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.

Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same

Author(s): Margaret Thornton

Despite valiant endeavours by feminist, critical race, and Queer scholars to transform the legal culture, the transformative project has been limited because of the power of corporatism, a phenomenon deemed marginal to the currently fashionable micropolitical sites of critical scholarship. However, liberal, as well as postmodern scholarship, has largely preferred to ignore the ramifications of the “new economy,” which includes a marked political shift to the right, the contraction of the public sphere, the privatization of public goods, globalization, and a preoccupation with efficiency, economic rationalism, and profits. This paper argues that technical reasoning, or “technocentrism,” has enabled corporatism to evade scrutiny. It explores the meaning of “technocentrism,” with particular regard to legal education. Because corporate power does not operate from a unitary site, but is diffused, the paper shows how it impacts upon legal education from multiple sites, from outside as well as inside the legal academy in a concerted endeavour to maintain the status quo.

Read on SSRN

Centre: CIPL, CLAH

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

Disabling Discrimination Legislation

Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH

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

Do We Really Want to Know

Do We Really Want to Know?: Recognizing the Importance of Student Psychological Well-Being in Australian Law Schools

Author(s): Kath Hall

Recent research in Australia has suggested that law students are four times more likely than students in other degrees to suffer from anxiety and depression. The Brain and Mind Research Institute’s (BMRI) 2008 survey of lawyers and law students found that over 35% of the law students studied suffered from high to very high levels of psychological distress, and that almost 40% reported distress severe enough to warrant clinical or medical intervention. This contrasted with just over 17% of medical students and 13% of the general population. Similarly, a significant portion of the lawyers surveyed were found to suffer from elevated levels of anxiety and depression, with 31% falling in the high to very high levels of psychological distress.

With research on student well-being now becoming available in Australia, this article takes up the point of how Australian law schools will respond to these findings. It suggests that even before we start to consider the question of what we should do about the problem of student well-being, we must recognize that there are common psychological processes which can undermine our response to these issues. In particular, research in cognitive dissonance and rationalization suggest that even as we become aware of negative information on law student distress, we can unconsciously ignore it or rationalize it away on the basis that it is not relevant to us. Furthermore, these same cognitive processes can affect our students, such that they can fail to appreciate the significant implications of this research for them.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

academic_un-freedom_in_the_new_knowledge_economy.jpg

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

The Spectral Ground

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH

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

What is the Right Thing to Do

What is the Right Thing to Do?: Reflections on the AWB Scandal and Legal Ethics

Author(s): Vivien Holmes

The Cole Inquiry resulted in a five volume report that extensively details the history of AWB Ltd’s dealings with Iraq under the Oil-for-Food Programme (OFFP). In this chapter, I reflect on the role AWB in-house lawyers played in the AWB-Iraq story, exploring how lawyers who are too closely identified with the perceived interests of the client can step over the ethical (even if not the criminal) line, and work against both the client’s best interests and the public interest. I reflect also on the AWB lawyers’ role as counsel for a corporation whose actions had global ramifications. Legal practice today has global reach and I discuss the implications of this for our professional ethical horizons.

Read on SSRN

Centre: CIPL

Research theme: Legal Education

Academic Un-Freedom in the New Knowledge Economy

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

Liar's Fall a Lesson for Us All

Liar's Fall a Lesson for Us All

Author(s): Kath Hall

Former Federal Court Judge Marcus Einfeld was taken from the NSW Supreme Court into custody last Friday, after being sentenced by Justice Bruce James to a two-year non-parol period for perjury and perverting the course of justice.

Whilst clearly these charges and the court's sentence are very serious, the circumstances that led up to them are almost too crazy for many of us to believe. As the facts now show, throughout 2006 and 2007, Einfeld lied about driving a car that was caught speeding on camera.

The lies were contradictory, childlike and often hard to believe. Yet isn't one of the first lessons all children learn thou shalt not lie? If so, then why did this experienced, well regarded, former Australian judge lie to avoid a small speeding fine? Why did he not realise that adding one lie upon another and another would end up burying him in a deep and hopeless hole such as the one he is now in?

Read on SSRN

Centre: CCL, CIPL, LGDI

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

The Wages of Sin

The Wages of Sin: Compensation for Indigenous Workers

Author(s): Margaret Thornton

After two centuries of exploitation, Indigenous people in Australia are now engaged in a struggle to recover what has come to be known as ‘stolen wages’, although there is uncertainty as to the best legal avenue. This article overviews the course of the struggle, which began in the industrial arena but moved to the discrimination arena, where modest damages have been awarded, although academic commentary favours breach of fiduciary duty or breach of trust. Drawing on the Kantian binary of active and passive citizens, the authors argue that the initiation of civil action represents an important site of active citizenship. Viewed in this light, it is argued that breach of fiduciary duty should be rejected, if the time of the misappropriation allows it, as it instantiates the passivity and inequality associated with the colonial era, while breach of trust entails monumental problems of proof. Further recourse to anti-discrimination legislation is advocated because its theoretical framework is based on equality - a foundational premise of citizenship.

Read on SSRN

Centre: CIPL, CLAH

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

The Spectral Ground

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH

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

Disabling Discrimination Legislation

Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH

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

Desegregation and the Struggle for Equal Schooling

Desegregation and the Struggle for Equal Schooling: Rolling the Rock of Sisyphus

Author(s): Molly Townes O'Brien

Economic integration and citizen equality have been core ideals of American public schooling since its founding. The egalitarian ideals of free schooling, however, have never matched public school reality. Closing the gap between the idealistic rhetoric and the discriminatory reality of public schooling has been the target of school reform for decades and a major goal of the Civil Rights movement. This chapter recounts the effort to achieve equal educational opportunity for African Americans through school desegregation. Beginning with 19th century cases and continuing through Brown v. Board of Education to Parents Involved in Community Schools v. Seattle School District, this chapter provides an overview of the litigation and court decisions dealing with school segregation and desegregation, and creates a picture of advancement toward and retrenchment from the goals of equal educational opportunity. It compares school reformers to Sisyphus, struggling mightily to push schools toward the ideals of equal opportunity and equal access, only to see progress roll back, time and again.

Read on SSRN

Centre: CIPL

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

Why Good Intentions are Often Not Enough

Why Good Intentions are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making

Author(s): Kath Hall

This chapter takes as its starting point the question of how otherwise experienced and principled lawyers can make blatantly unethical decisions. As recent research has shown, lawyers can become involved in legitimizing inhuman conduct just as they can in perpetuating accounting fraud or hiding client scandal. To an outsider looking at these circumstances, it invariably appears that the lawyers involved consciously acted immorally. Within the common framework of deliberative action, we tend to see unethical behaviour as the result of conscious and controlled mental processes.

Whilst awareness is always part of our actions, this chapter challenges the pervasiveness of assumptions about the power of conscious processes in ethical decision making. Drawing on a range of psychological research, it focuses on two important findings: first, that automatic mental processes are far more dominant in our thinking than most of us are aware; and second, that because we do not generally have introspective access to these processes, we infer from their results what the important factors in our decision making must be. These findings challenge the notion that individuals can be fully aware of what influences them to act ethically or unethically. It also suggests that we need to concentrate upon those conscious processes that we do know influence decision making in deepening our understanding of how to improve ethical awareness.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

Do We Really Want to Know

Do We Really Want to Know?: Recognizing the Importance of Student Psychological Well-Being in Australian Law Schools

Author(s): Kath Hall

Recent research in Australia has suggested that law students are four times more likely than students in other degrees to suffer from anxiety and depression. The Brain and Mind Research Institute’s (BMRI) 2008 survey of lawyers and law students found that over 35% of the law students studied suffered from high to very high levels of psychological distress, and that almost 40% reported distress severe enough to warrant clinical or medical intervention. This contrasted with just over 17% of medical students and 13% of the general population. Similarly, a significant portion of the lawyers surveyed were found to suffer from elevated levels of anxiety and depression, with 31% falling in the high to very high levels of psychological distress.

With research on student well-being now becoming available in Australia, this article takes up the point of how Australian law schools will respond to these findings. It suggests that even before we start to consider the question of what we should do about the problem of student well-being, we must recognize that there are common psychological processes which can undermine our response to these issues. In particular, research in cognitive dissonance and rationalization suggest that even as we become aware of negative information on law student distress, we can unconsciously ignore it or rationalize it away on the basis that it is not relevant to us. Furthermore, these same cognitive processes can affect our students, such that they can fail to appreciate the significant implications of this research for them.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

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

The Power of Rationalization to Influence Lawyers' Decisions to Act Unethically

Author(s): Kath Hall, Vivien Holmes

This article explores the psychological literature on rationalization and connects it with contemporary questions about the role of in-house lawyers in ethical dilemmas. Using the case study of AWB Ltd, the exclusive marketer of Australian wheat exports overseas, it suggests that rationalizations were influential in the perpetuation by in-house lawyers of AWB's payment of kickbacks to the Iraqi regime.

The article explores how lawyers' professional rationalizations can work together with commercial imperatives to prevent in-house lawyers from seeing ethical issues as those outside the organisation would see them. In particular, where lawyers over-identify with their client's commercial point of view and convince themselves that their role is primarily about providing 'technical' advice on commercial matters, wilful or unintended 'ethical blindness' can result. Lawyers can end up involved in or perpetuating serious misconduct by their client organizations.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

The Law School, the Market, and the New Knowledge Economy

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

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

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

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

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

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

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

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

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

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

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