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Professor Mirko Bagaric - Publications

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Articles in refereed academic and professional journals

International Law

  • The Banality of Justice: Reflections on Sierra Leone’s Special Court (2006) 8 Oregon Review of International Law (with John Morss) 1-30.

  • International Sentencing law: in search of a justification and coherent framework (2006) 6 International Criminal Law Review (UK) (with John Morss) 191-255.

  • In Search of a Coherent Jurisprudence for International Criminal Law: Correlating universal human responsibilities with universal human rights (2006) 29 Suffolk Transnational Law Review (with John Morss) 157 - 205.

  • Transforming Humanitarian Intervention from an Expedient Accident to a Categorical Imperative (2005) 30 Brooklyn Journal of International Law (USA) (with John Morss) 421-452.

  • If We Can’t Have Global Democracy, Let’s All Be Americans: Injecting principle into the international law-making process (2005) 15 Journal of Transnational Law and Contemporary Problems (USA) (with John Morss) 217–242.  

  • State Sovereignty and Migration Controls: the ultimate act of discrimination? (2005) 1 Journal of Migration and Refugee Issues (with John Morss) 25-50.

  • Refugee Law: The Irrelevance of the Framer’s Intentions (2005) 14 Nottingham Law Journal (with James McConvill) 1-18.

  • How to Spot a Particular Social Group (2005) 1 Original Law Review (with Kim Boyd) 27-40.

  • Discrimination as the Touchstone of Persecution in Refugee Law (2004) 32 International Journal of the Sociology of Law (with Penny Dimopoulos) 310-334.

  • The War in Iraq: The Illusion of International Law - Where to now? (2003) 8 Deakin University Law Review (with James McConvill) 147-192.

  • The Shifting Meaning of Persecution in Australian Refugee Law: how much must one suffer to be deserving of asylum? (2003) (with Penny Dimopoulos) 15 Bond Law Review 284 - 302.

  • Refugee Law: Time for a Fundamental Re-think - need as the criterion for assistance (2003) 9 Canterbury Law Review (NZ) (with Penny Dimopoulos) 268-293.

 

Practical Moral Philosophy

  • Tortured Responses (A reply to the critics): Physically persuading suspects is morally preferable to allowing the innocent to be murdered (2006) 40 University of San Francisco Law Review (with Julie Clarke) 703 – 738.

  • Giving content to our environmental moral obligation to future generations: why Kyoto is a fallacy (2005) 12 Buffalo Environmental Law Journal 195-213.

  • Goodbye Justice, Hallo Happiness: Human Well-being as the new Benchmark for the Development of the law - Welcoming Positive Psychology to the Law (2005) 10 Deakin Law Review (with James McConvill) 1- 25.

  • Terrorism: What we Should do? (2005) 1 Original Law Review 65-74.

  • Not enough (official) torture in the world? The circumstances in which torture is morally justifiable (2005) 39 University of San Francisco Law Review (with Julie Clarke) 581-616.

  • Loyalty and Family Law: why and when the traitor should pay (2004) 18 Australian Journal of Family Law (with Eithne Mills) 63-85.

  • Legal Ethics is (just) Normal Ethics: Towards a Coherent System of Legal Ethics (2003) 3 Queensland University of Technology Journal of Law and Justice (Penny Dimopoulos)1-30.

  • Bribery and Networking: Is there a difference (2002) 7 Deakin University Law Review (with Leigh Johns) 159-172.

  • A Utilitarian Argument: laying the foundation for a coherent system of law (2002) 10 Otago Law Review (NZ) 163-180.

  • No absence of Malice Towards the Gallus - Animal Cruelty the Shame of a Generation (2001) 18 Environmental and Planning Law Journal Generation (with Keith Akers) 505-520.

  • Internalism and the Part-time Moralist: an essay about the objectivity of moral judgments, (2001) 2 Journal of Consciousness and Emotion (USA) 255-271.

  • Greed versus Good: The Moral Obligations of Banks (2001) 17 Australian Banking and Finance Law Bulletin (with Wickrema Weerasooria) 65-73.

  • Loyalty and the Law: Dealing Legally with Mothers, Archbishops and Football Clubs (2001) 10 Nottingham Law Journal (UK) (with Richard Haigh) 1-21.



Human Rights

  • The Human Rights Charter – more punch than expected? (2008) Law Institute Journal (with Peter Faris) 64 -68.

  • The Nonsense of Dignity (2006) 5 Journal of Human Rights 6 (USA) (with James Allen) 1 -18.

  • Human Rights as Copyrights: A Third Way in Human Rights Discourse (2005) 13 University of Baltimore Intellectual Property Law Journal (USA) (with John Morss) 103 – 120.

  • Human Rights: All Show, No Go (2005) 4 Journal of Human Rights (USA) 3-21.

  • The Vacuousness of Rights in the Euthanasia Debate (2002) 6 The International Journal of Human Rights (UK) (with Kumar Amarasekara) 19-44.

  • The Jodie and Marie Siamese Twins Case - The Problem with Rights (2001) 8 Journal of Law and Medicine 311-321.

 

Punishment and Sentencing

  • Scientific Proof that Humans Enjoy Punishing Wrongdoers: The implications for punishment and sentencing (2005) 1 International Journal of Punishment and Sentencing 98-110.

  • The Execution of Van Nguyen: An Australian Perspective (2006) 70 Journal of Criminal Law (UK) 215-221.

  • Giving content to the Principle of Proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity (2005) 69 Journal of Criminal Law (UK) (with James McConvill) 50-74.

  • The Sentencing Advisory Council and the Hope of Smarter Sentencing (2004) 16 Current Issues in Criminal Justice (with Richard Edney) 125-139.

  • The Evolution of Sentencing (2004) 78 Law Institute Journal (with Richard Edney) 38-42.

  • What's Instinct Got to Do With it? A Blueprint for a Coherent Approach to Punishing Criminals (2003) 27 Criminal Law Journal (with Richard Edney) 119-141.

  • Immortality and Sentencing Law (2002) 2 Journal of Philosophy, Science and Law (USA) (with Richard Haigh) 1-8.

  • Home Truths about Home Detention (2002) 66 Journal of Criminal Law (UK) 245-265.

  • After Three Strikes - the continued discriminatory impact of the sentencing system against indigenous Australians: suggested reform (2002) 26 Criminal Law Journal (with Luke Neal)  279-292.
  • What Sort of Fixed Penalties Should we Have? (2002) 23 Adelaide University Law Review 113-140.

  • The Solution to the Dilemma Presented by the Guilty Plea Discount: the qualified guilty plea - `i'm pleading guilty only because of the discount... (2002) 30 International Journal of the Sociology of Law (with Julie Brebner) 51-74.

  • New Criminal Sanctions: Inflicting Pain Through the Denial of Employment and Education, (2001) Criminal Law Review (UK) 184-204.

  • Imprisonment for Driving Whilst Disqualified: Disproportionate Punishment or Sound Public Policy? (2001) 25 The Criminal Law Journal (with Richard Edney) 7-18.

  • Feeling Sorry? Tell Someone Who Cares: the Irrelevance of Remorse in Sentencing, (2001) 40 Howard Journal of Criminal Justice (UK) (with Kumar Amarasekara) 364-377.

  • The Errors of Retributivism (2000) 24 Melbourne University Law Review (with Kumar Amarasekara)124-189.

  • Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals (2000) 24 Criminal Law Journal 21-45.

  • Proportionality in Sentencing: its role and justification (2000) 12 Current Issues in Criminal Justice 142-165.

  • Double Punishment and Punishing Character - The Unfairness of Prior Convictions (2000) 19 Criminal Justice Ethics (USA) 10-29.

  • The Splendour of Fixed Penalties - Consistency and Fairness in Sentencing (2000) 1 The California Criminal Law Review (USA) 1-25.

  • Victorian Sentencing Turns Retrospective: the Constitutional Validity of Retrospective Criminal Legislation after Kable (1999) 23(3) Criminal Law Journal (with Tanya Lakic) 145-158.

  • Sentencing: The Road to Nowhere (1999) 21 Sydney Law Review 597-626.

  • Suspended Sentences and Protective Sentences: Illusory Evils and Disproportionate Punishments (1999) 22 University of New South Wales Law Review 565-594.

  • In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights (1999) 24 Australian Journal of Legal Philosophy 95-144.

  • Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt with on the Spot (1998)24(2) Monash University Law Review 231-271.

  • The Disunity of Sentencing and Confiscation(1997) 21 Criminal Law Journal 191-204.

 

Medicine and the Law

  • Moving from Voluntary Euthanasia to Non-voluntary Euthanasia: Equality and Compassion (2004) 17 Ratio Juris (UK) (with Kumar Amarasekara) 398-423.

  • Embryonic Stem Cell Research: the Principal Ethical Issue – When does life begin? (2003) 12 Nottingham Law Journal (UK) (with James McConvill) 1-20.

  • The Moral Status of Wrongful Life Claims (2003) 32 Common Law World Review (UK) (with Penny Dimopoulos) 35-64.

  • Why Wrongful Birth Actions are Right (2003) 11 Journal of Law and Medicine (with Penny Dimopoulos) 230-238.

  • Eugenics: So What's Wrong With Improving the Quality of Humankind? (2001) Monash Bioethics Review 11-26.

  • The Kuhse-Singer Euthanasia Survey: Why it Fails to Undermine the Slippery Slope Argument - comparing apples and apples (2002) 9 European Journal of Health Law 229-241.

  • Euthanasia: Why It Doesn't Matter (Much) What the Doctor Thinks and Why There's No Suggestion that Doctors Should have a Duty of Kill (2002) 9 Journal of Law and Medicine (with Kumar Amarasekara) 1-12.

  • Dutch to Legalise Euthanasia - Lessons to be Learnt? (2001) 27 Monash Law Review (with Kumar Amarasekara) 179-196.

  • Euthanasia: The Right to Autonomy versus the Public Good (1999) 18 University of Tasmania Law Review 146-167.

  • Active and Passive Euthanasia: Is There a Moral Distinction and Should There be a Legal Difference (1997) 5(2) Journal of Law and Medicine 143-154.

 

Corporate Governance and Corporations Law

  • Opting out of shareholder governance rights: a new perspective on contractual freedom in Australian corporate law (2005) 3 DePaul Commercial and Business Law Journal (USA) (with James McConvill) 255 – 319.

  • Proposing a Corporate Governance MOU Between ASIC and the ASX: towards best practice in corporate governance manner and form (2006) Law Institute Journal (with James McConvill).

  • Towards Shareholder Participation in Contemporary Corporate Governance (2005) 57 Keeping Good Companies (with James Mconvill and Jean DuPlessis) 528-533.

  • Towards Mandatory Shareholder Committees in Australian Companies: Bridging the Separation of Ownership and Control through Enhanced Shareholder Participation and Representation (2004) 28 Melbourne University Law Review (with James McConvill)125-168. 

  • Proxy Voting in Australia (2004) University New England Law Journal (2004) (with James McConvill) 109-134.

  • Why all Directors Should be Shareholders in the Company: the Case Against "Independence" (2004) 16 Bond Law Review (with James McConvill) 40-65.

  • The Law of Conspiracy and Liability for Corporate Offences (2004) 16 Australian Journal of Corporate Law (with James McConvill) 172-185.

  • Shareholders and Their Pursuit of Happiness: A Unifying Understanding of the Corporation (2004) Adelaide Law Review (with James McConvill).

  • Expanding Criminal Sanctions for Corporate Crimes - deprivation of right to work and cancellation of education qualifications (2003) 21 Companies and Securities Law Journal (with Jean du Plessis) 7-25

  • Macleod and the offence of defrauding the company in one person business: The divergence between legal principle and logic widens (2003) 16 Australian Journal of Corporate Law (with James McConvill) 39-52.

  • Related Party Transactions Under Part 2e of the Corporations Act: Time for Reconsideration (2002) Australian Journal of Corporate Law (with James McConvill) 19-34.


Commercial Law

  • Stop Taxing Happiness: A New Perspective on Progressive Taxation (2005) 2 Pittsburgh Tax Review (with James McConvill) 65 -91.

  • Super Blooper? Time to Halt the Superannuation Juggernaut (2004) 35 Australian Business Law Review (with Rami Hanebi) 345-361.

  • The Indigenous Art Market: a roadmap to a more equitable and efficient system (2004) 6 Indigenous Law Bulletin (with Ruth Rentschler) 11-14.

  • Superannuation and the Ageing Myth (2004) 3 Journal of Law and Financial Management (with Rami Hanegbi) 18-27.

  • The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act (2003) 31 Australian Business Law Review  (with Julie Brebner) 192-210.


Privacy and the Law

  • The Right to Privacy: Appealing but flawed (2005) 9 International Journal of Human Rights (UK) (with Carolyn Doyle) 3-36.

  • The Right to Privacy and Corporations (2003) 31 Australian Business Law Review (with Carolyn Doyle) 234-251.

 

Criminal Law

  • Double jeopardy in Australia: the illusion of an absolute protection and the prosecution process as punishment (2005) Canberra Law Review (with Luke Neal) 87–110.

  • Provocation: The Ongoing Subservience of Principle to Tradition (2003) 67 Journal of Criminal Law (UK) (with Luke Neal) 237-257.

  • The Victim and the Prosecutor (2001) 6 Deakin University Law Review (with Justice Geoff Flatman) 238-258.

  •  The 'Civil-isation' of the Criminal Law (2001) 25 Criminal Law Journal 197-207.

  • The Prosecution of Historical Child Sexual Abuse Offences - The Victorian Experience (1999) 4 DeakinUniversity Law Review (with Geoff Flatman QC) 1-20.

 

Evidence

  • Evidence Law – when you are in a hole, stop digging (2005) 1 Original Law Review (with James McConvill) 10-25.

  • The Prejudice Towards Similar Fact Evidence (2001) The International Journal of Evidence and Proof (UK) (with Kumar Amarasekara) 71-98.

  • The Admissibility of Non-Similar Fact Propensity Evidence (2001) 75 Australian Law Journal (with Justice Geoff Flatman)  190-205.

  • Accused Disclosure: Abrogation of the Presumption of Innocence or Measured Response (1999) 23 (6) Criminal Law Journal (with Geoff Flatman QC) 327-334.

  • Juries: Puppets or Peers? (1998) Criminal Law Journal (with Geoff Flatman QC) 1-8.

  • The Diminishing `Right' of Silence (1997) 19(3) Sydney Law Review 266-384.

 

Property Law

  • The Right to Convert Exploration Licences to Mining Leases in Australia: A Proposed National Uniform Model  (2003) 21 Journal of Natural Resources and Energy Law (UK) (with James McConvill) 241 - 251.

  • Yoking Unconscionability and Unjust Enrichment in Australia (2002) 7 Deakin Law Review (with James
    McConvill) 225-261.


Constitutional Law

  • The Australian Constitution: A Century of Irrelevance (2002) 21 University of Tasmania Law Review (with James McConvill) 89-110.

  • Originalism: Why Some Things Should Never Change - or at Least not Change too Quickly (2000) 19 University of Tasmania Law Review 173-204.

 

Judicial Administration

  • The High Court and the utility of multiple judgments (2005) 1 High Court Quarterly (with James McConvill) 13-43.

  • The High Court and the Illusion of Disunity (2004) 79 Law Institute Journal (with James McConvill) 36-41.

 

Labor Law

  • Time to Curtail Summary Dismissal in Australia (2005) 56 Labor Law Journal (USA) 30-47.

  • The Disunity of Employment Deprivations and Sentencing (2004) 68 Journal of Criminal Justice (UK) 329-354.

 

Torts

  • Obesity and the right to sue: would you like a negligence action with those fries? (2006) Law Institute Journal (with Sharon Erbacher) 62-65.

  • Positive Psychology and the Demise of Defamation (2005) 12 Psychiatry, Psychology and Law (with James McConvill) 1-16.

  • Fat and the Law: Who Should take the blame (2005) 12 Journal of Law and Medicine (with Sharon Erbacher) 323 – 339.


Last updated 25 February, 2008

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