Prof Paula Gerber (Monash) kindly recorded a video introducing and summarising our research recently published in the Human Rights Law Review. We hope you find it interesting.
Professor Paula Gerber and I recently published an empirical analysis of the United Nations Committee on the Rights of the Child (‘CRC’) and their relationship with lesbian, gay, bisexual and transgender issues in the Human Rights Law Review. Specifically, we examined the CRC’s primary outputs, including its Concluding Observations for the last ten years (2010-2020), all the CRC’s General Comments to date and Views from Individual Communications. This involved an analysis of over 1500 records.
The final article is available at https://doi.org/10.1093/hrlr/ngab012. However, the pre-copyedited, author-produced version of an article accepted for publication in the Human Rights Law Review following peer review is available below.
In brief, several of our findings suggest that the CRC has become more sensitive to many of the issues facing LGBT children and children with same-sex parents. Quantitatively, the attention the CRC has given to LGBT issues has increased. The terminology used by the CRC also reflected greater inclusiveness over time.
However, our research found that there are several areas for improvement. In particular, it is recommended that the CRC avoid bundling LGBT children and children with same-sex parents
with a long list of other groups of vulnerable children in its Concluding Observations. The CRC should also take a more consistent approach to the consideration of State Parties anti-discrimination legislation and whether it adequate to protect the interests of LGBT children and children with same-sex parents. It is also recommended that the CRC pay closer attention to the Alternative Reports filed by non-government organisations when raising concerns regarding the violation of the rights of LGBT children and children in same-sex families. Concerning the CRC’s General Comments, it is recommended that the CRC publish a General Comment on issues facing LGBT children and children with same-sex parents.
With greater engagement and monitoring of human rights violations against LGBT children and children with same-sex parents, it is hoped that the CRC could continue its important and valuable work in helping to break down negative stereotypes these children face to prevent and minimise harms during the child’s development.
I am pleased to announce the publication of ‘Justice at the Edge: Hearing the Sound of Silence’ in the latest edition of the Adelaide Law Review.
My coauthors (Kim Economides and Leslie S Ferraz) and I created a short video presenting the significant findings. We hope this piques your interest in the topic and you decide to read the full article, which can be downloaded below.
In brief, we propose the next ‘wave’ in the access to justice is actually a counter-wave. This counter-wave can bring legal knowledge from the legal ‘periphery’ to the legal ‘centre’ to improve access to justice for all peoples. We use the granting of personhood to natural objects in Aotearoa/New Zealand as an example of this phenomenon in action. In particular, First Nations tribes (or iwis) in Aotearoa/New Zealand view these natural objects as persons in customary law. In granting the same natural objects personhood status under the general law, the general legal system can be seen as adopting or incorporating traditional legal principles from custom into the general legal system for the benefit of all peoples, including First Nations who have (and continue to be) marginalised under the general legal system.
The article goes on to consider whether the counter-wave could lead to similar legal developments occurring in Australia, Brazil and Canada, with promising signs in each of the respective jurisdictions.
In 2018, I wrote a post about how to use IRAC to answer a problem-based question in law courses.
This post builds on the previous discussion (you can read that post here) and looks at how to identify the ‘issue’ when using IRAC. IRAC stands for issue, rule, application and conclusion, and is a well-established method or approach to answering problem-based questions. Therefore, this approach is not appropriate for all assignments you are expected to do in law school. IRAC should only be used when you have a fact scenario and you are asked to advise one or more parties on their legal rights or obligations.
So, you have read the fact scenario. How do you identify the legal issue(s)?
Like most things in law, there is no ‘one’ correct way. These are just my recommendations based on my academic and professional experience. Your lecturer or tutor will have their own recommendations so you should check with them too!
The issue or issues are generally framed as questions. I encourage my students to use issues as a subheading to break up their essays. It is your job to then answer the legal issue, posed as a question, with the rest of the (I)RAC acronym. In other words, you answer the question you have posed by identifying and explaining the relevant legal rule(s), applying the rule(s) to the fact scenario to come to a reasoned conclusion.
One final note: in the steps below I talk mostly about contact law but the same steps apply to any area of law; be it criminal, constitutional or administrative law.
Step 1: do the required readings
I am afraid this is unavoidable. Most trouble identifying the legal issues can be resolved by reading or re-reading the required readings. Which required readings, you ask? This will depend on the course and the fact scenario. The essay question may tell you. For example, I often include a sentence like ‘using only the principles of contract law…’ to tell students to only consider the contract law issues. If your assignment contains a sentence like this, then make sure you follow your lecturer’s advice. Even if you know that the problem could be answered using consumer law, for example, follow the instructions and only look for contract law issues.
If your assignment does not tell you what area of law to focus on and you are not sure what readings you are supposed to read, ask your lecturer or tutor. They are there to help. Personally, I would much prefer students to check if anything is unclear before they hand in their assignment. Don’t be afraid to ask – that is what we are there to do.
Step 2: re-read the problem question
Now that you have a high-level understanding of that area of law, re-read the fact scenario. Keep an open mind and highlight or note anything that reminds you of something you have read in your required readings. Maybe something in the fact scenario reminds you about the facts of a case you read about in your textbook. That is an excellent observation because it is an opportunity for you to use analogical reasoning to argue for or against the application of a legal rule based on the factual similarity or differences between the two cases. Usually, cases referred to in your required readings will only relate to one or two legal issues (for example, was there sufficient consideration in a contract) and, as such, if your hypothetical facts are similar to a case, will be able to identify the relevant issue(s).
Another approach is to identify parts of the fact scenario that seem ‘dodgy’, suspicious or unfair. If someone has been ‘ripped off’ or taken advantage of there is probably a legal issue there.
Step 3: what is the legal principle or area of law at the crux of the issue?
Hopefully, by this stage, you will have ‘rough’ legal issue that needs further refinement. Your legal issue might be something like ‘Is Barry bound by the contract?’ or ‘Is the contract enforceable?’
These are too broad. So, the next step is to dig deeper and narrow down the legal issue(s) until you can’t get any more narrow. In some cases, this may mean your one ‘rough’ legal issue has to be split into multiple legal issues. For example, in the second example above, there may be an issue about the capacity to contract and another issue about consideration.
This is where the required readings are again useful. Find the section of the textbook that discusses these ‘rough’ issues. Are there specific elements or requirements that need to be present? Are one or more of these elements/requirements missing? If so, this helps you to refine the legal issue.
With the capacity to contract example above, you may have identified one of the parties as being a minor (in Australia this is under the age of 18 years) yet they entered into a contract with another party. You are right to have identified that there might be an issue about the minor’s capacity to enter into a legal contract. However, not all contacts will be unenforceable against a minor. There are multiple exceptions. For example, contracts for necessaries will be enforceable against a minor.
Step 4: relate it to your fact scenario
Now, refer back to the fact scenario. Continuing with the previous example, you see that the contract in the fact scenario is for designer clothes. So, in this case, the legal issue is really about whether designer clothes are a necessary, and therefore enforceable, or a luxury, and therefore not enforceable. Rather than ask ‘Is the contract enforceable?’ a better legal issue would ask ‘Is the contact against Jack enforceable as a contract for necessaries?’
This level of specificity is important for two reasons. First, it communicates to the marker exactly what you are focussing on. There are potentially many reasons why a contract may not be valid. By framing the issue around the contract for necessaries you are telling the marker you understand the law of contracts well-enough to exclude irrelevant material. Any other issues will be dealt with separately. Second, when your legal issue is narrow and focused you are more likely to address the issue. As previously mentioned, there are many reasons why a contract may not be enforceable which have nothing to do with the capacity to contract. The risk with keeping the legal issue very broad is that you may identify some but not all of the relevant rules, which will affect the analysis in the ‘application’ section. If there are other reasons why the contract may not be enforceable, then these need to be considered separately.
How many legal issues?
Follow the above steps until there are no more issues you can see in the fact scenario. Due to the word count, you may not include all legal issues in your assignment. But, in your first draft, it is important that you follow the IRAC process for each legal issue you identify. You may then realise what you thought was an issue is not really an issue and can safely be discarded. Or, two issues are very similar and can be safely combined. Or, worse case, you have to exclude one or more legal issues you have identified. In this case, it is best to speak with your lecturer or tutor and ask for their advice. But, generally speaking, if you have identified two issues relating to contracts for necessaries that cannot safely be combined and there are other legal issues you need to discuss for the first time, you have already demonstrated your understanding on contracts for necessaries and so it is best to discuss the other issue.
I hope you have found this helpful! If you have any questions, please post them below. I will do my best to answer them.
For those who missed the Panel Session, hosted at USQ Springfield on 3 September 2019, the recording is below. Thank you to our panellists and Angus Murray for facilitating the insightful discussion. I hope you enjoy.
Register at https://www.usq.edu.au/emerging-legal-technology
I’ve been working on an article that has required some analysis of the animal protection legislation in all Australian States and Territories. Specifically, I have been looking at the basic cruelty offences, their maximum and minimum penalties, and the nature of any defences or exemptions.
It has been a time-consuming process so I thought I would share the spreadsheet I developed in order to save others some time.
Please note, this is a working document and I accept no responsibility for any errors or omissions. If, however, you notice an error or something has become out-of-date, please let me know and I will update it. If you find it useful, please share.
I recently finished reading Richard Susskind’s revised edition of Tomorrow’s Lawyers. In the spirit of doing things differently, I thought I would share my argument map (developed using Rationale) which summarises the book’s main thesis.
As is evident from the argument map above, Susskind’s argument is straightforward and easily accessible. Having read some of Susskind’s other works,
I would recommend the book for lawyers and law students who are turning their mind to the future of the legal profession for the first time. Those familiar with Susskind’s ‘wake up calls’ may find Tomorrow’s Lawyers a little repetitive.
I wanted to share an example of how the IRAC methodology can be used in law subjects to answer a problem-based question. I have provided this example to a couple of classes I have taught at the University of Southern Queensland and students always seem to find it useful, so I thought I’d share it with the wider world.
The IRAC methodology is an acronym for Issue, Rule, Application and Conclusion. Other variants of the format include ILAC (Issue, Law, Application and Conclusion) and ISAACS, which the Queensland University of Technology use with their law students. ISAACS stands for: identify the issue, state the law, provide an authority for the law, apply the law to the facts, conclude the issue, repeat for others issues and then synthesise an overall conclusion
In my experience, the part that students frequently struggle with is the application section. Unfortunately, this is the most important section. A good application section is often the difference between a student receiving a high mark or an average mark in their assessment. This is because the application is where student’s demonstrate their understanding of the law by articulating why a particular law/rule/principle (identified in the rule/law section) could or ought to apply in the present fact scenario. If a case, for example, is being relied upon, the student needs to state explicitly how the previously decided case would apply in the present scenario (if the matter was to come before the courts). This argument is strengthened by addressing the factual similarities (or differences) between the cases and using deductive reasoning to support their conclusion that the previously decided case is likely (or unlikely) to apply in the present case. [Note the qualifiers ‘likely’ and ‘unlikely’ – you cannot say that a court is 100% going to accept your argument. Something may be ‘very likely’ but this is not the same as ‘will’].
In the attached example below, I demonstrate how the rule and application section can be blended to aid readability and reduce word count. This idea of colour coding the various sentences was one I picked up while teaching at QUT.
One word of caution: some topic examiners/ co-ordinators/ assessors may want you to lay out your IRAC answers differently. Always follow their instructions. I have heard from a student that in a previous subject they were told to structure their IRAC answers as follows [bold indicates subheadings]:
- Issue 1
- Issue 2
- Issue 3 etc
- Law relating to issue 1
- Law relating to issue 2
- Law relating to issue 3
- Applying the law to the facts for issue 1
- Applying the law to the facts for issue 2
- Applying the law to the facts for issue 3
- Conclusion re issue 1
- Conclusion re issue 2
- Conclusion re issue 3
If you have been asked to structure your answer as above, then please do so. However, the generally accepted structure for a problem-based question using the IRAC methodology goes like this:
- Identification of issue 1
- Law relating to issue 1
- Application of law to the facts for issue 1
- Conclusion of issue 1.
- Identification of issue 2
- Law relating to issue 2
- Application of law to the facts for issue 2
- Conclusion of issue 2.
- Identification of issue 3
- Law relating to issue 3
- Application of law to the facts for issue 3
- Conclusion of issue 3.
In my opinion, the second structure is easier to follow from the reader’s perspective as it keeps all the relevant information together. This means less repetition and saving precious words. An argument that flows better is going to be more persuasive.
I hope you find this useful. If so, please share it. Approaching problem-based legal questions in a systematic way, as set out in the IRAC method, is an important skill for all law students and students studying law subjects.
On Monday, I attended an inspiring training day at the University of Southern Queensland, run by the Office for the Advancement of Learning and Teaching. I came away with a head full of ideas on how to improve my courses and to teach generally. One small idea I look forward to trialling is setting up a formative quiz at the beginning of the semester to gauge students’ starting level of knowledge. This also has the ancillary benefit of encouraging students to engage with Moodle early in the topic. I’ll report on the results!
A colleague and I were asked to share our task management/planning strategies with the group. I’ve been using SkedPal for the last six months or so, and I think it offers some unique and powerful features that are particularly useful for academics, which I shared with the group.
SkedPal combines task management/to-do lists with your calendar. Once you link your Outlook or Google calendar, your tasks are scheduled around your calendar appointments. This is great for people who do not want to rely on their willpower or spend time throughout their day deciding what to do next — its already been cleverly scheduled for you! You estimate how long a task will take and SkedPal finds a gap in your calendar. But where SkedPal sets itself apart from other time management/to-do apps is through its use of ‘time maps’.
Time maps allow the user to designate blocks of time to certain tasks throughout their week. Every task is allocated to one or more time maps. For example, one of my time maps is called ‘writing’, and this covers Monday through to Friday, from 9-11am. Any tasks assigned to this ’time map’ will be scheduled for that period. Here is a look at my ‘writing’ time map.
I am in the final stages of completing my PhD, so anything related to my thesis is assigned to my writing time map. This means every day I know I have at least 2 hours I spend on my thesis. If there is not enough room for a particular task to be scheduled on a given day, then it will be scheduled to another day where there is a gap in my calendar. You can ensure a task is completed today by setting the due date as today. Giving it a ‘high priority’ flag will also promote this task over non-flagged tasks.
You might be concerned that having a calendar full all the time will make it hard for colleagues to schedule appointments. But there is a setting that allows all SkedPal tasks to appear as either ‘busy’ or ‘available’.
Other features include:
- You can automatically schedule a time buffer between tasks. Either as a fixed figure or as a percentage of the duration of the task, which is great in case something takes you longer than expected. If things go off the rails (e.g. unexpected meeting), you can always click reschedule and SkedPal will replan your day, based on your priorities, due dates and time maps.
- You can always click and drag tasks to manual reschedule them and they remain ‘pinned’ to that time even when you click reschedule.
- It is possible to partially complete large tasks, which may get split-up throughout your day (although you can specify the minimum block length, i.e. you don’t want to spend less than 1 hour or 30 minutes on a larger task). When you partially complete a task, when you reschedule your day the 1-hour’s work you completed on a 3-hour task is not ignored.
If you are struggling to find more time to write, I encourage you to consider SkedPal. They are currently offering a 14-day free trial, so you can try it risk-free and see if it works for you. It is available on Mac, Windows, Linux, iOS and Google Play. SkedPal is cloud-based, so all your apps sync in real time as well!
If you have any questions about how I use SkedPal, post them below. Likewise, I would like to hear what works for you. Do you use a lot of time maps or only a few?