Law as lore

Law is saturated with stories. People tell their stories to lawyers; lawyers tell their clients’ stories to courts; legislators develop regulation to respond to their constituents’ stories of injustice or inequality. In legal education, professors devise hypothetical scenarios to test student understanding of legal doctrine; in law examinations and assignments, students construct advice to fictional clients. The common law legal system derives many of its foundational principles from case law — in effect, stories with legal solutions — that have accumulated over time. The civil law system, despite a different design centred on legal codes, also relies on judicial story-telling to interpret the code provisions and flesh out the gaps.

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.

Reinforcing stigma or delivering a fresh start: Bankruptcy and future engagement in the workforce

In Australia, bankruptcy retains a social stigma, as is often seen as a personal failing, and an indication that the individual cannot be trusted to meet their obligations. Official labelling and informal labelling reinforce this stigmatisation of bankruptcy in employment and business contexts. This occurs through legislation and policy that imposes restrictions on participation in some occupations on the grounds of bankruptcy, and imposes obligations on persons to disclose their bankruptcy to their employer. These restrictions and obligations that are varying in length and extent, both within industries and professions and across industries and professions, and appear to lack a coherent policy justification. Further, informal labelling is facilitated by the law providing for a permanent, publicly accessible record of bankruptcy, and failing to restrict the use of bankruptcy information in employment and business decision-making. This stigmatisation of bankruptcy inhibits the fresh start objective of bankruptcy, and is not supported by a strong correlation between bankruptcy and negative personal or other attributes. This article therefore argues that a review is needed to determine the circumstances in which there is a genuine policy justification for employment restrictions, and the appropriate length and scope of such restrictions. Reform of the Bankruptcy Act should also be considered. Possible areas for law reform including reducing the minimum period of bankruptcy; removing the permanency and/or public accessibility of the bankruptcy record; revising the language used in the Bankruptcy Act; and introducing a prohibition or restriction on the ability of employers to use bankruptcy status in employment decision making. Such changes would promote the fresh start objective of Australia’s bankruptcy system, and increase the likelihood that bankruptcy does not unfairly inhibit an individual’s ability to engage as an economic actor in Australian society and thereby improve their financial well-being.

Saviour Siblings and the Regulation of Assisted Reproductive Technology: Harm, Ethics and Law

Advances in the field of Assisted Reproductive Technology (ART) have been revolutionary. This book focuses on the use of ARTs in the context of families who seek to conceive a matching sibling donor as a source of tissue to treat an existing sick child. Such children have been referred to as ‘saviour siblings’. Considering the legal and regulatory frameworks that impact on the accessibility of this technology in Australia and the UK, the work analyses the ethical and moral issues that arise from the use of the technology for this specific purpose. The author claims the only justification for limiting a family’s reproductive liberty in this context is where the exercise of reproductive decision-making results in harm to others. It is argued that the harm principle is the underlying feature of legislative action in Western democratic society, and as such, this principle provides the grounds upon which a strong and persuasive argument is made for a less-restrictive regulatory approach in the context of ‘saviour siblings’.

Creating a global law graduate: The need, benefits and practical approaches to internationalise the curriculum

The increasingly integrated world has facilitated important international and trans-border trends, such as a progressively connected global economy, a significant growth in transnational business transactions and an increase in global regulation of global issues. Such globalisation has had a transformational impact on the legal profession in a number of ways. These include the need to provide advice on issues or transactions that have a transnational or international element; the increasing globalisation of large law firms; and the delivery of offshore services by legal service providers. This means that not only do law graduates need to be prepared to practice in an increasingly globalised economy and legal profession, there will also be new career opportunities available to them which require understanding of international law, for example in emerging international institutions and non-government organisations. Accordingly there is a need to ensure that law students develop the knowledge and skills they will require to succeed in a globalised legal profession. That is, there is a need to internationalise the law curriculum. This paper provides an insight into the recent progression of law schools in internationalising the law curriculum and provides practical avenues and strategies for the increased integration of international law, foreign law and a comparative perspective into core subjects which will develop the graduates’ knowledge and skills in international and foreign law, in order to enhance their ability to succeed as legal professionals in a globalised world.

Australian Media Law [5th Edition]

Australian Media Law details and explains the complex case law, legislation and regulations governing media practice in areas as diverse as journalism, advertising, multimedia and broadcasting. It examines the issues affecting traditional forms of media such as television, radio, film and newspapers as well as for recent forms such as the internet, online forums and digital technology, in a clear and accessible format. New additions to the fifth edition include: - the implications of new anti-terrorism legislation for journalists; - developments in privacy law, including Law Reform recommendations for a statutory cause of action to protect personal privacy in Australia and the expanding privacy jurisprudence in the United Kingdom and New Zealand; - liability for defamation of internet search engines and service providers; - the High Court decision in Roadshow v iiNet and the position of internet service providers in relation to copyright infringement via their services; - new suppression order regimes; - statutory reforms providing journalists with a rebuttable presumption of non-disclosure when called upon to reveal their sources in a court of law; - recent developments regarding whether journalists can use electronic devices to collect and disseminate information about court proceedings; - contempt committed by jurors via social media; and an examination of recent decisions on defamation, confidentiality, vilification, copyright and contempt.

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.

Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity

"This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law."--Publisher website

Traffic behaviour and compliance with the law in low and middle income countries: are we observing "pragmatic driving"?

A common theme in many accounts of road safety and road use in low and middle income countries is a widespread lack of compliance with traffic laws and related legislation. A key element of the success of road crash prevention strategies in high income countries has been the achievement of safer road user behaviour through compliance with traffic laws. Deterrence-based approaches such as speed cameras and random breath testing, which rely on drivers making an assessment that they are likely to be caught if they offend, have been very effective in this regard. However, the long term success of (for example) drink driving legislation has been supported by drivers adopting a moral approach to compliance rather than relying solely on the intensity of police operations. For low and middle income countries such morally based compliance is important, since levels of police resourcing are typically much lower than in Western countries. In the absence of morally based compliance, it is arguable that the patterns of behaviours observed in low and middle income countries can be described as "pragmatic driving": compliance only when there is a high chance of being detected and fined, or where a crash might occur. The potential characteristics of pragmatic driving in the macro-, meso- and micro-context of driving and the enforcement approach that could address it are outlined, with reference to the limited existing information available.

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.

The corporate regulation of sexual harassment in Japan

Book Title in Japanese: 雇用・社会保障とジェンダー Chapter Title in Japanese: セクシャル・ハラスメント規制の企業化と男女平等政策への示唆

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'.