Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

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

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

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

Can the Right to Vote Be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002

Author(s): Kim Rubenstein

This chapter deals with three related issues. Linked directly to the commemoration of the centenary of white women's vote is the story of the fight for women's voting rights and how that is directly reflected in Australia's constitutional document. This leads to a discussion of the significant lack of protection of voting rights in the Australian constitution. Finally, the chapter addresses the disjuncture between citizenship and substantive rights in the Australian legal and political environment. This is relevant, not just to women, but to all Australians.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

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.

Read on SSRN

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.

Read on SSRN

Centre:

Research theme:

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.

Read on SSRN

Centre:

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

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

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

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

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

Greening the Australian Capital Territory Bill of Rights

Author(s): Donald Anton

This submission outlines an argument for the inclusion of "environmental rights" in Australia's first Bill of Rights, enacted by the Parliament of the Australian Capital Territory on 10 March 2004 as the Human Rights Act 2004 (ACT). The Act came in to force on 1 July 2004, without any environmental provisions.

Read on SSRN

Centre:

Research theme:

Australian Citizenship Law in Context

Author(s): Kim Rubenstein

Australian Citizenship Law in Context by Kim Rubenstein is a new book published in May 2002 by Lawbook Company. Citizenship is the pivotal legal status in any nation-state. For Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law in Context sheds light on citizenship law and practice in the broader context. It also provides the most up-to-date analysis available of the Australian Citizenship Act 1948 and its future direction, plus the first comprehensive listing and analysis of legislation that discriminates upon the basis of citizenship and residence.

The book covers issues of citizenship law, migration law and constitutional and administrative law, and is also a valuable resource for any discipline interested in citizenship. Contents. Preface. Table of Contents. Table of Cases. Table of Statutes. Chapter 1: Citizenship in Australia: An overview. Chapter 2: Australian Citizenship in the 1890s and the Australasian Federal Convention Debates. Chapter 3: Australian "Subjecthood" before Australian Citizenship 1901-1949. Chapter 4: The Australian Citizenship Act 1948. Chapter 5: The Legislative Consequences of Citizenship. Chapter 6: The High Court and Citizenship and Membership. Chapter 7: The Future of Australian Citizenship Law. Index

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

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

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

Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia

Author(s): Kim Rubenstein

This article looks at citizenship as both a legal formal notion, and as a normative notion. While the legal citizen is primarily concerned with the formal status of individuals in the community (compared to permanent and temporary residents), the normative citizen looks to broader concepts, speaking of membership regardless of a person's formal status. The consequence of these different meanings is that citizenship has been expressed in both inclusive and exclusive ways throughout the 20th century. The article displays this by looking at the beginnings of citizenship in Australia before the legal status was formalised, then the first fifty years of the formal status, and finally at the legislative and common law expressions of citizenship. It argues that the confused and often contradictory messages of citizenship require us to be more mindful in the 21st century about the relationship between the formal and normative meanings of the term.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

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

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