Paradigm shifts : global copyright politics and disability rights

Governments around the world need to take immediate coordinated action to reverse the 'book famine.' Disability rights don't conflict with 'normal exploitation' but copyright owners have been wary about all of the possible solutions to providing greater access. The Marrakesh Treaty promises to level out some of the disparity of access between people in developed and developing nations and remove the need for each jurisdiction to digitise a separate copy of each book. It is one of the only international agreements to mandate positive exceptions and may be the start of a pardigm shift in global copyright politics, made all the more remarkable in the face of heated opposition by global copyright industry representatives. It's not a legal problem, but one of political will. Resistance comes from a conflict with ideology: exceptions should be limited and international law should set only minimum standards.

Class participation as a learning and assessment strategy in law : facilitating students’ engagement, skills development and deep learning

Assessment has widely been described as being ‘at the centre of the student experience’. It would be difficult to conceive of the modern teaching university without it. Assessment is accepted as one of the most important tools that an educator can deploy to influence both what and how students learn. Evidence suggests that how students allocate time and effort to tasks and to developing an understanding of the syllabus is affected by the method of assessment utilised and the weighting it is given. This is particularly significant in law schools where law students may be more preoccupied with achieving high grades in all courses than their counterparts from other disciplines. However, well-designed assessment can be seen as more than this. It can be a vehicle for encouraging students to learn and engage more broadly than with the minimums required to complete the assessment activity. In that sense assessment need not merely ‘drive’ learning, but can instead act as a catalyst for further learning beyond what a student had anticipated. In this article we reconsider the potential roles and benefits in legal education of a form of interactive classroom learning we term assessable class participation (‘ACP’), both as part of a pedagogy grounded in assessment and learning theory, and as a platform for developing broader autonomous approaches to learning amongst students. We also consider some of the barriers students can face in ACP and the ways in which teacher approaches to ACP can positively affect the socio-emotional climates in classrooms and thus reduce those barriers. We argue that the way in which a teacher facilitates ACP is critical to the ability to develop positive emotional and learning outcomes for law students, and for teachers themselves.

On the symbiosis of law and truth in Christian theology: Reconciling universal and particular through the Pauline law of love

This article argues that the secular liberal and positivist foundations of the modern Western legal system render it violent. In particular, the liberal exclusion of faith and subjectivity in favour of abstract and universal reason in conjunction with its privileging of individual autonomy at the expense of the community leads to alienation of the individual from the community. Similarly, the positivist exclusion of faith and theology from law, with its enforced conformity to the posited law, also results in this violence of alienation. In response, this article proposes a new foundation for law, a natural law based in the truth of Trinitarian theology articulated by John Milbank. In the Trinity, the members exist as a perfect unity in diversity, providing a model for the reconciliation of the legal individual and community: the law of love. Through the law of love as the basic norm, individuals love their neighbours as themselves, reconciling the particular and the universal, and providing a community of peace rather than violence.

A creature of statute: Copyright law and legal formalism

This article argues that copyright law is not just a creature of statute, but it is also a social and imaginative contruct. It evaluates a number of critiques of legal formalism. Part 1 examines whether the positive rules and principles of copyright law are the product of historical contingency and political expediency. Part 2 considers the social operation of copyright law in terms of its material effects and cultural significance. Part 3 investigates the future of copyright law, in light of the politics of globalisation and the impact of new information technologies.

Understanding the mental health of refugees: Trauma, stress, and the cultural context

Long considered important for professionals working with minority and under-represented populations, cross-cultural competency has become a requisite for all health care providers. As society in the US increasingly diversifies, there is a crucial need to prepare health care professionals to effectively treat this changing population. The Massachusetts General Hospital Textbook on Diversity and Cultural Sensitivity in Mental Health addresses the importance and relevance of cultural sensitivity in US mental health. Prominent researchers and clinicians examine the cultural and cross-cultural mental health issues of Native American, Latino, Asian, African American, Middle Eastern, Refugee and LGBQT communities. The discussion includes understanding the complexities in making mental health diagnoses and the various meanings it has for the socio-cultural group described, as well as biopsychosocial treatment options and challenges. In understanding the specific populations, the analysis delves into overarching concepts that may apply to specific populations and to those at the intersection of multiple cultures. An invaluable resource for mental health professionals, including clinicians, researchers, educators, leaders and advocates in the United States, The Massachusetts General Hospital Textbook on Diversity and Cultural Sensitivity in Mental Health provides the necessary understanding and insights for research and clinical practice in specific cultural and multicultural groups.

Assessing testamentary capacity – who does it better? Lawyers or doctors?

The effects of mentally disabling conditions on legal capacity are escalating, particularly given the ageing Australian demographic. Wills, enduring powers of attorney, and advance health directives are coming to the fore as a means of ensuring that the wishes of people with regard to their property, finances and health care needs are respected should they become legally incapable of making their own decisions. Assessing when a person has lost legal capacity in this context is an ever-increasing concern facing society as a whole but, in particular, the legal and medical professionals conducting the assessments. Empirical and doctrinal research has been undertaken which canvassed legal and medical opinions about the relationship between members of these professions when assessing legal capacity. This research supports the hypothesis that tensions exist when assessing capacity, especially testamentary capacity. One source of tension is the effect of conflicting evidence about the loss of legal capacity given by legal and medical professionals in court, which raises questions such as: which evidence is, and should be, preferred; and who should be responsible? The exploration of these issues will be conducted with reference to the empirical data collected, and a review of the relevant Australian case law.

The first-year experience in law school: A new beginning?

The first-year experience at university is a "purgatorial zone". There is the shock of the new: navigating a new campus, choosing and enrolling in courses, locating classrooms, finding new friends and establishing new social networks, buying armloads of textbooks, making sense of subject outlines, balancing work and study, completing multiple assignments on time. But there are also the growing pains associated with intellectual development. Not only must first-year students take responsibility for their own learning; they must also accept that there are no "right" or "wrong" answers or "good" or "bad" positions, but judgements they must make and defend through analysis, reasoning and argument.

Welcome to the law/lore School

Law is saturate with stories. People tell their stories to lawyers; lawyers tell their clients' stories to courts; politicians develop policies to respond to their constituents' stories of injustice or inequality. These stories then translate into sources of law. Cases resolve contested stories between parties. Statutes target larger stories of social, economical and political significance. The legal system, in short, is a synthesis of statutory and judicial solutions to stories.

The First-Year Law Experience: A New Beginning

The first-year experience at university is a "purgatorial zone”. There is the shock of the new: navigating a new campus, choosing and enrolling in courses, locating classrooms, finding new friends and establishing new social networks, buying arm loads of textbooks, making sense of subject outlines, balancing work and study, completing multiple assignments on time. But there are also the growing pains associated with intellectual development. Not only must first-year students take responsibility for their own learning; they must also accept that there are no "right" or "wrong" answers or "good" or "bad" positions, but judgements they must make and defend through analysis, reasoning and argument: ... the student [must] shift from passivity to activity; [university] is no longer an environment in which professors have the sole responsibility to teach but, rather; one in which the student has an equal responsibility to learn. They [need] . .. to becom[e] critical thinkers who are, in the words of Richard Paul and Linda Elder, "self-directed, self-disciplined, self-monitored, and self-corrective".

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.

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.

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.

Managing the impacts of sugarcane farming on the Great Barrier Reef: An evaluation of the implementation of the Polluter Pays Principle

This report provides an evaluation of the implementation of the Polluter Pays Principle (PPP) – a principle of international environmental law – in the context of pollution from sugarcane farming affecting Australia’s Great Barrier Reef (GBR). The research was part of an experiment to test methods for evaluating the effectiveness of environmental laws. Overall, we found that whilst the PPP is reflected to a limited extent in Australian law (more so in Queensland law, than at the national level), the behaviour one might expect in terms of implementing the principle was largely inadequate. Evidence of a longer term, explicit commitment to the PPP was particularly weak.

Expulsion of Afghan refugees from Pakistan: A violation of principle of non-refoulement

This article addresses the need of an implementation mechanism for the protection of refugees’ rights. However, it is contended that the principle forms part of Customary International Law, under which it is binding on all states irrespective of whether or not they are parties to the Convention Relating to the Status of Refugees 1951 or its Protocol 1967. Since last decade, U.S and its allies have been fighting to curve terrorism which has raised many issues such as human rights violation, deportation, expulsion, extradition, rendition and many more. Pakistan has played a very critical role in War against Terrorism, particularly in reference of war in Afghanistan. Particular concern of this article is the violation of refugees’ rights in Pakistan in 2008 and 2010. This article would highlight the legislation regarding non-expulsion of Afghan refugees from Pakistan to a territory where they have well founded fear of persecution. Article is divided into three parts, the first one deals with “Principle of Non-Refoulement”, the second one deals with “exceptions to the principle” whereas the last one discusses the violation of the very principle in Pakistan with reference to Afghan refugees.

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