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.

No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One

Author(s): Molly Townes O'Brien, Stephen Tang

Preliminary results of a pilot study of law students suggest that, during the first year of law study, students may experience changes in thinking styles, stress levels, and satisfaction with life. Although further inquiry into the cause of law student distress is necessary, the authors consider certain assumptions underlying the legal curriculum - particularly the conception of a lawyer as adversarial, emotionally detached, and competitive - to be possible sources of the negative impact on student wellbeing. It is suggested that legal educators should reexamine their curricula, particularly their conception of what it means to be a lawyer, and think creatively about ways that law schools may encourage healthier approaches to the study of law.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

An Active Learning Smorgasbord for Teaching Evidence

Author(s): Molly Townes O'Brien

The challenge of teaching evidence or civil procedure is to devise a classroom experience that provides students with the contextual background of courtroom dynamics and opportunities for active engagement. This paper describes a variety of techniques that are effective for transforming the traditional law lecture into an interactive experience. Theme songs animate the classroom; high-impact images improve students’ ability to recall and relate doctrinal information to their experience; and quiz games and question slides and video give students to opportunity to actively engage in in-class legal decision-making. The techniques described here can be used together or separately to create an active learning experience that provides context for understanding and motivation for advanced study.

Read on SSRN

Centre: CIPL, PEARL

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

Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum

Author(s): Molly Townes O'Brien, Stephen Tang

We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.

In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.

Read on SSRN

Centre: CCL, CIPL, LGDI, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Facing Down the Gladiators: Addressing Law School’s Hidden Adversarial Curriculum

Author(s): Molly Townes O'Brien

Law students arrive at law school well-indoctrinated in the popular culture myth that the dominant role of the lawyer is as an advocate in an adversarial system. These students, if they become practicing lawyers, will be more likely to fill their days with negotiation than with litigation; they will be more likely to represent a client in mediation than at trial; they will more likely be deal-makers than gladiators. Nevertheless, their preconception or misconception of the dominance of the lawyers’ adversarial role will be reinforced in their legal training.

Adversarialism is deeply embedded in both the formal and the hidden curriculum of US and Australian law schools. While most law schools now teach courses that deal with non-adversarial processes, the pervasive ethos is – often unintentionally – adversarial. This ethos may constrain the way that students conceptualize their future roles and limit the possibility space available to them for creativity, constructive lawyering and peacemaking. The ethos also contributes to a climate of the law school hostile and unhappy for many students.

This paper explores the law school’s hidden adversarial curriculum – the unstated norms and values that are communicated to students. It uncovers some of the unintended messages sent through choices of teaching materials, classroom pedagogy, assessment practices, and extra-curricular emphasis on contests. The paper suggests that, by addressing the hidden curriculum, law schools can create more space for constructive lawyering and better prepare students for the variety of roles that they may inhabit as lawyers (including roles as advocates in adversarial processes). It will suggest that to provide greater room for non-adversarialism in law school and in legal practice, legal education must import non-adversarial processes and materials into its pedagogy; it must provide broader measures of student merit; and it must take control over the law school contest culture.

Read on SSRN

Centre: CIPL, PEARL

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

Walking the Walk: Using Student-Faculty Dialogue to Change an Adversarial Curriculum

Author(s): Molly Townes O'Brien

The law school curriculum has come under fire recently for being overly adversarial, hierarchical, patriarchal, distressing and dull. In many places, however, the curricular reform process mirrors the critique of the law school, taking a top-down approach and side-lining student input. Drawing on the recent experience of a student/faculty dialogue retreat focused on student well-being and curricular reform, this paper suggests that student/faculty dialogue may contribute positively both to curricular reform efforts and to general student well-being. The dialogue model uses structured conversation to facilitate integration of knowledge and address complex challenges. This paper describes a student/faculty dialogue and suggests the ways that student/faculty dialogue can contribute to meaningful curricular reform.

Read on SSRN

Centre: CIPL, PEARL

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

Facing Down the Gladiators: Addressing Law School’s Hidden Adversarial Curriculum

Author(s): Molly Townes O'Brien

Law students arrive at law school well-indoctrinated in the popular culture myth that the dominant role of the lawyer is as an advocate in an adversarial system. These students, if they become practicing lawyers, will be more likely to fill their days with negotiation than with litigation; they will be more likely to represent a client in mediation than at trial; they will more likely be deal-makers than gladiators. Nevertheless, their preconception or misconception of the dominance of the lawyers’ adversarial role will be reinforced in their legal training.

Adversarialism is deeply embedded in both the formal and the hidden curriculum of US and Australian law schools. While most law schools now teach courses that deal with non-adversarial processes, the pervasive ethos is – often unintentionally – adversarial. This ethos may constrain the way that students conceptualize their future roles and limit the possibility space available to them for creativity, constructive lawyering and peacemaking. The ethos also contributes to a climate of the law school hostile and unhappy for many students.

This paper explores the law school’s hidden adversarial curriculum – the unstated norms and values that are communicated to students. It uncovers some of the unintended messages sent through choices of teaching materials, classroom pedagogy, assessment practices, and extra-curricular emphasis on contests. The paper suggests that, by addressing the hidden curriculum, law schools can create more space for constructive lawyering and better prepare students for the variety of roles that they may inhabit as lawyers (including roles as advocates in adversarial processes). It will suggest that to provide greater room for non-adversarialism in law school and in legal practice, legal education must import non-adversarial processes and materials into its pedagogy; it must provide broader measures of student merit; and it must take control over the law school contest culture.

Read on SSRN

Centre: CIPL, PEARL

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

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

Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum

Author(s): Molly Townes O'Brien, Stephen Tang

We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.

In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.

Read on SSRN

Centre: CCL, CIPL, LGDI, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One

Author(s): Molly Townes O'Brien

Preliminary results of a pilot study of law students suggest that, during the first year of law study, students may experience changes in thinking styles, stress levels, and satisfaction with life. Although further inquiry into the cause of law student distress is necessary, the authors consider certain assumptions underlying the legal curriculum - particularly the conception of a lawyer as adversarial, emotionally detached, and competitive - to be possible sources of the negative impact on student wellbeing. It is suggested that legal educators should reexamine their curricula, particularly their conception of what it means to be a lawyer, and think creatively about ways that law schools may encourage healthier approaches to the study of law.

Read on SSRN

Centre: CIPL, PEARL

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

Book cover

Digital Games and Learning

Editor(s): Paul Maharg, Sara de Freitas

The popularity of entertainment gaming over the last decades has led to the use of games for non-entertainment purposes in areas such as training and business support. The emergence of the serious games movement has capitalized on this interest in leisure gaming, with an increase in leisure game approaches in schools, colleges, universities and in professional training and continuing professional development. The movement raises many significant issues and challenges for us. How can gaming and simulation technologies be used to engage learners? How can games be used to motivate, deepen and accelerate learning? How can they be used to greatest effect in learning and teaching? The contributors to this book explore these and many other questions that are vital to our understanding of the paradigm shift from conventional learning environments to learning in games and simulations. 

Order your copy online

Centre: PEARL

Research theme: Legal Education

Curriculum (Re)Development ‘On the Job’ in Higher Education: Benefits of a Collaborative and Iterative Framework Supporting Educational Innovation

Author(s): Tony Foley

This paper concerns curriculum development for online learning in a commercial law course using a process of sustained action-research. We identify and discuss four main characteristics in this process: a need to respond to an external requirement for change (i.e. going online): one or two key guiding teaching and learning principles; an incremental, flexible timeline over three consecutive iterations; a collaborative, supportive partnership between educators and educational consultants . There were two levels of action: learning what was required for curriculum redevelopment and learning about the process of supporting educational development itself. Substantive outcomes included the: sustained adoption of the practices of active learning and curriculum alignment; conceptual development of discussion as a learning tool; acceptance of the fundamental value and practical role in developing purposeful reflection provided by a ‘critical friend.’

Read on SSRN

Centre: PEARL

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, The Legal Profession

Curriculum (Re)Development ‘On the Job’ in Higher Education: Benefits of a Collaborative and Iterative Framework Supporting Educational Innovation

Author(s): Tony Foley

This paper concerns curriculum development for online learning in a commercial law course using a process of sustained action-research. We identify and discuss four main characteristics in this process: a need to respond to an external requirement for change (i.e. going online): one or two key guiding teaching and learning principles; an incremental, flexible timeline over three consecutive iterations; a collaborative, supportive partnership between educators and educational consultants . There were two levels of action: learning what was required for curriculum redevelopment and learning about the process of supporting educational development itself. Substantive outcomes included the: sustained adoption of the practices of active learning and curriculum alignment; conceptual development of discussion as a learning tool; acceptance of the fundamental value and practical role in developing purposeful reflection provided by a ‘critical friend.’

Read on SSRN

Centre: PEARL

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, The Legal Profession

Neoliberal Melancholia: The Case of Feminist Legal Scholarship

Author(s): Margaret Thornton

This paper arises out of a concern for the future of feminist legal scholarship in the academy. First, it considers the significance of the implosion of the category ‘woman’, suggesting that it should be understood in its particular epistemic context. Secondly, it considers the impact of the contemporary market paradigm on feminist legal scholarship and on feminist academics generally. As the prognosis is not optimistic, the paper poses the question as to whether the more appropriate site for feminist legal academics might be outside the academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same

Author(s): Margaret Thornton

Despite valiant endeavours by feminist, critical race, and Queer scholars to transform the legal culture, the transformative project has been limited because of the power of corporatism, a phenomenon deemed marginal to the currently fashionable micropolitical sites of critical scholarship. However, liberal, as well as postmodern scholarship, has largely preferred to ignore the ramifications of the “new economy,” which includes a marked political shift to the right, the contraction of the public sphere, the privatization of public goods, globalization, and a preoccupation with efficiency, economic rationalism, and profits. This paper argues that technical reasoning, or “technocentrism,” has enabled corporatism to evade scrutiny. It explores the meaning of “technocentrism,” with particular regard to legal education. Because corporate power does not operate from a unitary site, but is diffused, the paper shows how it impacts upon legal education from multiple sites, from outside as well as inside the legal academy in a concerted endeavour to maintain the status quo.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo liberal climate that privileges employer prerogative over workers’ rights.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The New Racism in Employment Discrimination: Tales from the Global Economy

Author(s): Margaret Thornton

Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on Goldberg’s thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Protecting (Human) Rights

Author(s): Margaret Thornton

This paper addresses the discourse of human rights in the Australian context. The resistance to human rights is apparent in the drafting of the Constitution and, subsequently, in attempts to enact a statutory bill of rights. The paper also considers the National Human Rights Consultation Report of 2009, noting how the political swing rightwards could damage the prospects of a federal Human Rights Act.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Age Discrimination in Turbulent Times

Author(s): Margaret Thornton

Concerns about the ramifications of a rapidly aging population have generally focused on the post-retirement period, with limited scholarly attention to the experience of ageism in the workplace. Despite a shift in policy against early retirement, ‘older workers’ – who may be as young as 40 – are disproportionately experiencing age discrimination, often resulting in joblessness. This article argues that in a postmodern environment, where the culture of ‘youthism’ predominates, the workplace is undergoing significant changes. In the new knowledge economy, characterised by technological know how, flexibility and choice, traditional values such as maturity, experience and loyalty have become passé. Drawing on Australian complaints and reported decisions of age discrimination in the workplace in the context of the international literature, the article demonstrates the variety of forms ageism is taking. It argues that age discrimination legislation reflects an outdated modernist paradigm that fails to address the experience of older workers. In addition, as part of the culture of youthism, work is now being gauged by its capacity to create an aesthetic of pleasure.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

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