Melbourne Law School Research Articles

On Romancing the Tomes: Popular Culture, Law and Feminism: A Public Conversation

ABSTRACT Emerita Professor Margaret Thornton's edited collection, Romancing the Tomes: Popular Culture, Law and Feminism was published in 2002, and grew out of the workshop Margaret organised under the auspices of the Humanities Research Centre at the Australian National University in 2000. In 2021 as part of the Institute of International Law and the Humanities (‘IILAH') Festival of Conversations Margaret spoke to Johanna Commins about the original workshop, the edited collection, and Margaret's reading of High Court Justice Ian Callinan’s first published novel, The Lawyer and the Libertine. The following edited conversation was held at Melbourne Law School in May 2023 and opened the workshop Romancing the Tomes 2.0: Feminism, Law and Popular Culture. It continued via email in early 2024.

Empirical legal research teaching in Australia: Building an empirical revolution

There is a growing need for empirical legal research, and for lawyers and judges who are empirically literate. In this article, I consider the role legal education can and should play in achieving this empirical literacy, to enable law students and staff to be both skilled consumers and producers of empirical legal research. Drawing on a case study of initiatives at Melbourne Law School, I consider how empirical legal research could be embedded into law teaching, to better support the future of empirical legal scholarship.

Translating Dark into Bright: Diary of a Post-Critical Year.

This is an account of a reading project that began in February 2020. Australia was burning, a pandemic was simmering, the two of us were early in our PhD journeys at the Melbourne Law School. Already, we felt exhausted by critical theory which seemed to amplify the affects we felt all too intensely. Our reading project began as an attempt to find and inhabit texts that might move beyond critique, that might allow us to find wonder and vitality in legal theory. Taking up the literary critic Rita Felski's invitation to craft a post-critical reading practice, our reading list evolved iteratively to encompass themes and concerns that we identified as possibly correlating with said practice. It evolved too, in conversation with Melbourne, as the city journeyed through different stages of the pandemic. Constantly changing restrictions changed the ways in which we met and conversed, influencing in turn the texts we chose to read and the manner in which we read them. In this account, we pay attention to the time and place of our encounters with these interlocutors, and to the feelings these encounters generated. As such, this article takes the form of a series of (revised) diary entries: first written in 2020, then revisited in the corresponding months of 2021. What we hope emerges from these entries is a sense of how these theoretical texts train us to live in a world undergoing a compounding series of crises - and, perhaps, to imagine that world otherwise. In a more jurisprudential register, we hope that our experiment will identify the methods these texts might give us for (re-)engaging with law in a spirit of wonder and vitality.

Introduction: new directions, new voices in family law in India

In July 2019, select family law scholars from around India and the world gathered at the National Law School of India University (NLSIU) in Bengaluru, India to participate in a conference on ‘New Directions, New Voices in Family Law in India’ jointly sponsored by NLSIU, the University of Oxford Faculty of Law, and Melbourne Law School. The papers and presenters were diverse and the conference conversations were enthusiastic. As a result of this conference, four quite different but interlinked papers were eventually selected for inclusion in this special issue of the Indian Law Review. These papers bring much needed attention to neglected aspects of a wide range of contemporary Indian family law issues and move us beyond seeing Indian family law as necessarily about the constitutional dimensions of personal law and the nationalistic directions that these constitutional discussions have often taken.

Introduction: Privacy and Pandemics

This set of articles in this special issue illustrate a number of ways that the realities of a global pandemic may challenge different perspectives on privacy protection and the appropriate relationship with other rights and responsibilities. They arose from a virtual roundtable, held on 15 June 2020 at Melbourne Law School, under the aegis of the Privacy and Pandemics Information Network. The network was formed as a rapid response to the overwhelming number of privacy issues being raised almost simultaneously by, or as a result of, the various government and private actor attempts to deal with COVID-19 in Australia and around the world.

Understanding Sharia Processes: Women’s Experiences of Family Disputes, Farrah Ahmed and Ghena Krayem

This book is a welcome addition to the existing literature on Muslims practising sharia in the West. The authors, Professor Farrah Ahmed (University of Melbourne Law School) and Associate Professor Ghena Krayem (University of Sydney Law School) provide new empirical data to explore the experiences of Australian Muslims in their engagement with sharia processes in Australia. The book consists of seven chapters, preceded by a foreword by Professor Julie Macfarlane (Faculty of Law, University of Windsor, Canada)1. Macfarlane values the importance of this book in bringing to the fore the voices of women and their perspectives of Islamic family law processes, often associated with gender stereotypes and patriarchal practices. Macfarlane rightly identifies the insider approach used for this research as a suitable model to examine groups and communities that reside within a dominant community without ‘othering’; to understand differences, their beliefs and values; whilst acknowledging similarities shared with the wider society, such as marital strife and domestic violence. The foreword concludes by reiterating the problems of male dominance and the assumption about women’s roles which are not associated with the Muslim faith alone being present in other religious and cultural processes and even the courts.

Like Frankenstein’s Creature, Corporations Have Been Misunderstood

'A corporation may have legal rights, but that does not mean it has moral rights underneath'. That, at least, as I discuss in this talk, is one understanding of corporate rights – an understanding that is today widespread, especially amongst progressives. That is not the only understanding of corporate rights available to us, however. There is another. This alternative understanding, which I explore, holds, instead, that a corporation does have underlying moral rights. Further, it holds that these underlying moral rights are what a corporation’s legal rights ought, in fact, to be based upon. Using this alternative understanding of the corporation, I discuss investor-owned public companies. I demonstrate, on the basis of this alternative understanding, that the underlying moral rights of public companies are ignored under law today. I argue that public companies, in fact, are treated as slaves. I finish by commenting on the negative consequences of corporate enslavement for the environment. This is the text of a talk given at the 2021 inaugural Environmental Law Doctoral Researchers’ Workshop, hosted by Melbourne Law School’s Centre for Resources, Energy and Environmental Law and UNSW Sydney Faculty of Law & Justice.

Songs and Static: Legalities of White Noise

This paper was delivered as a keynote talk at the 13th Annual Doctoral Forum on Legal Theory, 'Sirens + Silences: Law in Lockdown', co-hosted by Melbourne Law School and UNSW Law. Responding to the convenors' invitation to reflect on "a year marked by upheaval and stasis", it explores how legal scholars in various settings might plan a route out of the global COVID-19 pandemic that is not simply a return home. Five legal and political "songs" in broad circulation are identified – songs of salvation, separation, suspension, stagnation, and absurdity – and arguments made for resisting some of their appeals. Instead, the paper suggests, legal scholars might do well to look to the commonplace normativity of survival: the ceaseless static of making do and getting by. By planning and organizing around some of the ways that people have lived the pandemic, legal scholars might perhaps become attuned to possible ways of living lawfully without casting sectors of the population into surplus.

Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, Belknap Press: Harvard University Press, 2019, 472 pp, hb £28.95.

The Modern Law ReviewVolume 83, Issue 5 p. 1108-1112 REVIEWS Ackerman, Bruce, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, Belknap Press: Harvard University Press, 2019, 472 pp, hb £28.95. Erika Arban, Postdoctoral research fellow, Centre for Comparative Constitutional Studies, Melbourne Law School & Lecturer, Faculty of Law, University of Antwerp.Search for more papers by this authorEleonora Bottini, Professor of Public Law, University of Caen Normandy, Centre de recherche sur les droits fondamentaux et les évolutions du droit (CRDFED).Search for more papers by this authorDinesha Samararatne, Postdoctoral research fellow, Centre for Comparative Constitutional Studies, Melbourne Law School & Senior Lecturer, Department of Public & International Law, Faculty of Law, University of Colombo.Search for more papers by this author Erika Arban, Postdoctoral research fellow, Centre for Comparative Constitutional Studies, Melbourne Law School & Lecturer, Faculty of Law, University of Antwerp.Search for more papers by this authorEleonora Bottini, Professor of Public Law, University of Caen Normandy, Centre de recherche sur les droits fondamentaux et les évolutions du droit (CRDFED).Search for more papers by this authorDinesha Samararatne, Postdoctoral research fellow, Centre for Comparative Constitutional Studies, Melbourne Law School & Senior Lecturer, Department of Public & International Law, Faculty of Law, University of Colombo.Search for more papers by this author First published: 19 February 2020 https://doi.org/10.1111/1468-2230.12520 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinked InRedditWechat Volume83, Issue5September 2020Pages 1108-1112 RelatedInformation

The “Labour” chapter of the Comprehensive Progressive Trans-Pacific Partnership as neoliberal regulation

With the possibility of Brexit and the UK leaving the European Union and considering joining the Comprehensive Progressive Trans-Pacific Partnership (CPTPP) Professor Joo-Cheong Tham, Melbourne Law School argues that the “Labour” chapter of the CPTPP constitutes a form of neoliberal regulation – faux regulation.
 Index keywords: Brexit, United Kingdom, International trade regulation, European Union, Comprehensive Progressive Trans-Pacific Partnership

Farewell for Adrian

Speech given via video by Professor Christine Parker, Melbourne Law School, The University of Melbourne.

Disability Human Rights Clinics as a model for teaching Participatory International Human Rights Lawyering

The Disability Human Rights Clinic (DHRC) was established at Melbourne Law School, the University of Melbourne, in 2015. Its supervisors and students conduct legislative and policy reform projects as well as strategic litigation. The DHRC was created by Anna Arstein-Kerslake to address a significant lack of resources in community-based organisations to undertake in-depth legal analysis. It uses an innovative model of clinical legal education to harness the skills of law students to fill that gap and to expose a new generation of lawyers to the emerging field of disability human rights law. In this article, we draw on our experiences running the DHRC to argue that the model it establishes can create significant scholarly output in the human rights field, direct engagement with the community, and rich doctrinal and experiential learning for students.

A Critical Consideration of Substitutive Awards in Contract Law

The Modern Law ReviewVolume 81, Issue 6 p. 1064-1082 REVIEW ARTICLE A Critical Consideration of Substitutive Awards in Contract Law Katy Barnett, Katy Barnett Associate Professor, Melbourne Law School, University of Melbourne. Based on a commentary on Dr Winterton's paper, ‘Two Conceptions of the Performance Interest’ at the Legal Theory Workshop at Melbourne Law School on 1 September 2017. Thank you to Solène Rowan, Jeannie Paterson and the anonymous reviewer for their helpful comments. All errors are my own.Search for more papers by this author Katy Barnett, Katy Barnett Associate Professor, Melbourne Law School, University of Melbourne. Based on a commentary on Dr Winterton's paper, ‘Two Conceptions of the Performance Interest’ at the Legal Theory Workshop at Melbourne Law School on 1 September 2017. Thank you to Solène Rowan, Jeannie Paterson and the anonymous reviewer for their helpful comments. All errors are my own.Search for more papers by this author First published: 18 November 2018 https://doi.org/10.1111/1468-2230.12382Citations: 1 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume81, Issue6November 2018Pages 1064-1082 RelatedInformation

The Quest for Information Privacy in Africa

The Quest for Information Privacy in Africa

Regulatory Arbitrage in Cross Border Crowdfunding

In the aftermath of the 2008 financial crisis, small businesses found it increasingly difficult to raise funds. Equity crowdfunding has emerged as a viable alternative for sourcing capital to support innovative, entrepreneurial ventures. Equity crowdfunding merges the complexity of public funding, with the systemic risks of venture capital funding. A key responsibility of any securities regulator is that of investor protection. Securities laws, involving stringent eligibility criteria for fundraising companies and detailed disclosure requirements have been instrumental in mitigating risks for public retail investors to some extent. A number of securities regulators across the world have dealt with, or are in the process of dealing with equity crowdfunding as a disruptive innovation to established processes of corporate fundraising. However, most equity crowdfunding regulations do not take into account one critical aspect of crowdfunding - that of cross-border crowdfunding. I argue that in jurisdictions where crowdfunding activities are unregulated or have a low threshold of regulations, the opportunities arising from the resultant regulatory arbitrage could then be used by fund-seeking companies based in jurisdictions where crowdfunding is prohibited or highly regulated. As a result, securities regulators must work together to derive minimum standards of acceptable behavior in cross-border crowdfunding markets. This is a draft of a chapter that has been accepted for publication by Oxford University Press in the Oxford Handbook of IPOs edited by Douglas Cummings and Sofia Johan published in 2018. An earlier version of this paper was drafted as part of a visiting research fellowship at the Melbourne Law School. The author is grateful to Mr Lakshay Garg, BBALLB Class of 2013, Jindal Global Law School for his research assistance.

Regulatory Arbitrage in Cross-Border Crowdfunding

In the aftermath of the 2008 financial crisis, small businesses found it increasingly difficult to raise funds. Equity crowdfunding has emerged as a viable alternative for sourcing capital to support innovative, entrepreneurial ventures. Equity crowdfunding merges the complexity of public funding, with the systemic risks of venture capital funding. A key responsibility of any securities regulator is that of investor protection. Securities laws, involving stringent eligibility criteria for fundraising companies and detailed disclosure requirements have been instrumental in mitigating risks for public retail investors to some extent. A number of securities regulators across the world have dealt with, or are in the process of dealing with equity crowdfunding as a disruptive innovation to established processes of corporate fundraising. However, most equity crowdfunding regulations do not take into account one critical aspect of crowdfunding - that of cross-border crowdfunding. I argue that in jurisdictions where crowdfunding activities are unregulated or have a low threshold of regulations, the opportunities arising from the resultant regulatory arbitrage could then be used by fund-seeking companies based in jurisdictions where crowdfunding is prohibited or highly regulated. As a result, securities regulators must work together to derive minimum standards of acceptable behavior in cross-border crowdfunding markets. This is a draft of a chapter that has been accepted for publication by Oxford University Press in the Oxford Handbook of IPOs edited by Douglas Cummings and Sofia Johan published in 2018. An earlier version of this paper was drafted as part of a visiting research fellowship at the Melbourne Law School. The author is grateful to Mr Lakshay Garg, BBALLB Class of 2013, Jindal Global Law School for his research assistance.

The Frontiers of Australian Federalism

The frontiers of Australian federalism are potentially as numerous as the many ways in which federalism infuses Australian law and politics. There are frontiers about how we understand the very foundations of the federation, about what makes the federal constitution legally binding, and about how it can be altered in the future. There are frontiers in the practical working of our bicameral system of parliamentary representation – especially the Senate – and ongoing questions about its reform. There are also frontiers in the use by the Commonwealth of its legislative, executive and financial powers – a longstanding issue that has seen the scope and volume of federal legislation and administration grow in virtually every decade since federation. And there are frontiers in the relations between the federal, state and territory governments – a murky landscape, in which not all that happens is open to public view or democratic accountability. In each of these respects the Australian federal system displays a kind of path dependency. Patterns of behavior and institutional decisions settled in the past have had a tendency to lock-in particular institutional pathways in Australian federalism that cannot easily be overcome. This paper, which was presented at the 2018 Public Law Conference held at Melbourne Law School, analyses some of the ways in which Australian federalism is path dependent and discusses the prospects of its reform. It is concluded that without an understanding of the path dependent nature of the system our attempts to reform it are unlikely to be successful and could easily prove to be counter-productive.

A Conversation with Professor Cheryl Saunders

Professor Saunders is Laureate Professor Emeritus at Melbourne Law School, and Founding Director of the Centre for Comparative Constitutional Studies at the University of Melbourne.

Where are the Graphics? Communicating Legal Ideas Effectively Using Images and Symbols

This paper seeks to explore the effective communication of legal ideas in the 21st century. It builds on ideas first presented in December 2015 at the Teaching Legal Analysis and Writing Skills Symposium, Melbourne Law School and developed in May 2016 at a Flinders Law School Research Seminar. It begins by discussing why communication about the law can benefit from using tools other than text, before moving on to a brief historical and theoretical overview of visual communication in the law. It canvases examples of best practice visual communication about the law before going on to seek to understand what this might mean for lawyers, legal education and legal educators.

Places Lived: An Ego-Histoiriste and Jurisographer Discuss Living with Law in Sydney

The following essays, by John Docker and myself, were delivered on the final panel of the ‘Lives Lived with Law’ symposium, held at the Melbourne Law School in December 2014. The panel was called ‘Places Lived’, and our purpose was to reflect together on how intellectual traditions are inherited and inhabited in a place. The essays were written and presented as they are published here, commencing with this short introduction. We wanted to stage in public a long-standing personal discussion about what it might mean to write about Australia, in many forms and styles of address and how this involves, for us, self-fashioning a life through writing in Australia, and as Australians. In both instances, as will become evident in my essay, I have a debt to pay to John.