LIRC 2018: Visiting PhD Scholar Presentations


9:30am – 12:15pm, 4 December 2018 LHA Research Hub (Building 19, Room 2072) University of Wollongong

Proudly supported and hosted by LIRC, the ‘Visiting Scholar’ program provides an opportunity to bring exceptional PhD students to UOW to disseminate their research. This year, three PhD students have been selected to present.

9:30am-10:20am – Aileen Kennedy (University of Technology Sydney), Thesis Title: ‘Regulating the Body of the Cerebral Subject’


Aileen Kennedy is a legal academic at the School of Law, University of New England, Armidale. Her research is in the area of health law, with particular emphasis on the law relating to the body and body modifications. She is interested in examining law and medicine’s contribution to how sex and gender are constructed and regulated. She is committed to supporting human rights for intersex people, in the face of ongoing medicalisation and unnecessary medical interventions. One focus of her research is on legal and ethical issues relating to biotechnological innovation such as assisted reproductive technology, genetics and neuroscience. She is interested in feminist theory, particularly theories of embodiment. Aileen is currently undertaking a PhD in law at UTS, Sydney. Her thesis looks at the influence of neuroscience in regulating sex and gender medical interventions on children.


My thesis is shaped around a central question of how the shift to a neurological approach to sexed identity will impact on the legal regulation of body-shaping medical treatment. This question is explored by examining the approach in law and medicine to medical procedures performed on minors to transform their body to align to a sex or gender.

The aim of the thesis is to shed light on a particular facet of judicial, legal and medical regulation of sex and gender. The core thesis is that the concept of brain sex has signalled and/or produced a significant shift in how both medicine and law understand transgender identities and needs. For transgender minors, gender identity is constructed as innate, fixed, rigid and utterly resistant to change because it is grounded in neurobiology. By contrast, the concept of brain sex has remained largely buried in discourse on intersex minors. Gender identity is constructed as simultaneously resilient and fragile. The discourses assume that gender identity can be undermined, ruined or eroded by inappropriate physical or psychological influences, justifying the need for urgent medical intervention to cure ambiguity and uncertainty.

Presentation Title: Sexing the body of the cerebral subject

My thesis explores the extent to which the shift to a neurological (or ‘brain-based’) understanding of personhood is permeating legal and medical regulation of sex and gender. This question is explored through the lens of legal regulation of medicine performed on children to shape their bodies to express a particular sex or gender. Until last year, transgender children were unable to access medicine to shape their bodies to correlate with their gender identity unless they obtained approval of the Family Court. Although that changed for most minors in 2017 with Re Kelvin, treatment for some children still requires court authorisation. My thesis explores the court’s developing understanding of gender identity development. I argue that the cases on children with gender dysphoria reflect and embed an understanding of gender identity development as neurobiological in origin, which is seen as innate and inexorable.

By contrast the legal cases authorising medical interventions on intersex children, aimed at ‘normalising’ the sexed appearance of their ‘ambiguous’ bodies, reflect a confused and contradictory understanding of gender identity development. In these cases, gender is sometimes conceptualised as fixed, innate and inexorable and sometimes as fragile, changeable and unstable. Often both conceptions are expressed in a single case – sometimes in a single paragraph.

In this presentation I will speculate that the different treatment of intersex children reflects an instrumental approach whereby medical interventions are justified by reference to whatever arguments are convenient or plausible rather than a genuine concern for likely gender identity development.


10:20-11:10 – Sean Mulcahy (Monash University, and the University of Warwick), Thesis title: ‘Law as performance: Towards a performative jurisprudence’


Sean graduated with a Bachelor of Performing Arts (Hons) and Bachelor of Laws (Hons) from Monash University and is currently undertaking a joint PhD on law and theatre at Monash University and the University of Warwick.

His research interest is in law as performance. More specifically, his work examines the particular elements of legal performance – set, script, audience, sight and sound – across different international settings.

Sean also works as a freelance actor, director and theatre producer. He has performed in the Midsumma, Melbourne Fringe and Adelaide Fringe Festivals and at the Malthouse Theatre, Arts Centre and La Mama. He is a proud member of the Media, Entertainment and Arts Alliance.


My PhD project considers how the practices of law are affected by performance, which is usually thought of as being outside the realm of law. Drawing upon theatre scholarship, my project explores legal texts alongside the other performative dimensions of law: set, dress, voice, audience and digital dimensions. My project utilises performance studies methodologies commonly applied to theatre in order to undertake this inquiry.

I look beyond typical legal approaches to understand better the ways in which the (performance of) law is perceived by and affects outside audiences. In doing so, my project seeks to expose the gaps and limitations inherent in conventional accounts of the law, including critical legal accounts. My research, which includes elements of performance as research, is a unique integration of the theoretical with the practical, and conventional legal research approaches with techniques derived from theatre and performance studies.

Presentation Title: Singing the Law: The Musicality of Legal Performance

What would the law sound like if it was sung?

At the turn of this century, Balkin and Levinson (1999) reconceptualised law as a performing art. Whilst scholars have explored the relation between music and law (Ramshaw 2013), focus on the acoustic dimension of law is relatively new. Taking as my starting point James Parker’s Acoustic Jurisprudence (2015), I seek to explore the musicality of law in both legal and parliamentary settings.

The use of the term ‘legal performance’ (Rogers 2008) bewrays my interdisciplinary approach, bringing my background in theatre to bear on the performance of law. Exploring music within legal performance and musical remixes of legal transcripts, I argue that there is a latent musicality to legal speech and that the musical rhythm of the law attunes the listener to the legal performance (Dawson 2014).

The paper will feature samplings of music in and inspired by legal performance to examine the notion of latent musicality within legal speech and the idea that legal speech works best when it appeals to its audience in the way that music appeals to its audience in terms of rhythm, modulation, pitch, etc.


11:25-12:15 – Tobias Smith (University of California, Berkley), Thesis Title: ‘The Contradictions of Chinese Capital Punishment’


I am now a PhD candidate at the University of California, Berkeley. I also hold a law degree from the University of California, Berkeley. I study the conditions under which punishment is restrained or diverted under various penal regimes. My dissertation, The Contradiction of Chinese Capital Punishment, focuses on the case of death penalty reform. My current research combines two threads in my biography. The first thread is a life-long engagement with China. I initially visited China in 2000 and have resided there for a total of about five years on and off since then. The second thread is an abiding concern with the US turn towards mass incarceration. I have worked for a variety of organizations monitoring US prison conditions and advocating for the welfare of incarcerated people in the US and China. My work has been published in Punishment & Society.


My dissertation, The Contradictions of Chinese Capital Punishment, is a mixed-method study of death penalty reform that explains why an otherwise punitive regime has curtailed the use of capital punishment. China remains far and away the world’s leading executioner state. Yet over the last decade China has also become the world’s leader in reducing executions. Even as Chinese politics has taken a more authoritarian turn, the state has supported the judiciary in instituting a process of death penalty review that has drastically diminished capital sentences. Why has an increasingly illiberal government endorsed courts in reducing punishment? My research demonstrates that rather than promoting judicial independence or due process, death penalty reform in China instead increases central supervision of lower court activity. As the central government struggles to control local administrators, the state’s focus in enacting reform is not defendants, but the state’s own agents. My dissertation is based on 18 months of fieldwork in four provinces across China. I draw on primary Chinese-language sources and court records. I also use an original data set of more than 70 semi-structured interviews I personally conducted in Chinese with a variety of stakeholders, including 43 lawyers who have handled capital cases.

Presentation Title: Partial Disclosure: Secrecy and Transparency in Chinese Death Penalty Decisions

For decades China has reputedly executed more people every year than any other nation on earth. The exact figure, however, is a closely guarded state secret. Beginning in 2007 China’s Supreme People’s Court overhauled the country’s death penalty procedure. How do we assess the impact of this reform?  Previous scholarship has suggested that the annual rate of execution—which remains unknown—would provide an indication of the reform’s success. On this view, the number is a dependent variable measuring the reform’s impact. This paper takes a different approach. I consider the fact of secrecy around the death penalty as an influence on death penalty reform. On this view, secrecy is an independent variable. I ask: what are the effects of secrecy on death penalty reform? I draw on over 70 interviews I conducted with legal personnel in China to show how national secrecy concerning annual executions shapes reforms in three areas of death penalty law and policy: case transparency, legal representation and due process. My findings provide new insights into the process of legal reform in authoritarian regimes and show how restrictions on quantification metrics can impact courts.

Attendance is free, and catering will be provided. Please register your attendance at the below website: HTTPS://WWW.SURVEYMONKEY.COM/R/WJN7C6X













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