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.

‘As If’ - the Court of Shakespeare and the Relationships of Law and Literature

Author(s): Desmond Manderson

The Shakespeare Moot Court is a form of serious play that inspires participating legal and literary students and professors to think about interdisciplinary in a new way - by doing it. Members of the Court apply their analytical and argumentative skills to the task of creating the law of Shakespeare, tackling matters of public concern such as same-sex marriage, crimes against humanity, and freedom of religion. In the course, senior Law students and graduate students from English team up to argue cases in the “Court of Shakespeare” (where the sole Institutes, Codex, and Digest are comprised by the plays of William Shakespeare). The Court involves students (as counsel) and Shakespeareans and legal scholars (as judges) in a competitive and collaborative form of play whose object is to engage with Shakespeare’s plays in order to render judgments concerning particular contemporary legal problems. In the first part, this essay reflects on critical practice in Shakespeare studies and the argues that the legal model of the moot court offers this practice dimensions of accountability, corrigibility, and temporality which are essential to the future of the critical practice of literary studies. Above all the Shakespeare Moot Court provides a new and necessary way of restoring Shakespeare criticism, or some significant part of it, to the public realm. In the second part, the argument is reversed. The literary conceit of the Shakespeare Moot Project serves to dramatize that literature’s very different orientation offers to the world of law a vital reminder that the question of judgment is always imbricated in the character, experiences, and subjectivity of the judge. This perspective, which was indeed universally understood as integral to the exercise of judgment, whether literary or legal, in Shakespeare’s time, seems in many ways to have been forgotten or sidelined in most modern understandings of law. For the literary theorist, the “privatization” of literature from the late eighteenth century on has obscured its role in public discourse, as the first part argues. For the legal theorist, as the second part argues, the “publicization” of law from the late eighteenth century on has obscured its connection to personal responsibility. The two arguments together demonstrate that the Enlightenment’s project of defining and dividing disciplines - allocating the realm of public action to law and that of private feeling to literature - has come at the cost of the relevance of one and the humanity of the other.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Response: ‘And it Really Was a Kitten, after All.’

Author(s): Desmond Manderson

This essay is the author response to a symposium on Proximity, Levinas and the Soul of Law published in the Australian Journal of Legal Philosophy in 2008.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Desert Island Disks (Ten Reveries on Pedagogy in Law and the Humanities)

Author(s): Desmond Manderson

Novel in form and content, this essay makes a case for interdisciplinary pedagogy in legal education and research by focusing on cultural representations of law - on the meanings of and about law to be found in literature, art, music, and other social and daily forms. The essay develops a theory of law as found in the everyday, on the distinction between legal and non-legal forms of representation and discourse, and on the ethical responsibility of connection law students experiences of the world to their classroom learning.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Legal Theory in Wonderland

Author(s): Desmond Manderson

Forms part of the symposium issue of Australian Journal of Legal Philosophy to discuss Desmond Manderson's Proximity, Levinas and the Soul of Law. Here the author presents a critique of his own work on responsibility, tort law, and the philosophy of Levinas

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

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

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

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

Governor Arthur’s Proclamation: Aboriginal People and the Deferral of the Rule of Law

Author(s): Desmond Manderson

2007 was a tumultuous year in Australian politics, culminating on November 24 with Federal elections in which the highly conservative Liberal Party government led by Mr. John Howard was, after eleven years in government, decisively defeated at the polls. Of particular note in that result was the defeat of the Prime Minister in his own electorate, and the dramatic and unexpected defeat of the Minister for Families and Indigenous Affairs, Mal Brough, in his. Both have now left politics for good. But their legacy lives on, and it is my contention that the most significant aspect of that legacy is legislation which, enacted with unseemly haste and in the dying days of the Parliament, profoundly alters the legal treatment of Australian Aboriginal people in the Northern Territory, a self-governing but sparsely populated region the size of France, Italy, and Spain combined. One-third of the Territory’s population is Aboriginal, far and away the most proportionally significant Indigenous population in the country. Yet very little serious analysis of the sweeping and complex laws proclaimed in August 2007 has been attempted. Such an analysis remains crucial not just because of the relationship between Indigenous and other people which it reflects but because the Labor Party, albeit reluctantly, voted in favor of the legislation when it was enacted. Now in government it has shown a marked reluctance to re-open the issue. Indeed at times Jenny Macklin, the new Minister for Indigenous Affairs, has talked about extending the laws to other Australian jurisdictions. Furthermore, to the extent that the new government has mooted changes to aspects of the legislation, the Labor Party does not have a majority in the Senate and will consequently face considerable difficulty in getting its amendments through the Parliament. Given the wave of emotion on which the legislative package was carried, and with which criticisms to its provisions are still fiercely met, they may feel disinclined to try very hard. Unless a serious critique is mounted which demonstrates as clearly as possible the ways in which these laws undermine basic principles of the Australian legal system, the opportunity to amend them will soon be lost and the fate of many Aboriginal communities as soon sealed. In bringing readers’ attention to the implications of the laws pertaining to the ‘intervention in the Northern Territory’, and which ought to concern all who have an interest in upholding the traditions of common law legality, I propose in this essay to set the contemporary issues against a broader theoretical debate, and with the assistance of two distinct perspectives.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

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

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

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

Australia

Author(s): Donald Rothwell

This is a chapter on Australia for a forthcoming book that will provide a comparative perspective on the role of domestic courts in enforcing treaties. The book will be published by Cambridge University Press.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s):

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

Research theme: International Law, Law and Technology, Private Law

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s):

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

Research theme: International Law, Law and Technology, Private Law

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

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

‘As If’ - the Court of Shakespeare and the Relationships of Law and Literature

Author(s): Desmond Manderson

The Shakespeare Moot Court is a form of serious play that inspires participating legal and literary students and professors to think about interdisciplinary in a new way - by doing it. Members of the Court apply their analytical and argumentative skills to the task of creating the law of Shakespeare, tackling matters of public concern such as same-sex marriage, crimes against humanity, and freedom of religion. In the course, senior Law students and graduate students from English team up to argue cases in the “Court of Shakespeare” (where the sole Institutes, Codex, and Digest are comprised by the plays of William Shakespeare). The Court involves students (as counsel) and Shakespeareans and legal scholars (as judges) in a competitive and collaborative form of play whose object is to engage with Shakespeare’s plays in order to render judgments concerning particular contemporary legal problems. In the first part, this essay reflects on critical practice in Shakespeare studies and the argues that the legal model of the moot court offers this practice dimensions of accountability, corrigibility, and temporality which are essential to the future of the critical practice of literary studies. Above all the Shakespeare Moot Court provides a new and necessary way of restoring Shakespeare criticism, or some significant part of it, to the public realm. In the second part, the argument is reversed. The literary conceit of the Shakespeare Moot Project serves to dramatize that literature’s very different orientation offers to the world of law a vital reminder that the question of judgment is always imbricated in the character, experiences, and subjectivity of the judge. This perspective, which was indeed universally understood as integral to the exercise of judgment, whether literary or legal, in Shakespeare’s time, seems in many ways to have been forgotten or sidelined in most modern understandings of law. For the literary theorist, the “privatization” of literature from the late eighteenth century on has obscured its role in public discourse, as the first part argues. For the legal theorist, as the second part argues, the “publicization” of law from the late eighteenth century on has obscured its connection to personal responsibility. The two arguments together demonstrate that the Enlightenment’s project of defining and dividing disciplines - allocating the realm of public action to law and that of private feeling to literature - has come at the cost of the relevance of one and the humanity of the other.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

The Expanding Role of Process in Judicial Review

Author(s): Greg Weeks

This article examines the state of the law of procedural fairness and procedural error, demonstrating that inadequacy of process is now central to findings that decisions of the Executive are so lacking in quality as to manifest an error of law. The article argues that fairness of outcome and legitimacy of review need not be defined only in relation to the faultlessness of process.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

'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

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

Researching Safety and Cost-Effectiveness in the Life Cycle of Nanomedicine

Author(s):

Nanotechnology is rapidly emerging as a transformational influence on many industry sectors. This is particularly true of medicines and medical devices. This article argues that, as policy interest in devising an appropriate regulatory framework for nanotherapeutics escalates, it will be important for public health to ensure that a broad life-cycle approach to both safety and cost-effectiveness is adopted. It charts some of the most important issues likely to be faced and begins to map how they can best be addressed.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Nanotechnology in Global Medicine and Human Biosecurity: Private Interests, Policy Dilemmas and the Calibration of Public Health Law

Author(s):

This paper links the opportunity to assist the development of a well-reasoned theoretical underpinning for nanotechnology regulation, to a review of the process by which most global health policy develops by default in an institutional environment heavily influenced by private interests. It focuses on two areas of particular significance to global public health: nanotechnology in medicine and human biosecurity.

It would be reasonable to suppose that dilemmas posed to public health and human biosecurity policy by increasing advances in practical applications of nanotechnology should initially be answered by reference to statistical evidence of the global burden of disease, or international agreements about rational threat assessments which then flow into the transparent development of norms that are fair and universally applicable. Yet this rational approach to health law and policy development is not at all characteristic of the field. Globally, medicinal and human biosecurity policy, both in general and in relation to nanotechnology, continue to be strongly influenced by the sophisticated lobbying of private interest groups from a few economically powerful countries. The governments of such nations characteristically express concern that agreeing to binding, universally-applicable international standards in these areas would compromise sovereignty over their own public health and security systems. Their political oligarchies, however, readily acquiesce to corporate funding of regulators, to industry positions on regulatory and policy development committees, to the tacit policy obligations resulting from corporate donations and to a personally lucrative but ethically compromising ‘revolving-door’ employment system between government, the bureaucracy and private sector.

This article proposes to discuss a particular approach to these challenges to norm creation in the context of some concrete examples that show the significance of what is at stake: (1) conflicts of interest in ensuring public safety (2) private exploitation of public-funded research (3) inequities in expenditure of public funds, and (4) diminishing public confidence in government and science.

It argues, with reference to these types of global policy dilemmas, that a better balance of private and public interests in such areas will be achieved in the long term by an international normative standard requiring that the development of relevant public health law and policy be consistent with norms issuing from bioethics and international human rights. It aims to demonstrate some practical policy outcomes from this approach and concludes by weighing arguments against it.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Decision-Analytical Modelling in Health-Care Economic Evaluations

Author(s):

Decision-analytical modelling is widely used in health-care economic evaluations, especially in situations where evaluators lack clinical trial data, and in circumstances where such evaluations factor into reimbursement pricing decisions. This paper aims to improve the understanding and use of modelling techniques in this context, with particular emphasis on Markov modelling. We provide an overview, in this paper, of the principles and methodological details of decision-analytical modelling. We propose a common route for practicing modelling that accommodates any type of decision-analytical modelling techniques. We use the treatment of chronic hepatitis B as an example to indicate the process of development, presentation and analysis of the Markov model, and discuss the strengths, weaknesses and pitfalls of different approaches. Trial-based cost-effectiveness evaluation is becoming increasingly emphasised as a prioritised precondition (after safety, quality and efficacy evaluation) for central government drug reimbursement.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Balancing Intellectual Monopoly Privileges and the Need for Essential Medicines

Author(s):

The World Trade Organisation's (WTO's) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has remained controversial ever since its inception at the behest of some of the world's largest multinational corporations. Balancing the need to protect the intellectual property rights (IPRs) (which the third author considers are more accurately described as intellectual monopoly privileges (IMPs)) of pharmaceutical companies, with the need to ensure access to essential medicines in developing countries is one of the most pressing challenges facing international policy makers today. In order for Commonwealth nations to craft and implement IPR (or IMP) legislation that realises this balance, decision-makers need to capitalise on the flexibilities and provisions afforded by the agreement, particularly compulsory licensing.

Nonetheless, the industry-influenced US Trade Representative (USTR) routinely opposes the use of such flexibilities and, despite contrary injunctions in US law, has sought to restrict them in a series of bilateral putatively 'free' trade agreements.

Despite recent advancements in prevention and treatment in many regions of the world, diseases such as HIV/AIDS, tuberculosis (TB) and malaria continue to scourge the poorest and most vulnerable of the global population. The vast majority of those suffering from these diseases live in developing countries, where low wages, high pharmaceutical prices and poor access to medical services means there is limited, if any, access to many of the life- saving drugs currently available in industrialised countries. In fact, about one-third of the world's population does not have access to essential medicines. Currently, 80 percent of the world's population lives in developing countries, but consumes less than 20 percent of all pharmaceuticals.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

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