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.

The Expansion of Global Law Firms in Australia and Asia

The Expansion of Global Law Firms in Australia and Asia

Author(s): Kath Hall

Over the last 18 months the legal profession has seen unprecedented growth in the operations of global law firms in Australia. Recent mergers between top-tier and leading Australian law firms demonstrate the importance of Asian markets and the shifts in economic power from the West to the East. For such firms there are clear market and competitive drivers for expansion into Australia including proximity to rapidly developing Asian economies and increased opportunity to expand the firm’s global brand. Yet understanding the role played by Australian law firms in these developments can be tricky. For some newly merged global firms, the Australian operations are central to the firm’s regional and global expansion, allowing the firm to draw upon the strong performance and reputational capital of the Australian offices. For other global firms their alliances with Australia firms provide a strategic foundation for their expansion into Asia. And for third group of firms Australia remains a destination in its own right, sitting within the firm’s overall global network of international offices.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

The Challenges of Measuring Outcomes – Examining Quality, Responsiveness and Legal Professionalism As a Way Forward (Presentation Slides)

Author(s): Elizabeth Curran

Dr. Curran discusses her research evaluation of Legal Aid ACT where she was asked to not only measure the quality of the legal services delivered but also to grapple with the vexed measurement of outcomes. In this paper Dr. Curran outlines briefly the approach to the evaluation, the lessons and some of the key findings around how to measure quality, outcomes and effectiveness of legal services delivery. 

Read on SSRN

Centre:

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

'A Literature Review: Examining the Literature on How to Measure the 'Successful Outcomes': Quality, Effectiveness and Efficiency of Legal Assistance Services'

Author(s): Elizabeth Curran

This is a literature review for the Attorney-General’s Department. The brief was as follows.

This literature review will examine research, studies, reports, reviews and evaluation and other material both nationally and internationally around legal assistance service evaluations on the following:

'Successful Outcome'

Quality

Efficiency

Effectiveness

This Literature Review has examined a significant number of research, reports, evaluations, reviews, academic writing, studies and submissions. Some of the key lessons that these documents reveal are detailed in this Executive Summary. Some conclusions and their basis are summarized in the section entitled, 'Conclusion – An Overview of the Findings of this Literature Review'.

Some documents were provided directly to the researcher and to the Attorney-General’s Department by the Legal Assistance Sector but have not been included in this Literature Review as they were outside its scope. However, many are useful and are discussed in this Literature Review.

This Literature Review highlights that legal assistance work is not only complex but that it is also complicated. Forty-seven international studies and ninety-one national studies were considered in the course of the conduct of this literature review.

The selection criteria for determining the 'usefulness' of the reports/reviews/evaluations/ studies was as follows:

•Written in the last decade.

•The Document/Study examines outcome, quality, effectiveness and efficiency or a combination of these considerations.

•The study sets out a clear question to be answered and the methodological approach was relevant to being able to answer the question asked.

•The method for extracting information or data was effective and relevant to the information sought.

•The questions asked of participants in the instruments used were relevant.

•The data collected was sufficiently clear in illiciting the information sought.

•Given the complicated and complex nature and diversity of the legal services and the clients served, the methodology was likely to reveal the reasons behind the responses or approach that the service adopted in terms of the considerations listed above.

•A number of approaches were taken to verify, complement and unpack the reasons for the answer and included a blend of quantitative and qualitative data rather than reliance on quantitative data or one method.

•The approach taken is relevant and of assistance in the context of the NPA and the Attorney-General’s ‘Strategic Framework on Access to Justice in the Federal Civil Justice System’ , the COAG Reform Agenda and to social inclusion and Indigenous disadvantage.

Significant difficulties are identified in much of the domestic and international literature in the measurement of outcome/results, quality, efficiency and effectiveness.

The literature domestically and internationally, identifies the lack of a common language with which to articulate results, the lack of a framework in which to capture them and the difficulties in being able to measure and prove success. Where such results based measurement exists it will often need to be descriptive, subjective and there is a risk that cannot be avoided, of its being anecdotal and vague.

Each program must be first understood to be able to inform how to identify and define outcomes and measure these and ensure adaptive learning and adaptive management processes rather than these being fixed and remote from the realities of practice.

Any approach must be able to adapt and incorporate changing realities and demands on the services that are being examined.

There is no one way which can make it easy to achieve a successful outcome. Good practice informed by good training, cultural awareness, sensitivity, adaptability and flexibility are key factors in effectively reaching and targeting vulnerable and disadvantaged groups. Legal assistance services operate at different levels. Within a legal assistance service different objectives and intentions can sit behind each program. Therefore, they cannot be measured as a 'lump' without first understanding the very nature, diverse ways of engaging that are required to target different client groups, complexity, layers and imperative and funding requirements that drive each of the many parts.

Read on SSRN

Centre:

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

Law Schools and Legal Education

Law Schools and Legal Education: What is Really Important?

Author(s):

In this keynote address, the author asks, what is really important in thinking about the future of Australian legal education? Amongst the many candidates for answers, the author identifies three things: closer attention to values; taking internationalisation seriously; and harnessing the unrealised potential of the revolution in technology. He then considers some mechanisms that might assist in furthering these goals.

Read on SSRN

Centre:

Research theme: Legal Education

law_schools_and_legal_education.jpg

Law Schools and Legal Education: What is Really Important?

Author(s):

In this keynote address, the author asks, what is really important in thinking about the future of Australian legal education? Amongst the many candidates for answers, the author identifies three things: closer attention to values; taking internationalisation seriously; and harnessing the unrealised potential of the revolution in technology. He then considers some mechanisms that might assist in furthering these goals.

Read on SSRN

Centre: CLAH

Research theme: Legal Education

Teaching Professionalism in Legal Clinic

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

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

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, Regulatory Law and Policy

Our Common Future

Our Common Future: The Imperative for Contextual Ethics in a Connected World

Author(s): Vivien Holmes

Global connectedness offers possibilities for development and peace, and poses threats to security and the environment, on a scale we are still comprehending. Transactional and advisory lawyers are in a powerful position to affect the global impact of their clients' conduct. The world needs lawyers to recognize the global effect of their conduct, and to take responsibility for it, through a contextual approach to legal ethics. Lawyers must firmly and clearly restate their ethics, making them relevant to an environment where borders and boundaries no longer reliably define their accountability. The world cannot afford for lawyers to do otherwise.

Read on SSRN

Centre: CIPL

Research theme: Legal Education

Teaching Professionalism in Legal Clinic

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

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

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, Regulatory Law and Policy

Did She Consent? Law and the Media in New South Wales

Author(s): Anthony Hopkins

Legislative reform to the law of sexual assault in New South Wales in 2007 emphasises that those who wish to engage in sexual intercourse must take steps to ensure that they do so with consent. The new laws’ intent was to ensure free, voluntary and communicated consent, and to punish those who take advantage of the intoxication of their victim, or seek to hide behind their own intoxication. Further, the intent was to promote awareness and expectation with respect to acceptable consensual sexual activity. This article identifies a discord between this legislative intent and the reporting and commentary in the newsprint media which continues to focus on victim intoxication and behaviour as a matter of ‘risk’. The contention here is that until the legislative intent is reflected in the newsprint media the national conversation on sexual assault will remain impoverished, limiting the potential to focus the spotlight on perpetrators.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, 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

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

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

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

A Puppy Lawyer is Not Just for Christmas

A Puppy Lawyer is Not Just for Christmas: Helping New Lawyers Successfully Make the Transition to Professional Practice

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

The research reported here is a pilot project which investigated the transitionary period from study to work for entry-level lawyers. The research was designed to identify factors which may assist new lawyers in making this a successful transition.

This is crucial research. There is no similar empirical work in Australia focusing on the transition towards a legal professional. The support and endorsement of the Law Society of the Australian Capital Territory ensured that the pilot could provide some valuable preliminary data.

The design of the study consisted in tracking a small sample of newly admitted lawyers who volunteered to be followed through their first year. The sample consisted of eleven participants (4 male and 7 female) employed variously in private and public practice in the territory. Their median age was 25 years. They worked in a range of different practices – small, medium and large private firms, and government legal practices, legal aid and community legal centres.

Data was collected between 2009 and early 2011. The study used a multi-method qualitative research approach to gather information through interviews, participant observation and self-recording of daily work activity.

Data analysis showed the crucial importance of appropriate supervision and mentoring to new lawyers’ capacity to gain autonomy and competence. Also notable was new lawyers’ need to see their work as intrinsically worthwhile, either when it provided a direct public service or more indirectly. Pro bono work was important to them. New lawyers were also keenly alert to the real ethical climate of the practice in which they worked. The way a practice treated its staff (both professional and support) was seen as a reliable indicator of its ethical culture.

Read on SSRN

Centre: CIPL

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

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team