Let’s talk about lex: Narrative analysis as both research method and teaching technique in law

Law is narration: it is narrative, narrator and the narrated. As a narrative, the law is constituted by a constellation of texts – from official sources such as statutes, treaties and cases, to private arrangements such as commercial contracts, deeds and parenting plans. All are a collection of stories: cases are narrative contests of facts and rights; statutes are recitations of the substantive and procedural bases for social, economic and political interactions; private agreements are plots for future relationships, whether personal or professional. As a narrator, law speaks in the language of modern liberalism. It describes its world in abstractions rather than in concrete experience, universal principles rather than individual subjectivity. It casts people into ‘parties’ to legal relationships; structures human interactions into ‘issues’ or ‘problems’; and tells individual stories within larger narrative arcs such as ‘the rule of law’ and ‘the interests of justice’. As the narrated, the law is a character in its own story. The scholarship of law, for example, is a type of story-telling with law as its central character. For positivists, still the dominant group in the legal genre, law is a closed system of formal rules with an “immanent rationality” and its own “structure, substantive content, procedure and tradition,” dedicated to finality of judgment. For scholars inspired by the interpretative tradition in the humanities, law is a more ambivalent character, susceptible to influences from outside its realm and masking a hidden ideological agenda under its cloak of universality and neutrality. For social scientists, law is a protagonist on a wider social stage, impacting on society, the economy and the polity is often surprising ways.

Should law look east?

How well-equipped is the discipline of law to cope with complex questions arising in the emerging Asian Century? This editorial article reviews how time and space namely, the predominance of European and American power in 19th and 20th centuries have forged an Anglo-American emphasis in traditional disciplines of law, such as comparative law and its more recent cousins of international law and global law. The editorial poses the question of whether this limits the ability of traditional legal disciplines to make sense of complex political, economic and social questions emerging during the Asian Century. It further interrogates whether traditional legal disciplines can be rehabilitated to engage sensibly with Asian legal power or whether a new discipline of ‘Asian Law’ is warranted.

Pioneering use of narrative method in a first-year law course to provide an authentic, inquiry-based entry into the discipline of law

Law is saturated with stories. People tell their stories to lawyers; lawyers tell their client's stories to courts; and legislators develop regulation to respond to their constituent's stories of injustice or inequality. My approach to first-year legal education respects this narrative tradition. Both my curriculum design and assessment scheme in the compulsory first-year subject Australian Legal System deploy narrative methodology as the central teaching and learning device. Throughout the course, students work on resolving the problems of four hypothetical clients. Like a murder mystery, pieces of the puzzle come together as students learn more about legal institutions and the texts they produce, the process of legal research, the analysis and interpretation of primary legal sources, the steps in legal problem-solving, the genre conventions of legal writing style, the practical skills and ethical dimensions of professional practice, and critical inquiry into the normative underpinnings and impacts of the law. The assessment scheme mirrors this design. In their portfolio-based assignment, for example, students devise their own client profile, research the client's legal position and prepare a memorandum of advice.

Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

The Role of the Law in Communicating Patient Safety

This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, et al’s (2006) preventing, knowing and responding theoretical framework is adopted to classify the different elements of patient safety law. Rather than setting out all relevant patient safety laws in detail, this chapter highlights key legal strategies which are employed to: prevent the occurrence of patient safety incidents (preventing); support the discovery and open discussion of patient safety incidents when they do occur (knowing),; and guide responses after they occur (responding) (Downie, Lahey, Ford, et al 2006). The law is increasingly being invoked to facilitate open discussion of and communication surrounding patient safety. After highlighting some legal strategies used to communicate patient safety, two practice examples are presented. The practice examples highlight different aspects of patient safety law and are indicative of communication issues commonly faced in practice. The first practice example focuses on the role of the Ccoroner in communicating patient safety. This example highlights the investigative role of the law in relation to patient safety (knowing). It also showcases the preventing responding and preventing elements in respect of the significant number of communication errors that can occur in a multi-disciplinary, networked health system. The main focus of the second practice example is responding example illustrates how the law responds to health service providers’ and professionals’ miscommunication (and subsequent incidents) during treatment, however it also touches upon knowing and preventing.

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

Introduction: Japan’s gradual transformation in corporate governance

Japan has recovered from a ‘lost decade’ of economic stagnation over the 1990s. Anyway, it has been a ‘found decade’ for civil and criminal justice law reform, especially in corporate and securities law. Yet, have liberalisation and globalisation in those fields led to major changes in the ‘law in action’? Does this represent ‘Americanisation’ of Japan’s corporate governance system, focusing on shareholders rather than other key stakeholders such as ‘main banks’, core employees, and partners within diffuse corporate groups (keiretsu)? This version of our introductory chapter explains how our forthcoming book argues for a more complex ‘gradual transformation’. Such shifts are also found in many other post-industrial economies, but Japan appears to give greater emphasis given to certain modes of achieving change. The book brings together contributions from academics and practitioners from Japan, Australia, New Zealand, Canada and the United States. An early chapter introduces methodology for effective cross-country comparisons and for evaluating the burgeoning but divergent literature on Japanese corporate governance. The concluding chapter compares continuities and changes in Japan’s largest companies now and two decades ago. Other chapters cover ‘lifelong employment’, main banks, the untold story of closely-held companies, the limited uptake of the Committee-based governance form, and the procedural, substantive and FDI policy dimensions of takeovers law and practice.

Corporate governance and law reform in Japan: From the lost decade to the end of history?

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the "Americanisation" of Japanese law. They see the triumph of Western-style capitalism - the "End of History", to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely "creative twists" on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of "Anglo-Saxon" regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Submission on NSW Attorney-General's Discussion Paper on Amendment of Limitation of Actions Act 1969 to remove time limit for civil claims for child abuse

The New South Wales Attorney-General and Justice Policy Division released a Discussion Paper about reform of the Limitation of Actions Act 1969. The key question was whether and how to amend the statute to better provide access to justice for civil claimants in child abuse cases. This submission draws on published literature and multidisciplinary research to support the Discussion Paper's Option A, namely, to abolish the time limit for civil claims for injuries in criminal child abuse cases, and for this to be made retrospective.

Civil Procedure — Commentary and Materials, 6th Edition

This book provides a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Each chapter features in-depth questions and notes together with lists of further reading to aid understanding of the issue. It also examines and discusses each substantive and procedural step in the trial process. Topics include jurisdiction of a court to consider a matter, alternative dispute resolution, limitations of actions, commencing proceedings, group proceedings, pleading, summary disposition, gathering evidence, affidavits, interlocutory procedures, settlement, trial and appeal, costs Each of the state, territory and federal procedures is covered.

Steel–concrete–steel sandwich system in Arctic offshore structure: Materials, experiments, and design

The gravity based structure (GBS) with external Steel–Concrete–Steel (SCS) sandwich ice-resistant wall has been developed for the Arctic oil and gas drilling. This paper firstly reported the experimental studies on the mechanical properties of steel and concretes under Arctic low temperature. With the test data, design equations were developed to incorporate the influences of the low temperature on these mechanical properties. Two types of Arctic GBS structure with flower-conical SCS sandwich shell type and plate type of ice-resistant wall have been developed for the Arctic offshore structure. Besides the studies on the materials, two SCS sandwich prototype shells and plates were, respectively, prepared and tested under patch loading that simulated the localized ice-contact pressure. The structural behaviors of the SCS sandwich structure under patch loading were reported and discussions were made on the influences of different parameters on the structural behavior of the structure. Analytical models were developed to predict the punching shear resistances of the SCS sandwich structure through modifying the code provisions. The accuracies of the developed analytical models were checked through validations against 27 tests in the literature. Corresponding design procedures on resistances of SCS sandwich structure were recommended based on these discussions and validations.

Ethical values and the global carbon integrity system

There are many excellent books on climate justice and ethics, and their theorizing is a crucial and natural step in moving towards a justified response to this urgent problem. However, the purpose of this book lies elsewhere; it explores how ethical values can and should work in driving and structuring the global carbon integrity system.

Comparing China's city transportation and economic networks

The city system has been a prevailing research issue in the fields of urban geography and regional economics. Not only do the relationships between cities in the city system exist in the form of rankings, but also in a more general network form. Previous work has examined the spatial structure of the city system in terms of its separate industrial networks, such as in transportation and economic activity, but little has been done to compare different networks. To rectify this situation, this study analyzes and reveals the spatial structural features of China’s city system by comparing its transportation and economic urban networks, thus providing new avenues for research on China’s city network. The results indicate that these two networks relate with each other by sharing structural equivalence with a basic diamond structure and a layered intercity structure decreasing outwards from the national centers. A decoupling effect also exists between them as the transportation network contributes to a balanced regional development, while the economic network promotes agglomeration economies. The law of economic development and the government both play important roles in the articulation between these two networks, and the gap between them can be shortened by related policy reforms and the improvement of the transportation network.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.