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.

Modes of Law: Music and Legal Theory - An Interdisciplinary Workshop Introduction

Author(s): Desmond Manderson

This essay introduces an interdisciplinary symposium held at Cardozo School of Law in New York, and argues for a new field of study on the relationship between music and legla theory - historical, social, semiotic, symbolic, and theoretical. The symposium gathered leading figures from fields of legal theory, social theory, and musicology to present their work.

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Centre: CLAH

Research theme: Legal Theory

Et Lex Perpetua: Dying Declarations and Mozart’s Requiem

Author(s): Desmond Manderson

This essay presents a joint history of music and society in relation to legal change particularly in the law of evidence, around 1750. the paper argues that the dramatic changes in both fields reflected similar social transformations which together changed their normative structure and assumptions, their relationship to text, interpretation, and authenticity, and their affective, instrumental, and normative ambitions. The history of music and the history of law are imbricated and entwined. Mozart's Requiem and the law on Dying Declarations are both transitional moments in the birth of formalist in law and music alike; both reflect changing and powerful ideas about text, meaning, interpretation, and, ultimately, about death.

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Centre: CLAH

Research theme: Legal Theory

Modes of Law: Music and Legal Theory - An Interdisciplinary Workshop Introduction

Author(s): Desmond Manderson

This essay introduces an interdisciplinary symposium held at Cardozo School of Law in New York, and argues for a new field of study on the relationship between music and legla theory - historical, social, semiotic, symbolic, and theoretical. The symposium gathered leading figures from fields of legal theory, social theory, and musicology to present their work.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Deaths on the Table: Proposal for an International Convention on the Investigation and Prevention of Anaesthetic Mortality

Author(s):

There is a significant risk of mortality associated with anaesthesia which is distinct from that related to any relevant surgery or intercurrent disease. As a matter of pure logic patients worldwide should be entitled to expect a basic minimum of knowledge and skills from an anaesthetist, as well as his or her use of standard monitoring equipment. In an age where the global provision of health services and equipment may be increasingly dominated under trade-promoting international agreements, by a few transnational corporations, and where technology faciliates dissemination of medical data, a unified, worldwide approach to the investigation and prevention of anaesthetic mortality appears both rational and urgent.

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Centre:

Research theme:

Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Threat to Patients: A Plea for Doctors to Respond Internationally

Author(s):

Many recent international agreements sponsored by bodies such as the World Trade Organisation (WTO) aim to facilitate the global free flow of goods, services and capital, by opening markets under the threat of trade sanctions. Nation states signing such agreements, in particular the Trade Related Aspects of Intellectual Property Rights (TRIPS) agree to suffer a sovereignty deficit in order to enhance their trading prospects. In the resulting reorganization of trade, medicine may be marginalized as merely another industry that must open its regional doors in the interests of global corporate productivity. We make a plea for medical organizations to lobby in appropriate international fora to create 'hard' norms that ensure such international trade agreements adequately respect the demands of fundamental ethical principles of the doctor-patient relationship.

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Research theme:

Authority and Corporeality: The Conundrum for Women in Law

Author(s): Margaret Thornton

Despite a significant increase in the number of women in the legal profession, women continue to be disproportionately represented in the lower echelons. It is apparent that the liberal progressivist thesis, which avers that the asymmetry will be remedied through numerosity, cannot be sustained. Structural theories of discrimination may be invoked to explain the gender differential, but it is argued that such theories are inadequate. The key to the conundrum lies in the social construction of femininity and masculinity through what are termed the ‘fictive feminine’ and the ‘imagined masculine.'

Drawing on qualitative research conducted for Dissonance and Distrust Women in the Legal Profession (Oxford University Press, 1996), the paper considers the ways in which the gender boundary is maintained so that the masculine remains the norm and the feminine the `other' for legal practice. It is argued that mechanisms emphasising the sexed body of the woman lawyer, including eroticisation, abjection, and motherhood, continue to reproduce conventional notions of the feminine and to diminish the authority of women as legal knowers in subtle ways.

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Centre: CIPL, CLAH, PEARL

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

Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Threat to Patients: A Plea for Doctors to Respond Internationally

Author(s):

Many recent international agreements sponsored by bodies such as the World Trade Organisation (WTO) aim to facilitate the global free flow of goods, services and capital, by opening markets under the threat of trade sanctions. Nation states signing such agreements, in particular the Trade Related Aspects of Intellectual Property Rights (TRIPS) agree to suffer a sovereignty deficit in order to enhance their trading prospects. In the resulting reorganization of trade, medicine may be marginalized as merely another industry that must open its regional doors in the interests of global corporate productivity. We make a plea for medical organizations to lobby in appropriate international fora to create 'hard' norms that ensure such international trade agreements adequately respect the demands of fundamental ethical principles of the doctor-patient relationship.

Read on SSRN

Centre:

Research theme:

A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning. Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence. A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice. SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure. SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains. Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme: Administrative Law

A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning. Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence. A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice. SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure. SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains. Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme: Administrative Law

SHYSTER: The Program

Author(s): James Popple

This technical report provides fully commented and indexed listings of the ISO C source code for the SHYSTER legal expert system.

Details of the design, implementation, operation and testing of SHYSTER are given by Popple in A Pragmatic Legal Expert System (1996), Applied Legal Philosophy Series, Dartmouth (Ashgate), Aldershot, ISBN-1-85521-739-2 - available at SSRN: http://ssrn.com/abstract=1335176.

Read on SSRN

Centre:

Research theme: Administrative Law

Licensed to Kill : Endangered Fauna Licensing Under the National Parks & Wildlife Act 1974 (NSW) Between 1991-1995

Author(s): James Prest

The focus of this paper is on the effectiveness of administration of the Endangered Fauna (Interim Protection) Act 1991 by the National Parks and Wildlife Service of NSW, Australia, between 1991 and 1995, particularly in regulating the effects on biodiversity of logging operations in NSW publicly owned native forests. A key mechanism of the Act was its requirement that those seeking to significantly modify the habitat of endangered fauna seek a licence to take or kill, and that they prepare a Fauna Impact Statement (FIS) justifying their activity. This historical and empirical study focuses on the licensing practices of the NPWS considering temporary licensing, licence variations and the use of authorities in place of licensing. This study presents previously unpublished data on the operation of the licensing system. 95% of the licences granted to the Forestry Commission were temporary licences. Thus the Forestry Commission held those licences without ever having been required to complete FIS and without the threat of public appeal against decisions to grant general licences. The paper examines the reasons for accommodatory approaches by regulators such as the NPWS, and finds that some of these factors were present in some instances of particular aspects of the implementation of the Act. These factors included lack of agency resources, imbalance of power and insecure basis of regulatory agency authority, avoidance of perceived economic dislocation, lack of public support, and the undermining effect of plans for new legislation. Examination of the history of operation of these EFIP Act provides an excellent vantage point from which to examine other biodiversity legislation. Australian biodiversity and ecosystems are unlikely to be protected by merely enacting legislation which bears the name "endangered species protection" if attention is not paid to the issue of implementation. The drafters of any new legislation need to consider how political pressure will tend to result in the misuse of specific provisions. The paper closes with a historical account of the circumstances surrounding the enactment of the EFIP Act, arising from the Corkill litigation over logging of Chaelundi State Forest.

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Centre:

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

Statuta and Acts: Interpretation, Music, and Early English Legislation

Author(s): Desmond Manderson

This article compares music and law in the period 1200-1500 in order to highlight the shared social and textual history of each, looking particularly at changing ideas of normativity, authority, and textuality in each genre and arguing for the significance of music for the changing social meaning of law and law for the changing social meaning of music. Formal, textual,a nd social analysis cohere to develop an argument for music as an important field of inquiry into the cultural representation of law.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Remedying Discriminatory Harms in the Workplace

Author(s): Margaret Thornton

This paper explores the concept of remedies in the context of Australian anti-discrimination legislation in the workplace. It highlights the paradox between the individualized nature of a complaint and the necessity for a complaint to establish membership of a class. This paradox has deterred tribunals and courts from devising class-based remedies for discriminatory harms.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

SHYSTER: A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning.

Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence.

A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice.

SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure.

SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains.

Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme: Administrative Law

SHYSTER: A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning.

Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence.

A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice.

SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure.

SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains.

Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme:

Legal Expert Systems: The Inadequacy of a Rule-Based Approach

Author(s): James Popple

The two different categories of legal AI system are described, and legal analysis systems are chosen as objects of study. So-called judgment machines are discussed, but it is decided that research in legal AI systems would be best carried-out in the area of legal expert systems. A model of legal reasoning is adopted, and two different methods of legal knowledge representation are examined: rule-based systems and case-based systems. It is argued that a rule-based approach to legal expert systems is inadequate given the requirements of lawyers and the nature of legal reasoning about cases. A new, eclectic approach is proposed, incorporating both rule-based and case-based knowledge representation. It is claimed that such an approach can form the basis of an effective and useful legal expert system.

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Centre:

Research theme:

Corporate Governance and the Impact of Legal Obligations on Decision Making in Corporate Australia

Author(s): Stephen Bottomley

This paper reports upon an empirical study of the place of law and legal duties in the governance of Australian public companies. A fuller discussion of the findings from this empirical research project is to be found in: Tomasic and Bottomley, Directing the Top 500: Corporate Governance and Accountability in Australian Companies, (Sydney, Allen & Unwin, 1993). The debate concerning the legal duties and obligations of management of corporations became quite heated in Australia following the corporate excesses of the 1980s. Many corporations exploited the looseness of the legal rules for the control of business; weak regulatory structures also operated to the disadvantage of shareholders and creditors. The study is based upon data derived from a series of interviews conducted with officers from the top 500 Australian listed public companies. Interviews were held with 95 public company directors and 55 advisers of public companies. The adviser group comprised leading corporate lawyers, liquidators, auditors and corporate regulators. Interviews took place in five Australian state capital cities and all interviews were undertaken personally by the principal investigators. This article examines perceptions of corporate citizenship held by directors and goes on to contrast these with actual corporate decision making in the context of the legal requirements placed upon directors of Australian companies. The article also examines the structure of Australian corporate decision making processes by the board of directors.

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Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Australia's Territorial Sea: International and Federal Implications of Its Extension to 12 Miles

Author(s): Donald Rothwell

In November 1990 Australia extended its territorial sea from 3 to 12 nautical miles. This article examines the consequences of this extension under international and municipal law, and draws comparisons with the experience of the United States and Canada in relation to their territorial seas. The expansion of Australia's territorial sea has some noteworthy features under international law in its effect on Australia's territorial claims in the Antarctic, and on the maritime delimitation between Australia and Papua New Guinea in Torres Strait. The consequences of the extension under municipal law arise from the unique offshore regime agreed between the federal government and seven state and territorial governments in 1979, by which jurisdiction over the territorial sea is divided between central and regional governments. Australia's federal constitutional structure has created problems of offshore jurisdiction similar to those experienced in Canada and the United States, but the solution adopted is markedly different. The Australian settlement may prove a useful model for federations trying to reach an agreement over offshore areas.

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Centre: CIPL, CLAH

Research theme: International Law, Military & Security Law

Legal Expert Systems: The Inadequacy of a Rule-Based Approach

Author(s): James Popple

The two different categories of legal AI system are described, and legal analysis systems are chosen as objects of study. So-called judgment machines are discussed, but it is decided that research in legal AI systems would be best carried-out in the area of legal expert systems. A model of legal reasoning is adopted, and two different methods of legal knowledge representation are examined: rule-based systems and case-based systems. It is argued that a rule-based approach to legal expert systems is inadequate given the requirements of lawyers and the nature of legal reasoning about cases. A new, eclectic approach is proposed, incorporating both rule-based and case-based knowledge representation. It is claimed that such an approach can form the basis of an effective and useful legal expert system.

Read on SSRN

Centre:

Research theme: Administrative Law

The Missouri Aberration: Abolition of Remittitur

Author(s): Donald Anton

This comment assess the apparently absolute proscription on the use of remittitur by the Supreme Court in Missouri in Firestone v. Crown Centre Redevelopment Corp. It is critical of the Court in abolishing the doctrine on grounds of activism, expediency, and logic. The Court was reversed several years later by the Missouri legislature, which reinstated the practice.

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Research theme:

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