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.

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

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

Dealing with Mass Atrocities and Ethnic Violence: Can Alternative Forms of Justice Be Effective?

Author(s): Phillip Drew

This paper was originally published in the Canadian Access to Justice Network. One of the first articles written on the subject of Gacaca, it was awarded the Prize for Alternative Dispute Resolution by the Minister for Justice of Canada in 2000.

In the paper, Drew explores the troubles in Rwanda as an example of the difficulties that confront countries as they transition from ethnic violence into a post-conlict and post-genocide framework. Specifically, how can they acknowledge and deal with past wrongs, especially in ways that offer hope for social rebuilding and reconciliation? Drew summarizes the genocidal terror that wracked Rwanda in 1994 and the various post-conflict efforts (national and international) to illuminate the wrongs committed and hold perpetrators accountable. His discussion includes aspects of ethnicity, culture, and legal traditions and developments in Rwanda that contributed to the violence and to complexities in the post-terror period in dealing with perpetrators and victims of the violence. Significant attention is given to a recommendation from a National Reconciliation Commission that Rwanda adopt the traditional Gacaca – a form of mediation performed by a village council of elders to promote justice and reconciliation at the communal level.

Read on SSRN

Centre: CMSL

Research theme: International Law, Legal Education, Military & Security Law

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.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

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

Pages

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