Legal Research

Semester 2 topics

• Australian Private Investment Fund Law
  (Associate Professor Paul Ali)

  Australian private investment funds encompass a very broad range of collective or pooled investment arrangements, where hundreds, thousands or even millions of investors contribute money to a fund, in exchange for an interest in the fund, and the fund invests their pooled contributions in a variety of investment assets, typically, shares, bonds or interests in other funds. These private investment funds include cash management accounts (a popular alternative to traditional bank savings and transaction accounts), hedge funds (which offer the prospect of out-sized financial returns in exchange for taking on greater risks), REITs (real estate investment trusts that own commercial property), superannuation funds (which manage retirement savings) and unit trusts (which invest in Australian and international shares and other securities).

  This topic will provide students with the opportunity to undertake a substantial research paper on topics such as the Australian regulatory framework for private investment funds (including the new corporate collective investment vehicles), the legal responsibilities of trustees, fund managers and other participants in private investment funds, “alternative” investment funds (including hedge funds and crypto funds), and ethical/green/socially-conscious investment funds.

• Comparative Constitutional Law
  (Associate Professor Scott Stephenson)

  In this topic, students will be required to research and write a paper on an issue of comparative constitutional law. The field of comparative constitutional law seeks to improve our understanding of constitutions by studying them through a comparative lens. Comparison can be used to shed light on an issue of domestic constitutional law (e.g. Should Australia adopt a bill of rights in light of the experience with a bill of rights in Canada and the United States? Should the United Kingdom follow the rest of the world and adopt a written/codified constitution?). It can also be used to shed light on a general issue of constitutional law that arises in multiple countries (eg What role has the judiciary played in the legalisation of same-sex marriage in common law countries? Which federal system most appropriately managed the need for both local and national responses to COVID-19?).

  In the seminars, we will consider three key questions. First, what is comparative constitutional law and why do we do it? This question will evaluate some of the advantages of comparison as well as its inescapability. Second, how do we do comparative constitutional law? This question will cover some of the disadvantages of comparison — how it can go wrong by being done poorly — and some of the debates about the appropriate way of doing it. Third, what does an effective comparative constitutional law paper look like? This question will consider how to pick a topic, how to select a set of comparators and how to structure a paper.

• Corporate Governance and Directors’ Duties
  (Professor Rosemary Langford)

  Important: Corporations Law (LAWS50035) is a mandatory prerequisite for this topic.

  Corporate Governance and Directors’ Duties builds on knowledge acquired in Corporations Law (LAWS50035) in focusing on the concept of corporate governance and, in particular, in probing aspects of core directors’ duties in further detail. Topics include discussion of the concept of corporate governance and its constituent elements, the role of regulators and of corporate governance codes, the rise of shareholder activism and the application of core directors’ duties in particularly topical contexts, as well as duties applying in the context of purpose-based companies (such as charitable and other not-for-profit companies and social enterprises).

• Damages and the Law of Torts
  (Professor Eric Descheemaeker)

  At its widest, “damages” simply means a money award for a wrong: the plaintiff, having brought and succeeded in an action, gets a remedy which, in the vast majority of cases, will be a sum of money. Historically little thought was given to the basis of the award: given that the quantum would have been decided by a jury, there was no need to.

  Modern tort scholarship has had to disentangle these awards, a work that is still very much in progress. What is it that they are trying to achieve, and what should we make of these objectives? In the process scholars (and courts) have come up with a bewildering range of adjectives: damages can be “compensatory” for a harm or loss, “nominal”, “exemplary”, “punitive”, “aggravated”, “vindicatory”, “restitutionary” but also “symbolic”, “hedonic”, “contemptuous”, “actual”, “general”, “special”, “consequential”, “normative”, etc. The list is open-ended, and these labels operate on different levels. Behind them lurk further questions, which have massive practical implications besides being of considerable intellectual interest: eg if damages are compensatory, what exactly is it that they are compensating for; if vindicatory, that they are vindicating, etc?

  This topic offers students the opportunity to consider such monetary awards in much more depth than the Remedies course does. A variety of approaches are possible, for instance “top down” legal theory (eg what should damages look like if tort gave effect to, say, corrective justice?); “bottom up” theory (eg does the division drawn between “general” and “special” damages make sense?); semantics (eg what are the different things that courts might have in mind when they award damages described as “nominal”?); legal history (eg how have courts come to distinguish between aggravated and punitive damages?); comparative law (what do other common-law and/or civilian jurisdictions approach some of these issues?); legal taxonomy (eg do we engage in double-counting when we grant damages for abstract/normative losses and also damages for factual loss or emotional harm?) – or of course a combination of these. Any question that might be described as opening the lid of the damages box to examine what lies underneath would be relevant to this broad topic (while the emphasis lies in the law of torts, the stream leader is open to topics extending beyond it, eg into contract law or equity).

• Global Trade and Foreign Investment: Contestation and Reform
  (Professor Jürgen Kurtz)

  International economic law and its institutions are paradigmatic embodiments of transnational law and governance. Yet they are subject to an array of contemporary challenges and pressures. After decades of deepening levels of multilateral trade cooperation, we are now witnessing the sudden emergence of dangerous levels of unilateralism and protectionism. In the United States, the Trump Administration’s turn to destabilising tariffs in the guise of its “America First” policies have provoked swift retaliation by both strategic competitors (China) and allies (Canada and the European Union). Australia too has been the subject of unprecedented unilateral tariffs imposed by China during the COVID-19 pandemic. The World Trade Organization is increasingly unable to manage these pressures and violations, with its vaunted dispute settlement system now also rapidly approaching a dangerous possibility of stasis. International investment law is no less conflicted. Constructed against a historical contingency of state hostility to foreign investors (in the post-colonial period), bilateral and regional investment treaties have prioritised protection of foreign investment without adequate respect for the regulatory autonomy and constitutional obligations of host states. This structural imbalance was vividly illustrated by the claim for damages launched by Philip Morris against Australia on the basis that Australia’s plain packaging laws for cigarette products breached the Hong Kong – Australia Bilateral Investment Treaty. Investor-state arbitration and protection standards in investment treaties sit at the apex of state dissatisfaction, with important strategic actors like the European Union advancing judicial reform possibilities.

  In the seminars of this topic, we will explore this unsettled terrain in two key parts. First, we will examine the historical justifications, norms and goals pursued by key parts of international economic law in the post-Second World War period, especially in cross-border trade (in the form of the General Agreement on Tariffs and Trade 1947 and later the World Trade Organization 1993) and foreign investment (through bilateral investment treaties). Second, we will seek to identify the political economy factors driving contemporary state reassessment/recalibration of levels of commitment to those legal structures and institutions. Using those analytical start points, students will have a strong foundation to build a research topic in this dynamic and contested field.

• Human Rights: What, How and Why to Protect
  (Nicholas Petrie)

  Australia remains one of the only democratic countries to lack a constitutional or statutory charter of rights at the national level. At the State and Territory levels, only Victoria, Queensland and ACT have human rights charters, but courts are hamstrung in the relief they can provide under these charters in various ways. Despite the apparent lacuna of rights protection, the Australian legal framework is not impervious to personal rights infringements. There are various mechanisms to protect rights and lawyers are increasingly seeking to use novel legal claims for this reason. This course will explore whether other legal mechanisms provide a better framework for the protection of human rights. In doing so, it will consider what human rights are (and should be) protected, as well as the question of why these human rights are protected (or should be protected). These questions will be considered via theory and doctrine, from both Australia and abroad.

• Legal Pluralism and International Law
  (Professor Kirsty Gover )

  This research topic addresses the theory and practice of legal pluralism in states in which multiple cultural, ethnic, religious and Indigenous communities live together. In addition to thinking through theories of legal and cultural pluralism, including multiculturalism, we will consider the application of ideas drawn from transnational and international law, including private international law methods, treaties, shared sovereignty, devolution and self-government. Students can elect to focus on theories or on primary materials, or can design a project that encompasses both.

• Legal Responses to Difference: Toleration, Secularism, Recognition, Multiculturalism, Self-government, Fraternity
  (Professor Farrah Ahmed)

  This topic will offer you the opportunity to explore how we ought to respond to the fact of cultural, religious and other difference between citizens.

  We will explore the shortcomings of traditional liberal responses to difference and diversity (toleration and secularism) and consider whether any of the following hold promise:

  • recognition - legal recognition of the status or value of particular communities or identities
  • multiculturalism- providing exemptions, funding for arts, and other supports to enable cultural groups to thrive
  • self-government - offering groups autonomy over their own affairs within the boundaries of the state
  • fraternity - a largely forgotten ideal of developing emotional bonds and a sense of togetherness between citizens.

  This is not an exhaustive list of possible state responses to difference and students will have the opportunity to nominate further responses for us to explore as a class.

• Researching with Institutions of Treaty, Truth and Justice
  (Professor Shaun McVeigh)

  Over the last 10 years, the ways in which the Aboriginal Peoples and people of Victoria have been working with the state of Victoria has been directed towards establishing institutions of treaty and agreement making. This research elective is being set up in order to address how JD students might contribute to the 'treaty' and 'truth and justice' processes through undertaking directed research projects.

  The topics of engagement are

  1. The Yoorrook Justice Commission

  2. The First Peoples Assembly

  3. The Treaty Authority

  4. The First Peoples - State Relations (FPSR) Group, DPC, Vic Gov.

  The objective of this research elective is to think carefully about how research for Indigenous institutions is conducted; to develop skills in researching to a 'brief'; and to reflect on the particular forms of knowledge production appropriate to Indigenous-centred university research.

  The immediate co-ordinator of this research stream will be Shaun McVeigh, in close association from the Indigenous law and justice hub and collaborators.

  For JD projects, students will be invited to address concerns within one of the chosen institutions and, with assistance, work to a research brief. As with other research topcis, the format is research-based. There will be four taught classes, individual consultations, and a presentation. The research essay is 8,000 words and managed according to the general rubric of the subject.

• Tax Advocacy and Reform
  (Professor Sunita Jogarajan)

  Quota: Maximum quota of five (5) students only.

  Additional Prerequisites: Students are strongly advised to have completed Taxation Law and Policy (LAWS50046) or have undertaken taxation studies in their undergraduate degree to enrol in this topic.

  This topic will provide students with the opportunity to advocate on behalf of groups of vulnerable taxpayers (individuals and small businesses) for administrative and/or legal reform. This stream is one component of the MLS Tax Clinic but students in this stream are not required to also undertake the Tax Clinic subject.

  Students will be provided with a list of issues which affect groups of vulnerable taxpayers and will be required to complete a legal research paper in relation to one of the identified issues and propose administrative and/or legislative reform. Students may also develop their own legal research topic relating to tax reform for individuals or small business.

  Please contact Professor Sunita Jogarajan for further information.

• The Process of Proof
  (Professor Andrew Roberts)

  The aim of this topic, is to provide you with an opportunity to think in more depth about the inquiry with which the criminal trial is concerned. Put simply, we might say that its aim is to discover the truth of the events that led to the defendant being tried. But juries are frequently presented with competing claims as to what occurred, neither of which might represent the truth of the matter. An attempt to discover the truth of past events is no easy task. The evidence presented to fact-finders is likely to suffer from various deficiencies. Fact-finding will depend on inferential reasoning, that in turn relies on what is referred to as common knowledge and experience. But the knowledge, possessed by fact-finders, and the extent of their experiences, may well provide an inadequate basis for reliable fact-finding. The way in which they approach their task is likely to be influenced - often unconsciously - by their commitment to certain moral and political values. Moreover, it is now well-established the emotions that fact-finders experience when presented with evidence will affect they reason.

  The fact-finding process that we expect juries to undertake in criminal trials is a complex one. Given this it should be no surprise that there is no consensus as to what should we take the aims of the law of evidence to be. Some suggest that the primary function of the rules of evidence should be to ensure accurate outcomes; that is to say, to ensure - as far as is possible - that the factually guilty are convicted, and the factually innocent acquitted. Others take the view that the consequences of wrongful conviction are so serious that the overriding objective of the law of evidence ought to be avoiding this kind or error. Alongside these epistemic issues, are questions about the non-epistemic values that the criminal trial and the law of evidence ought embody, and the extent to which pursuit of the truth, and conviction of the factually guilty, ought to be prioritised ought to be prioritised over some of these values.

  In this topic you will be expected to engage in critical thinking about the law of evidence. This might be about its fundamental aims, or how competing objectives ought to be prioritised. You might use these ideas, or the difficulties associated with fact-finding process undertaken in the criminal trial as a starting point for critical evaluation of a particular evidential rule or issue and associated jurisprudence.

• Trends in Climate Litigation
  (Dr Cait Storr)

  Climate change litigation has risen dramatically over the last decade, both as empirical phenomenon and object of scholarly analysis. Litigation and other avenues of formal dispute resolution are increasingly viewed by complainants, activists, and NGOs as policy and governance by other means; as a tool for catalysing action to address anthropogenic climate change in the absence - perceived and/or real - of the necessary political will.

  In this topic, we will situate the phenomenon of climate change litigation within a longer history of strategic uses of law to achieve social, political and economic change. Beginning with an examination of legal mobilisation theory, we will survey recent trends in climate change litigation in Australia and globally. We will focus our discussions on the following questions: first, who is formulating, funding and bringing climate change actions, against whom, and why? Secondly, how should the 'success' or 'failure' of such actions be defined? Thirdly, what impact is climate change litigation actually having on legal, political, social and economic life? How might we know? And lastly, how might we, as students, practitioners and scholars of law, contribute strategically to the project of mobilising law to effect meaningful social, political and economic change in a context of escalating crisis?