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.

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Exploring the Group-Identity Function of Criminal Law

Author(s): Molly Townes O'Brien

In every country where the question has been studied, incarceration rates for members of some minority groups greatly exceed those for the majority population. The problem of disproportionate incarceration is not therefore a problem of one ethnic group or one set of historical circumstances. It is a human problem that is fundamentally connected to social group identity. This essay conducts a preliminary exploration of the role that criminal law serves in group-identity formation. It suggests that building a common or super-group identity may be necessary to achieve greater justice in increasingly multi-ethnic and mobile societies.

Read on SSRN

Centre: CIPL, PEARL

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

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s): Molly Townes O'Brien

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL, PEARL

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

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s):

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL, PEARL

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

'Otherness' on the Bench: How Merit is Gendered

Author(s): Margaret Thornton

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Environmental Conflict Resolution: Relational and Environmental Attentiveness as Measures of Success

Author(s): Tony Foley

When evaluating the success of environmental conflict resolution (ECR), the use of traditional measures of success, such as agreement counting and participant satisfaction surveys provide an incomplete picture. This article proposes two measures to evaluate ECR in terms of both process and outcome: Is the process transformative of the participants? Is the process designed to be attentive to environmental outcomes?

Read on SSRN

Centre: PEARL

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Law School, the Market and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of "customer" and "service provider". Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Essay Review: Final Test and Class and Schools

Author(s): Molly Townes O'Brien

This essay reviews two recent books that explore contemporary efforts to close the American black/white educational achievement gap. In Final Test: The Battle for Adequacy in America's Schools, Peter Schrag chronicles on-going efforts to enlist the power of the courts to effect equal educational opportunity through court-ordered remedies. Richard Rothstein, in Class and Schools: Using Social, Economic and Educational Reform to Close the Black-White Achievement Gap, looks to social science, educational and social reform for potential solutions to the problem. The essay suggests that neither litigation nor educational reform is sufficient to provide universal access to high quality education in the U.S. Broad social reform and sustained effort in both the courts and the legislatures are required.

Read on SSRN

Centre: CIPL, PEARL

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

Jury Reform is Coming: Making the Most of Trial Practice Changes

Author(s): Molly Townes O'Brien

A nationwide movement to reform jury trial practice is underway. At the core of these reforms is an effort to make the courtroom more like a classroom. The current wave of jury reform is designed to take advantage of learning theory that shows that "active learners" remember and comprehend new information better than passive learners. Reforms in jury trial practice now being proposed across the country will allow jurors to take a more active role in the trial, to become "active learners" by allowing them to take notes, ask questions, discuss the evidence with each other, keep notebooks with exhibits and jury instructions, and more. The current wave of jury reform also gives attorneys more opportunities to address the jury and more opportunities to explain the merits of their case. The goal of the reforms is to improve jury comprehension and motivate the jurors to stay awake and attentive.

In general, reforms that treat the courtroom more like a classroom favor the lawyers who are the better teachers. Most trial lawyers already consider themselves to be good teachers. The "active learning" jury should motivate trial lawyers to pick up the chalk and plan to teach even more. Although students/jurors feel more empowered in an active learning environment, it is the person who has something to teach who is most empowered. The teacher is empowered because he or she has an audience that is attentive and better equipped with the tools to learn. The teacher/lawyer will see the reforms as new opportunities to reach into the jurors' minds. The skilled teacher/lawyer will guide note taking, provide excellent written materials for the juror notebooks, and use juror questions to gain insight about how the jurors' view the evidence. In other words, reforms designed to improve juror comprehension will, in the hands of a skilled teacher, give the trial lawyer more and better opportunities to teach and persuade the jury of the justice of their cause.

This short article will give you an overview of recent jury reform initiatives and provide some preliminary thoughts about how trial lawyers can make the most of the coming jury trial practice reforms.

Read on SSRN

Centre: CIPL, PEARL

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

Jury Reform is Coming: Making the Most of Trial Practice Changes

Author(s): Molly Townes O'Brien

A nationwide movement to reform jury trial practice is underway. At the core of these reforms is an effort to make the courtroom more like a classroom. The current wave of jury reform is designed to take advantage of learning theory that shows that "active learners" remember and comprehend new information better than passive learners. Reforms in jury trial practice now being proposed across the country will allow jurors to take a more active role in the trial, to become "active learners" by allowing them to take notes, ask questions, discuss the evidence with each other, keep notebooks with exhibits and jury instructions, and more. The current wave of jury reform also gives attorneys more opportunities to address the jury and more opportunities to explain the merits of their case. The goal of the reforms is to improve jury comprehension and motivate the jurors to stay awake and attentive.

In general, reforms that treat the courtroom more like a classroom favor the lawyers who are the better teachers. Most trial lawyers already consider themselves to be good teachers. The "active learning" jury should motivate trial lawyers to pick up the chalk and plan to teach even more. Although students/jurors feel more empowered in an active learning environment, it is the person who has something to teach who is most empowered. The teacher is empowered because he or she has an audience that is attentive and better equipped with the tools to learn. The teacher/lawyer will see the reforms as new opportunities to reach into the jurors' minds. The skilled teacher/lawyer will guide note taking, provide excellent written materials for the juror notebooks, and use juror questions to gain insight about how the jurors' view the evidence. In other words, reforms designed to improve juror comprehension will, in the hands of a skilled teacher, give the trial lawyer more and better opportunities to teach and persuade the jury of the justice of their cause.

This short article will give you an overview of recent jury reform initiatives and provide some preliminary thoughts about how trial lawyers can make the most of the coming jury trial practice reforms.

Read on SSRN

Centre: CIPL, PEARL

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

Brown on the Ground: A Journey of Faith in Schooling

Author(s): Molly Townes O'Brien

Although Brown v. Board of Education set the stage for the civil rights movement and ended an era of strict racial segregation in schooling, it did not deliver all of the expected educational benefits for black children. Fifty years after the Supreme Court declared an end to the separate but equal doctrine in public schools, America's schools are still substantially segregated and unequal. It is safe to say that the educational results of Brown have been a disappointing. In this article, I contend that much of the disappointment of Brown stems from a misconception of the power of schooling and a disconnect between America's faith in its schools and their operational reality.

So much was expected from Brown because many believed, or at least hoped, that ending segregation in schools would - in itself - make inroads into the structure of a racially oppressive society. Implicit in the Brown decision and in the litigation leading to Brown is an unexamined faith in the institution of public schooling and its power to effect social change. That faith encompasses the beliefs that public schools are capable of serving as the social balance wheel for a capitalist society; that they create citizen affinity; and that they operate as engines of societal reform. Each of these beliefs is contestable and worthy of examination. This article examines Brown as an expression of faith in public schooling and considers its power to be a democratizing force in American society. It then puts that faith in the context of the public school's discriminatory history. I go on to consider two ways in which schooling was expected to accomplish its democratizing effect - by establishing equality and by creating racial affinity - and explain reasons to doubt that the schools alone can ever accomplish these goals. Finally, I conclude that fifty years of experience with Brown require us to take a new look at the social framework for achieving equality and social cohesion. Given the limits of the power of schooling to effect social change, we cannot simply reform schools and expect resulting social and political changes. Instead, we must strive for greater equality and cohesion in society if we hope to achieve equal opportunity in schooling. School reform cannot take place in the absence of supporting social reform.

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

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

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

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

Pages

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team