New research project to look at New Zealand judgments from a new angle

What if a group of scholars were to write the “missing” feminist judgment in key cases? What would these judgments look like? What impact would they have? What lessons would we learn?

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The “Feminist Judgments Project Aotearoa” is seeking scholars and members of the legal profession to contribute to this Law Foundation-funded work. Contributions are sought by 30 October 2015. Contributors need not identify as “feminist”, nor as female, but must be willing to commit to a research endeavour that will challenge them to think and write about the law in a different way.

This is a dynamic and innovative project in which scholars (whether academics or practitioners) will write alternative judgments in a number of significant domestic cases across a broad range of legal issues. These new judgments will operate as both a critique of common law method as well as a practical demonstration of how different ways of approaching a decision-making task is possible. Judgments may be written either by individual authors or jointly by two or more authors. The cases need not be recent, but must be important decisions that would benefit from a feminist analysis, or from a mana wahine perspective. The cases can be from any level, including decisions of tribunals.

Alongside each judgment, another scholar will write a commentary. This will situate the original judgment in its legal, social and political context. The feminist “judges” will be working with established legal method that existed at the time the decision was originally made, including customary legal perspectives and simulated practical constraints on decision-making (such as the social-science research available at the time and the prevailing rules of precedent) to produce “authentic” judgments.

Dr Rhonda Powell of the University of Canterbury who, along with Associate Professor Elisabeth McDonald of Victoria University of Wellington, is convening the project, says:

“We are excited about this project because of the constructive way in which it engages with the judicial process. Rather than critiquing judgments, we are going to put ourselves in the shoes of the judge and ask ourselves how the judge could have analysed the legal issues in a way that is more sensitive to women’s experiences of the law and the legal process.

“The most challenging aspect may be the requirement that feminist judges draw only upon the information and the social and political context that was available at the time of the original decision – without the benefit of hindsight.”

The project is inspired by similar projects successfully undertaken in other jurisdictions, but will be unique given the social, cultural and legal context of Aotearoa. The use of “Aotearoa” in the project title is deliberate. It is essential that this work contains the critical voices of Māori scholars, and those already inspired by the potential of this project are committed to exploring how this critical exercise can be undertaken from a mana wahine perspective.

Funding from the Law Foundation will enable Professor Rosemary Hunter (Queen Mary University of London), the leader of the English project, to be present at all three of the project workshops. Other consultants to the project include Dr Claire Charters (University of Auckland), Associate Professor Jacinta Ruru (University of Otago), Māmari Stephens (Victoria University of Wellington) and Professor Margaret Wilson (University of Waikato).

The outcome of the project will be an edited collection of judgments, published as a book (or books) by the end of 2017, together with commentaries on each of the cases, and a chapter or two on methodological, conceptual and theoretical issues.

Proposed Timeline

Offers to contribute Project convenors Associate Professor McDonald and Dr Powell would like to hear from members of the profession interested in contributing in any of the following ways:

  • As a judgment author: If you would like to write a judgment (5000-7000 words) please indicate the name of the case you would propose to write on, and provide a brief argument (max. 150 words) as to why this is a case which would benefit from a feminist analysis. Judgment authors will attend two of the three workshops, in order to develop theoretical and practical approaches to feminist judgment-writing.
  • As a commentator: If you are interested in being a commentator, please indicate broadly the areas of law in which you are particularly interested. The length for the commentary would be 2000-3000 words. Suggestions are also welcomed as to cases you think should be included (and why), and potential authors who could be approached to write judgments on those cases. It is expected that commentators need only attend one of the project workshops.
  • As a conceptual or editorial contributor: If you would like to contribute to the development of the conceptual and theoretical aspects of the project, or would like to offer your assistance with peer reviewing or editing any of the work, please indicate (max. 150 words) the nature of the contribution you would be able to make.

Note: Law Foundation funding has made it possible for some research assistance to be offered, and for some contribution towards participants’ travel to the workshops.

Please send offers to contribute by Friday 30 October 2015 to the project’s convenors, by emailing Elisabeth.McDonald@vuw.ac.nz and Rhonda.Powell@canterbury.ac.nz

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