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.

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s): Peta Spender

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Affirmative Action, Merit and Police Recruitment

Author(s): Margaret Thornton

Affirmative action measures, particularly the use of quotas, are contentious because they are assumed to contravene the merit principle. This piece challenges the assumption with reference to a proposal by Victoria Police that 50% of all new recruits should be women. It argues that the normativity of the white male police officer has shaped the construction of the ‘best person’. The paper includes an overview of affirmative action law in Australia.

Read on SSRN

Centre: CIPL, CLAH

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

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s):

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Australian Citizenship Law in Context

Author(s): Kim Rubenstein

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

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

Read on SSRN

Centre: CIPL, CLAH

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

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo liberal climate that privileges employer prerogative over workers’ rights.

Read on SSRN

Centre: CIPL, CLAH

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

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

Author(s): Kim Rubenstein

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

Read on SSRN

Centre: CIPL, CLAH

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

EEO in a Neo-Liberal Climate

Author(s): Margaret Thornton

This paper interrogates the ways in which different meanings of equality and inequality are produced within political and legal discourses. With particular regard to the Australian experience, the paper considers the significance of the disappearance of affirmative action (AA) from the equality lexicon with the repeal of the federal AA legislation and its replacement with the equal opportunity (EO) for women in the workplace legislation. Even as this change was being implemented, EO was already being superseded in favor of ‘diversity’. It is argued that the linguistic changes signal a shift to the right of the political spectrum which emit deeply conservative and regressive messages regarding the gendered character of the workplace. Illustrations are drawn from the dissonant relationship between women and authority.

Read on SSRN

Centre: CIPL, CLAH

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

International Citizenship: The Future of Nationality in a Globalised World

Author(s): Kim Rubenstein

This article attempts to identify the consequences for "nationality" in a world where "sovereignty" is challenged by the process of globalization. It builds upon Kim Rubenstein's chapter Citizenship in a Borderless World in A Anghie and G Sturgess (eds) LEGAL VISIONS OF THE 21ST CENTURY: ESSAYS IN HONOUR OF JUDGE CHRISTOPHER WEERAMANTRY (Kluwer Law, 1998) and responds to the feature article Citizenship Denationalized by Linda Bosniak in the same Spring 2000 edition of the Indiana Journal of Global Legal Studies.

The piece begins by defining "nationality" and "globalization". It distinguishes "citizenship" and "nationality" in a technical legal sense and considers citizenship and globalization as multifaceted concepts. It also highlights that there is an inherent tension in the development of citizenship for the citizenship project is about the expansion of equality among citizens, however, as equality is based upon membership, citizenship status forms the basis of an exclusive politics and identity. The article then concentrates on some tensions endemic to nationality, particularly in a globalized world. It does so by looking at nationality's functionality as a legal and social tool, concentrating upon various treaties and agreements and the international case law dealing with nationality. The case law analysis is divided into the "Standing Cases" and the "Human Rights Cases". Finally, the article concludes by arguing that the concept of effective nationality facilitates a theoretical (if not yet a practical) entry point for the acknowledgment of layered and/or fragmented nationality appropriate to the circumstances of our participation in a given national, supranational, regional or even non-territorial community.This puts nationality more in line with a "rights" -based individualized focus for international law rather than a sovereignty-based one. It is where the progressive project of citizenship meets nationality, melding, strengthening and integrating them as one and the same tool for building justice in a new era.

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

Authority and Corporeality: The Conundrum for Women in Law

Author(s): Margaret Thornton

Despite a significant increase in the number of women in the legal profession, women continue to be disproportionately represented in the lower echelons. It is apparent that the liberal progressivist thesis, which avers that the asymmetry will be remedied through numerosity, cannot be sustained. Structural theories of discrimination may be invoked to explain the gender differential, but it is argued that such theories are inadequate. The key to the conundrum lies in the social construction of femininity and masculinity through what are termed the ‘fictive feminine’ and the ‘imagined masculine.'

Drawing on qualitative research conducted for Dissonance and Distrust Women in the Legal Profession (Oxford University Press, 1996), the paper considers the ways in which the gender boundary is maintained so that the masculine remains the norm and the feminine the `other' for legal practice. It is argued that mechanisms emphasising the sexed body of the woman lawyer, including eroticisation, abjection, and motherhood, continue to reproduce conventional notions of the feminine and to diminish the authority of women as legal knowers in subtle ways.

Read on SSRN

Centre: CIPL, CLAH

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

Remedying Discriminatory Harms in the Workplace

Author(s): Margaret Thornton

This paper explores the concept of remedies in the context of Australian anti-discrimination legislation in the workplace. It highlights the paradox between the individualized nature of a complaint and the necessity for a complaint to establish membership of a class. This paradox has deterred tribunals and courts from devising class-based remedies for discriminatory harms.

Read on SSRN

Centre: CIPL, CLAH

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

Pages

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