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.

Youth activists

Youth Activists, Climate Conscious Lawyering and Environmental Policy: Parliamentary Inquiry Submissions in Legal Education'

Author(s): Heather Roberts, Andrew Ray, Annika Reynolds

As legal practice adapts to the changing expectations lawyers face, law schools must also adapt to ensure they continue to engage their student populations. How law schools can teach the wider “climate-conscious” advocacy skills that future legal generations will require remains an underexplored area. In this article, we propose one novel approach law schools might take, namely,  creating  and implementing a parliamentary inquiry submission student writing program. We argue that such an approach

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Centre:

Research theme: Environmental Law, Legal Education

'Accessibility, Equity and e-Mooting: Opportunities and Challenges for Australian Law Schools'

Accessibility, Equity and e-Mooting: Opportunities and Challenges for Australian Law Schools'

Author(s): Andrew Ray

This article explores the future role for e-mooting in legal education. It analyses the skills that students can gain from online competitions with regard to the increasing use of online court hearings and conferences by the wider legal profession and assesses the improvements to accessibility and equity that result from hosting competitions online. It argues that such benefits justify the continuation of online-only competitions where law schools are not subsidising travel and accommodation to teams and provides practical guidance to law schools in designing and managing online mooting programs.

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Research theme: Law and Technology, Legal Education

Contract Law: Text and Cases

Contract Law: Text and Cases (3rd edition)

Author(s): Alex Bruce

Contract Law: Text and Cases combines comprehensive academic commentary with extracts from key cases in a single volume. It provides students with the essential knowledge and skills in contract law to succeed in a law degree and in professional practice. The text is supplemented with review questions, problem-solving practice, and key points for revision.

The third edition has been revised and updated to include recent developments in case law and legislation.

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Centre: CCL

Research theme: Legal Education

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Getting Out of Debt: The Road to Recovery for Victim/Survivors of Family Violence

Author(s): Elizabeth Curran

This research and evaluation report undertaken by Dr Liz Curran of the Australian National University (pro bono) looks at research over the two years of the life of a family violence project (with base line data collected in a First Phase Report in November 217) examining a Secondary Consultation (SC) service integrated with Training and Outreach program as well as capacity for strategic advocacy.

The Consumer Action Law Centre project (with part funding from the Victorian Department of Justice & Regulation) aims to overcome barriers for people experiencing family violence identified in previous studies. The research findings (detailed in this report) are that legal assistance services, such as this one of the Consumer Action Law Centre, working with trusted community professionals (to whom people experiencing family violence are likely to turn) if done in a holistic, integrated and seamless, respectful way can enable credit & debt legal issues to be addressed in a timely, creative and effective way. It does this by breaking down barriers that exist to those needing legal help. The report provides some universal insights into the plight and impacts of family violence and ways for effective service delivery without ignoring the challenges for both individuals and a variety of services in providing critical support for victim/survivors of family violence and their family.

Read on SSRN

Centre: CIPL

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

Law Teachers Speak Out

Law Teachers Speak Out: What do Law Schools Need to Change

Author(s): Colin James

This Chapter presents the results of national surveys of UK and Australian legal academics conducted in 2017 and explores law teachers’ perceptions of their well-being and of their experience of stress at work. First, we consider the neo-liberal landscape of higher education in the 21st Century, a landscape that provides the context and framework for how law teachers experience law school as a work environment. Second, we explain the methodology and results of the studies conducted in the UK and Australia in 2017. Third, we discuss the themes presenting from the law teachers’ responses to the open question: please explain what you think your university could do to improve staff quality of working life? The Chapter concludes with a suggested to-do list for law school leaders to provide a work environment that better supports the well-being of their academics and in turn enhances their capacity to support law student well-being.

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Centre:

Research theme: Legal Education

Ethical Climate, Job Satisfaction and Wellbeing

Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers

Author(s): Stephen Tang, Vivien Holmes, Tony Foley

It is clear from research that workplace environments can influence employees to behave ethically or unethically. To date, such research has focused on corporate workplace culture; legal workplaces have come under limited scrutiny. This Article reports on a study that expands that scrutiny by surveying perceptions of ethical climate in legal practices. The study breaks new ground by correlating perceptions of ethical climate with measures of psychological health, organizational learning culture, job and career satisfaction, and under-standings of professionalism. Our findings are clear enough for legal practice managers, professional bodies, and regulators to take note of the organizational factors linked to sound mental health and job satisfaction and to develop interventions aimed at promoting these factors.

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Centre:

Research theme: Legal Education

Student Wellbeing Through Teacher Wellbeing

Student Wellbeing Through Teacher Wellbeing: A Study with Law Teachers in the UK and Australia

Author(s): Colin James

Research confirms law students and lawyers in the US, Australia and more recently in the UK are prone to symptoms related to stress and anxiety disproportionately to other professions. In response, the legal profession and legal academy in Australia and the UK have created Wellness Networks to encourage and facilitate research and disseminate ideas and strategies that might help law students and lawyers to thrive. This project builds on that research through a series of surveys of law teachers in the UK and Australia on the presumption that law teachers are in a strong position to influence their students not only about legal matters, but on developing attitudes and practices that will help them to survive and thrive as lawyers. The comparative analysis reveals several differences, but also many similarities with law teachers in both countries reporting negative effects from neoliberal pressures on legal education programs that impact their wellbeing, performance as teachers and ability to adequately respond to student concerns.

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Centre: CIPL

Research theme: Legal Education

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Towards the Uberisation of Legal Practice

Author(s): Margaret Thornton

Uber and Airbnb signify new ways of working and doing business by facilitating direct access to providers through new digitalised platforms. The gig economy is also beginning to percolate into legal practice through what is colloquially known as NewLaw. Eschewing plush offices, permanent staff and the rigidity of time billing, NewLaw offers cheaper services to clients to compete more effectively with traditional law firms. For individual lawyers, autonomy, flexibility, a balanced life, well-being and even happiness are the claimed benefits. The downside appears that NewLaw favours senior and experienced lawyers while disproportionately affecting recent graduates. This article draws on interviews with lawyers in Australian and English NewLaw firms to evaluate the pros and cons of NewLaw.

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Centre: CIPL, CLAH

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

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Values. The Flip-Side of the Wellbeing Coin

Author(s): Vivien Holmes

Both ancient philosophers and modern psychologists assure us that our happiness and our values are inextricably linked: true happiness and wellbeing come not from the mere pursuit of pleasure, but from living in accordance with values that give us a sense of meaning and connection with others and self. This chapter explores the relationship between happiness (defined as subjective wellbeing) and values, and the implications of this relationship for law students and lawyers, law schools and legal workplaces. Research shows that the more we enact, rather than just subscribe to, certain values, the greater will be our wellbeing. Further, the psychological factors that influence whether lawyers experience wellbeing also influence their ethical decision-making and level of professionalism. We know that law school curricula affect student wellbeing; law schools also play a critical role in supporting (or inhibiting) the development of professional values and in teaching skills to enable students and future lawyers to live out those values. After law school, workplace culture can profoundly influence our wellbeing, while also influencing whether we are able to express/enact our professional values. Evidence suggests that effective regulation can encourage legal practices to improve their ethical cultures, which in turn could improve wellbeing. We need as a profession to attend to this connection between wellbeing and values; to fulfil its role in society, the legal profession needs to be well, which means being deeply connected to values.

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Centre: CIPL

Research theme: Legal Education

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The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

This chapter argues that the fortunes of feminism in the Australian legal academy are closely intertwined with the prevailing political ideology. Social liberalism, with its commitment to egalitarianism, a robust civil society and a modicum of tolerance for the Other coincided with the flowering of second wave feminism. This led to the appointment of feminist academics in law schools and the incorporation of feminist perspectives into their teaching. In contrast, neoliberalism, with its aggressive entrepreneurialism and promotion of the self, encouraged sloughing off a commitment to feminist values. Taking its cue from neoliberalism and reacting against the second wave, postfeminism initially also resulted in a depoliticisation and a turning away from collective action, but signs of a revived feminism caused neoliberalism to move in quickly and colonise it. Mirroring the values of neoliberalism, this incarnation of postfeminism, which one might term ‘neoliberal feminism’, encouraged entrepreneurialism and productivity, particularly on the part of upwardly mobile individual women. It also resonated with the neoliberal law school where students were anxious to secure a position on the corporate track in light of mounting tuition debts and increased competition. More recently, there has been a reaction against neoliberalism which has, once again, brought with it a revived incarnation of feminism and a progressive understanding of the ‘post’.

The fandango in the title carries with it not only the idea of different movements, but also variations in tempo, and even a change of partners. The metaphor is designed to encapsulate the character of the dance between the prevailing political ideology and feminism, and the way that it is reflected in the legal academy. The fandango also refers to the more fluid relationship between feminism and its ‘post’. With postfeminism, we see a constellation of performers, some moving backwards and others forward, often at the same time, which highlights its ambiguity and elusiveness. In adopting a temporal trajectory, this chapter seeks to problematise the ‘post’ in postfeminism, underscoring how it may be simultaneously both reactive and progressive according to the constellation of values that prevail at a particular moment in time.

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Centre: CIPL, CLAH

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

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Overcoming the Invisible Hurdles to Justice for Young People the Final Research and Evaluation Report of the Invisible Hurdles Project: Integrated Justice Practice - Towards Better Outcomes for Young People Experiencing Family Violence in North East Victo

Author(s): Elizabeth Curran

The three-year “Invisible Hurdles Project” was trialled in southern NSW and northern Victoria and successfully broke down intractable mistrust of lawyers and provided legal help to people who usually can’t be reached.

The pilot saw lawyers embed themselves into youth, health and other services reaching 101 people with 198 legal matters which may not have come to light otherwise.

Associate Professor Liz Curran, led the research and evaluation of the project with Pamela Taylor-Barnett assisting - both of ANU School of Legal Practice.

The pilot saw the Hume Riverina Community Legal Service (HRCLS) provided lawyers free of charge who embedded themselves into three partner organisations: The Albury Wodonga Aboriginal Health Service (AWAHS), a school for vulnerable young people, Wodonga Flexible Learning Centre and North East Support and Action for Youth (NESAY).

The report makes many findings and recommendations including The data revealed that non-legal staff responding to clients were also initially distrustful of the lawyers, but now find them a responsive ally which has boosted their capacity to respond effectively. It’s had the knock-on effect of reducing stress and anxiety in themselves and their clients. It can inform other models, policy and funding frameworks as well as future service delivery in multi-disciplinary practices including, health justice partnerships.

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Centre: CLAH

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

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Social Status: The Last Bastion of Discrimination

Author(s): Margaret Thornton

Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.

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Centre: CIPL, CLAH

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

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An Introduction to Maritime Crime in West Africa

Author(s): Phillip Drew

This paper examines the issue of maritime crime in the context of West Africa. Acknowledging that maritime crime is a growing threat to commercial shipping in the region, and to the economic health of West African countries, Dr. Drew assess the various factors that have thus far permitted maritime criminals in the region to operate with relative impunity. Recognising that a number of countries and international organisations have engaged in capacity building with the states of the GoG, Drew notes that lasting solutions to maritime crime require a broad approach that provides resources not only for the region’s military and law enforcement challenges, but also the underlying social problems that affect much of the continent.

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Centre: CMSL

Research theme: International Law, Legal Education

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Blockade? A Legal Assessment of the Maritime Interdiction of Yemen’s Ports

Author(s): Phillip Drew

In January 2015, the government of Abdrabbuh Mansour Hadi was ousted from power by Houthi rebels based in the northern highlands of Yemen. Initially forced to flee the country, Hadi soon returned, establishing a new government in the southern city of Aden. His return marked the commencement of the latest phase of Yemen’s perpetual civil war.

In what has often been referred to as the ‘Saudi-led blockade’, a coalition naval force, made up primarily of vessels from Gulf Cooperation Council states, has been enforcing a closure of Yemen’s waters and most of its ports. Yemen requires food imports to feed its population, and fuel imports to generate the electricity that it needs to keep its water plants operating. As a result of the naval interdiction operations, the civilian population of Yemen is in crisis. Approximately 20 million people require humanitarian assistance, and the country continues to struggle under the largest cholera epidemic in history.

This paper examines the legal bases for the current interdiction operations, both from the perspective of the law of naval warfare and the law of the sea. Finally it assesses the role that Security Council resolutions have played in the continuation of the ongoing humanitarian crisis and the role that the Security Council can play in supporting the delivery of humanitarian assistance to those in need.

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Centre: CMSL

Research theme: International Law, Legal Education

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Equal Consideration and Informed Imagining: Recognising and Responding to the Lived Experiences of Abused Women Who Kill

Author(s): Anthony Hopkins

Equality is a fundamental concern of human existence. Expressed in the principle of equality before the law it requires that those who come before the law are entitled to be treated as being of equal value and to be given ‘equal consideration’. In circumstances where those who come before the law are marked by their differences, giving of equal consideration requires that difference be understood and taken into account. The identification of difference does not of itself determine the question of whether different treatment is warranted in the interests of equality. However, this article argues that understanding difference is a precondition for the promotion of true equality and that, in pursuit of understanding difference, it is necessary for us to acknowledge the limitations of our capacity to understand the lived experience of ‘others’ and to actively work to engage with these experiences. In the context of the criminal justice system, we over abused women who kill as illustrative of this need, focusing upon the availability and operation of self-defence in England/Wales, Queensland and Victoria. In doing so, we consider the capacity of the law, legal process and legal actors to engage with the lived experiences of these women, highlighting the im portance of ‘informed imagining’.

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Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education

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Women Judges, Private Lives: (In)Visibilities in Fact and Fiction

Author(s): Margaret Thornton, Heather Roberts

Once unseen, women are now visible in increasing proportions on the bench in common law courts, although this reality has generally not percolated into fictional worlds, where ‘the judge’ is invariably male. Fiona, cast by Ian McEwan as the protagonist, in The Children Act, is a notable exception. In the novel, McEwan directs our gaze beyond the traditional separation of judicial identity into public/private (visible/invisible) facets of life and raises questions regarding the impact of life on law, and law on life. This article draws on McEwan’s work to illuminate a study of how judicial swearing-in ceremonies tell the stories of Australian women judges. At first glance, this may seem an unusual pairing: The Children Act is an international best-selling work of fiction whereas the official records of court ceremonial sittings are a somewhat obscure body of work largely overlooked by scholars. However, the speeches made in welcome in open court on these occasions by members of the legal profession and by the new judge in reply, offer glimpses of the attributes of women judges not discernible in formal judgments. These ‘minor jurisprudences’ challenge the familiar gendered stereotypes found in the sovereign body of law.

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Centre:

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Law, Governance and Development, Legal Education, Private Law

CHALLENGING THE LEGAL PROFESSION A CENTURY ON: THE CASE OF EDITH HAYNES*

Challenging the Legal Profession A Century On: The Case of Edith Haynes

Author(s): Margaret Thornton

This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.

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Centre: CIPL, CLAH

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

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Author(s): Kath Hall

This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Administrative Law, Legal Education, Private Law, Regulatory Law and Policy

An Interdisciplinary Student Clinic at University of Portsmouth (UoP): Future Practitioners Working Collaboratively to Improve Health and Wellbeing of Clients (Presentation Slides)

Author(s): Elizabeth Curran

Our paper fits into all the themes ● The clinician and community needs ● The clinician and research into the impact of clinic ● The clinician and academic identity ● The clinician and curriculum and student learning

This paper examines the value in students, academics and clinical supervisors learning and working together across different disciplines through an interdisciplinary student clinic (IDSC) to deliver legal and public health education to people who experience social exclusion by reason of vulnerability or disadvantage (including poverty)– the ‘Health Justice Partnership Student Clinic’.

This paper situates the discussion firstly within the context of author one’s research on multi-disciplinary practices (MDP) including Health Justice Partnerships (HJP) which have led to this decision at University of Portsmouth to set up a IDSC. MDP in this context is where a number of professionals work together in a practice to assist the client using their different skills but in the one place and setting. One subset of an MDP is the HJP which sees lawyers working alongside nursing and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. It is about going to where people in need of help are likely to turn.

This paper firstly identifies the evidence-based research that has led the authors to see the need, not just for multi-disciplinary practices in a service context but also interdisciplinary practice and teaching opportunities through clinical learning that brings greater collaboration for students, supervisors and academics across the professional divide to improve outcomes for clients. The authors see a critical need in universities to better prepare the emerging professionals to learn about collaboration with other disciplines and demonstrate influence and impact in the wider community. Author one’s empirical research into effective practice also suggests that such collaboration leads to better outcomes for clients and patients especially those experience some form of vulnerability or disadvantage.

Secondly, as there is some literature on IDP and IDSC, (mainly from the United States and Australia) this paper will explore other models, the reasons and rationales for their emergence and the benefits and challenges and how this has informed the development other new pilot IDSC at the University of Portsmouth. The paper then discusses why the IDSC has emerged as an important way of building better and more responsive future practitioners in nursing, law and allied health disciplines.

The paper also discusses aims of the three-year University of Portsmouth pilot IDSC and the joint learning opportunities for students of different disciplines, their supervisors and across departments which are envisioned so as to break down barriers between professionals, enable future practitioners to collaborate across different fields and thereby improve social justice and health outcomes for clients and community. These include fostering and increasing understanding and respect for different professional roles and approaches, breaking down stereotypes, enhancing student employability and working together to better reach and meet client/patient needs by being more responsive to legal and public health needs.

The proposed trial IDSC HJP student clinic course will teach new approaches to students studying nursing, dentistry and law in a joint learning environment that includes problem solving, relationship-building, communication and collaboration skills in a clinic which will provide live client legal and public health advice. It will discuss how this is being undertaken and the challenges and approach of the course and its curriculum.

The paper finally discusses the embedded evaluation of the pilot study. It is embedded as the authors are keen to enable good practice, share lessons learned and inform replicable models in other university settings. The embedded evaluation being undertaken will inform as to the projects impact on students, academic staff, partner agencies and clients.

Read on SSRN

Centre: CIPL

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

'Envisioning Student Learning in a Multi-Disciplinary Student Clinic Future Practitioners Learning About Working Collaboratively Across Disciplines to Better Help Community’ (Presentation Slides)

Author(s): Elizabeth Curran

In this paper, the author examines the imperative for interdisciplinary student clinics where law, nursing, social work and other disciplines work together in joint classes at undergraduate levels to learn collaborative and client skills to overcome barriers and professional stereotypes that impede the solving of clients problems holistically. Then they can work towards delivering a real life advice clinic to clients in most need and undertake systemic reforms to avert problems.

The paper defines interdisciplinary student clinics and multi-disciplinary practice given the nomenclature in literature is contradictory and confusing.

The presenter’s research and practical experience as a clinical legal education supervising solicitor within a health service has led to the idea for the development of an interdisciplinary student clinic as an important way of building better and more responsive future practitioners in health, law and allied health disciplines.

The paper outlines some initiatives undertaken by law students under her supervision that could if further developed be done in collaboration and co-cooperatively alongside other colleagues in different fields and in student learning to ensure respectful and reciprocal learning. It can also lead to an appreciation of different professional roles and differing ethical obligations. In this paper, the author identifies why there is a need for such an approach to break down barriers between professionals to improve social justice and health outcomes based on her recent empirical research.

She will explore research and new approaches to lawyering and health services provision that works across silos to enable more seamless navigable service options for real life clients of the clinic and new approaches in a work place.

The author has been asked to advise (pro bono) on the establishment of such an innovative clinic at Portsmouth University in the UK for nursing, law and social work students.

This initiative by way of a pilot aims to see work across academic disciplines and with clinical supervisors from different fields designing and teaching together in such a IDSC.

The author notes that a further paper is being developed in collaboration with the Head of Law and Head of Nursing at Portsmouth University that explores these issues in more details.

Read on SSRN

Centre: CIPL

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

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