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.

Changing Our Thinking

Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum

Author(s): Molly Townes O'Brien, Stephen Tang, Kath Hall

We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.

In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

An Inconstant Affair

An Inconstant Affair: Feminism and the Legal Academy

Author(s): Margaret Thornton

Drawing on the Australian experience, this chapter shows how the fortunes of feminist legal theory (FLT) are closely imbricated with those of the state. The trajectory of the discomfiting liaison between feminism and the legal academy is traced over three decades to highlight the contingent nature of FLT, particularly the sensitivity to the prevailing political climate in which the pendulum swing from social liberalism to neoliberalism induces uncertainty and instability. It will be shown that under social liberalism, FLT received a modicum of acceptance within the legal academy but began to contract and then wither with the onset of neoliberalism. This has not only been disastrous for FLT, but it has also subtly brought about a remasculinisation of the academy.

Read on SSRN

Centre: CIPL, CLAH

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

facing_down_the_gladiators.jpg

Facing Down the Gladiators: Addressing Law School’s Hidden Adversarial Curriculum

Author(s): Molly Townes O'Brien

Law students arrive at law school well-indoctrinated in the popular culture myth that the dominant role of the lawyer is as an advocate in an adversarial system. These students, if they become practicing lawyers, will be more likely to fill their days with negotiation than with litigation; they will be more likely to represent a client in mediation than at trial; they will more likely be deal-makers than gladiators. Nevertheless, their preconception or misconception of the dominance of the lawyers’ adversarial role will be reinforced in their legal training.

Adversarialism is deeply embedded in both the formal and the hidden curriculum of US and Australian law schools. While most law schools now teach courses that deal with non-adversarial processes, the pervasive ethos is – often unintentionally – adversarial. This ethos may constrain the way that students conceptualize their future roles and limit the possibility space available to them for creativity, constructive lawyering and peacemaking. The ethos also contributes to a climate of the law school hostile and unhappy for many students.

This paper explores the law school’s hidden adversarial curriculum – the unstated norms and values that are communicated to students. It uncovers some of the unintended messages sent through choices of teaching materials, classroom pedagogy, assessment practices, and extra-curricular emphasis on contests. The paper suggests that, by addressing the hidden curriculum, law schools can create more space for constructive lawyering and better prepare students for the variety of roles that they may inhabit as lawyers (including roles as advocates in adversarial processes). It will suggest that to provide greater room for non-adversarialism in law school and in legal practice, legal education must import non-adversarial processes and materials into its pedagogy; it must provide broader measures of student merit; and it must take control over the law school contest culture.

Read on SSRN

Centre: CIPL

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

Elementary Considerations of Humanity

Elementary Considerations of Humanity

Author(s): Matthew Zagor

International law has long been infused with a vague commitment towards an indeterminate notion of humanity. An examination of humanity as a specific normative idea in the historical discourse of international law provides a platform for better understanding the rhetorical and substantive meaning of ‘elementary considerations of humanity’ in the seminal Corfu Channel case, as well as Judge Alverez’s use of the more affective (and perhaps honest) term ‘sentiments of humanity’ in his separate opinion. With the Court otherwise silent as to the content, scope and status of the principle, such background informs the judicial attitudinal stance taken towards this apparently ‘self-evident’ principle, as well as the values which the Court and other international tribunals would subsequently bring to their norm creation and enforcement roles, not least with respect to general principles as a source of law. Drawing upon the work of Koskenniemi and the analyses of the Martens clause by scholars such as Meron and Cassese, the chapter places particular emphasis on the political, normative and empathetic potential of the term, and its inherent relationship to a foundational, essentialist and idealistic notion of humanity which continues to gain strength in the discipline.

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

Walking the Walk

Walking the Walk: Using Student-Faculty Dialogue to Change an Adversarial Curriculum

Author(s): Molly Townes O'Brien

The law school curriculum has come under fire recently for being overly adversarial, hierarchical, patriarchal, distressing and dull. In many places, however, the curricular reform process mirrors the critique of the law school, taking a top-down approach and side-lining student input. Drawing on the recent experience of a student/faculty dialogue retreat focused on student well-being and curricular reform, this paper suggests that student/faculty dialogue may contribute positively both to curricular reform efforts and to general student well-being. The dialogue model uses structured conversation to facilitate integration of knowledge and address complex challenges. This paper describes a student/faculty dialogue and suggests the ways that student/faculty dialogue can contribute to meaningful curricular reform.

Read on SSRN

Centre: CIPL

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

Facing Down the Gladiators

Facing Down the Gladiators: Addressing Law School’s Hidden Adversarial Curriculum

Author(s): Molly Townes O'Brien

Law students arrive at law school well-indoctrinated in the popular culture myth that the dominant role of the lawyer is as an advocate in an adversarial system. These students, if they become practicing lawyers, will be more likely to fill their days with negotiation than with litigation; they will be more likely to represent a client in mediation than at trial; they will more likely be deal-makers than gladiators. Nevertheless, their preconception or misconception of the dominance of the lawyers’ adversarial role will be reinforced in their legal training.

Adversarialism is deeply embedded in both the formal and the hidden curriculum of US and Australian law schools. While most law schools now teach courses that deal with non-adversarial processes, the pervasive ethos is – often unintentionally – adversarial. This ethos may constrain the way that students conceptualize their future roles and limit the possibility space available to them for creativity, constructive lawyering and peacemaking. The ethos also contributes to a climate of the law school hostile and unhappy for many students.

This paper explores the law school’s hidden adversarial curriculum – the unstated norms and values that are communicated to students. It uncovers some of the unintended messages sent through choices of teaching materials, classroom pedagogy, assessment practices, and extra-curricular emphasis on contests. The paper suggests that, by addressing the hidden curriculum, law schools can create more space for constructive lawyering and better prepare students for the variety of roles that they may inhabit as lawyers (including roles as advocates in adversarial processes). It will suggest that to provide greater room for non-adversarialism in law school and in legal practice, legal education must import non-adversarial processes and materials into its pedagogy; it must provide broader measures of student merit; and it must take control over the law school contest culture.

Read on SSRN

Centre: CIPL

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

Changing Our Thinking

Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum

Author(s): Molly Townes O'Brien, Stephen Tang, Kath Hall

We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.

In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

An Active Learning Smorgasbord for Teaching Evidence

An Active Learning Smorgasbord for Teaching Evidence

Author(s): Molly Townes O'Brien

The challenge of teaching evidence or civil procedure is to devise a classroom experience that provides students with the contextual background of courtroom dynamics and opportunities for active engagement. This paper describes a variety of techniques that are effective for transforming the traditional law lecture into an interactive experience. Theme songs animate the classroom; high-impact images improve students’ ability to recall and relate doctrinal information to their experience; and quiz games and question slides and video give students to opportunity to actively engage in in-class legal decision-making. The techniques described here can be used together or separately to create an active learning experience that provides context for understanding and motivation for advanced study.

Read on SSRN

Centre: CIPL

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

No Time to Lose

No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One

Author(s): Molly Townes O'Brien, Stephen Tang, Kath Hall

Preliminary results of a pilot study of law students suggest that, during the first year of law study, students may experience changes in thinking styles, stress levels, and satisfaction with life. Although further inquiry into the cause of law student distress is necessary, the authors consider certain assumptions underlying the legal curriculum - particularly the conception of a lawyer as adversarial, emotionally detached, and competitive - to be possible sources of the negative impact on student wellbeing. It is suggested that legal educators should reexamine their curricula, particularly their conception of what it means to be a lawyer, and think creatively about ways that law schools may encourage healthier approaches to the study of law.

Read on SSRN

Centre: CIPL

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

Book Review - Michael Kirby

Book Review: Michael Kirby: Paradoxes and Principles

Author(s): Kim Rubenstein

Janet Malcolm, in her brilliant rumination on the problem of biography in The Silent Woman: Sylvia Plath and Ted Hughes, writes:

… the narratives called biographies pale and shrink in the face of the disorderly actuality that is a life. … The goal is to make a space where a few ideas and images and feelings may be so arranged that a reader will want to linger awhile among them, rather than to flee…

A desire to linger awhile is certainly my reaction to reading and enjoying this fulsome account of the first 70 years of Michael Kirby’s life (drawing on over 117 metres of personal records held by the National Archives of Australia, extensive speeches and other papers prepared by the subject, not to mention his court judgments). Brown also skilfully makes space for a few central images and feelings to assist one’s progress through this extensive and absorbing book. The opening image shared with the reader is of the Khyber Pass, where Kirby was travelling for the second time with partner Johan van Vloten. It is 17 December 1973 and ‘This time, at least, there were no guns’. Three and a half years earlier, Afridi tribesmen ‘brandishing rifles’ asked if he was British and ‘the young Australian traveller answered yes’.

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

I am the Law

'I am the Law'! – Perspectives of Legality and Illegality in the Israeli Army

Author(s): Matthew Zagor

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has "the most moral army in the world" to justifications for specific military tactics and operations by reference to self-defence and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader "legalisation" of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers' stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-to-day practices of brutality, intimidation and "demonstrating power", to the growing influence of nationalist-religious interpretations of self-defence and the misuse of post-modernist theory by the military establishment to "smooth out" the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories.

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

Recognition and Narrative Identities

Recognition and Narrative Identities: The Legal Creation, Alienation and Liberation of the Refugee

Author(s): Matthew Zagor

That a refugee often has a transformative experience in their encounter with a status determination regime is uncontentious. The practical need for legal recognition of a pre-existing status for the purpose of protection marries with a very personal need for recognition of one’s experience. The granting or withholding of either type of recognition has consequences for the various identities created in the process. Both depend upon the story told, and the manner of its reception.

This paper arose initially out of my own anecdotal experience as a legal representative for refugees over many years. It found its genesis in reflections on the role I played in helping shape the story that would be told to administrative decisions makers by my clients, and my growing concern that I was complicit in a process of legal institutionalisation, distortion and even alienation of something ‘authentic’ in the refugee experience and identity. As will become apparent, I am no longer so damning of my role and that of my fellow lawyers and decision-makers, or indeed of the ‘regulative discourse’ imposed by refugee law itself. The refugee has more agency than perhaps appears at first blush. I am also more questioning of my own original assumptions about authenticity, categorisation and recognition.

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

An Inconstant Affair

An Inconstant Affair: Feminism and the Legal Academy

Author(s): Margaret Thornton

Drawing on the Australian experience, this chapter shows how the fortunes of feminist legal theory (FLT) are closely imbricated with those of the state. The trajectory of the discomfiting liaison between feminism and the legal academy is traced over three decades to highlight the contingent nature of FLT, particularly the sensitivity to the prevailing political climate in which the pendulum swing from social liberalism to neoliberalism induces uncertainty and instability. It will be shown that under social liberalism, FLT received a modicum of acceptance within the legal academy but began to contract and then wither with the onset of neoliberalism. This has not only been disastrous for FLT, but it has also subtly brought about a remasculinisation of the academy.

Read on SSRN

Centre: CIPL, CLAH

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

Citizenship and the Boundaries of the Constitution

Citizenship and the Boundaries of the Constitution

Author(s): Kim Rubenstein

Citizenship is a prime site for comparison between different constitutional systems, for the idea of citizenship, and the ideals it is taken to represent, go to the heart of how states are constituted and defined. Who is governed by the constitution? What are the boundaries of the constitution? The definition of the class of 'citizens' of a state and the identification of their rights, privileges and responsibilities is one way to answer these questions, and is a core function of national constitutions and a central concern of public law. In this chapter, we consider several written constitutions and attempt to convey some of the diversity in constitutional approaches to this fundamental and universal project for nation states.

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

Drawing Boundaries

Drawing Boundaries: Election Law and Its Democratic Consequences

Author(s): Ron Levy

This chapter delineates three conceptions of fairness in election law using the example of electoral boundary drawing. A tradition of ‘positive’ fairness in Australia and Canada – though recently challenged – is shown to be more democratically representative and coherent than ‘negative’ and ‘perfectionist’ conceptions dominant in the American election law setting.

Read on SSRN

Centre: CIPL, DGAL

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

Judicial Selections Reform in Comparative Context

Author(s): Ron Levy

In the past two decades, many common law states have tweaked, modernized, or radically upended their methods of judicial selections, including Australia, Canada, Ireland, Israel, New Zealand, South Africa, the United Kingdom and the United States. This article reviews a number of these innovations, including public hearings and efforts to set more 'objective' methods and criteria for selections. The article focuses on the impact of reforms on cultures of judicial decision-making and selections.

Read on SSRN

Centre: CIPL, DGAL

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

Book cover

The International Law of Human Rights

Author(s): , Adam McBeth, Justine Nolan

The International Law of Human Rights provides a comprehensive overview of the concepts and theories of human rights, the institutions, instruments and implementation structures for protecting human rights, and the contemporary challenges of human rights law. Author commentary and examples illuminate a range of primary and secondary materials to rigorously cover the breadth of human rights law in a way that is interesting and engaging for all readers. This edition includes: ‘Snapshots’ that provide real-life illustrations to help bring the material to life, and demonstrate current practice and issues; covers the implementation of international human rights law in Australia; and explores contemporary challenges for the international human rights regime posed by terrorism, transnational corporations, and the place of extraterritorial obligations and non-state actors.

Order your copy online

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Creating the Right Spaces: Civil Participation and Social Inclusion: A Report on West Heidelberg Residents' Conflict Management Workshops

Author(s): Elizabeth Curran

The report is written with the view that the workshops and the lessons drawn from them can aid in providing a community engagement model for other residential groups in different localities as well as for other community projects with different social groups. With this aim in mind, the hope is to encourage the completion of the project as envisaged which involves a comprehensive approach to civil participation, conflict management and constructive communication involving all sectors of civil society.

The report outlines the approach taken to the workshops and their outcomes and some of the challenges for communities who feel excluded and who may not have had positive experiences or training in how to navigate complex systems and have conversations. It makes some recommendations and outlines some of the lessons learned by all.

The workshops achieved the overall goal of the ‘Creating Right Spaces’ project: of benefiting people with the least access to justice and community development to voice their concerns and learn some skills that could be helpful to them. This was achieved on a small scale and yet this project demonstrates how beneficial such a program can be as well as the importance of it being a continuing project. “One off” funding misses the opportunity for ongoing recurrent work. Continued support is necessary if any real gains are to be made to ensure behaviour change and ongoing skills development and to ensure that the work can transcend often fixed negative patterns of behaviour and give people the capacity to generate real, long lasting and sustainable positive change.

The extraordinary richness of the interactions that arose in the workshops occurred not just from the stories shared and the skills learnt together but, in the words of the residents, from the growing awareness of how the strength of a community comes from within the community itself and its ability to organise, support and respect its members as well as learn more about creating better relationship and engagements. There was individual and collective growth which involved rekindling a sense of being worthy of happiness, opportunities, and a better future – and this happened because the group itself supported each person to take risks, acknowledged each other’s strengths and weaknesses, and demonstrated honesty, respect and gratitude.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

A Failure to Protect

A Failure to Protect: The UN Human Rights Council and Darfur

Author(s):

This paper assesses the Responsibility to Protect (‘R2P’) principle as an emerging norm of customary international law, and as an effective political strategy in responding to mass atrocity crimes.

The proponents of R2P believe that it has the status of an emerging norm. This analysis accepts that R2P should be evaluated as a ‘soft law’ norm’. Soft law norms are generally the result of a consensus in international forums expressed in normative terms of general application.

An emerging norm is one which ‘does not yet satisfy the requirements for the creation of custom but is regarded as likely to do so over time’. The test whether R2P is an emerging soft law norm would be whether a relevant international forum is likely to form a consensus in support of R2P.

The majority of the members of the Human Rights Council in 2007 repudiated the application of R2P to the situation in Darfur. This response of the Human Rights Council shows that R2P is not, on present indications, ‘likely’ to emerge as a soft law norm over time.

This analysis also shows that the theory of soft law making is not merely a conveniently amorphous substitute for rigorous examination of the evidence of a customary norm. It is possible to test whether a soft law norm has been established or qualifies as an ‘emerging norm’.

The response of the Human Rights Council to the situation in Darfur also shows that R2P has not served as a trigger for an effective political response to mass atrocity crimes.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

Final Report of the Australian Capital Territory

Final Report of the Australian Capital Territory Economic, Social and Cultural Rights Research Project

Author(s):

This Report presents the findings and recommendations of a research project established to examine whether the ACT Human Rights Act 2004 (HRA) should be amended to include explicit guarantees of economic, social and cultural rights (ESCR) and, if so, what impact this was likely to have on governance in the ACT. The project was funded under the Australian Research Council Linkage Project Scheme; the academic project partners were the Regulatory Institutions Network (RegNet) in the College of Asia and the Pacific of The Australian National University and the Australian Human Rights Centre, Faculty of Law, The University of New South Wales, while the Partner Organisation was the ACT Department of Justice and Community Safety.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

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