Wednesday, 5 September 2018
Melbourne Law School published Volume 20 Number 6 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Jason N E Varuhas
Taxonomy and Public Law (789)
This paper (i) identifies the reasons for the general absence of legal taxonomy in public law scholarship; (ii) argues that legal taxonomy and taxonomic debate is vital to the principled development of public law and rigorous legal analysis, and is of acute importance today given trends towards open-ended balancing in public law adjudication which threaten to radically undermine the rational ordering of the legal system; and (iii) takes the first steps towards developing a map of English public law fields.
Directive Principles and the Expressive Accommodation of Ideological Dissenters (790)
This article argues, using India as a case study, that constitutional directives can be a useful tool for the expressive accommodation of ideological dissenters who would otherwise lose out in constitutional negotiations in deeply divided societies. Under certain conditions, these directives can be useful in getting populist illiberal groups to sign up to a (broadly) liberal constitution. Framers of the Indian constitution successfully accommodated some such groups using constitutional directives, and tempered this accommodation through strategies of containment and constitutional incrementalism. Such calibrated accommodation can give dissenting groups enough (and genuine) hope of future political victories, without going so far that their opponents in turn leave the constitutional negotiation table. By focusing on the accommodational needs of ideological dissenters, this article adds to existing literature on constitutional consensus-building techniques, which has largely focused on political insurance for ethnocultural minorities. It also highlights a key function of constitutional directives, which have hitherto been considered at best to be interpretive aids in constitutional adjudication, and at worst as constitutional dead weight.
Insolvency - It's All About the Money (791)
The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.
The Rights of Diplomatic and Consular Employees in Australia (792)
This article examines a group of employees who have been rarely considered in Australian court and tribunal decisions and scholarly commentary to date: diplomatic and consular workers. While persons employed by foreign states in their embassies and consulates generally enjoy favourable rights of access to justice under the Australian law of foreign state immunity, those retained personally by individual diplomats (commonly domestic servants) stand in a much worse position due to the excessively wide rules of diplomatic immunity. After discussing the current legal regimes in Australia and other jurisdictions, the author suggests possible strategies for improving the situation of such employees.
Margaret Young and Andrew Friedman
Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction (793)
International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the “high seas”). States have agreed that they will not “undermine” these existing frameworks. We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes. We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance.