Flexible schedules, lower pay and women's "Opportunities" in law

University employment in Australia is experiencing a period of decreased security and compensation. Women tend to have more frequent labour force transitions and respond more to non-employment commitments than do men. Relative to other formal sector employers, universities can offer greater flexibility in work schedules. The law of comparative advantage predicts that universities' flexibility, together with women's labour force characteristics will prompt an expansion of women's employment in universities and in law schools in particular. Changes in employment patterns in Australian law schools confirm to this prediction. Deterioration in employment conditions thus leads to increased female participation in this case.

Good global governance : custom, the cosmopolitan and international law

International law has both less and more to offer to the cosmopolitan project than one might think. As currently understood, international law presages a global system of obligations comprising the convergent systems of universal customary international laws and near-universal conventional instruments (treaties), both of which legal forms are characterised by natural law tendencies. From the point of view of a pluralistic cosmopolitanism, this is a dead end. Thinking beyond these formulae requires that international law be treated as a species of general law rather than state-centred law.

Against settlement? Owen Fiss, ADR and Australian discrimination law

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.

Settling sexual harassment complaints - what benefits does ADR offer?

Sexual harassment complaints are predominantly resolved through confidential alternative dispute resolution (ADR) processes rather than a tribunal hearing, so very little is known about the type of complaints which are made or how they are being resolved. This secrecy has created problems for the law’s development and its effectiveness. This article compares settlement agreements negotiated through ADR with tribunal orders, so as to identify whether ADR offers any additional benefits to the process of addressing sexual harassment and to identify changes to the process which would increase the law’s effectiveness while maintaining the benefits of ADR. Very little is known about the type of settlements negotiated in this jurisdiction, so the secondary purpose of the study is to provide information about how sexual harassment is being addressed.

Functionalism, co-operation, good faith, and the making of the "daily-preventive justice" in contract law theory and practice. A contribution to a rational understanding of good faith and to its future reseasonable developments. Evaluations from

The thoughts and observations contained in this paper were first presented in a preliminary form at the Staff Seminar that I gave at the University of Cape Town (UCT) - Department of Private Law, on Tuesday May 8 2012. The organizers generously offered me a free choice of subject. Such an offer always poses a problem to imaginative people like myself. I finally chose as my subject the role of good faith in contract law theory and practice and then entitled the Seminar “Good Faith & Contracts - Brothers in Arms”. The aim of the talk was to briefly describe what I see behind the doctrine of good faith (and, more broadly, behind the general course of the parties’ behavior before and after the conclusion of an agreement), to then explain the need of its protection and future reasonable developments by challenging the limitations of both traditional and current legal approaches to contract law theory and practice. By adopting a comparative modus investigandi, it emerged that especially in the area of contract law a new law-finding process is emerging in the European continent and it is leading to re-conceive the meta-national legislative interventions by challenging the limits of Hobbes’s Leviathan. As asserted, we ought to not take this process for granted because although there are many forms of social organization, contract is the most pervasive and the law of contract still is the most important vehicle to support and supplement private arrangements. However, the point of departure for theorizing about private law is based on experience. Consequently, despite the growing emphasis on the convergence of national legal systems in Europe, conducting research on private law theory and practice requires that imagination and creativity be matched with prudence. Proficiency has to be aligned with what we have learned from history.

Legal systemology and the geopolitics of Roman law: a response to Stuart Elden’s critique of Carl Schmitt’s spatial ontology

This paper explores the production, destruction, and reproduction of the geopolitical spaces of Roman law in order to offer an analysis of Schmitt’s (selective) notion of Jus Publicum Europaeum and its relevance to the current “depoliticization” and “dejuridification” of the world. By adopting a historical and geopolitical approach that reaches the boundaries of legal systemology and political theology, the present contribution investigates the manipulative and instrumentalist use of the material object of Rome’s (universalist) competence, namely the “territory” as dominium of its political intervention, which was ultimately (and idealistically) aimed at avoiding the natural destiny of any living being: birth, maturity, and death. Attention is therefore paid to the Roman strategy of (ontological?) contamination of its mythical identity through the legal and sociopolitical administration and regulation of its geographical spaces in terms of (non-)cultural signification. Through the analysis of such concepts as “nomos,” “Großraum,” “Ortung,” and “Ordnung,” it is claimed that Schmitt voluntarily chose to identify the Jus Publicum Europaeum with the geopolitical order produced during the Age of Discovery and not with the “comprehensive” Roman spatial order. The reason for this choice may be identified in the distortive use of Rome’s social relations and political allegiances that lay at the core of its genealogical expansionism (and subsequent inevitable dissolution) since the conquest of Veius in 396 BC and the historical compromise between patrician nobility and plebeians in 367 BC.