the legal profession this is especially important as lawyers have a heightened pre disposition to depression and mental illness. 

This small but important book, with its varied suggestions and personal stories from people who have been touched by mental illness, is a solid first step towards a happier and healthier world.

View the guide online, order a free copy online, or pick up a free copy in person

Centre: PEARL

Research theme: Law and Psychology, Legal Education, The Legal Profession

Being Well in the Law: A Guide for Lawyers

Author(s): Stephen Tang, Tony Foley, Vivien Holmes, Colin James

Being Well in the Law is a toolkit for lawyers. It has been well informed by the input of experts from the Australian National University and Sydney University, as well as a range of other experts. It draws heavily on multidisciplinary knowledge embracing mindfulness and meditation, and evokes ideas to help us switch off from other thoughts and focus only on the moment, helping to alleviate anxiety.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Law Student Wellbeing: A Neoliberal Conundrum

Author(s): Margaret Thornton

The discourse around student wellness is a marked feature of the 21st century Australian legal academy. It has resulted in various initiatives on the part of law schools, including the development of a national forum. The phenomenon relates to psychological distress experienced by students ascertained through surveys they themselves have completed. Proposed remedies tend to focus on improving the law school pedagogical experience. This article argues that the neoliberalisation of higher education is invariably overlooked in the literature as a primary cause of stress, even though it is responsible for the high fees, large classes and an increasingly competitive job market. The ratcheting up of fees places pressure on students to vie with one another for highly remunerated employment in the corporate world. In this way, law graduates productively serve the new knowledge economy and the individualisation of their psychological distress effectively deflects attention away from the neoliberal agenda.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Squeezing the Life Out of Lawyers: Legal Practice in the Market Embrace

Author(s): Margaret Thornton

Neoliberalism is the dominant ideology of our time and shows no sign of abating. The undue deference accorded the economy and capital accumulation means that comparatively little attention is paid to the pressures this involves for workers. Although conventionally viewed as privileged professionals, lawyers in corporate law firms have been profoundly affected by the neoliberal turn as firms have expanded from local to national, to global entities, with the aim of maximising profits and making themselves competitive on the world stage. Although corporate clients may be located in a different hemisphere they still expect 24/7 availability of lawyers in contrast to what they normally expect of other professionals, such as accountants. A corollary of global competition is the ratcheting up of billable hours, which has engendered stress and depression. The pressure for firms to be more productive has resulted in increased levels of incivility, including bullying. Despite a plethora of reports attesting to the deleterious effects of stress, scant attention is paid to the neoliberalisation of legal practice. This article argues that the tendency to individualise and pathologise the adverse effects of stress and uncivil behaviours deflects attention away from the political factors that animate them.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Administrative Decision-Making in Australian Migration Law

Administrative Decision-Making in Australian Migration Law

Editor(s):

The ANU College of Law, Migration Law Program is pleased to introduce a text in administrative decision-making in Australian migration law. Over the past eight years we have assembled a team of some of Australia’s most highly qualified migration agents and migration law specialists to deliver the Graduate Certificate in Australian Migration Law & Practice, and the Master of Laws in Migration Law.

Alan Freckelton has worked with the Migration Law Program since 2008. Through personal recollections and a comprehensive analysis of administrative decision-making, he brings his professional expertise and experience in this complex field of law to the fore. The examination of High Court decisions, parliamentary speeches and public opinion bring a contentious area of law and policy to life, enabling the reader to consider the impact that legislation and decision-making has upon the individual and society as a whole.

Free download or order a printed copy

Centre: CIPL, CMSL, LRSJ, PEARL

Research theme: Migration and Movement of Peoples

The Practice of Law and the Intolerance of Certainty

Author(s): Stephen Tang, Tony Foley

This paper seeks to challenge a lingering view that law is and should be intolerant of uncertainty and must strive for certainty. Although inconsistent with the embedded uncertainty and ambiguity of law as a system, there is still an implicitly accepted view that the practice of law, and the role of lawyers, is to make determinate the indeterminate, to use legal rules to remove the uncertainty from human existence. This paper provides a preliminary sketch of an alternative and humanising epistemology of law in practice, one that embraces and makes adaptive use of uncertainty at the level of psychological experience, rather than just at a conceptual or institutional level. It focuses its attention on the preparation for practice of new lawyers and their lived experience of uncertainty as one of the defining aspects of their transition from law student. In the process, the paper challenges the conventional perceptions that thinking like a lawyer involves an additive set of skills sitting above and beyond those of ordinary thinking. Learning to think like a lawyer is more often subtractive, leaving out the messy world and in the process leaving out the messiness of uncertainty. As an alternative, the paper examines what many good lawyers have taught themselves: the importance of embracing uncertainty, complexity and acquiring a healthy intolerance of certainty. It suggests these skills and habits would be better taught and learned in advance of practice.

Read on SSRN

Centre: PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

The Mirage of Merit: Reconstituting the 'Ideal Academic'

Author(s): Margaret Thornton

This paper takes a hard look at merit and the ideal academic, twin concepts that have been accorded short shrift by the scholarly literature. For the most authoritative positions, the ideal displays all the hallmarks of Benchmark Man. Despite the ostensible 'feminisation' of the academy, the liberal myth that merit is stable, objective and calculable lingers on. As a counterpoint to the feminisation thesis, it is argued that a remasculinisation of the academy is occurring as a result of the transformation of higher education wrought by the new knowledge economy. In response, the ideal academic has become a 'technopreneur' – a scientific researcher with business acumen who produces academic capitalism. This new ideal academic evinces a distinctly masculinist hue in contrast to the less-than-ideal academic – the humanities or social science teacher with large classes, who is more likely to be both casualised and feminised.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Developing Restorative Justice Jurisprudence: Rethinking Reponses to Criminal Wrongdoing

Developing Restorative Justice Jurisprudence Rethinking Responses to Criminal Wrongdoing

Author(s): Tony Foley

What are the requirements for a just response to criminal wrongdoing? Drawing on comparative and empirical analysis of existing models of global practice, this book offers an approach aimed at restricting the current limitations of criminal justice process and addressing the current deficiencies. Putting restoration squarely alongside other aims of justice responses, the author argues that only when restorative questions are taken into account can institutional responses be truly said to be just. Using the three primary jurisdictions of Australia, New Zealand and Canada, the book presents the leading examples of restorative justice practices incorporated in mainstream criminal justice systems from around the world. The work provides a fresh insight into how today’s criminal law might develop in order to bring restoration directly into the mix for tomorrow.

Order your copy online

Centre: PEARL

Research theme: Criminal Law, The Legal Profession

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

An Inconstant Affair: Feminism and the Legal Academy

Author(s): Margaret Thornton

Drawing on the Australian experience, this chapter shows how the fortunes of feminist legal theory (FLT) are closely imbricated with those of the state. The trajectory of the discomfiting liaison between feminism and the legal academy is traced over three decades to highlight the contingent nature of FLT, particularly the sensitivity to the prevailing political climate in which the pendulum swing from social liberalism to neoliberalism induces uncertainty and instability. It will be shown that under social liberalism, FLT received a modicum of acceptance within the legal academy but began to contract and then wither with the onset of neoliberalism. This has not only been disastrous for FLT, but it has also subtly brought about a remasculinisation of the academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

A Puppy Lawyer is Not Just for Christmas: Helping New Lawyers Successfully Make the Transition to Professional Practice

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

The research reported here is a pilot project which investigated the transitionary period from study to work for entry-level lawyers. The research was designed to identify factors which may assist new lawyers in making this a successful transition.

This is crucial research. There is no similar empirical work in Australia focusing on the transition towards a legal professional. The support and endorsement of the Law Society of the Australian Capital Territory ensured that the pilot could provide some valuable preliminary data.

The design of the study consisted in tracking a small sample of newly admitted lawyers who volunteered to be followed through their first year. The sample consisted of eleven participants (4 male and 7 female) employed variously in private and public practice in the territory. Their median age was 25 years. They worked in a range of different practices – small, medium and large private firms, and government legal practices, legal aid and community legal centres.

Data was collected between 2009 and early 2011. The study used a multi-method qualitative research approach to gather information through interviews, participant observation and self-recording of daily work activity.

Data analysis showed the crucial importance of appropriate supervision and mentoring to new lawyers’ capacity to gain autonomy and competence. Also notable was new lawyers’ need to see their work as intrinsically worthwhile, either when it provided a direct public service or more indirectly. Pro bono work was important to them. New lawyers were also keenly alert to the real ethical climate of the practice in which they worked. The way a practice treated its staff (both professional and support) was seen as a reliable indicator of its ethical culture.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

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