The art of mooting : mooting and the cognitive domain

Mooting is modeled principally on appellate advocacy. However, the skill set developed by participating in a moot program – being that necessary to persuade someone to your preferred position – is indispensible to anyone practising law. Developing effective mooting skills in students necessitates the engagement of coaches with an appropriate understanding of the theories underlying mooting and advocacy practice and their interconnection with each other. This article explains the relevance of the cognitive domain to mooting performance and places it in context with the psychomotor and affective domains.

Measuring the effects of small group deliberation on public attitudes towards sentencing : benefits and challenges

This article reports on the outcomes of small group deliberations on levels of punitiveness and public confidence in the sentencing functions of Australian criminal courts, conducted as part of a larger project investigating public attitudes to sentencing. One hypothesis of the project as a whole was that a more informed and involved public is likely to be less punitive in their views on the sentencing of offenders, and to express less cynical views about the role of sentencing courts. The aim of the small group deliberations as part of the broader project was to engender a more thoughtful and considered approach by participants to issues around sentencing. It was hypothesised that the opportunity to discuss, deliberate and consider would lead to a measurable reduction in punitiveness and an increase in people’s confidence in the courts. While the results do indeed indicate such changes in attitudes, the current study also shed light on some of the conceptual, methodological and practical challenges inherent in this type of research.

Sentencing and public confidence in Australia: The dynamics and foci of small group deliberations

This study is the first of its kind in Australia to use the deliberative small group methodology to explore participants’ deeper, nuanced thoughts on specific criminal justice issues in order to gain insight into the underlying beliefs that influence people’s opinions on sentencing. The use of small group discussions allows an analysis of the dynamics of people’s interactions and the potential of these to elicit deeper, more thoughtful deliberation. Participants’ comments around two policy areas – mandatory sentencing and the use of alternatives to imprisonment – were founded on concerns about the need for judges to tailor the sentence to fit the specific circumstances of each case. The methodology itself has shown that people may change their initial opinions on complex issues when given the opportunity to discuss and reflect on their beliefs.

Withholding and withdrawing life-sustaining treatment in a patient's best interests : Australian judicial deliberations

•Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. •A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested. •There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. •Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.

Labour Law and Labour Market Regulation

The traditional boundaries of labour law are becoming outmoded in a modern world in which active labour market participants vastly outnumber “employees”, and the world of work extends way beyond the workplace gate. There is convergence with labour market regulation. The contract of employment remains central but is no longer the sole object of study.Labour Law and Labour Market Regulation reflects the dramatically different industrial, social, political and legislative contexts in which the law now operates and the intellectual revolution this is generating. Individual chapters contain studies of regulation within prescriptive government schemes, contract networks, specialist labour markets, the intersection between work and family, enterprise policies and practices, and the courts and tribunals. The book provides insights into areas that are, as arbitration declines, becoming increasingly important to their clients' interests. The most recent legislation and jurisprudence is discussed in many chapters including discrimination, dismissals, health and safety, immigration, social security, franchise, volunteer and contract law.

Suicide, statistics and the coroner: A comparative study of death investigations

Australia has a significantly higher suicide rate than England. Rather than accepting that this ‘statistical fact’ is a direct reflection of some positivist truth, this paper begins with the premise that how suicide is counted depends upon what counts as suicide. This study involves semi-structured interviews with coroners both in Australia and England, as well as observations at inquests. Important differences between the two coronial systems include: first, quite different logics of operation; second, the burden of proof for reaching a finding of suicide is significantly higher in England; and third, the presence of family members at English inquests results in far greater pressure being brought to bear upon coroners. These combined factors result in a reduced likelihood of English coroners reaching a finding of suicide. The conclusions are twofold. First, this research supports existing criticisms of comparative suicide statistics. Second, this research adds theoretical weight to criticisms of positivist analyses of social phenomena.

Antisocial personality disorder and therapeutic justice court programs

It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have Anti Social Personality Disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the well-being of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing Drug Courts, or implemented separately by courts to aid with reforming offenders with ASPD and in managing the re-entry of offenders into the community as part of their sentence. For the success of this initiative on the part of the court, ASPD will need to be specifically diagnosed and treated. Close co-operation between courts and psychologists is required to improve the effectiveness of court programs to treat people with ASPD and to evaluate their success.

Social media(tion) and the reshaping of public/private boundaries in employment relations

Tensions surrounding social media in the employment relationship are increasingly evident in the media, public rhetoric, and courts and employment tribunals. Yet the underlying causes and dimensions of these tensions have remained largely unexplored. This article firstly reviews the available literature addressing social media and employment, outlining three primary sources of contestation: profiling, disparaging posts and blogs, and private use of social media during work time. In each area, the key dynamics and underlying concerns of the central actors involved are identified. The article then seeks to canvas explanations for these forms of contestation associated with social media at work. It is argued that the architecture of social media disrupts traditional relations in organisational life by driving employer and employee actions that (re)shape and (re)constitute the boundaries between public and private spheres. Although employers and employees are using the same social technologies, their respective concerns about and points of entry to these technologies, in contrast to traditional manifestations of conflict and resistance, are asymmetric. The article concludes with a representational summary of the relative legitimacy of concerns for organisational actors and outlines areas for future research.

When coroners care too much: Therapeutic jurisprudence and suicide findings

In common law countries such as England and Australia, violent and otherwise unnatural deaths are investigated by coroners who make findings as to the “manner of death”. This includes determining whether the deceased person intentionally caused their own death. Previous research (Tait and Carpenter 2013a, 2013b, 2014) has suggested that coroners are reluctant to reach such determinations, citing the stigma of suicide and a need for sensitivity to grieving and traumatized families. Based on interviews with both English and Australian coroners, this paper explores whether an ‘ethic of care’ evident in English and Australian coronial suicide determinations, can be understood as an application of the ‘practices and techniques’ of therapeutic jurisprudence. Based on the ways in which coroners position the law as a potential therapeutic agent, we investigate how they understand their role and position as legal actors, and the effects of their decision making in the context of suspected suicides.

The High Court of Australia and the Marlboro Man: The Battle Over the Plain Packaging of Tobacco Products

In 2012, the High Court of Australia handed down a landmark decision on the plain packaging of tobacco products. This chapter considers the historic ruling in the case of JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth. This chapter explores several themes in the decision. First, it highlights the historical work by the High Court of Australia on the role of health regulation, the use of health warnings, and tobacco control. Second, the chapter considers the High Court of Australia's view that intellectual property law promotes the public interest.Third, it explores the High Court of Australia’s analysis of the constitutional law on acquisition of property on just terms. Finally, this chapter contends that the High Court of Australia's ruling on plain packaging of tobacco products will spark an 'Olive Revolution' — and will encourage superior courts and policy-makers to follow suit.

Eastern twists on Western concepts: Equality jurisprudence and sexual harassment in Japan

A rich source of Japanese jurisprudence on sexual equality underlies Japan's emerging law against sexual harassment. With no law specifically outlawing sexual harassment, academics and the courts have invoked the principle of sexual equality to support their conclusion that Japanese law carries an implicit prohibition against acts of sexual harassment. In developing a legal case against sexual harassment, Japanese courts and academic commentators have introduced novel constructions of equality. The key innovations include relational equality, inherent equality and quantifiable equality. In presenting some of these Japanese contributions to equality jurisprudence, the hope is that feminist discourse on equality can take place in a broader context-a context that does not ignore the Eastern cultural experience.

‘Lemon Laws’: an inquiry into consumer protections and remedies for buyers of new motor vehicles

1. Under the Terms of Reference for the Committee’s Inquiry, ‘lemons’ are defined as ‘new motor vehicles with numerous, severe defects that re-occur despite multiple repair attempts or where defects have caused a new motor vehicle to be out of service for a prolonged period of time’. Consumers are currently protected in relation to lemon purchases by the Australian Consumer Law (ACL) located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA). The ACL applies as a law of Queensland pursuant to the Fair Trading Act 1989 (Qld). The voluntary recall and consumer guarantees law took effect on 1 January 2011. 2. In 2006, the Government of Victoria made a commitment to introduce a lemon law into the provisions of the then Fair Trading Act 1999 (Vic). The public consultation process on the proposal to introduce a lemon law for motor vehicle purchases in Victoria was conducted by Ms Janice Munt MP, with the assistance of Consumer Affairs Victoria (CAV). CAV released an Issues Paper to canvas with industry and the community options for the development and introduction of a motor vehicle lemon law.(Consumer Affairs Victoria, Introducing Victorian motor vehicle lemon laws, Issues Paper, (September, 2007). 3. A CAV report prepared by Janice Munt MP was released in July, 2008 (Consumer Affairs Victoria, Motor Cars: A report on the motor vehicle lemon law consultations (July 2008) (Victorian Lemon Law Report). However, the Victorian proposal was overtaken by events leading to the adoption of a uniform consumer protection law in all Australian jurisdictions, the ACL. 4. The structure of this submission is to consider first the three different bases upon which consumers can obtain relief for economic loss arising from defects in motor vehicles. The second part of the submission considers the difficulties encountered by consumers in litigating motor vehicle disputes in the courts and tribunals. The third part of the submission examines the approach taken in other jurisdictions to resolving motor vehicle disputes. The final part of the submission considers a number of possible reforms that could be made to the existing law and its enforcement to reduce consumer detriment arising from the purchase of ‘lemon’ motor vehicles. 5. There are three principal bases upon which a consumer can obtain redress for defects in new motor vehicles under the ACL. The first is where the manufacturer admits liability and initiates the voluntary recall procedure provided for in s 128 of the ACL. Under this basis the manufacturer generally repairs or replaces the part subject to the recall free of charge. The second basis is where the manufacturer or dealer denies liability and the consumer is initiates proceedings in the court or tribunal seeking a statutory remedy under the ACL, the nature of which will depend on whether the failure to comply with the consumer guarantee was major or not. The third basis upon which a consumer can obtain redress is pursuant to public enforcement by the ACCC. Each basis will be considered in this part. What all three bases have in common is the need to conduct an investigation to identify the nature of the defect and how it arose.

From Francovich to Köbler and beyond : The evolution of a State liability regime for the EC

The aim of this paper is to present the evolution of the Francovich doctrine within the European legal order. The first part deals with the gradual development of the ECJ's case law on State liability in damages for breach of EC law. Starting from the seminal Francovich and Brasserie du Pêcheur, the clarification of the criteria set by the Court is attempted with reference to subsequent case law, whereas issues concerning the extent and form of the compensation owned are also mentioned. The second part concerns one of the more recent developments in the field, namely State liability for breaches of Community law attributed to national judiciary. The Court's ruling in Köbler is examined in connection with two other recent judgments, namely Commission v. Italy of 2003 and Kühne & Heitz, as an attempt of the ECJ to reframe its relationships with national supreme courts and appropriate for itself the position of the Supreme Court in the European legal order. The implications on State liability claims by the ruling in Commission v. France of 1997 constitute the theme of the third part, where it is submitted that Member States can also be held liable for disregard of Community law by private individuals within their respected territories. To this extent, Schmidberger is viewed as a manifestation of this opinion, with fundamental rights acquiring a new dimension, being invoked by the States, contra the individuals as a shield to liability claims. Finally, the third part examines the relationship between the Francovich doctrine and the principle of legal certainty and concludes that the solutions employed by the ECJ have been both predictable and acceptable by the national legal orders. Keywords: State liability, damages, Francovich, Köbler, Schmidberger

Family mediation and women’s services: Towards effective referral

Central to Government’s strategy for separating families is the management and resolution of disputes away from courts and litigation processes wherever this is achievable. A key group of players in facilitating this vision are workers within the wide range of women’s services. This study surveyed workers at a number of Victorian women’s services that provide advice, support, and referral for women and explored their understanding of mediation processes and outcomes. The results indicate that, while generally supportive of mediation as a process that could assist their clients, workers were concerned about its appropriateness when family violence was an issue. Some of these concerns appeared to be based upon a good understanding of the limitations of mediation practices, but it is also apparent that some concerns were influenced by a misunderstanding and limited knowledge of contemporary mediation practice. It is recommended that family mediation services work proactively with women’s services in order to better inform each other of the possibilities and constraints in working with postseparation disputes.

Espectáculos cortesanos en la América española del siglo XVII : las fiestas como caso para el análisis de la relación entre la Corte y la Corte virreinal

La Corte madrileña de los Austrias, al igual que el resto de las monarquías europeas del siglo XVII, generó una variada gama de fiestas públicas y privadas, como por ejemplo teatro musical, mascaradas y procesiones callejeras en las que desfilaban carros alegóricos con danzantes y músicos. Estos espectáculos no eran un mero entretenimiento sino que estaban destinados a resaltar las virtudes del monarca y a hacer conscientes a los espectadores del lugar que les cabía ocupar en esa sociedad recurriendo para ello a un complejo discurso simbólico. Las Cortes virreinales de América trasladaron a sus territorios estas prácticas que valían, fundamentalmente, para hacer presente la figura del rey y mantener viva la lealtad a la corona. Analizamos dos ejemplos de fiesta, una mascarada celebrada en Pausa (Perú) y un intermedio dramáticomusical en Sucre, que nos revelan la forma de pensamiento, las conductas y la organización de la sociedad cortesana virreinal.