Foucault Goes to Law School : Using Foucault to Examine Australian Legal Education

This paper will consider the way that Foucault’s work has been utilised to examine Australian legal education, particularly in the context of understanding the construction of the legal identity. While remaining sensitive to the many potential ‘uses’ of Foucault’s tools, as well as his problematisation of the author as an organising feature of discourse, this paper will argue that legal education scholarship overwhelmingly utilises concepts such as ‘discourse’ and ‘power-knowledge’, which, while useful, cannot provide a nuanced understanding of the construction of the legal identity. Consequently, this paper suggests that future legal education research utilise Foucault’s concepts of ‘ethics’ and ‘governmentality’ to address these issues.

Inhibiting outrage: tactics and counter-tactics in legal cases of sexual harassment

Sexual harassment can be conceptualised as an interaction between harassers and targets. Utilising 23 detailed legal transcripts, this study explored evidence of a range of perpetrator tactics and target counter-tactics. These tactics can be readily fitted into the backfire framework, which proposes that powerful perpetrators of perceived unjust acts are likely to cover up the actions, devalue the target, reinterpret the events, use official channels to give an appearance of justice, and intimidate or bribe people involved. Targets can respond using counter-tactics of exposure, validation, reframing, mobilisation of support, and resistance. The findings have implications for raising awareness of harassing tactics and recommendations for effective informal responses in organisations.

Learning to reflect in the first year of legal education : the key to surviving legal education and legal practice

Lawyers and law students suffer significant rates of depression and substance abuse. This paper suggests that Law Schools have an obligation to assist students to develop the emotional intelligence necessary in order to cope with the stressful nature of legal practice. We draw on Schön’s discussion of the indeterminate zone of professional practice to suggest that reflective practice is the means by which students can become sufficiently emotionally intelligent to become balanced and happy lawyers. We suggest that incorporating reflective practice in intentional curriculum design in the first year of law is an effective first step in assisting students to develop the emotional intelligence necessary to survive the study and practice of law.

A collaborative model for learning and assessment of legal placements

This paper will report on the evaluation of a new undergraduate legal workplace unit, LWB421 Learning in Professional Practice. LWB421 was developed in response to the QUT’s strategic planning and a growing view that work experience is essential to developing the skills that law graduates need in order to be effective legal practitioners (Stuckey, 2007). Work integrated learning provides a context for students to develop their skills, to see the link between theory and practice and support students in making the transition from university to practice (Shirley, 2006). The literature in Australian legal education has given little consideration to the design of legal internship subjects (as distinct from legal clinic programs). Accordingly the design of placement subjects needs to be carefully considered to ensure alignment of learning objectives, learning tasks and assessment. Legal placements offer students the opportunity to develop their professional skills in practice, reflect on their own learning and job performance and take responsibility for their career development and planning. This paper will examine the literature relating to the design of placement subjects, particularly in a legal context. It will propose a collaborative model to facilitate learning and assessment of legal work placement subjects. The basis of the model is a negotiated learning contract between the student, workplace supervisor and academic supervisor. Finally the paper will evaluate the model in the context of LWB421. The evaluation will be based on data from surveys of students and supervisors and focus group sessions.

Prediction of highway truck conveyance configuration under over-limit prohibition and conveyance equilibrium

Aiming at the shortage of prevailing prediction methods about highway truck conveyance configuration in over-limit freight research that transferring the goods attributed to over-limit portion to another fully loaded truck of the same configuration and developing the truck traffic volume synchronously, a new way to get accumulated probability function of truck power tonnage in basal year by highway truck classified by wheel and axle type load mass spectrum investigation was presented. Logit models were used to forecast overall highway freight diversion and single cargo tonnage diversion when the weight rules and strict of enforcement intensity of overload were changed in scheme year. Assumption that the probability distribution of single truck loadage should be consistent with the probability distribution of single goods freighted, the model describes the truck conveyance configuration in the future under strict over-limit prohibition. The model was used and tested in Highway Over-limit Research Project in Anhui by World Bank.

Legal Issues Relating to the Notification of Australian Data Breaches

Advances in information and communications technologies during the last two decades have allowed organisations to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other international jurisdictions. Following the Australian Law Reform Commission’s review of privacy, data breach notification will soon be addressed in Australia. This article provides a review of US and Australian legal initiatives regarding the notification of data breaches. The authors highlight areas of concern based on the extant US literature that require specific consideration in Australia regarding the development of an Australian legal framework for the notification of data breaches.

AITPM Email Newsletter Volume 0910, October 2009 : Presidents Message

President’s Message Hello fellow AITPM members, Well I can’t believe it’s already October! My office is already organising its end of year function and looking to plan for 2010. Our whole School is moving to a different building next year, with the lovely L block eventually making way for a new shiny one. Those of you who have entered the Brisbane CBD from the south side, across the Captain Cook Bridge, would know L block as the big 9 storey brick and concrete Lego block ode to 1970’s functional architecture, which greets you on the right hand side. Onto traffic matters: an issue that has been tossing around in my mind of late is that of speed. I know I am growing older and may be prematurely becoming a “grumpy old man”, but everyone around me locally seems to be accelerating off from the stop line much faster than I was taught to for economical driving, both here and in the United States (yes they made my wife and me resit our written and practical driving tests when we lived there). People here in Australia also seem to be driving right on top of the posted speed limit, on whichever part of the Road Hierarchy, whether urban or rural. I was also taught on both sides of the planet that the posted speed limit is a maximum legal speed, not the recommended driving speed. This message did seem to sink in to the American drivers around me when we lived in Oregon - where people did appear to drive more cautiously. Further, posted speed limits in Oregon were, and I presume still are, set more conservative by about 5mph or 10km/h than Australian limits, for any given part of the Road Hierarchy. Another excellent speed limit treatment used in Oregon was in school zones, where reduced speed limits applied “when children are present” rather than during prescribed hours on school days. This would be especially useful here in Australia, where a lot of extra-curricular activities take place around schools outside of the prescribed speed limit hours. Before and after hours school care is on the increase (with parents dropping and collecting children near dawn and dusk in the winter), and many childcentred land uses are located adjacent to schools, such as Scouts/Guides halls, swimming pools and parks. Consequentially, I believe there needs to be some consideration towards more public campaigning about economical driving and the real purpose of the speed limit = or perhaps even a rethink of the speed limit concept, if people really are driving on top of it and it’s not just me becoming grumpier (our industrial psychology friends at the research centres may be able to assist us here). The Queensland organising committee is now in full swing organising the 2010 AITPM National Conference, What’s New?, so please keep a lookout for related content. Best regards to all, Jon Bunker PS A Cartoonists view of traffic engineers I thought you might enjoy this. http://xkcd.com/277/

A 'deleterious' effect? : Australian legal education and the production of the legal identity

A body of critical legal scholarship argues that, by the time they have completed their studies, students who enter legal education holding social ideals and intending to use their legal education to achieve social change, have become cynical about the ability of the law to do so and no longer possess such ideals. This is explained by critical scholars to be the result of a process of ideological indoctrination, aimed at ensuring that graduates uphold the narrow and conservative interests of the legal profession and capitalist society, being exercised by law schools acting as adjuncts of the legal profession, and exercised upon the passive body of the law student. By using Foucault’s work on knowledge, power, and the subject to interrogate the assumptions upon which this narrative is based, this thesis intends to suggest a way of thinking differently to the approach taken by many critical legal scholars. It then uses an analytics of government (based on Foucault’s notion of ‘governmentality’) to consider the construction of the legal identity differently. It examines the ways in which the governance of the legal identity is rationalised, programmed, and implemented, in three Queensland law schools. It also looks at the way that five prescriptive texts to ‘surviving’ law school suggest students establish and practise a relation to themselves in order to construct their own legal identities. Overall, this analysis shows that governance is not simply conducted in the profession’s interests, but occurs due to a complex arrangement of different practices, which can lead to the construction of skilled legal professional identities as well as ethical lawyer-citizens that hold an interest in justice. The implications of such an analytics provide the basis for original ways of understanding legal education, and legal education scholarship.

How do other people influence your driving speed? Exploring the 'who' and the 'how' of social influences on speeding from a qualitative perspective

Using only legal sanctions to manage the speed at which people drive ignores the potential benefits of harnessing social factors such as the influence of others. Social influences on driver speeds were explored in this qualitative examination of 67 Australian drivers. Focus group interviews with 8 driver types (young, mid-age and older males and females, and self-identified Excessive and Rare speeders) were guided by Akers’ social learning theory (Akers, 1998). Findings revealed two types of influential others: people known to the driver (passengers and parents), and unknown other drivers. Passengers were generally described as having a slowing influence on drivers: responsibility for the safety of people in the car and consideration for passenger comfort were key themes. In contrast, all but the Rare speeders reported increasing their speed when driving alone. Parental role modelling was also described. In relation to other drivers, key themes included speeding to keep up with traffic flow and perceived pressure to drive faster. This ‘pressure’ from others to ‘speed up’ was expressed in all groups and reported strategies for managing this varied. Encouragingly, examples of actual or anticipated social rewards for speeding were less common than examples of social punishments. Three main themes relating to social punishments were embarrassment, breaching the trust of others, and presenting an image of a responsible driver. Impression management and self-presentation are discussed in light of these findings. Overall, our findings indicate scope to exploit the use of social sanctions for speeding and social praise for speed limit compliance to enhance speed management strategies.

Speeding in Australia and China : a comparison of the influence of legal sanctions and enforcement practices on car drivers

Despite increasingly sophisticated speed management strategies, speeding remains a significant contributing factor in 25% of Australia’s fatal crashes. Excessive speed is also a recognised contributor to road trauma in rapidly motorising countries such as China, where increases in vehicle ownership and new drivers, and a high proportion of vulnerable road users all contribute to a high road trauma rate. Speed choice is a voluntary behaviour. Therefore, driver perceptions are important to our understanding of the nature of speeding. This paper reports preliminary qualitative (focus groups) and quantitative (survey) investigations of the perceptions of drivers in Queensland and Beijing. Drivers’ definitions of speeding as well as their perceptions of the influence of legal factors on their reported speeds were explored. Survey participants were recruited from petrol stations (Queensland, n=833) and car washes (Beijing, n=299). Similarities were evident in justifications for exceeding speed limits across samples. Excessive speeds were not deemed as ‘speeding’ when drivers considered that they were safe and under their control, or when speed limits were seen as unreasonably low. This appears linked to perceptions of enforcement tolerances in some instances with higher perceived enforcement thresholds noted in China. Encouragingly, drivers in both countries reported a high perceived risk of apprehension if speeding. However, a substantial proportion of both samples also indicated perceptions of low certainty of receiving penalties when apprehended. Chinese drivers considered sanctions less severe than did Australian drivers. In addition, strategies to avoid detection and penalties were evident in both samples, with Chinese drivers reporting a broader range of avoidant techniques. Implications of the findings for future directions in speed management in both countries are discussed.

Asia

Reporters sans frontiéres (RSF) has repeatedly declared Asia to be the most demanding continent for journalists and their news organizations to operate in, and in some countries, even simply to survive in. The many reports issued by RSF and other global agencies regularly show Asia to be the region in which the largest number of murders of journalists occur per year, even when Asian–Arabic states and Central Asia are not included in the definition of ‘Asia’. The reports describe numerous physical, legal and economic threats as well as serious political repression and restrictions that journalists face as they attempt to function as watch-dogs, agenda-setters and gate-keepers for their societies. The statistics and examples provided within these reports, however, do not provide the full picture. Most Asian nations also host vibrant media cultures in which journalists play an important role in supporting social and democratic processes and activities. This chapter outlines the political and economic influences on Asian journalism; the impact of new technologies; the debates about philosophies such as 'development journalism', 'peace journalism' and 'Asian values'; and the influence of the so-called 'envelope culture' or practices of gift-giving and bribery that pervade journalism in some countries. To illustrate how these principles affect journalists' practice, the chapter presents a comparison of the starkly contrasting situations in India versus North Korea (Democratic People's Republic of Korea). The chapter also describes issues affecting countries as far afield as China to Kazakhstan, including a short case study of journalism during the so-called Saffron Revolution in Burma in 2007. The chapter concludes with suggestions about how training and aid for the Asian should be contextualized to take into account the specific cultural, economic and political factors that shape and limit the media’s performance, and how journalists might be best placed to negotiate around them. Such training needs to be sensitive to valid variations in perceptions of what kind of governance and journalism best serves development, without serving politically motivated rhetoric.

Book Review: Larissa Behrendt, Chris Cuneen and Terri Libesman, Indigenous Legal Relations in Australia (Oxford University Press, Melbourne 2009) 376pp

Indigenous Legal Relations in Australia is a welcome and refreshing addition to the current literature on Indigenous legal issues. Written by a team of highly qualified Indigenous and non-Indigenous academics who share a long term commitment to Indigenous legal and social justice issues, this book provides a clearly written and accessible introductory text for tertiary students and general readers alike who are seeking to gain a deeper understanding of the relationship between Indigenous Australians and the Anglo-Australian legal system.

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (‘empirical facts’). Legal education needs to prepare our students for this broader legal context. This paper examines how ‘empirical facts’ are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.