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.

Reintroducing a Criminal Jury in Japan: Reform Lessons for Us All?

Author(s): Mark Nolan

This paper overviews Chief Justice Spigelman's suggestion that NSW criminal jurors consult sentencing judges and give views on sentence before those judges pass sentence. This form of lay participation in criminal justice is compared and contrasted to the new Japanese mixed court system (the saiban-in seido, operational by May 2009).

Read on SSRN

Centre: CIPL, CMSL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Law, Governance and Development, Migration and Movement of Peoples

Judicial Selection: Trust and Reform

Author(s): Ron Levy

The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

Read on SSRN

Centre: CIPL, CLAH

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

Judicial Selection: Trust and Reform

Author(s): Ron Levy

The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Uncertainty and Exclusion: Detention of Aliens and the High Court

Author(s): Matthew Zagor

In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

The Law School, the Market and the New Knowledge Economy

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Rethinking Nationality in International Humanitarian Law

Author(s): Kim Rubenstein

Nationality has been central to law's understanding of membership. Moreover, the formal legal relationship between the individual and the state is that of citizenship - or nationality. However, as this chapter argues, various forces in the international context, including globalisation and the contrasting phenomena of fragmentation, express tensions besetting traditional notions of state membership in an international framework.

This chapter begins by looking at some of the issues underpinning the larger question of the role of nationality in humanitarian law. It then explores those questions in the context of the former Yugoslavia and in particular through the judgment of the War Crimes Tribunal for the Former Yugoslavia in the case of Tadic. It argues that nationality should not necessarily be a determinative factor when applying humanitarian law.

Read on SSRN

Centre: CIPL, CLAH

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Essay Review: Final Test and Class and Schools

Author(s): Molly Townes O'Brien

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

Read on SSRN

Centre: CIPL

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

Health Legislation: Interpretation Coherent with Conscience and International Human Rights

Author(s):

This essay seeks to explore some theoretical and practical obstacles to developing a coherent and comprehensive theory for the interpretation of health legislation. One obstacle considered involves the academic and professional reluctance to direct critical attention to interpretive actions outside the judicial sphere; in this case to those by health administrators, health professionals and patients. Another concerns a similar reticence to formally acknowledge the widespread utilization by such interpreters of principles derived from normative traditions distinct from many domestic legal systems, in particular those of medical ethics and international human rights. The third obstacle relates to the difficulties raised for interpretation of health legislation by community demands for greater transparency and quality assurance in the health care sector. Linked with this is the question whether interpretation of health legislation should be approached with a presumption that it promotes core social and professional virtues (such as justice, fairness and loyalty to relief of patient suffering) in the life narratives of those most directly affected.

Given existing presumptions that legislation will not seek to controvert basic principles of the common law or international law, it seems reasonable to for judiciary interprating an ambiguity to be required to presume that the relevant health legislation will not normally seek to overturn basic ethical principles of the doctor-patient relationship. Similarly justified would be a presumption that health legislation will not be interpreted to contravene basic ethical protections accorded research subjects through authoritative ethical codes and guidelines. Of like importance, as will be discussed, could be a rebuttable assumption that health legislation will not attempt to abrogate the primary fiduciary obligation and professional virtue of a doctor to remain loyal to the relief of suffering amongst his or her patients.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

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

The Influence of Chinese Immigration on Citizenship

Author(s): Kim Rubenstein

This article is from a paper given at a conference in 2000 which sought to do two things. First it draws out some of the legal issues central to citizenship and displays how they relate to the other disciplines in the development of citizenship in Australia. It argues there has not been a clear legal framework within which to develop an understanding of citizenship in Australia. Secondly, it argues that Chinese immigration to Australia in the second half of the 19th century was central to the evolution of citizenship in this country. Moreover, this factor has influenced the development of a legal framework that is confused, ambiguous, and contradictory about citizenship.

Read on SSRN

Centre: CIPL, CLAH

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

'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, 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

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, 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, 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

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

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