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.

Possessed: Drug Policy, Witchcraft and Belief

Author(s): Desmond Manderson

When our friends and family behave irrationally, indulging in fears and behaviours that even they agree are dysfunctional, eventually we stop reasoning with them and send them to an analyst instead. It is their irrational impulses that need to be understood if they are to change. After 50 years of prohibition, we know that banning heroin has not worked. Yet, still we persist. The question is why. It is time to psychoanalyse our drug policies, searching for the irrational fears and anxieties that lie at its heart. We find a surprisingly helpful parallel in another series of laws from long ago: the Witchcraft Laws of the sixteenth century. Entwining the two stories together, this essay argues that our drug laws are not intended to get rid of drugs, any more than the Inquisition wanted to ban the devil. The crime of possession is the sin of being possessed.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Proximity – The Law of Ethics and the Ethics of Law

Author(s): Desmond Manderson

Emmanuel Levinas is one of the great writers on ethics of the 20th Century, but he is little known in law. His two main works, Totality and Infinity and Otherwise Than Being, or Beyond Essence, offer a reconstruction of human selfhood away from questions of identity and ego and towards an ‘ethics of the other’. His writing is passionate, mystical, and rational, at times erudite and elsewhere downright obtuse. But as reward for this struggle, Levinas offers a sustained meditation on the relationship of ethics, responsibility and law, and - remarkably - he does so using the language of the duty of care. Here then is a philosopher, largely unknown to legal theory, who at last speaks the language of torts. Central to Levinas’ meditations is an idea of ethics to which I will have recourse. For Levinas, and those who have been influenced by him, the word ethics implies a personal responsibility to another that is both involuntary and singular. The demand of ethics comes from the intimacy of an experienced encounter, and its contours cannot therefore be codified or predicted in advance. At least as opposed to the Kantian paradigm of morality as ‘a system of rules,’ ethics therefore speaks about inter-personal relationships and not about abstract principles. At least as opposed to most understandings of law, ethics insists on the necessity of our response to others, and the unique predicament of each such response, rather than attempting to reduce such responses to standard instances and norms of general application applicable to whole communities and capable of being settled in advance. Indeed, ethics constantly destabilizes and ruptures those rules and that settlement. Furthermore, ethics implies an unavoidable responsibility to another which Levinas exhorts as ‘first philosophy’: by this he means to indicate that without some such initial hospitality or openness to the vulnerability of another human being, neither language nor society nor law could ever have got going. At least as opposed to many understandings of justice, there is nothing logical or a priori inevitable about such an openness; except that without it, we would not be here to talk to one another. We cannot derive this ethics from rational first principles. Ethics is that first principle.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

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

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

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

When Silence Threatens Safety: Lessons from the First Canberra Hospital Neurosurgical Inquiry

Author(s):

Despite widespread institutional and professional support, the recommendations of the Bristol Royal Infirmary Inquiry may be insufficient to reduce patient risk from impaired senior medical practitioners. Using the First Inquiry into Neurosurgical Services at the Canberra Hospital as a case study, this article argues that the Bristol-type recommendations - which emphasise reformulation of clinical governance structures, including early reporting of “sentinel events” and compulsory clinical audits – will be ineffective without a reformed institutional ethos that encourages open transparency and respect for those committed to such processes. Such reformulation may need to commence in medical education and involve new strategies including the use of portable digital technology to facilitate self assessment of performance and immediate reporting of adverse incidents. One important lesson from the first Canberra Hospital Neurosurgical Inquiry is that, even with best practice clinical governance standards in place, and a Health Complaints Commissioner with adequate powers to compel the production of evidence, health care quality and safety will be compromised if a negative institutional culture is permitted to persist. How do we initiate the required change? One approach at the Australian National University Medical School has been to design a curriculum in which medical students are taught to understand the mix of conscience, medical ethics, legal and human rights principles that feed into clinical governance pathways to justify the act of “whistle-blowing” when they are frustrated by a negative ethos. It is hoped that this may soon be linked with programmed portable digital technology facilitating self-assessment and incident reporting. Learning when to conciliate, when to consult, when to rely on existing peer-review structures and when to move to external sources of review, involves a complex balancing process that must be taken seriously in medical education. It cannot be left to chance.

Read on SSRN

Centre:

Research theme: Health, Law and Bioethics

Three Australian Whistleblowing Sagas: Lessons for Internal and External Regulation

Author(s):

The recent Cambelltown/Camden Hospitals, Canberra Hospital Neurosurgical Services and King Edward Memorial Hospital investigations, all uncovered significant problems with quality and safety in Australian public hospitals. Each investigation arose after whistle blowers contacted politicians directly, their first attempt to use existing clinical governance or quality and safety pathways, having failed in each instance. Existing clinical governance or quality and safety pathways were found to be inadequate and inhibited by a poor institutional culture for self-regulation. None of the substantiated problems were previously detected by the accreditation process at the respective institutions. In each instance, even though the allegations of the whistle blowers were established, those individuals received little respect from their institutions or the profession. Healthcare whistle blowers can occupy a variety of positions ranging from nurses (Campbelltown/Camden Hospitals) and staff specialists (The Canberra Hospital Neurosurgical Services) to CEO’s (King Edward Memorial Hospital). Their contribution to Australian health care quality and safety should be more openly recognized at both institutional and professional levels as a valuable and essential supplement to clinical governance initiatives One suggestion is to use portable digital technology to transform the conscience-based activity of whistle blowing into a culture, not of informing on allegedly dysfunctional institutions or impaired colleagues, but of self-reporting and professional development.

Read on SSRN

Centre:

Research theme: Regulatory Law and Policy

The Forgotten Forests: The Regulation of Forestry on Private Land in New South Wales 1997-2002

Author(s): James Prest

The question of the management of native forests on privately held land is a neglected aspect of off-reserve biodiversity conservation. Research was conducted into the administration of environmental laws applying to private native forestry (PNF) in NSW between 1997-2002 to discern the extent of regulated and unregulated activity. Research also aimed to investigate broad patterns of administrative behavior in implementing relevant legislation. The implementation of the Native Vegetation Conservation Act 1997 and the Threatened Species Conservation Act 1995 in relation to PNF were examined in particular. Failures of the legislative framework were revealed. The applicable law was found to be complex, and highly fragmented, with responsibility spread across many agencies. Some regulatory failures also stemmed from inadequate implementation of the legislation. It was found that PNF was infrequently regulated under the Native Vegetation Conservation Act 1997, primarily due to a problematic exemption for PNF. It was infrequently regulated by local government under Local Environment Plans. The safety net mechanism of licensing under the Threatened Species Conservation Act 1995 not often applied. These findings suggest a failure of the law to ensure ecologically sustainable forest management in NSW private forests. While the results suggest regulatory failure, they do not constitute grounds for wholesale replacement of regulation with self-regulation and other instruments.

Read on SSRN

Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Developing and Teaching the Virtue-Ethics Foundations of Healthcare Whistle Blowing

Author(s):

Healthcare whistle blowing, despite the benefits it has brought to healthcare systems in many developed countries, remains generally regarded as a pariah activity by many of the most influential healthcare professionals and regulatory institutions. Few if any medical schools or law department health law and bioethics classes, teach whistle blowing in a formal sense. Yet without exception, public inquiries initiated by healthcare whistle blowers have validated their central allegations and demonstrated that the whistle blowers themselves were sincere in their desire to implement the fundamental virtues and principles of medical ethics, bioethics and public health law. In many jurisdictions, the law, this time remarkably in advance of professional opinion, has offered legislative protection for reasonable allegations of whistleblowers made in good faith and in the public interest concerning a substantial and imminent threat to public safety. One reason for this paradoxical position, explored here, is that healthcare whistle blowing lacks a firm virtue-based theoretical bioethical and jurisprudential foundation. The hypothesis discussed is that the lack of this bioethical and jurisprudential substrate has contributed to a situation where healthcare whistle blowing suffers in terms of institutional support due to its lack of academic legitimacy.

This article commences the process of redressing this imbalance by attempting to lay the theoretical foundations for healthcare whistle blowing. As a case study, this article concludes by discussing the Personal and Professional Development course at the ANU Medical School where healthcare whistle blowing is a formal part of a virtue-based curriculum that emphasises the foundational importance of conscience. Illustrative elements of that program are discussed.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Will International Human Rights Subsume Medical Ethics? Intersections in the UNESCO Universal Bioethics Declaration

Author(s):

The professional regulatory system known as medical ethics has been one of the most visionary and socially valuable creations of the medical profession. Its beneficial influence has extended beyond physician/patient relations, to the shaping of many key humanistic and egalitarian features of the world’s legal and political institutions. The continued existence of medical ethics as a professionally influential normative system, however, is being challenged by international human rights. The UNESCO Universal Declaration on Bioethics and Human Rights, is likely to be an important point of intersection in this process.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

When Silence Threatens Safety: Lessons from the First Canberra Hospital Neurosurgical Inquiry

Author(s):

Despite widespread institutional and professional support, the recommendations of the Bristol Royal Infirmary Inquiry may be insufficient to reduce patient risk from impaired senior medical practitioners. Using the First Inquiry into Neurosurgical Services at the Canberra Hospital as a case study, this article argues that the Bristol-type recommendations - which emphasise reformulation of clinical governance structures, including early reporting of “sentinel events” and compulsory clinical audits – will be ineffective without a reformed institutional ethos that encourages open transparency and respect for those committed to such processes. Such reformulation may need to commence in medical education and involve new strategies including the use of portable digital technology to facilitate self assessment of performance and immediate reporting of adverse incidents. One important lesson from the first Canberra Hospital Neurosurgical Inquiry is that, even with best practice clinical governance standards in place, and a Health Complaints Commissioner with adequate powers to compel the production of evidence, health care quality and safety will be compromised if a negative institutional culture is permitted to persist. How do we initiate the required change? One approach at the Australian National University Medical School has been to design a curriculum in which medical students are taught to understand the mix of conscience, medical ethics, legal and human rights principles that feed into clinical governance pathways to justify the act of “whistle-blowing” when they are frustrated by a negative ethos. It is hoped that this may soon be linked with programmed portable digital technology facilitating self-assessment and incident reporting. Learning when to conciliate, when to consult, when to rely on existing peer-review structures and when to move to external sources of review, involves a complex balancing process that must be taken seriously in medical education. It cannot be left to chance.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Three Australian Whistleblowing Sagas: Lessons for Internal and External Regulation

Author(s):

The recent Cambelltown/Camden Hospitals, Canberra Hospital Neurosurgical Services and King Edward Memorial Hospital investigations, all uncovered significant problems with quality and safety in Australian public hospitals. Each investigation arose after whistle blowers contacted politicians directly, their first attempt to use existing clinical governance or quality and safety pathways, having failed in each instance. Existing clinical governance or quality and safety pathways were found to be inadequate and inhibited by a poor institutional culture for self-regulation. None of the substantiated problems were previously detected by the accreditation process at the respective institutions. In each instance, even though the allegations of the whistle blowers were established, those individuals received little respect from their institutions or the profession. Healthcare whistle blowers can occupy a variety of positions ranging from nurses (Campbelltown/Camden Hospitals) and staff specialists (The Canberra Hospital Neurosurgical Services) to CEO’s (King Edward Memorial Hospital). Their contribution to Australian health care quality and safety should be more openly recognized at both institutional and professional levels as a valuable and essential supplement to clinical governance initiatives One suggestion is to use portable digital technology to transform the conscience-based activity of whistle blowing into a culture, not of informing on allegedly dysfunctional institutions or impaired colleagues, but of self-reporting and professional development.

Read on SSRN

Centre:

Research theme: Regulatory Law and Policy

Unequal Membership: The Constitution's Score on Citizenship

Author(s): Kim Rubenstein

Vikram Seth's book, "An Equal Music," inspired the title of this chapter, "An Unequal Membership: the Constitution's score on citizenship." Seth's book invites the reader into the life of a string quartet - the dynamics, inspirations and musical highs and lows of life as a musician. But how does this relate to this chapter and this book? Perhaps the extract from the John Donne sermon that Seth includes at the beginning of the book sheds more light on the themes relevant to my argument:

"And into that gate they shall enter, and in that house they shall dwell, where there shall be no cloud, nor sun, no darkness nor dazzling, but one equal light, no noise nor silence, but one equal music, no fears nor hopes, but one equal possession, no foes nor friends, but one equal communion and identity, no ends nor beginnings, but one equal eternity."

While I think these words refer to the "pearly gates" of heaven, they are relevant to any gates that seek to exclude. In entering Australia's gates, non-citizens have not been welcomed to "one equal communion and identity" at any time throughout Australia's history. As a constitutional lawyer interested in citizenship, my inclination is to think about our constitutional document and its role in this unequal membership in Australian society. It is my thesis that the absence of citizenship in the Australian Constitution has fundamentally affected the development of legal and normative notions of membership of the Australian community. This chapter will examine why citizenship was omitted, the legal consequences of that omission, and the associated judicial constraint upon using normative notions of citizenship. Moreover, I argue that the recent MV Tampa crisis reflects further on our unequal membership, with notions of exclusion being more important than inclusion in determining membership of the Australian community. The chapter concludes by arguing for a stronger constitutional statement about citizenship for utilisation by courts, policy makers and the public, to more readily and easily enable a broader sense of membership in Australia.

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

Globalisation and Citizenship and Nationality

Author(s): Kim Rubenstein

How well are the legal concepts of citizenship and nationality travelling in a globalised world? This chapter addresses the effects of globalization on people's status and membership within their own territory, and beyond it. Citizenship is a legal, political, and social construct that has domestic and international consequences. I argue that citizenship, in its traditional meaning of participation in and membership of the nation-state, will be fundamentally altered by globalisation and will not continue to travel in the same manner that it has been. The familiar domestic and international consequences of citizenship, such as political voting rights, legal rights, including the right to leave and enter a country, and social welfare rights, will be fundamentally affected by the changes in people's connection to the nation-state. This means that it can't be recognised as a generalisable legal notion, to the extent that it may have been in the past. Moreover, as people identify and become members of more than one community, we will witness an acceptance of multi-citizenship/membership within the nation-state and within the international order. The rise of the world citizen and the changes that have occurred in the nation-state mean that citizenship and nationality will be revised concepts in the 21st century. If they are able to adapt to these changed frameworks, then citizenship and nationally may continue to travel well. This chapter is a combination of two earlier works of the author reproduced in this important book edited by Catherine Dauvergne.

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

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

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

State Immunity from Commonwealth Laws: Austin v. Commonwealth

Author(s): Amelia Simpson

The constitutional principle immunising the States from certain kinds of Commonwealth laws traces back, in its current form, to the High Court’s 1947 decision in Melbourne Corporation v. Commonwealth. The contours of that principle – known as the State immunity principle or the Melbourne Corporation principle – have never been entirely clear.

However, a measure of certainty followed the Court’s endorsement, through the 1990s, of the formulation contained in the judgment of Mason J in Queensland Electricity Commission v. Commonwealth (“QEC”). He framed the principle as comprising 2 elements, or limbs. The first limb, described in terms of discrimination, dealt with Commonwealth laws that singled out States for special burdens or disabilities; the second limb dealt with Commonwealth laws which, while not singling States out, operated so as to destroy or curtail their continued existence or capacity to function.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory

In the Tout Court of Shakespeare: Interdisciplinary Pedagogy in Law

Author(s): Desmond Manderson

A great civilization, said Robert Cover, is to be judged by the quality of its law no less than its literature or engineering or science. In particular he meant by law a nomos, which is to say a way of being in the law experienced by members of that community, a way in which their law is seen to be related to their literature, and their engineering, and their science, as part of a continually relevant cultural interaction. I have for a long time been looking for ways to properly integrate methods of interdisciplinary thinking into my writing and teaching. Typically one does this by using literary or other texts to shed light on the law. But this is a form of parallel play and not a real integration. My commitment to an interdisciplinary approach is far stronger than any mere comparativism. Law is a literature and, which is more, literature is law, in its form, its power, its interpretative strategies, its discursive effects. Now one might respond by insisting that law cannot be conjured out of nothingness: it requires a specific institutional form that authorizes and enforces it. But that is entirely to confuse cause and effect. The question of form is undoubtedly relevant to legal – as to any – meaning and rhetoric, but institutionalization within specific State-driven structures is not. The treatment of law as if its meaning and its legitimacy were somehow separate from the cultural forces that give birth to it and in relation to which it is understood, has led scholars to make of law a mere technic for dispute resolution, and a purely hermetic practice beholden to nothing but its own logic. The failure to appreciate that law’s value stems from its cultural integration has amounted to a systematic impoverishment of its capacities and of its relevance to the community as a whole. I have often wondered how best to dramatize some of these issues: to ask students to imagine what it might be like to experience the birth of law, and to invite them to be responsible for the emergence of interpretative and normative principles; to encourage them to explore the interpretative connections and differences between literature and law in a real setting; to provide a forum in which students and teachers can think carefully about how our normative beliefs find their way into and through objective legal texts, forming and yet being constrained by its meaning.

In particular, I have always thought that any sufficiently rich body of textual material could serve as the basis of a legal system, and would pose very similar questions as to how those texts become binding and meaningful under the day to day pressures of judicial reasoning. Moreover, I think there is a real advantage in approaching these complex questions indirectly, offering therefore to teach students about law (or droit or Recht) – its genesis and evolution, its structures of reasoning and rhetoric, and the relationship of facts to texts to norms – without ever making the mistake of reducing it to the content of any particular ‘law’ (or loi or Gesetz ) whatsoever. The current essay explores a pedagogical experiment in which English and Law students worked together to found a ‘court of Shakespeare’ as an ongoing practice of legal genesis, constitution, and interpretation.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

From Hunger to Love: Myths of the Source, Interpretation, and Constitution of Law in Children's Literature

Author(s): Desmond Manderson

Children's literature is an important and wildly unappreciated source of law: a repository of myth that develops, in children, life-long understandings of law and our relationship to laws. It is not a question of "law and literature" but of literature as law, and law as literature. The article takes the celebrated book by Maurice Sendak, "Where the Wild Things Are", as a case study through which to develop an argument as to the origin and nature of legal consciousness in children. The book demonstrates Norbert Elias' proposition that children's process of up-bringing is precisely a miniature re-enactment of the development of modern civilization in the West. However, the article goes much further than this in arguing that Sendak's story explores precisely what it means to begin to learn how to "interpret" a legal text. One orthodox position would have it that a civilized child simply "obeys" their parents. But Sendak's text dramatizes the inherent difficulties that children face in understanding what it means to be obedient. These difficulties are insoluble, endemic, and intensely felt. To understand a civilized relationship to law as children begin to perceive it requires us to develop a more complicated jurisprudential position. The child Max resolves his proto-legal dilemma, at the end of the dream sequence that forms the centerpiece of the book, through an idea of legal responsibility that is quite distinct from that of legal obedience. The essay argues that "Where the Wild Things Are" asks us to understand love and law as institutions that require us to think about what they are for, in order to interpret what they mean. Drawing on the ethical philosophy of Emmanuel Levinas, the article concludes that to love the law, or to promise to honor the law of the family one loves, demands an on-going commitment to think about its purposes and its justice. Such a commitment is incommensurable with literalism, legalism, or positivism.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

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

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