Web 2.0, social networking and the courts

In the last decade or so, we have witnessed the growth of web 2.0 technology and social networking platforms, and their rapid rise in popularity as methods of social interaction and communication. Yet, platforms such as Facebook and Twitter are not just online social phenomena, but can impact on the way the law and courts operate. This article highlights the issues that legal practitioners and courts need to be aware of in engaging with this technology, and suggests possible ways forward.

Developing ethical identities in young offenders through restorative justice practice in Australia

Restorative justice is firmly established in Australian juvenile justice. While the official language used to describe restorative initiatives varies across states and territories, the most common form is a meeting or conference between young offenders and their victims (most commonly known as a family group or youth justice conference). During the past decade, an impressive amount of empirical research has examined how the restorative justice process affects offenders, victims and other participants (such as supporters for young offenders and victims). Results from this line of research are remarkably consistent and show that participants generally regard restorative conferences as procedurally fair and that they are satisfied with the outcomes (eg what young offenders agree to do to make up for their offending behaviour, such as offer a sincere apology or perform work for the victim or the community). What is less common, however, is the perception among participants that restorative conferences achieve the key aim of restoration.By ‘restoration’ we refer to encounters where ‘offenders apologise, their apologies are accepted, victims offer forgiveness,and conferences conclude with a feeling of mutual good will’.

Mainstreaming therapeutic jurisprudence and the adversarial paradigm—incommensurability and the possibility of a shared disciplinary matrix

Problem-solving courts appear to achieve outcomes that are not common in mainstream courts. There are increasing calls for the adoption of more therapeutic and problem-solving practices by mainstream judges in civil and criminal courts in a number of jurisdictions, most notably in the United States and Australia. Currently, a judge who sets out to exercise a significant therapeutic function is likely to be doing so in a specialist court or jurisdiction, outside the mainstream court system, and arguably, outside the adversarial paradigm itself. To some extent, this work is tolerated but marginalised. However, do therapeutic and problem-solving functions have the potential to help define, rather than simply complement, the role of judicial officers? The core question addressed in this thesis is whether the judicial role could evolve to be not just less adversarial, but fundamentally non-adversarial. In other words, could we see—or are we seeing—a juristic paradigm shift not just in the colloquial, casual sense of the word, but in the strong, worldview changing sense meant by Thomas Kuhn? This thesis examines the current relationship between adversarialism and therapeutic jurisprudence in the context of Kuhn’s conception of the transition from periods of ‘normal science’, through periods of anomaly and disciplinary crises to paradigm shifts. It considers whether therapeutic jurisprudence and adversarialism are incommensurable in the Kuhnian sense, and if so, what this means for the relationship between the two, and for the agenda to mainstream therapeutic jurisprudence. The thesis asserts that Kuhnian incommensurability is, in fact, a characteristic of the relationship between adversarialism and therapeutic jurisprudence, but that the possibility of a therapeutic paradigm shift in law can be reconciled with many adversarial and due process principles by relating this incommensurability to a broader disciplinary matrix.

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.

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.

Parliamentary committees are important in developing policy: evidence from a Queensland case study

Abstract This paper uses a case study to identify the impact of a Queensland parliamentary committee on policy. In 2003, the Travelsafe Committee undertook two inquiries investigating young driver and rider issues. In 2007, the Queensland Parliament passed legislation that provided the power to make regulations that changed the graduated driver licensing laws in Queensland. The analysis of the second reading speeches for this bill suggests that parliamentary committees can help set the agenda for government policy. The role of the Travelsafe Committee in this process was recognised by both government and non-government members of Parliament and by those that had been, or were currently, members of the committee and by those that had no membership experience of the Travelsafe Committee prior to the debate of the legislation. This paper suggests that in order for committees to successfully participate in policy work they need to have strong ideas, work to a consistently high standard and the chair needs to be dedicated to the work of the committee. This case study indicates the importance of parliamentary committees in the policy work of a parliament.

In conversation with the Honourable Ian Callinan AC

When, in 1977, the Australian electorate provided a double majority to effect a change of section 72 of the Commonwealth Constitution requiring judges of the High Court of Australia to retire at the age of 70 years old, I doubt we understood the continuing capacity of these esteemed members of the judiciary. For the opportunity to sit and talk with Ian Callinan AC who, in compliance with that amendment, retired from the High Court in September 2007, I needed to wait until he returned from The Hague where he was sitting as a Judge ad hoc on the International Court of Justice. Although a native of Casino, New South Wales, Mr Callinan is regarded as a Queenslander. Indeed, he grew up in Brisbane, finished high school at Brisbane Grammar and graduated in law at The University of Queensland. Appointed in 1978 as a Queen’s Counsel, Mr Callinan enjoyed this period of his legal career and we discussed an aspect of the Christopher Skase case, which reinforced my belief that Mr Callinan is an incredibly skilful advocate. On 14 September 1998, ABC Four Corners broadcasted the views of some prominent Australians on the appointment of Mr Callinan to the High Court. In assessing the type of person Mr Callinan is, Tony Morris QC said: “Ian Callinan isn't a coward”, while former Commonwealth Attorney-General, Michael Lavarch, said: “He was regarded as an absolutely outstanding criminal lawyer within the Queensland legal profession, I mean really a top-notch advocate”. I was not interested in raising any of the controversial issues that Mr Callinan has encountered as an advocate in high profile matters. I wanted to know how he felt about his time on the High Court, what his thoughts are on the operation of the High Court, the IP cases he decided, the real life issues that he feels impact on counsel who are appearing before the High Court and the people he regarded as role models. During our conversation, Mr Callinan laughed often and when he did his eyes lit up, revealing his passion for life. He is an incredibly genuine Australian who loved his time as a barrister, enjoyed his role on the High Court, enjoys his current job as mediator, loves writing novels, has a great desire for continual improvement in the quality of legal education and legal advocacy and sees a need for change in IP law. When I asked: “So, what might the future hold for you?”, he laughed and said: “Well, at my age I don’t have a long horizon time”. I said: “Just enjoy the journey?”, to which Mr Callinan responded: “Exactly”.

The New Lawyer

This text is designed to implement the Threshold Learning Outcomes (TLOs) for law in the first year, and to incorporate Sally Kift’s First Year Curriculum principles: http://tls.vu.edu.au/portal/site/trans/Resources/KiftTransitonPedagogySixPrinciples_16Nov09.pdf This is a learning-centered text book intentionally designed for first year students and written by experts in legal education and the first year experience. It is written in a tone and style that engages and communicates effectively with first year law students, without compromising its rigour. It provides students with opportunities to contextualise and make sense of their learning by connecting that learning with what they already know, and with current contemporary issues and affairs. This work is designed to ease students through the transition from a diverse variety of backgrounds (such as high school, work or other disciplines) to the first year of law. It provides practical guidance about adjusting to law school and to university. Students are asked to regularly reflect upon why they are studying law. The book also prepares law students for success in their latter year studies in law by ensuring that they are equipped with the necessary threshold concepts and foundational skills to do well: for example, research skills (particularly, online research skills), reasoning skills, written communication skills, negotiation skills, and self-management skills. A range of practical tips on studying law are provided throughout the book. The work also asks students to engage with developing an emergent sense of professional identity – including what it means to ‘think like a lawyer’. In supporting the students to engage with the concept of professional identity, the work begins a process of preparing students for transition from law school to legal practice. This is achieved by providing explanations of how the material being presented relates to the practice of law, as well as practical information relating to employability skills as a new graduate. This work has a number of learning and teaching objectives to enhance the quality of student learning in their first year of law by engaging, motivating and supporting that learning. First, the work is designed to engage first year students with their legal education and with a future sense of professional identity. It does this through its: • Dynamic writing style • Engaging format • Inclusion of contemporary issues and events • Flowcharts, checklists, mind-maps, tables and timelines • Inclusion of real-world problems and dilemmas. Second, the text motivates student learning by promoting active learning. It does this by: • Demonstrating, and asking students to practice, what they need to do – that is, the work is not simply focussed on telling students what they need to know • Including regular self-directed learning exercises throughout each chapter, such as practical exercises for the development of important foundational legal skills • Including exercises that promote student collaboration, and that require students to apply their learning to practical situations, and • Incorporating a range of interesting active thinking points and research activities. Third, the book supports student learning by encouraging reflective learning and independent learning. It does this by including: • Specific content on how to be a reflective practitioner and an independent learner • Exercises that require students to engage in independent learning, particularly in relation to legal research skill development • Exercises requiring students to reflect upon what they have learned, and encouraging students to keep a reflective learning journal • Exercises requiring students to reflect upon their own views and beliefs • Reflection on whether students have achieved the learning objectives articulated at the beginning of the chapter. The work also: • Demonstrates respect for student experiences, views, opinions and values • Acknowledges student diversity • Recognises the importance of being globally minded law students and lawyers • Supports law teachers in using the work in their classrooms through the provision of comprehensive teaching materials.

Legal Institutions, Sectoral Heterogeneity, and Economic Development

Poor countries have lower PPP–adjusted investment rates and face higher relative prices of investment goods. It has been suggested that this happens either because these countries have a relatively lower TFP in industries producing capital goods, or because they are subject to greater investment distortions. This paper provides a micro–foundation for the cross–country dispersion in investment distortions. We first document that firms producing capital goods face a higher level of idiosyncratic risk than their counterparts producing consumption goods. In a model of capital accumulation where the protection of investors’ rights is incomplete, this difference in risk induces a wedge between the returns on investment in the two sectors. The wedge is bigger, the poorer the investor protection. In turn, this implies that countries endowed with weaker institutions face higher relative prices of investment goods, invest a lower fraction of their income, and end up being poorer. We find that our mechanism may be quantitatively important.

Dispute resolution outside of courts: procedural justice and decision acceptance among users of ombuds services in the UK

Attitudes towards legal authorities based on theories of procedural justice have been explored extensively in the criminal and civil justice systems. This has provided considerable empirical evidence concerning the importance of trust and legitimacy in generating cooperation, compliance and decision acceptance. However, not enough attention has been paid to attitudes towards institutions of informal dispute resolution. This paper asks whether the theory of procedural justice applies to the alternative dispute resolution (ADR) context, focusing on ombuds services. What are the predictors of perceptions of procedural justice during the process of dealing with an ombuds, and what factors shape outcome acceptance? These questions are analyzed using a sample of recent ombuds users. The results indicate that outcome favorability is highly correlated with perceived procedural justice, and both predict decision acceptance.

Legal Institutions and Collective Memories

In recent decades the debate among scholars, lawyers, politicians and others about how societies deal with their past has been constant and intensive. 'Legal Institutions and Collective Memories' situates the processes of transitional justice at the intersection between legal procedures and the production of collective and shared meanings of the past. Building upon the work of Maurice Halbwachs, this collection of essays emphasises the extended role and active involvement of contemporary law and legal institutions in public discourse about the past, and explores their impact on the shape that collective memories take in the course of time. The authors uncover a complex pattern of searching for truth, negotiating the past and cultivating the art of forgetting. Their contributions explore the ambiguous and intricate links between the production of justice, truth and memory. The essays cover a broad range of legal institutions, countries and topics. These include transitional trials as 'monumental spectacles' as well as constitutional courts, and the restitution of property rights in Central and Eastern Europe and Australia. The authors explore the biographies of victims and how their voices were repressed, as in the case of Korean Comfort Women. They explore the role of law and legal institutions in linking individual and collective memories in the transitional period through processes of lustration, and they analyse divided memories about the past and their impact on future reconciliation in South Africa. The collection offers a genuinely comparative approach, allied to cutting-edge theory.

E-learning opportunities and challenges for legal education in rural Victoria

Access to justice extends beyond consideration of the systems and institutions of justice; it includes infrastructure such as transport, health, education and communications. Rural, regional and remote (‘RRR’) communities are more likely to face difficulties in accessing advice and accurate information on laws and processes available for resolution of disputes. Perhaps more fundamentally, they rarely have a voice in effecting reforms in laws and related policies. For several decades, community legal centres, legal aid, courts, and a range of other institutions have used community legal education programs to improve knowledge and access to law and justice systems, services and organisations. The recent Productivity Commission Inquiry into Access to Justice Arrangements notes that, ‘Better coordination and greater quality control in the development and delivery of these [community legal education, legal information] services would improve their value and reach.’ At the same time, research into the professional needs of RRR legal practitioners has found that many of these practitioners face considerable difficulties accessing good quality continuing professional development (‘CPD’) and informal networking/support opportunities.6 Current and emerging internet-based technologies open up opportunities for legal organisations to better meet the educational needs of both rural communities and legal practitioners. Though limitations still exist at multiple levels, relatively low-cost, media-rich, synchronous and tailored education programs can now be delivered effectively in many rural and remote areas. However, complex layers of decisions are required to critically assess, harness and optimise technologies to best suit the needs of users, and to utilise teaching and learning techniques that best match the technologies and participant needs. Getting these elements — needs, technology and learning technique — right, nevertheless offers extraordinary opportunities. Sound decisions and good practices should enable state-wide and specialist law and justice-related services interested in improving their engagement with RRR communities to dramatically improve the reach and quality of outcomes, not only for distant participants but the spectrum of stakeholders.

Casual but Smart: The Court’s new clothes in the Area of Freedom Security and Justice (AFSJ) after the Lisbon Treaty. Research Papers in Law, 2/2008

Introduction. Unintended as it was, the European Court of Justice (ECJ, the Court, the Court of the EU) has played an extremely important role in the construction of the Area of Freedom Security and Justice (AFSJ). The AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999. The fact that this is a new field of EU competence, poses afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its Member States, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) extent of the protection given to fundamental rights. The above questions have prompted judicial solutions which take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.1 The ECJ is the body whose institutional role is to benefit most from this upcoming ‘depilarisation’, possibly more than that of the European Parliament. This structure is on the verge of being abandoned, provided the Treaty of Lisbon enters into force.2 However spectacular this formal boost of the Court’s competence, the changes in real terms are not going to be that dramatic. This apparent contradiction is explained, to a large extent, by the fact that the Court has in many ways ‘provoked’, or even ‘anticipated’, the depilarisation of its own jurisdictional role, already under the existing three-pillar structure. Simply put, under the new – post Treaty of Lisbon – regime, the Court will have full jurisdiction over all AFSJ matters, as those are going to be fully integrated in what is now the first pillar. Some limitations will continue to apply, however, while a special AFSJ procedure will be institutionalised. Indeed, if we look into the new Treaty we may identify general modifications to the Court’s structure and jurisdiction affecting the AFSJ (section 2), modifications in the field of the AFSJ stemming from the abolition of the pillar structure (section 3) and, finally, some rules specifically applicable to the AFSJ (section 4).

A treatise on the police and crimes of the metropolis. Also an account of the courts of justice and prisons of London; and an inquiry into the causes of the increse in crime; the tendency of the debtor laws; and into the present state of the licensed victuallers' trade: with suggestions for the improvement of the protective institutions of the metropolis, and the prevention of offenses.

Mode of access: Internet.