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.

University of Western Australia v Gray: An Academic Duty to Commercialise Research?

Author(s):

In an era of tightening university budgets and pressure to commercialise academic knowledge, many higher education institutions see the exploitation of new inventions and discoveries, through the use of patents, as an additional revenue stream. To that end, many such organisations have in place policies and by-laws which regulate “ownership” and disclosure of inventions created by employees. This can be seen as a continuation of an ongoing process of shifting universities from institutes of “pure research” to commercial operations, seeking to maximise financial gains from the efforts of their researchers. However, new opportunities present new risks. One of the last Federal Court decisions by the High Court of Australia’s new Chief Justice, Justice French, in University of Western Australia v Gray [2008] FCA 498 explores some of the challenges which Australian university administrators and policy developers will need to overcome if an appropriate balance between private interests and public good is to be maintained in this context.

If their movement into commercial patenting is to be reconciled with the time-honoured position of universities as centres of learning, support for public goods and open access research, then government intervention, through an expansion of the “fair use” provisions in the Copyright Act and Patents Act to include academic research, may need to be considered. At the very least, patenting should be seen against its historical background: as an authorised, but limited, monopoly privilege granted temporarily and primarily in the public interest, to encourage innovation and to assist in the dissemination of knowledge.

Read on SSRN

Centre:

Research theme: Legal Education

Law Reform and Legal Education: Uniting Separate Worlds

Author(s):

I begin with a confronting proposition. Law reform and legal education have traditionally been separate worlds, rarely in danger of collision or even constructive combination. This separation is not good for either law reform or legal education, or for the legal profession, the discipline of law, or the advancement of society. These two separate worlds can and should be brought together, so that legal education has a conscious and deliberate law reform ethos and focus.

Read on SSRN

Centre:

Research theme: Legal Education

University of Western Australia v Gray: An Academic Duty to Commercialise Research?

Author(s):

In an era of tightening university budgets and pressure to commercialise academic knowledge, many higher education institutions see the exploitation of new inventions and discoveries, through the use of patents, as an additional revenue stream. To that end, many such organisations have in place policies and by-laws which regulate “ownership” and disclosure of inventions created by employees. This can be seen as a continuation of an ongoing process of shifting universities from institutes of “pure research” to commercial operations, seeking to maximise financial gains from the efforts of their researchers. However, new opportunities present new risks. One of the last Federal Court decisions by the High Court of Australia’s new Chief Justice, Justice French, in University of Western Australia v Gray [2008] FCA 498 explores some of the challenges which Australian university administrators and policy developers will need to overcome if an appropriate balance between private interests and public good is to be maintained in this context.

If their movement into commercial patenting is to be reconciled with the time-honoured position of universities as centres of learning, support for public goods and open access research, then government intervention, through an expansion of the “fair use” provisions in the Copyright Act and Patents Act to include academic research, may need to be considered. At the very least, patenting should be seen against its historical background: as an authorised, but limited, monopoly privilege granted temporarily and primarily in the public interest, to encourage innovation and to assist in the dissemination of knowledge.

Read on SSRN

Centre:

Research theme: Legal Education

German Law Journal

Contemporary Research and the Ambiguity of Critique

Author(s): Margaret Thornton

Within the marketised context of higher education, research is valued less for its contribution to scholarship than for its income-generating capacity and value to end users. Commodification has significant ramifications for academic freedom as can be seen by the example of research consultancies. Academic freedom is also being affected by the direct interference of neoliberal governments in research policy. While terror censorship is a dramatic manifestation of interference, critical research is also affected by the everyday practices of the contemporary academy. All these factors contribute to the production of de-politicised knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

German Law Journal

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

'Otherness' on the Bench: How Merit is Gendered

Author(s): Margaret Thornton

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Read on SSRN

Centre: CIPL, CLAH

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

The Gender Trap: Flexible Work in Corporate Legal Practice

Author(s): Margaret Thornton

Despite the fact that women comprise well over 50 per cent of law graduates in many parts of the world, women lawyers continue to be clustered disproportionately in the lower echelons of the profession. This paper considers the role of flexible work as a gender equity strategy and is illuminated by interviews with lawyers in élite corporate firms in Australia. It is argued that far from being a panacea, flexible work is being invoked to confine women to subordinate roles and to restrict access to partnerships. Not only is there a residual suspicion of the feminine in positions of authority and resistance to the idea of bodily absence from the workplace, the contemporary market discourse has erased a commitment to social justice and equality.

Read on SSRN

Centre: CIPL, CLAH

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

The Demise of Diversity in Legal Education

Author(s): Margaret Thornton

This paper explores the contradictions arising from the simultaneous commitment to globalisation and diversity. The backdrop to the study is the marked shift to the right that has occurred in State and federal politics, emulating the global trend that has resulted in neo-liberalism supplanting social liberalism as the dominant ideology.

Neo-liberalism, or market liberalism, necessarily locates its subjects within the market where they are expected to vie with one another for survival and success.

Globalisation is one manifestation of neo-liberal competition policy which, along with corporatisation and privatisation, displays little interest in diversity politices, other than as a means of enhancing market image. Indeed, the feminine is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures. there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical content of all kinds. The paper considesr how neo-liberal and globalising imperatives are impacting on legal education in (1) the appointment of academic staff; (2) the shaping of the curriculum; (3) the profile of the 'consumers' of legal education; (4) the cartography of legal knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH

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

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s): Molly Townes O'Brien

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL

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

Exploring the Group-Identity Function of Criminal Law

Author(s): Molly Townes O'Brien

In every country where the question has been studied, incarceration rates for members of some minority groups greatly exceed those for the majority population. The problem of disproportionate incarceration is not therefore a problem of one ethnic group or one set of historical circumstances. It is a human problem that is fundamentally connected to social group identity. This essay conducts a preliminary exploration of the role that criminal law serves in group-identity formation. It suggests that building a common or super-group identity may be necessary to achieve greater justice in increasingly multi-ethnic and mobile societies.

Read on SSRN

Centre: CIPL

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

Corrosive Leadership (or Bullying by Another Name): A Corollary of the Corporatised Academy?

Author(s): Margaret Thornton

The literature reveals that the incidence of bullying is increasing in corporate workplaces everywhere. While the data is scant, it suggests that bullying in universities is also on the increase. Interviews with Australian academics support this finding. It is argued that the trend has to be understood in light of the pathology of corporatisation, which is designed to make academics do more with less. The focus on productivity parallels the harassment to which workers in the private sector may be subjected in the hope that they will work harder and maximise profits. Avenues of redress are considered which show that dignitary harms remain inchoate as legal harms. While common law and anti-discrimination legislation regimes may occasionally offer a remedy to targeted individuals, it is averred that these avenues are incapable of addressing the causative political factors that induce corrosive leadership.

Read on SSRN

Centre: CIPL, CLAH

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

The Retreat from the Critical: Social Science Research in the Corporatised University

Author(s): Margaret Thornton

This paper considers how the contemporary environment is inducing a less critical approach towards research and impacting on academic freedom. It argues that it is not only the interventionist acts of Ministers and terror censorship that academics need to worry about, for the need to satisfy funding bodies is more insidiously exercising a depoliticising effect on research.

Read on SSRN

Centre: CIPL, CLAH

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

The Evisceration of Equal Employment Opportunity in Higher Education

Author(s): Margaret Thornton

This paper considers the way in which neoliberalism has impacted on equal employment opportunity (EEO) within the academy. Instead of a focus on the common good, there has been a shift to promotion of the self within the market. Higher education has not been immune from the contemporary imperative to commodify and privatise. Corporatisation has resulted in top-down managerialism, perennial auditing and the production of academics as neoliberal subjects. Within this context, identity politics have either moved to the periphery or disappeared altogether.

Against the background of the ramifications of the socio-political shift and the transformation of the university, the paper considers the rise and fall of EEO and the emergence of new discourses, such as that of diversity, which better suit the market metanarrative. The market has also induced a shift away from staff to students, inviting the question is to whether EEO is now passé.

Read on SSRN

Centre: CIPL, CLAH

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH

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

Exploring the Group-Identity Function of Criminal Law

Author(s): Molly Townes O'Brien

In every country where the question has been studied, incarceration rates for members of some minority groups greatly exceed those for the majority population. The problem of disproportionate incarceration is not therefore a problem of one ethnic group or one set of historical circumstances. It is a human problem that is fundamentally connected to social group identity. This essay conducts a preliminary exploration of the role that criminal law serves in group-identity formation. It suggests that building a common or super-group identity may be necessary to achieve greater justice in increasingly multi-ethnic and mobile societies.

Read on SSRN

Centre: CIPL

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

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s): Molly Townes O'Brien

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL

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

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s):

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH

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

Pages

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