Penelope Pether on Australian Law and Literature

Penelope Pether, Villanova University School of Law, has published "The Prose and the Passion," as 66(3) On Crime and the Law of 2007. It is also Villanova/Public Policy Research Paper 07-20. Here is the abstract.

This essay takes the late Robert Cover's insight that “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and thus that “For every constitution there is an epic” as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and “outsiders,” as between constitutional subjects and texts. Ranging from “legal faction” texts Evil Angels (about the “Dingo Baby” case) and Dark Victory (about the Tampa incident) and The Castle, Rob Sitch's filmic satire on the Australian takings clause and the landmark Native Title Decision Mabo v. Queensland, No 2, to the recent High Court cases Al Kateb, Behrooz, Re Woolley, and Ruhan, it offers a critical account of recent Australian constitutional jurisprudence regarding asylum seekers and “sexually violent predators.” The essay argues that this recent High Court jurisprudence offers a radically circumscribed reading of Chapter III judicial power (analogous to Article III judicial power in the U.S. Constitutional context), and offers comparative constitutional law perspectives on problems in U.S. Constitutional hermeneutics.

Download the paper from SSRN here.