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 Class Action as Sheriff: Private Law Enforcement and Remedial Roulette

Author(s): Peta Spender

This essay will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle.

The compensation principle requires that plaintiffs should as nearly as possible be awarded a sum of money that will place them in the same position as if they had not suffered a wrong. The principle has occupied a central position in modern private law to provide standing to plaintiffs and to limit the powers of courts. Yet commentators such as Berryman argue that the compensation principle is in decline and suffering a death by a thousand cuts. Some of the deepest cuts have been inflicted by the modern class action.

This argument will be examined by reference to class actions in Australia, Canada, and the US, using the vitamins antitrust litigation in those jurisdictions as a case study.

The overall hypothesis is that whilst the compensatory principle is being assailed by the calls for the class action to deter corporate misconduct, the principle still acts as a moral compass. Corrective justice has not entirely yielded to instrumentalism, but the current autonomous, individualistic, and substantive law model of corrective justice under private law needs to adjust to group procedural justice as practised in law firms and in the courts.

Read on SSRN

Centre: CCL

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

Environmental Conflict Resolution: Relational and Environmental Attentiveness as Measures of Success

Author(s): Tony Foley

When evaluating the success of environmental conflict resolution (ECR), the use of traditional measures of success, such as agreement counting and participant satisfaction surveys provide an incomplete picture. This article proposes two measures to evaluate ECR in terms of both process and outcome: Is the process transformative of the participants? Is the process designed to be attentive to environmental outcomes?

Read on SSRN

Centre:

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH

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

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, The Legal Profession

We Are What We Write

Author(s):

Ever since I published my first legal article in 1969 – of all places, in the Jaipur Law Journal, published by the University of Rajasthan – I have spent my professional life writing. The writing seems to have been passable enough: my first book won a prize; my second book says on the back cover that I am ‘a master of English prose’ (though I may have written that myself); and my most recent book – as I proprietorially and presumptuously call the multi-authored Oxford Companion to the High Court of Australia – received widespread acclaim for its hidden treasures and subtle pleasures. Yet I have never before been publicly introspective about it. This is the first time I have been asked to share my thoughts on the art of legal writing.

Read on SSRN

Centre: CLAH

Research theme: The Legal Profession

On Building a Successful Career as an Academic Lawyer

Author(s):

I find myself in an ironic position this afternoon. This morning I was supposed to be a commentator on the keynote address, but pretty much gave my own independent perspective on legal knowledge and lawyers’ responsibilities. This afternoon I am supposed to give my own independent perspective on building a successful career as a legal academic, yet I find myself so stimulated by Ros Croucher’s paper that I can’t resist falling into the role of being a commentator on it. You might think that this is another example of the tensions and dilemmas I spoke about this morning. I rather think it is an example of my perverse streak, which actually launched me on my academic career, when, 35 years ago, against all advice, I forsook the US and the UK and took off to India for postgraduate study. But perhaps more of that later. I say perhaps because, despite Paul Moyle’s dangerous invitation to Ros and me to reflect on our personal experiences, I don’t want to cross the line into total self-indulgence.

Read on SSRN

Centre:

Research theme: Legal Education, The Legal Profession

Legal Knowledge, the Responsibility of Lawyers, and the Task of Law Schools

Author(s):

A former colleague of mine recently asked me whether being Dean left me time for any serious legal research and writing. Putting aside any question of intellectual impairment caused by decanal duties, and assuming also that one is on the right side of that well-known equation in which accumulated experience keeps one just ahead of one’s biological decline, I mentioned that I had gravitated to shorter, more reflective pieces. In particular, I had just written a piece of extreme brevity - only a page and a half of printed text - with which I was nevertheless very pleased. It explored the phenomenon of deep antinomies in the law, particularly the tension between the concept of law as an autonomous body of knowledge and the notion of law as comprehensible only by reference to its context, especially its political, social, economic, and historical context. He said to me, ‘Why am I not surprised? The theme of all of your writing seems to be the irreconcilable tension between competing ideas!’

Read on SSRN

Centre:

Research theme: The Legal Profession

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH

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

Weapons of Mass Dispassion: James Hardie and Corporate Law

Author(s): Peta Spender

This lecture honours Michael Whincop's work by examining the controversy surrounding attempts by the James Hardie Group in 2004 to isolate its liability in tort to sufferers of asbestos disease. The lecture explores the absence of passion and compassion in corporate law, explains how it deflects moral claims and scrutinises the James Hardie imbroglio in a wider institutional and philosophical context.

Read on SSRN

Centre: CCL

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

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

Author(s): Peta Spender

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

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

Read on SSRN

Centre: CCL

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

Affirmative Action, Merit and Police Recruitment

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

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

Author(s):

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

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

Read on SSRN

Centre: CCL

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

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

EEO in a Neo-Liberal Climate

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Authority and Corporeality: The Conundrum for Women in Law

Author(s): Margaret Thornton

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

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

Read on SSRN

Centre: CIPL, CLAH

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

Remedying Discriminatory Harms in the Workplace

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

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