Thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education

Increasingly, there is pressure upon law schools, in Australia and elsewhere, to impress upon students the significance of the ethical and professional obligations of legal practice. The recent Carnegie Report explicitly looked to law schools “to initiate novice practitioners to think, to perform, and to conduct themselves (that is, to act morally and ethically) like professionals”. Many law students, however, have little appreciation of legal ethics and any concept they may have of professionalism tends to be envisaged as applying only after graduation. In this paper, we explore the idea of a “community of practice”. Lave and Wenger, who coined the phrase, contend that “learning is conceived as a trajectory in which learners move from legitimate peripheral participant to core participant of the community of practice”. We will argue that law students should appreciate that they are entering the legal profession's community of practice and that all aspects of their conduct relevant to professionalism – not only academic integrity, but matters such as time management, teamwork, relationships with peers and staff – relate to this transition into a legal professional community. Such an approach may not only serve to impress upon students the significance of “professionalism” and ethics, but inculcate in them a sense of belonging to a professional community.     

Participation, Fragmentation and Union Response: The 1998–2000 ACT Public Sector Bargaining Round and the Workplace Relations Act

The current Australian Capital Territory (ACT) public sector workplace bargaining round lasted more than two years with most agreements involving a trade-off between low wage outcomes and protection of job security within performance improvement measures. The main focus of this paper is on government and agency experiments with bargaining structures and processes. The first was a limited and largely unsuccessful attempt in 1998 and 1999 at participative agreement making without the involvement of the key unions. The second, a selective decentralisation of bargaining to parts of a single business, was more successful: of 50 agreements, over 40 have been achieved. The procedural success of the decentralisation strategy is a significant outcome. However, the fragmentation strategy contained internal contradictions and required strong centralised policy control of bargaining agendas and outcomes, leading to delays and breeding distrust. Unions conducted effective defensive campaigns against non-union agreements and involuntary redundancies, but face their own dilemmas in finalising this round and preparing for the next.     

Impact Assessment of EU Non‐Legislative Rulemaking: The Missing Link in ‘New Comitology’

Impact assessment (IA) has gone from an innocuous technical tool typically used in the pre‐legislative phase to an instrument at the heart of the European institutional machinery. However—in deviation from its roots as a tool governing delegated rulemaking in the US—most experience with IA in the EU has been gathered in a legislative context. Against the background of the recent evolution of the EU's old ‘comitology’ system into a two‐track system of delegated acts and implementing measures, this contribution discusses in three parts the ‘whys,’ ‘whats’ and ‘hows’ of extending IA to ‘non‐legislative rulemaking.’ It explores various aspects of the rulemaking process that IA—if properly applied—could strengthen: consultation, control and quality.     

The impact of police charges in incidents of wife abuse

The present study addressed the impact of an urban police force laying criminal charges in cases of wife abuse. Follow-up data from battered women and from police officers were collected to identify the long-term consequences of this police policy that began in 1981, including any negative or unintended side effects. Results indicated that the policy resulted in a dramatic increase in police-laid charges (2500%), and a shift from the Family to the Criminal Division of Provincial Court. Based on interview data, victims did not decrease their requests for police service (a feared side effect) and reported a significantly higher level of satisfaction with police service in this area. A significant reduction in police calls and victim-reported violence was associated with police intervention, especially when charges were laid. Paradoxically, police officers' attitudes about the policy were more negative than the actual positive changes that they helped to produce. Considerations for future research and professional training are outlined.     

The Economics of Cruel and Unusual Punishment

It has sometimes been argued that one way to reduce the costs of law enforcement would be to reduce the probability of detection and conviction (hence saving those costs), while at the same time increasing the size of the punishment. Following this strategy would keep the expected costs (to a risk neutral criminal) of committing a crime constant and hence keep the deterrence level constant; it would have the benefit, though, of reducing costs to the rest of society.There are some well-known objections to such a policy. One such objection deals with marginal deterrence: A convicted murderer serving a life sentence with no chance of parole in a jurisdiction which bans capital punishment has nothing to lose from killing a prison guard—there is no marginal deterrence to the commission of a more serious crime or any additional crime for that matter. In fact, so long as there remains any upper limit to the amount of punishment that can be inflicted upon a convicted criminal, the only ways to create some type of marginal deterrence are to reduce the punishments for less serious crimes, which will either reduce the deterrence of those less serious crimes, or alternatively to require the use of more of society's scarce resources to increase the probabilities of apprehension and conviction.It is possible to reduce this marginal deterrence problem, however, by practicing cruel and unusual punishment on perpetrators of serious crimes, i.e. by raising the limits of allowable punishment. Anecdotal evidence suggests this practice is followed unofficially with child molesters and killers of prison guards and hence provides some additional deterrence against these crimes.Despite the theoretical validity of this argument, our society has chosen to impose a constitutional ban on cruel and unusual punishment. Furthermore, over time we seem to have lowered the threshold of what is considered cruel and unusual. Following Dr. Pangloss, the concluding section of the paper examines why rational maximizers would choose to give up this additional potential deterrence. The explanations depend upon an assumed positive income elasticity of demand for humanitarianism or for insurance against the costs of punishing the innocent. While there are some reasons to accept the humanitarianism argument, the insurance argument seems more persuasive.