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.

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

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.

Read on SSRN

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.

Read on SSRN

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.

Read on SSRN

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: CCL

Research theme: Administrative Law

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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.

Read on SSRN

Centre: CIPL

Research theme: International Law

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