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.

In the Tout Court of Shakespeare: Interdisciplinary Pedagogy in Law

Author(s): Desmond Manderson

A great civilization, said Robert Cover, is to be judged by the quality of its law no less than its literature or engineering or science. In particular he meant by law a nomos, which is to say a way of being in the law experienced by members of that community, a way in which their law is seen to be related to their literature, and their engineering, and their science, as part of a continually relevant cultural interaction. I have for a long time been looking for ways to properly integrate methods of interdisciplinary thinking into my writing and teaching. Typically one does this by using literary or other texts to shed light on the law. But this is a form of parallel play and not a real integration. My commitment to an interdisciplinary approach is far stronger than any mere comparativism. Law is a literature and, which is more, literature is law, in its form, its power, its interpretative strategies, its discursive effects. Now one might respond by insisting that law cannot be conjured out of nothingness: it requires a specific institutional form that authorizes and enforces it. But that is entirely to confuse cause and effect. The question of form is undoubtedly relevant to legal – as to any – meaning and rhetoric, but institutionalization within specific State-driven structures is not. The treatment of law as if its meaning and its legitimacy were somehow separate from the cultural forces that give birth to it and in relation to which it is understood, has led scholars to make of law a mere technic for dispute resolution, and a purely hermetic practice beholden to nothing but its own logic. The failure to appreciate that law’s value stems from its cultural integration has amounted to a systematic impoverishment of its capacities and of its relevance to the community as a whole. I have often wondered how best to dramatize some of these issues: to ask students to imagine what it might be like to experience the birth of law, and to invite them to be responsible for the emergence of interpretative and normative principles; to encourage them to explore the interpretative connections and differences between literature and law in a real setting; to provide a forum in which students and teachers can think carefully about how our normative beliefs find their way into and through objective legal texts, forming and yet being constrained by its meaning.

In particular, I have always thought that any sufficiently rich body of textual material could serve as the basis of a legal system, and would pose very similar questions as to how those texts become binding and meaningful under the day to day pressures of judicial reasoning. Moreover, I think there is a real advantage in approaching these complex questions indirectly, offering therefore to teach students about law (or droit or Recht) – its genesis and evolution, its structures of reasoning and rhetoric, and the relationship of facts to texts to norms – without ever making the mistake of reducing it to the content of any particular ‘law’ (or loi or Gesetz ) whatsoever. The current essay explores a pedagogical experiment in which English and Law students worked together to found a ‘court of Shakespeare’ as an ongoing practice of legal genesis, constitution, and interpretation.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

The Forgotten Forests: The Regulation of Forestry on Private Land in New South Wales 1997-2002

Author(s): James Prest

The question of the management of native forests on privately held land is a neglected aspect of off-reserve biodiversity conservation. Research was conducted into the administration of environmental laws applying to private native forestry (PNF) in NSW between 1997-2002 to discern the extent of regulated and unregulated activity. Research also aimed to investigate broad patterns of administrative behavior in implementing relevant legislation. The implementation of the Native Vegetation Conservation Act 1997 and the Threatened Species Conservation Act 1995 in relation to PNF were examined in particular. Failures of the legislative framework were revealed. The applicable law was found to be complex, and highly fragmented, with responsibility spread across many agencies. Some regulatory failures also stemmed from inadequate implementation of the legislation. It was found that PNF was infrequently regulated under the Native Vegetation Conservation Act 1997, primarily due to a problematic exemption for PNF. It was infrequently regulated by local government under Local Environment Plans. The safety net mechanism of licensing under the Threatened Species Conservation Act 1995 not often applied. These findings suggest a failure of the law to ensure ecologically sustainable forest management in NSW private forests. While the results suggest regulatory failure, they do not constitute grounds for wholesale replacement of regulation with self-regulation and other instruments.

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Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Three Australian Whistleblowing Sagas: Lessons for Internal and External Regulation

Author(s):

The recent Cambelltown/Camden Hospitals, Canberra Hospital Neurosurgical Services and King Edward Memorial Hospital investigations, all uncovered significant problems with quality and safety in Australian public hospitals. Each investigation arose after whistle blowers contacted politicians directly, their first attempt to use existing clinical governance or quality and safety pathways, having failed in each instance. Existing clinical governance or quality and safety pathways were found to be inadequate and inhibited by a poor institutional culture for self-regulation. None of the substantiated problems were previously detected by the accreditation process at the respective institutions. In each instance, even though the allegations of the whistle blowers were established, those individuals received little respect from their institutions or the profession. Healthcare whistle blowers can occupy a variety of positions ranging from nurses (Campbelltown/Camden Hospitals) and staff specialists (The Canberra Hospital Neurosurgical Services) to CEO’s (King Edward Memorial Hospital). Their contribution to Australian health care quality and safety should be more openly recognized at both institutional and professional levels as a valuable and essential supplement to clinical governance initiatives One suggestion is to use portable digital technology to transform the conscience-based activity of whistle blowing into a culture, not of informing on allegedly dysfunctional institutions or impaired colleagues, but of self-reporting and professional development.

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Research theme:

When Silence Threatens Safety: Lessons from the First Canberra Hospital Neurosurgical Inquiry

Author(s):

Despite widespread institutional and professional support, the recommendations of the Bristol Royal Infirmary Inquiry may be insufficient to reduce patient risk from impaired senior medical practitioners. Using the First Inquiry into Neurosurgical Services at the Canberra Hospital as a case study, this article argues that the Bristol-type recommendations - which emphasise reformulation of clinical governance structures, including early reporting of “sentinel events” and compulsory clinical audits – will be ineffective without a reformed institutional ethos that encourages open transparency and respect for those committed to such processes. Such reformulation may need to commence in medical education and involve new strategies including the use of portable digital technology to facilitate self assessment of performance and immediate reporting of adverse incidents. One important lesson from the first Canberra Hospital Neurosurgical Inquiry is that, even with best practice clinical governance standards in place, and a Health Complaints Commissioner with adequate powers to compel the production of evidence, health care quality and safety will be compromised if a negative institutional culture is permitted to persist. How do we initiate the required change? One approach at the Australian National University Medical School has been to design a curriculum in which medical students are taught to understand the mix of conscience, medical ethics, legal and human rights principles that feed into clinical governance pathways to justify the act of “whistle-blowing” when they are frustrated by a negative ethos. It is hoped that this may soon be linked with programmed portable digital technology facilitating self-assessment and incident reporting. Learning when to conciliate, when to consult, when to rely on existing peer-review structures and when to move to external sources of review, involves a complex balancing process that must be taken seriously in medical education. It cannot be left to chance.

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Research theme:

SHYSTER-MYCIN: A Hybrid Legal Expert System

Author(s): James Popple

SHYSTER-MYCIN combines a case-based legal expert system (SHYSTER) with a rule-based expert system (MYCIN) to form a hybrid legal expert system. MYCIN's reporting has been improved for use with SHYSTER-MYCIN to provide more useful information about the system's conclusions. SHYSTER-MYCIN's output was tested against that of a group of lawyers, not expert in the test domain (Australian copyright law). This allowed the system's reasoning, rather than its depth of knowledge, to be tested. Testing indicates that SHYSTER-MYCIN's approach to the law - using a rule-based system to reason with legislation and a case-based system to reason with cases - is appropriate.

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Centre:

Research theme:

Building and Testing the SHYSTER-MYCIN Hybrid Legal Expert System

Author(s): James Popple

SHYSTER-MYCIN is a hybrid legal expert system created by combining rule-based and case-based reasoning. The MYCIN part uses a system of rules to reason with provisions of an Act of a parliament; the SHYSTER part uses analogy to reason with cases that explain "open-textured" concepts encountered in legislation.

The construction of the expert system is focused upon: creating and evaluating a model of legal reasoning, and improving the reporting made by the MYCIN part.

The model of legal reasoning is supported by jurisprudential discussion. The model holds that rules (in the strict sense of the word) cannot be extracted from cases. Cases should therefore be argued by analogy. The only rules that exist in law are those in legislation.

The method of evaluating the model of legal reasoning is comparative. Reports by the system are compared with reports by a test group of legally trained people. Both the system and the test group were provided with the same material on which to base their reports. This ensured that the evaluation was of the model of reasoning, rather than the depth of knowledge.

The reporting made by MYCIN was improved for use in SHYSTER-MYCIN, so that the system states how it comes to its conclusions. This reporting was then restricted to only the "interesting" conclusions.

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Normative Role for Medical Humanities

Author(s):

Medical humanities remains to be thoroughly evaluated as a normative tool, a mechanism of critical reflection upon those fundamental human virtues and principles of conduct underpinning regulatory systems. So conceived, medical humanities may represent a tangible manifestation of what John Rawls in his Theory of Justice terms “reflective equilibrium.” Ronald Dworkin calls a similar jurisprudential approach “law as interpretation,” as it involves the judiciary attempting to discern and render coherent the mass of normative principles upon which their community has reached apparent consensus. The criticisms by legal postivists of such normative techniques appear to have dimmed somewhat with the passage of legislation such as the Human Rights Act 1998 (UK) and the New Zealand Bill of Rights Act 1990 (NZ) which encourage the judiciary and legislatures to engage in international normative consensus on a grand scale. The project to rigorously expose the theoretical foundations of medical humanities to jurisprudential, philosophic and regulation-theory analysis could see it emerge as an important strategy for awakening and supporting that sense of conscience which the foundational ethical codes and the central instruments of human rights, place at the heart not only of rule obedience, but norm development.

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Research theme:

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s): Peta Spender

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy, The Legal Profession

Legal and Ethical Matters Relevant to the Receipt of Financial Benefits by Ministers of Religion and Churches: A Case Study of the New South Synod of the Uniting Church in Australia

Author(s): Pauline Ridge

This paper discusses some of the findings of a research project on the use of spiritual influence for financial gain, using the New South Wales Synod of the Uniting Church in Australia (UCA) as a case study. The paper begins with the hypothesis that regulation is required with respect to the receipt of financial benefits by ministers of religion and religious bodies from those under their spiritual care. Current legal and ethical regulation is briefly outlined before the project’s findings are discussed. Semi-structured interviews were conducted with leading players in the New South Wales Synod, who were asked to recount stories relating to the receipt of financial benefit that they perceived to constitute an abuse of spiritual influence for financial gain. It was found that at least two general scenarios existed which caused concern to interviewees but which were not regulated by law. The paper describes examples of these scenarios and considers whether they raise legal or ethical concerns.

Read on SSRN

Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

Affirmative Action, Merit and Police Recruitment

Author(s): Margaret Thornton

Affirmative action measures, particularly the use of quotas, are contentious because they are assumed to contravene the merit principle. This piece challenges the assumption with reference to a proposal by Victoria Police that 50% of all new recruits should be women. It argues that the normativity of the white male police officer has shaped the construction of the ‘best person’. The paper includes an overview of affirmative action law in Australia.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Love on Trial: Nature, Law and Same-Sex Marriage in the Court of Shakespeare

Author(s): Desmond Manderson

This paper provides the text of a judgment on the legality of same sex marriage in the court of Shakespeare, a radically interdisciplinary pedagogical experiment undertaken by ENglish and Law students at McGill University. The court considered oral arguments and briefs from counsel on the meaning of marriage in the Shakespearean corpus, particular the marriage comedies, and further examined the jurisprudential practices of the Court, and the question of interpretation over time. The question is, is marriage immutable or cultural dynamic and what does a careful reading of Shakesepare tell us about these legal and social questions?

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s):

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy, The Legal Profession

At the Intersection of Public Policy and Private Process: Court-Ordered Mediation and the Remedial Process in School Funding Litigation

Author(s): Molly Townes O'Brien

Using Ohio's experience with court-ordered mediation in school finance litigation as a point of departure, this article examines the potential for court-ordered mediation to provide procedural justice in the remedial phase of institutional reform litigation. The article begins by sketching out some of the difficulties that courts encounter when designing a remedy in a school finance case and some of the reasons why, at least in the abstract, a mediation process may assist the parties and the court. Next, the article provides a brief history of the DeRolph v. State, 758 N.E. 2d 1113 (Ohio 2001), placing the abstract remedial concepts against the concrete details of a particular case. It then explores some possible reasons for the failure of the DeRolph mediation and suggests what might have been done to create a better possibility for success.

In spite of the failure of the DeRolph mediation, this article suggests that mediation may play a productive role in the future of school finance cases. Court-ordered mediation may permit the re-structuring of the remedial process in a way that addresses minority rights which often are lost or minimized in the traditional legislative process. Further, a participatory mediation process holds promise for achieving remedial results in a school finance case that are both educationally viable and politically sustainable. Mediation may open new avenues for the resolution of litigation at the intersection of private process and public policy.

Several lessons may be drawn from the DeRolph litigation. DeRolph teaches that mediation is more likely to play a positive role in the resolution of an important institutional reform case if it is considered as a primary avenue of achieving remedial results rather than as a very last resort. Further, any court considering whether to order the mediation of an important institutional reform case should be attentive to creating a substantive and procedural framework that will support the parties' motivation and effort to devise their own remedy. This article encourages the court to support court-ordered mediation by providing a clear and unequivocal statement of the rights of the parties and remedial principles that apply in the case and by outlining fall-back remedial procedures that will be implemented if resolution is not achieved. The court should also consider the legitimacy benefit that may accrue from the participation of a broad group of interested constituencies and construct a framework that supports the mediator's efforts to identify and include a broad group of stakeholders.

This article represents an effort to learn from past failure and to plan for future success in school finance mediation and other public law litigation.

Read on SSRN

Centre: CIPL, PEARL

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

The Constitutional Common School

Author(s): Molly Townes O'Brien

This paper turns to historical evidence as a beginning point for understanding the constitutional vision and values of the "thorough and efficient system of common schools" mandated by Article VI, Section 2 of the Ohio Constitution. First, it traces the early development of public schooling in America and the complex relationship between public education and religion. The common school, as envisioned by the Ohio crusaders for its establishment, would bring diverse peoples together to create a common sense of citizenship. It would provide for citizen equality, and social and economic mobility; and it would safeguard liberty by developing a polity capable of self-government. The common school vision competed, however, with the existing reality of schools that were tuition-based, locally governed, diverse and sectarian.

Prior to 1851, the conflict over competing visions of schooling - one embraced primarily by protestant school crusaders, the other embraced by the Catholic Church - had escalated into violent conflict in New York City and Boston. In Ohio, conflict relating to the nature of public education, and, more specifically, the use of public money for sectarian schools had not become violent, but had been vigorously debated since 1789. The inclusion of the provision for a "thorough and efficient system of common schools" in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state-operated system of schools that would encourage civic participation and avoid religious indoctrination.

Next, the paper addresses efforts made to revise the state's educational provisions through constitutional amendments in 1874 and again in 1912. In considering and rejecting various amendments to Article VI, Section 2, the delegates to these conventions reinforced and redefined the non-sectarian ethos of public education. They also added new provisions to centralize authority for the efficient administration of education and to ensure state oversight over a single system of schools.

Finally, the authors attempt to place the constitutional "common school ideal" in the context of contemporary educational debates. Advocates for school choice have argued that both religious and private schools attend to the values of equality and civic participation while allowing for diversity in values, religious views and educational approaches. The authors of this paper, however, suggest that the ethos or constitutional vision of the common school is at odds with expanding programs that support private and religious school choice.

Read on SSRN

Centre: CIPL, PEARL

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

The Constitutional Common School

Author(s): Molly Townes O'Brien

This paper turns to historical evidence as a beginning point for understanding the constitutional vision and values of the "thorough and efficient system of common schools" mandated by Article VI, Section 2 of the Ohio Constitution. First, it traces the early development of public schooling in America and the complex relationship between public education and religion. The common school, as envisioned by the Ohio crusaders for its establishment, would bring diverse peoples together to create a common sense of citizenship. It would provide for citizen equality, and social and economic mobility; and it would safeguard liberty by developing a polity capable of self-government. The common school vision competed, however, with the existing reality of schools that were tuition-based, locally governed, diverse and sectarian.

Prior to 1851, the conflict over competing visions of schooling - one embraced primarily by protestant school crusaders, the other embraced by the Catholic Church - had escalated into violent conflict in New York City and Boston. In Ohio, conflict relating to the nature of public education, and, more specifically, the use of public money for sectarian schools had not become violent, but had been vigorously debated since 1789. The inclusion of the provision for a "thorough and efficient system of common schools" in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state-operated system of schools that would encourage civic participation and avoid religious indoctrination.

Next, the paper addresses efforts made to revise the state's educational provisions through constitutional amendments in 1874 and again in 1912. In considering and rejecting various amendments to Article VI, Section 2, the delegates to these conventions reinforced and redefined the non-sectarian ethos of public education. They also added new provisions to centralize authority for the efficient administration of education and to ensure state oversight over a single system of schools.

Finally, the authors attempt to place the constitutional "common school ideal" in the context of contemporary educational debates. Advocates for school choice have argued that both religious and private schools attend to the values of equality and civic participation while allowing for diversity in values, religious views and educational approaches. The authors of this paper, however, suggest that the ethos or constitutional vision of the common school is at odds with expanding programs that support private and religious school choice.

Read on SSRN

Centre: CIPL, PEARL

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

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 Care of Strangers

Author(s): Desmond Manderson

Using the story of Antigone as a foil, this essay attempts to reframe questions of legal responsibility in the case of asylum and refugee law through the lens of Emmanuel Levinas. Using this framework, the article argues that questions of sovereignty must be recast as questions of hospitality. The fundamental test of justice is one of hospitality to the stranger. Too bad for us, but we do not have a say in the matter. In this, we are already the chosen people.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Apocryphal Jurisprudence

Author(s): Desmond Manderson

The purpose of the present article is to present to readers a conspectus of post-structural perspectives on legal theory which, I will argue, have been gravely misunderstood precisely because they have so often been discussed within the inappropriate terms of the bounded disagreement between CLS and positivism. My argument is rather to clarify the ways in which these new approaches ask very different questions and derive from different and irreconcilable concerns. Recent scholarship has sometimes spoken about jurisprudence as a battle between two warring tribes: “the orthodoxy” and “the heresy”. A heresy is a disagreement within a tradition, and a tradition, far from being a static structure of rules or doctrines, is an argument through time. On one level, then, a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions. To wage war requires a disagreement as to denomination, but an agreement as to currency. The field of mars must be determined; cannons must meet cannons; victory must be recognizable.4 Ironically, hierarchs and heresiarchs, patron saints and sinners, desperately need each other, for they mutually constitute their own importance: what they reject on the level of content, they sustain on the level of discourse. The current essay suggests that poststructural and critical theories of law represent neither heresy nor orthodoxy, but an apocrypha – a range of rejected or disputed perspectives that cast a thwart light on standard questions and open up a very different mode of engagement and range of responses. Using the seminal Australian case of Kruger as its case study, this essay shows how apocryphal jurisprudence might destabilize orthodox and heretical approaches to law alike.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

From Oxymoron to Intersection: An Epidemiology of Legal Research

Author(s): Desmond Manderson

This paper surveys legal research in Australia. Using both theoretical and empirical work, it argues for a significant shift towards humanistic, theoretical, and interdisciplinary scholarship in law and explores the implications for legal research and for postgraduate supervision of this shift.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

EEO in a Neo-Liberal Climate

Author(s): Margaret Thornton

This paper interrogates the ways in which different meanings of equality and inequality are produced within political and legal discourses. With particular regard to the Australian experience, the paper considers the significance of the disappearance of affirmative action (AA) from the equality lexicon with the repeal of the federal AA legislation and its replacement with the equal opportunity (EO) for women in the workplace legislation. Even as this change was being implemented, EO was already being superseded in favor of ‘diversity’. It is argued that the linguistic changes signal a shift to the right of the political spectrum which emit deeply conservative and regressive messages regarding the gendered character of the workplace. Illustrations are drawn from the dissonant relationship between women and authority.

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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