CLS

'Demystifying CLS: A Critical Legal Studies Family Tree' by James Gilchrist in (2020) 41(1) Adelaide Law Review 123 comments 

From the first Conference on Critical Legal Studies in 1977, difficulties have arisen when trying to qualify what can be defined as critical legal studies. As either a jurisprudential banner or a specific reference, the term critical legal studies can lead to a variety of different meanings with little consistency. This article argues that due to the broad application of critical legal studies across different times and jurisdictions, it would benefit from a structured system of categorisation. By identifying various critical legal studies, this article briefly defines and categorises each major limb in relation to one another, in turn forming a critical legal studies family tree. Once this overview has been presented, this article focuses on the United States of America (‘US’)-based branch of Critical Legal Studies demonstrating how this method of categorisation provides clarity. Specifically, this demonstration addresses the roots and death of the US-based Critical Legal Studies and its effect on the continuation of critical legal studies works after this event. 

Gilchrist argues 

More than 40 years after the first Conference on Critical Legal Studies in 1977, the movement itself has ground to a halt, with ‘Critical Legal Studies’ (or ‘CLS’) remembered as a historical movement of ‘left intelligentsia’ against legal liberalism. At the same time, critical legal studies, concerning fields of legal inquiry that are posed to critique law from a critical position, or through a critical lens, are flourishing. Such is the multifaceted nature of the term ‘critical legal studies’ that differentiations often rest with necessary further identification of specific themes, theorists, or scholars. However, this adds complication to an already difficult area to navigate. This article proposes that the non-doctrinal approach taken by scholars of the Critical Legal Studies movement ‘mystifies’ critical legal studies as a term. To combat this mystification, this article proposes a critical legal studies family tree as an act of demystification. Focusing on the US-based Critical Legal Studies movement, this article will demonstrate the clarity this framework brings via the proposal of two different US-based Critical Legal Studies. For ease of understanding and clarity, this article adopts two different expressions of the term ‘critical legal studies’: the term is capitalised (and at times abbreviated) when referring to the Critical Legal Studies movement; and is written in lower case when referring to the broader application of critical legal studies. 

Broadly, the approach undertaken in this article is inspired by Duncan Kennedy’s critique of structures and the specific quote in ‘Legal Education as Training for Hierarchy’, that there is ‘endless attention to trees at the expense of forests’. In its original context, the quote relates to pedagogical structure in law schools, however Kennedy’s observation can also be levelled at existing works which attempt to clarify or demystify critical legal studies. While this article addresses the specifics and minutiae relating to CLS, its primary goal is a meta-analysis to categorise the often-singular grouping of critical legal studies. There is also an attempt at irony through this ‘forest type’ meta-approach and the designation of a family tree. 

The foundation of this family tree draws from existing work in this area by Margaret Davies, Costas Douzinas and Adam Gearey. In their clarifications, Douzinas and Gearey categorise critical legal studies through national identities. The authors identify similarities between the national varieties but address their individuality based on geographic lines, specifically looking at different branches of Critical Legal Studies in the US, United Kingdom (‘UK’), Australia, and South Africa. Taking a different approach to the same problem, Davies designates a broad and narrow categorisation to critical legal studies, designating the US Critical Legal Studies movement as narrow and critical race theory as broad. However, while Douzinas and Gearey, and Davies’ approaches provide some clarity, they have limitations. 

Notably, Douzinas and Gearey’s categorisation becomes muddied with the (re)location of the critical legal scholars they assign to specific locations, a point which the authors themselves identify. The authors’ acknowledgement of this issue highlights the placeholder nature of these categories, rather than creating a definitive structure. Similarly, it can be inferred from Davies’ approach that a dichotomy is imposed, and a designated critical legal studies is either broad or narrow. Whilst imperfect, both approaches are useful as a starting point to think about the categorisation of different critical legal studies. Building upon these ways of thinking about critical legal studies, this article’s presentation of a critical legal studies family tree aims to reduce complication and assist in the exploration of critical legal studies’ complexities. 

The core of this article is a literal genealogy; however, given Michel Foucault’s influence on critical legal studies it would be remiss not to mention his reading of genealogy. Notably, Foucault applied his interpretation of genealogy in The History of Sexuality, however, he provided a concise overview of this method in the short essay, ‘Nietzsche, Genealogy, History’. In this essay, Foucault outlines that his reading of genealogy draws on Friedrich Nietzsche’s On the Genealogy of Morals, specifically highlighting Nietzsche’s differentiation of the often synonymous origin, ancestry, and beginning. For Foucault, this is not an exercise in splitting hairs, but an interrogation of words and histories that are often overlooked — those in the most ‘unpromising places, in what we tend to feel is without history’. Focusing on the different applications Nietzsche uses for words related to ‘the start’, Foucault argues that it is possible to travel past ideals of ‘lofty origins’ to ‘lowly beginnings’, and in turn, new historical perspectives. 

In a broad sense, the rationale Foucault provides through genealogy aids the justification to re-examine critical legal studies. As this article argues, the history of critical legal studies is, for the most part, settled; but this has led to a conflation between the variety of different critical legal studies. However, whilst the Foucauldian development is relevant in this general way, its specific methodology is not applicable to the very literal genealogy presented here through the critical legal studies family tree. Instead, this article proposes that through the creation of a family tree, different branches of critical legal studies can be clearly separated. To demonstrate the effectiveness of the critical legal studies family tree, this article first presents an overall understanding of the structure and its interrelated limbs. Having established the outline of the family tree, the focus shifts to a specific branch, undertaking a detailed assessment of the US-based Critical Legal Studies movement. 

After addressing the roots of CLS, focus then turns to the proposed death of Critical Legal Studies in the mid-1990s. This article argues that this death adds to the mystification of critical legal studies, however the family tree may assist in counteracting this mystification and providing clarity. Specific attention is given to the death and its relation to three interconnected areas: the scholars who founded Critical Legal Studies; their location at Harvard Law School; and the rivalry between Critical Legal Studies and law and economics. 

It must be noted, however, that the focus on these three areas should not be read as a rejection of internal issues in the US-based CLS, or conflicts between other left critiques of law, such as critical race and feminist legal theory; or similarly, issues with external parties, such as the Federalist Society at Harvard. Instead, through the interaction between key scholars, their location, and the rivalry of their approaches, this broad meta-analysis will demonstrate a cause of death and a way to understand the position of the Critical Legal Studies that continues posthumously.

Babble

In Glew, In the matter of an application for leave to issue or file [2022] HCATrans 101 (8 June 2022) Edelman J states 

 The applicant describes himself as “Wayne Kenneth of the family Glew ” and “Wayne Kenneth Glew ”. He says that he is a “sovereign person, a flesh and blood man” and that “Mr Glew is a corporate entity ... a straw man” and that he has “no contact with him”. Although such claims are legal nonsense, I am content to refer to the applicant in his preferred style. ... 

The proposed application that Wayne Kenneth Glew seeks leave to file is for removal into this Court of a matter pending in the Magistrates Court, Geraldton, Western Australia in which he is charged with an offence. Exhibit WKG 2 to the affidavit of Wayne Kenneth Glew sworn 31 March 2022 is a prosecution notice concerning the offence with which he is charged: inciting another to commit an indictable offence, namely deprivation of liberty. 

In his proposed application in this Court for removal, Wayne Kenneth Glew says that the “precise order” he seeks is that:

“this court being the only Lawful court established by the constitution, orders that all States put their Constitutions in place in their full text so the Commonwealth can be Lawfully established under Our Lawful Commonwealth Constitution Act 1900 UK and Our Commonwealth Constitution 1901 as Proclaimed and Gazetted and all laws made prior to that happening be dismissed by transgressing the constitutions”.

A purported notice under s 78B of the Judiciary Act, Exhibit WKG 4 to Wayne Kenneth Glew’s affidavit sworn 31 March 2022, raises further issues. The notice sets out 49 questions which raise issues such as land title, fraud, murder, slavery, treason, treachery, and acts of war. 

On an application made under r 6.07.3, the discretion to grant or refuse leave is to be exercised by a Justice by reference to the same criteria which inform the decision of a Registrar under r 6.07.1. A Justice will ordinarily exercise the discretion to refuse leave where the application “on its face”, assessed on the papers, appears to be an abuse of the Court’s process, frivolous or vexatious, or outside the jurisdiction of the Court. 

The submissions and materials provided by Wayne Kenneth Glew do not give rise to any “cause or part of a cause arising under the Constitution” sufficient to fall within s 40 of the Judiciary Act. The issues raised by Wayne Kenneth Glew are “incapable on [their] face of legal argument” and are “legal nonsense”. In the long‑established language of abuse of process, the proposed application is “manifestly groundless” or “manifestly hopeless”.

Glew has featured in numerous sovereign citizen claims. 

In YAP -v- MATIC [2022] WASC 181 Solomon J states 

[56] As indicated by the transcript passage I have included at [22], Mr Matic appears to hold a belief that he 'cannot be governed' by an order of this court. Over the course of the proceedings from time to time, this and other comments appeared to challenge the court's the jurisdiction. ... 

[58] In his first affidavit filed with the court on 2 March 2022 prior to having filed an appearance, Mr Matic stated the following: 

I, Sandi Matic of [redacted] in the State of Western Australia, selfemployed, duly sworn make oath and say that: 

1. I am submitting this affidavit under duress and fear of my wellbeing & any errors made due to my nonexistent knowledge of how to write in legalese is not to be used against my benefit & I reserve all of my rights. 

2. I do not consent to be my name in all capital letters which is the person corporation trust. 

3. I, One, living, breathing, man, the undersigned, Sandi, son of and made in the image and the likeness of my father and mother, Pavao and Sabina, given name Sandi, having a sound mind, without prejudice to My Godgiven rights and duties, being one who was born of and walks on the soil of God (Genesis 1), who is unschooled in the law, is not trained in legalese, who has never had an attorney, is without an attorney, and does not waive counsel, knowingly and willingly Declares and duly Affirms, according to law, in time of peace and not in time of war or emergency, in good faith, with no intention to delay or obstruct, and with full intent to preserve and promote the public confidence in the integrity and impartiality of the judiciary, that the preceding and following statements and facts are of my own firsthand knowledge, except where such matters are stated to be based on information and belief, in which case I have identified the source and confirm my belief in the accuracy and truth of that information, God help me. 

4. I AM no person, no fictional being, no organization, trustee, employee, association, voluntary association, jointstock association, company, copartnership, firm, order or society, either aggregate or part of any aggregate, or automatic aggregate, or public utility aggregate, whether organized or incorporated or not, and I am not misrepresenting my identity or origin, of Pavao and Sabina (maker, owner, ruler), of God (maker, owner, ruler). 

5. I have not duly granted, ratified, bargained for, gifted, sold, pledged, optioned, or donated any power of appointment, special power of appointment, general power of appointment in trust, or any general or special franchise, or elective franchise name, character, labour, or living body to any other, for any consideration: including, but not limited to any option or opting, any promise, implied promise, successive promises, agreement, supposed agreement, identity, fiction, graven image, forbearance, grace, creation, or modification or destruction of a legal relation, trade name, trademark, service mark, title(s), or return promise, bargained for and given in exchange for a promise, privilege, benefit, reciprocity, indemnity, mutual indemnification, any present or future interest or otherwise. 

6. There are two beings with the same name, one real, the undersigned, the other a person, a fictional being. 

7. It is not possible that man can be two beings, man, and a person, a fictional being. 

8. I attorned unknowingly. I only appear as the person. I think for, speak for, and act for it. 

9. I own the claim of the ownership of the Estate, MATIC, SANDI. 

10. In the event that any clerical errors or administrative mistakes are uncovered in the submissions of the Plaintiff 1, Plaintiff 2, and any Sworn of Affirmed affidavits that those parties or their legal representatives submit to the courts, I reject the notion that this ought to disqualify any of the fictitious statements made as part of this fictitious claim & reject the notion that the correct entities, companies, persons, parties, trusts are not liable for damages due to the above mentioned errors or mistakes in paperwork. 

11. I submit to the court that should any formalities such as paperwork & forms that ought to be submitted as part of disputing this fictitious claim are missed by me but are mentioned in the affirmed affidavits submitted to the court, they are to be treated as if they were submitted with all the paperwork correctly done & not be disadvantaged for being a selfrepresented man, speaking and appearing for the fictional entity named as Defendant. 

12. I reserve the right for claim for damages against myself & the trust of the fictional name listed on the proceedings that I am the beneficiary of SANDI MATIC trust and/or Estate, MATIC, SANDI without through any requirement to file new court proceedings & claims to correct the abovementioned errors & mistakes made during any of the submissions by Fictitious Plaintiff 1 & Fictitious Plaintiff 2 during their Fictitious claim. 

13. I reject and & all punitive benefits.

[59] In fairness to Mr Matic, I have endeavoured to examine his affidavit carefully in order to understand its content. As it happens, I am not unfamiliar with prolix and arcane texts, even the obscure, the esoteric or the mystical. However, I have not been able to distil a rational or coherent thread in Mr Matic's words that may assist the court in determining the issues before it, including the issue of whether Mr Matic was intending to enter an appearance or otherwise submit to the court's jurisdiction.

Human Rights at Sea

'Geneva Declaration on Human Rights at Sea: An Endeavour to Connect Law of the Sea and International Human Rights Law' by Natalie Klein in (2022) 53(2)-(3) Ocean Development and International Law (forthcoming) comments 

The Geneva Declaration on Human Rights at Sea was officially launched on 1 March 2022. The document was produced by the non-governmental organization, Human Rights at Sea, and responds to an undoubted need to prevent human rights violations at sea and to provide redress to victims of such abuses. Connecting the international human rights regime with the law of the sea has been one of many challenges to respond to this issue. This article explores the content of the Geneva Declaration and its alignment with existing law of the sea. Beyond the jurisdictional complexities presented, it is important to consider how this informal instrument holds relevance for international lawmaking. While there are obstacles, the Geneva Declaration creates a needed opportunity to bring attention to and clarity around the legal protections of human rights at sea. 

 Klein argues 

It is estimated that 30 million people are present in the ocean every day. The range of activities undertaken is varied, as is the allocation of responsibilities for the conduct of those activities. Rather than a vast, blue, limitless expanse, the oceans are divided into a series of zones wherein States have different rights and responsibilities in relation to the people who are present in those zones. Yet the immensity of ocean space has allowed States to neglect the rights owed to certain individuals. People at sea may be victims of sexual assault, indentured in modern forms of slavery, fleeing persecution in unseaworthy vessels and yet face limited opportunities to assert their rights or to seek remedies for violations of those rights. 

Part of the reason for the lack of protection of human rights at sea is an apparent disconnect between human rights law and the law of the sea. Human rights law has traditionally focused on land-based activities where there is relative clarity as to which State has responsibility to uphold human rights. Moreover, human rights violations on land have usually been easier to detect and expose, and mechanisms are more likely to exist to seek redress for those violations. At sea, the responsibilities of a coastal State diminish across the maritime space extending away from it, and obligations at sea are possibly shared among more than one State depending on the activity and location of any vessel. These jurisdictional complexities have hindered a ready application and enforcement of human rights law at sea. The law of the sea has rarely gone beyond exhortations that ‘considerations of humanity’ apply. However, increasing awareness of the risk and reality of human rights violations at sea has been prompting greater efforts to read these areas of law together. 

The Geneva Declaration on Human Rights at Sea (Geneva Declaration) is the latest endeavour to affirm the applicability of human rights at sea and to provide greater clarity as to when States are responsible for upholding human rights and remedying their violation. It was drafted and launched under the auspices of the non-governmental organisation (NGO) Human Rights at Sea. This informal instrument is thus an NGO-led initiative and potentially aligns with other law-making efforts of civil society actors that have led to the adoption of a treaty. A short overview of the Geneva Declaration is set out in Section 2. 

The Geneva Declaration prompts a series of questions as to how it connects international human rights law with the law of the sea. The main lines of enquiry explored in the study below consider, in Section 3, how the Geneva Declaration allocates responsibilities to States to uphold human rights in different maritime zones and the ways it aligns (or not) with existing jurisprudence on human rights responsibilities. Section 4 addresses the interaction of the Geneva Declaration with the existing law of the sea as a possible source of international law, and in the context of international law-making. While the journey ahead is not without challenges, the Geneva Declaration has the potential to bring attention to, and clarity around, the legal protection of human rights at sea.

Access

'Accessing Documents of Former Ministers - Plugging the Accountability Gap' by Daniel Casey in (2022 33 Public Law Review 91 comments 

In the wake of Hocking v Director-General of the National Archives of Australia (Hocking) and ongoing debates around integrity commissions, there has been renewed attention on access to information, accountability and transparency. One of those ongoing controversies has been around whether the official papers of a former Minister should be accessible under the Freedom of Information Act 1982 (Cth) (FOI Act). The arguments in favour of transparency are many, and are often considered fundamental to an operational democracy. This comment does not revisit these normative arguments, which are clearly set out elsewhere. Instead, it seeks to demonstrate that a purposive interpretation of the FOI Act is available and would allow these documents to be accessible under the FOI Act, once they have been placed in the National Archives of Australia (NAA). 

Currently, the interpretation of s 4 of the FOI Act is that once a Minister leaves office, a document that was in her possession, but is not any more, is no longer an "official document of a Minister or official document of the Minister" and therefore is not covered by the FOI Act. The Grata Fund, a non-profit strategic litigator, has released a detailed analysis of the shortcomings of the FOI Act stated that this appears to "lead … to the absurd consequence that a Minister can escape scrutiny simply by resigning or being shuffled around to a new position" and creates a "significant gap" in accountability, with resultant calls for legislative change. However, these proponents have not explored other avenues for accessing some of these documents. 

In most instances, these documents are transferred to the NAA, which normally rejects FOI applications under s 13 of the FOI Act, which excludes "documents in certain institutions" from the FOI Act. This note will demonstrate that this rejection, based on a literal reading of the Act, ignores the clear parliamentary intention to only cover personal or private papers, rather than official government records. This purposive-driven reading of s 13, which has not yet been substantively considered by either the Administrative Appeals Tribunal (AAT) or the courts, would ensure that a document's accessibility under the FOI Act is based on the substance of the document, rather than the political status of the Minister.

Regulation

'An Impossible Task? Australian Food Law and the Challenge of Novel Meat Analogues' by Hope Johnson and Christine Parker in (2022) Federal Law Review comments 

This paper asks what the regulatory assessment of the novel processed meat analogue products reveals about the nature of food regulation in Australia. We analyse Food Standards Australia and New Zealand’s (FSANZ) assessment of the recent application by Californian technology company Impossible Foods Inc to sell its proprietary burger products which contain a genetically modified protein that is said to make their burger ‘bleed’. We show that FSANZ’s assessment process has little capacity to engage with broader and longer term, social, ecological and public health implications of novel foods and changing food markets. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as whole and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. Extending the capacity of Australia’s regulatory regime for food to deal with more than the safety of individual ingredients will become more urgent as other novel foods, such as cell-based meats, enter the marketplace. 

The authors state

 Impossible Foods Inc (‘Impossible’), a Californian-based tech start-up that develops, manufactures and markets novel meat analogues, describes its mission as: ‘To drastically reduce humanity’s destructive impact on the global environment by completely replacing the use of animals as food production technology’.  Its signature product is its ‘bleeding’ plant-based burger, the ‘Impossible Burger’ available at major supermarkets and restaurants throughout the US, Hong Kong and Singapore. In July 2019, Impossible applied to the statutory authority Food Standards Australia New Zealand (‘FSANZ’) for approval to sell its products in Australia and New Zealand (‘the Impossible application’). Eighteen months later, after two calls for submissions and a notably ‘high volume of stakeholder interest in broader issues relating to the applicant’s Impossible meat analogue products’, FSANZ recommended that the product be approved. 

This paper shows that FSANZ’s assessment process for novel food pre-market regulatory approval has a narrow scope of considerations that defines out many concerns of stakeholders, and the most pressing social, ecological and justice issues facing the food system. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as a whole. It leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. 

Under Australian and New Zealand food law, Impossible needed to apply for approval to sell its meat analogue products because they contain a novel protein ingredient, soy leghemglobin, naturally present in the root nodules of soy plants and now mass produced by Impossible using genetically modified yeast. According to Impossible, soy leghemglobin mimics the molecules in animal flesh that are ‘what makes meat taste so meaty’. As we shall show, Impossible, and other novel meat analogue developers and proponents, claim that their novel meat analogue products will disrupt the food system for the better by replacing animal-derived meat with foods that are more healthy, sustainable and ethical. These claims have gained significant traction due to the increasing institutional and academic support for interventions that enable more healthy and environmentally sustainable diets, as well as growing awareness regarding ethical issues with intensive animal agriculture. 

The claim that novel meat analogues will positively disrupt the food system has sparked debates in a multitude of jurisdictions, especially in the US, the EU and now Australia and New Zealand. Public health advocates, proponents of alternative, including agro-ecological, food systems and the meat industry have all contested the idea that novel meat analogues represent a positive future for food. Their various criticisms of novel meat analogues include that the novel analogue products are unhealthy, unwholesome and inferior compared to either animal-derived flesh, or whole food vegetarian products (such as vegetables and legumes), the way the novel products use food processing technology (including GM) and the fact that they are promoted by corporate interests (Silicon Valley tech companies, fast food retailers, supermarkets and even in some cases meat companies wishing to diversify their portfolio). These critiques extend to whether novel meat analogues should replace meat derived from animals including whether novel meat analogues can bring about healthier diets and make the food system more ethical and ecologically sustainable. 

The promise of a better food claimed by proponents of novel meat analogues, and the contestation of these claims, raise urgent public interest issues for the food system which deserve serious legal and policy attention. The debate extends beyond novel meat analogues as a new food category raising questions about how to address the interlinked social, environmental and ethical issues associated with food systems and the role of regulation in addressing these challenges. As a slew of new meat analogues, including new products based on cultured animal cells, are developed, the Impossible application can be seen as a ‘test case’ as to how FSANZ’s pre-market regulatory assessment system addresses these policy issues. 

Part II introduces and explains what we mean by ‘novel meat analogues’ and ‘novel proteins’. We show how novel meat analogue products, and their novel protein ingredients, are contested in public discourse around the world, and specifically within Australia, and the kinds of issues to which regulators are being called on to respond. In doing so, we draw on academic literature and our own thematic analysis of submissions to FSANZ’s assessment of the Impossible application. 

Part III analyses the relevant provisions of the Food Standards Australia New Zealand Act 1991 (Cth) (‘FSANZ Act’), the Australia New Zealand Food Standards Code (‘the Code’) and FSANZ’s assessment of the Impossible application to demonstrate the narrow scope and application of Australian pre-market regulatory assessment for novel foods. We show that the process is geared towards a narrow scientific risk assessment of the acute, direct safety and toxicity of individual novel ingredients and processes. This process is inadequate to address the policy concerns raised in public discourse over novel meat analogues in general and Impossible’s application in particular. In practice, the assessment process over-values economic interests and consumer choice and only deals with health and safety issues that are amenable to direct, biomedical measurement. FSANZ’s focus on particular issues and evidence, and to disengage from other social and ethical issues and evidentiary bases, seems neutral and apolitical, but has important political and policy ramifications. These debates are already spilling over into debates over how novel meat analogue products should legally be allowed to be described (for example through petitions to prohibit the use of terms such as ‘burgers’, ‘sausages’ and ‘plant-based meat’), and feed into ongoing concern about what FSANZ could be doing to limit the consumption of other processed foods. 

Part IV of the paper concludes that Australia’s food law and policy provides little opportunity to assess and debate the impact of novel food products (eg the Impossible burger as distinct from the novel ingredient, soy leghemoglobin) and whole categories of food (such as novel meat analogues and ultra-processed foods) including their combined effects on the diet of the population. It also provides very limited avenues for assessing the social, economic, ethical and environmental impacts of novel food ingredients, products and categories on the food system as a whole. The current regulatory approach leaves it to the market and consumer choice to determine the future of the food system, rather than providing for public democratic policy fora in which to discuss and debate larger questions of the desirable qualities and trajectory of food systems and technological change.