Working Papers

Beyond the classroom
16
Dec
2016
Author(s): Jolyon Ford

Blockbuster movies such as Blood Diamond or Avatar explore corporate responsibility themes in various ways. How might such popular culture products affect the emerging regulatory landscape on business-related human rights impacts and conflict-sensitive business practices? What role might popular culture -- in particular ‘big screen’ movies -- have to play in fostering greater awareness of, and business respect for, these norms and standards? Most scholarship on addressing the governance gap in these areas is directed to ‘supply-side’ factors -- how to design or improve legal, regulatory and policy initiatives. Scholars in the ‘business and human rights’ and ‘business for peace’ fields have focussed relatively little on insights as to the ‘demand side’ -- whether, how and to what extent consumer behaviour may be relevant in driving shifts in business practices or in complementing or demanding governmental action. This working paper explores a possible research agenda on how the nexus of business, human rights and peace is treated in pop culture, and what (if any) significance this might have to the universe of regulatory and other activity in this field. It asks how important pop culture might be in shaping a critical mass of informed consumers, a potentially relevant regulatory resource.

Centre: CIPL
Research theme: Human Rights Law and Policy
26
Jul
2016
Author(s): Ron Levy, Graeme Orr, University of Queensland.

The quantity and quality of political opinion polling are sources of concern for electoral democracies worldwide. A significant number of countries regulate polling by embargoing publication in the latter stages of the election period, or by mandating disclosure of key information about each poll. Such regulation, however, is rare in common law systems, where ‘free speech’ arguments tend to hold sway, sublimating concern for the deliberative health of political discourse. This article examines the issue, comparing regulation and case law internationally in light of the evolution, benefits and pathologies of opinion polling. A distinction can be made between polling on issues, which permit us all to reflect on the positions of fellow citizens on substantive issues, and the almost endless stream of polling on voting intentions, which offers little from a deliberative perspective. We recommend regulation to ensure disclosure, at the point of publication, of key information about each opinion poll (eg who conducted it, the wording of questions and margins of error), as well as a campaign-period embargo on publishing electoral opinion polling.

Centre: DGAL
01
Mar
2016
Author(s): Daniel Fitzpatrick

This article considers fragmented property systems – the phenomenon of contested, separated or overlapping sub-systems within a national property jurisdiction. One example is circumstances of property despite law. Globally, as many as a billion people claim de facto property without recognition by law in urban informal settlements and agro-pastoral or forested areas. Another example is property without transition to law. Many households in the developing world regulate land markets through local mechanisms notwithstanding opportunities or requirements to use law.

The article provides a conceptual frame for the emergence of property system fragmentation based on the private coordination of property relations. The article argues that fragmentation emerges in complex property systems where law attempts to displace property coordination mechanisms, but fails to induce a critical mass of property participants to alter coordination strategies. A focus on coordination provides a means to combine the methodological individualism of economic narratives with collective variables highlighted by other perspectives on property such as anthropology and complex systems theory.

Centre: CCL
Research theme: Private Law
11
Jan
2016
Author(s): Margaret Thornton

‘Work/life balance’ (WLB) emerged as the catchcry of workers everywhere in the late 20th century. It was particularly appealing to women lawyers as it was thought that if a balance could be effected between work and life, satisfying careers and the raising of children could be combined. The key to effecting this balance, it was believed, was flexible work. Technology has facilitated this flexibility as all that is required is a computer, or other device with internet connection, and a mobile phone. Provided that the firm is agreeable, the lawyer would have a degree of autonomy in determining when and where the work is carried out. However, flexible work has not always proved to be the boon that was hoped, for the shift from face-time to virtual time has blurred the boundary between work and life, insidiously extending the hours of work and impinging on the realm of intimacy. Drawing on a web-based survey and interviews with lawyers Australia-wide, this article considers the ramifications of perpetual connectivity for lawyers in private practice, with particular regard to its gender significance.

Centre: PEARL
Research theme: The Legal Profession
04
Jan
2016
Author(s): Kath Hall, Milton C Regan Jr, Georgetown University

This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce. 

In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?

Centre: CIPL
05
Mar
2014
Author(s): Margaret Thornton

State disinvestment in higher education has been a notable characteristic of neoliberalism all over the world and the corporatization of universities has been the typical response. It has led to a proliferation of law schools with students paying high fees. Corporatization has also engendered a culture of relentless competition between universities, which manifests itself in league tables and rankings. The pursuit of prestige has compelled law schools to prioritize research over teaching, which poses a dilemma for what is taught and how it is taught. The contradictions of the corporatization thesis are graphically illustrated by the experiences of Australia, which might be described as the canary in the mine shaft. While corporatization plays out differently in decentralized regimes with a substantial private sector, such as the United States, its impact on the legal academy has been similarly profound. The dilemmas posed by corporatization for the legal academy require considered scholarly attention.

Centre: PEARL
Research theme: Legal Education

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