Legal Research

About Legal Research

Students in their final year undertake the capstone subject Legal Research (LAWS50039). This subject involves studying one of the available legal research topics, which differ each year. As each topic has a quota, students must apply, and be approved, to enter a topic.

Prerequisites

Legal Research is open to self-enrolment if the prerequisite requirements have been met (as per the subject handbook entry).

Students who intend to enrol into Legal Research (but do not meet prerequisites) are not required to submit a prerequisite waiver form: the Academic Support Office (ASO) will assess the need for prerequisites at the time of selection for the nominated topic.

Some topics may have additional prerequisites or recommended prior knowledge within the topic description.

Enrolling in Legal Research for 2024

Legal Research is available for enrolment for those students who meet the prerequisites. Late Legal Research topic applications will open Monday 5 February and close Thursday 25 July 2024.

All Late Legal Research topic applications are managed on a first-in basis. The ASO will process late applications once per week and assist students with amending their enrolment and allocations. Outcomes will be provided to students via email.

Waitlists are not maintained for Legal Research topics, and topic quotas cannot be exceeded.

Topic name Study period Space available
Artificial Intelligence, Law and Society 45359 Semester 1 No
Australian Corporate and Consumer Finance Law: Selected Aspects and Recent Developments 45359 Semester 1 No
Commercial Arbitration 45359 Semester 1 No
Concussion in Sport: Regulation, Litigation and the Public Interest 45359 Semester 1 No
Feminist Jurisprudence 45359 Semester 1 No
History and the Constitution 45359 Semester 1 No
Human Rights and Climate Change 45359 Semester 1 No
Legal Storytelling 45359 Semester 1 No
Renewable Energy Law and Policy 45359 Semester 1 No
The Idea of Equity 45359 Semester 1 No
Australian Private Investment Fund Law 45513 Semester 2 Yes
Comparative Constitutional Law 45513 Semester 2 No
Corporate Governance and Directors’ Duties 45513 Semester 2 No
Damages and the Law of Torts 45513 Semester 2 Yes
Global Trade and Foreign Investment: Contestation and Reform 45513 Semester 2 Yes
Human Rights: What, How and Why to Protect 45513 Semester 2 No
Legal Pluralism and International Law 45513 Semester 2 No
Legal Responses to Difference: Toleration, Secularism, Recognition, Multiculturalism, Self-government, Fraternity 45513 Semester 2 No
Researching with Institutions of Treaty, Truth and Justice 45513 Semester 2 Yes
Tax Advocacy and Reform 45513 Semester 2 No
The Process of Proof 45513 Semester 2 No
Trends in Climate Litigation 45513 Semester 2 No

Submit a late application for a Legal Research topic

2024 Legal Research topics

Each topic is limited to 17 students unless specified otherwise.

Semester 1 topics

  • Artificial Intelligence, Law and Society
    (Professor Jane Kaye)

    The digital economy increasingly relies on the application of new types of big data analytics, machine learning and Artificial Intelligence (AI) to provide more targeted and sophisticated services and products. The scale and the application of these approaches to most sectors in society are having a huge impact on all aspects of our everyday lives. They have been used to track the trajectory of the COVID -19 virus to improve vaccine delivery; to identify seasonal demands in food production to improve supply chains; to enable predictions about legal outcomes; to better target online advertising and to facilitate consumers engagement with chatbots. There are also cases where the use of this technology has been detrimental, such as the ‘Robodebt’ scandal where an automated debt recovery programme initiated by the Federal government unlawfully claimed almost $2 billion in payments from welfare benefit recipients.

    Australia’s law and regulatory systems are currently under review to identify if they are fit for purpose. In addition, there are a number of legislative changes to existing law and new case law is being developed by the courts. Careful analysis is required to understand how existing and new laws may shape the adoption and implementation of these analytical tools, particularly in the areas relating to privacy and data protection, consumer law, corporate law, finance, competition and anti-discrimination law.

    In this topic we will explore the complexity of legal issues associated with the use of AI which we will use as an umbrella term for the various big data analytics, machine learning and Artificial Intelligence (AI) technologies. This course will enable you to develop a deeper understanding of the law and the issues touched upon in other courses in your degree. You will develop your ability to undertake independent legal research by learning to identify research questions, presenting your research topic and writing up your research findings.

  • Australian Corporate and Consumer Finance Law: Selected Aspects and Recent Developments
    (Associate Professor Paul Ali)

    Australian companies and consumers routinely make use of credit to finance their business activities and purchases of homes and household items respectively. These credit arrangements can take a wide variety of legal forms, ranging from tiny so-called "payday loans" taken out by consumers to huge multi-lender loans to companies.

    This topic will provide an opportunity for students to engage with selected aspects of contemporary finance transactions and recent legal developments relating to corporate and consumer finance. Students will be able to undertake a substantial research paper on topics such as the Personal Property Securities Act 2009 (Cth) (which regulates mortgages, charges and other security interests over personal property, and thus plays a crucial role in secured lending), different types of commercial entities (including new purposed-based companies), potentially harmful consumer financial products (including payday loans and buy-now-pay later), and securitisation (which is an important - and controversial - alternative to conventional fund-raising by companies, in particular banks and other lenders).

  • Commercial Arbitration
    (Professor Richard Garnett)

    Commercial arbitration is now the major method for resolving cross-border commercial disputes.  Unlike litigation, arbitration is a private and confidential form of dispute resolution in which parties choose their adjudicators and procedural rules.  This stream examines the nature and key principles of arbitration law, including the major instruments such as the 1958 New York Convention and the 1985 UNCITRAL Model Law.  The topics to be covered include the nature of arbitration, advantages/disadvantages, applicable law, enforcing arbitration agreements, challenging arbitrators and enforcing arbitral awards.  A wealth of literature and related material exists in the field of commercial arbitration that students will be able to explore in the preparation of their research papers.

  • Concussion in Sport: Regulation, Litigation and the Public Interest
    (Associate Professor Jonathan Liberman)

    As community understanding and concern about the potential serious long-term health impacts of concussion, and of repeated sub-concussive head knocks, grow, sporting bodies in Australia and internationally are having to address a range of difficult questions that go to the heart of how a number of our most popular (and lucrative) sports are played. To what extent should rules be modified to reduce risk to players? What policies and protocols should be implemented to protect the health and wellbeing of those who suffer head knocks during games or in training? How much weight should be given to community enjoyment of ‘contact sports’, and to calls to maintain, across different sports, the ‘fabric of the game’? And who is best placed to make these kinds of decisions – sporting bodies; players’ associations; legislatures; regulators; courts; or some combination of these?

    While it is hoped that major sporting bodies have begun to take head knocks seriously out of concern for the long-term health and wellbeing of participants, there is little doubt that litigation, and the fear of legal liability more broadly, are sharply concentrating sporting administrators’ minds. For example, current and recent legal proceedings in Victoria relating to head knocks in Australian Rules Football, including personal injury litigation (both individual and class actions) and coronial inquests, are focusing attention on the knowledge and conduct of sporting bodies, sporting clubs and medical professionals, and exposing the Australian Football League and other actors to the risk of damaging findings and substantial compensation payouts.

    This research stream offers students the opportunity to explore a range of complex legal issues in this field – across different sports; across different levels of sport (eg elite, lower-level professional, amateur, junior, school); across nationally and internationally regulated sports; or across different substantive areas of law or different kinds of legal proceedings. This is a rapidly evolving landscape, offering students the opportunity to engage with, and potentially contribute to, important current and future developments.

  • Feminist Jurisprudence
    (Professor Ann Genovese)

    Since the 1980s feminist scholars, across jurisdictions, have challenged the content and operation of laws that deny all people equality of status and protection. Importantly, they also disrupted the claim that equality before the law was an unequivocal certainty, and through their work instantiated a challenge to legal knowledge itself. In Feminist Jurisprudence, we will investigate and trace some of these diverse resources and sources of feminist thought.

    The seminar component of the topic will take the form of a reading group. We will engage in close contextual interpretation and conversation about ground-breaking texts, to explore what methods the authors initiated for critique and challenge to legal thought and action. The objective is to reinvigorate research around contemporary legal questions and problems that draw from these resources. Indicative texts for the reading group in 2022 are: Carol Smart Feminism and the Power of Law (1989); Kimberlé Crenshaw ‘Demarginalizing the Intersection of Race and Sex’ (1989); Margaret Thornton The Liberal Promise: Anti-Discrimination Legislation in Australia (1990); Judith Butler Gender Trouble: Feminism and the Subversion of identity(1990); Moira Gatens Imaginary Bodies: Ethics, Power, and Corporeality (1996); Janet Halley Split Decisions How and Why to Take a Break From Feminism (2006); Aileen Moreton-Robinson ‘Towards an Australian Indigenous Women’s Standpoint Theory: A Methodological Tool’ (2014). For their projects, students will be invited to think with one of the discussed texts to interrogate a current jurisprudential or legal problem of their choice (for example, in the areas of reproductive rights; sexual harassment and #MeToo; family law and family violence; discrimination law; employment law; status of persons before the law; although students are encouraged to apply the techniques discussed in the class to any area of law).

  • History and the Constitution
    (Associate Professor Will Partlett)

    This topic will explore the role that history plays in constitutional adjudication or scholarship. It will consider the methods of professionals historians and discuss when they are relevant to these types of constitutional questions. As part of this topic, students can explore any constitutional question - from doctrinal to theoretical - from the perspective of history.

  • Human Rights and Climate Change
    (Professor John Tobin)

    In 2023 the United Nations General Assembly requested an Advisory Opinion from the International Court of Justice on the legal obligations of states under international law with respect to the impacts of climate change. This request is consistent with a surge in litigation at the international, regional and domestic levels concerning the impact of climate change on human rights. For example, in the case of Billy V Australia, in a world first the Human Rights Committee held Australia accountable for the impacts of climate change on the lives of Torres Strait Islanders and in 2023 the Committee on the Rights of the Child issued an expansive general comment on climate change and children’s rights. We also now have a Special Rapporteur on Human Rights and Climate Change and the UN General Assembly and Human Rights Council have both issued declarations in support of the right to a healthy environment.

    As the world struggles to tackle the challenges posed by climate change and our political leaders fail to take decisive action, advocates are increasingly turning to the courts and the language of rights to hold states accountable. In this research stream, we will examine the nature and scope of these litigation initiatives and the role and place of human rights as a language and set of standards to arrest the increasing harm caused to the environment by anthropocentric acts and omissions. Our gaze will be wide ranging from the advisory opinion of the International Court of Justice in the Hague to local efforts within Australia to bring out change.

  • Legal Storytelling
    (Associate Professor Lisa Sarmas)

    People have been telling stories for millennia. Storytelling is a powerful means of communicating meaning, of persuading and entertaining an audience, of creating empathy as well as division and of interpreting and making history. It is also a means of both challenging and reinforcing power.

    Storytelling also plays this role in law. As legal scholar Kim Lane Scheppele once remarked, ‘To make sense of law and to organize experience, people often tell stories. And these stories are telling.’ (Kim Lane Scheppele, ‘Foreword: Telling Stories’ (1989) 87 Michigan Law Review 2073, 2075). Legal storytelling includes ‘factual stories’, or the ‘facts’ of the case; ‘doctrinal stories’, for example narratives about ‘the elements of the resulting trust’; and ‘law reform stories’, for example, the process of achieving marriage equality in Australia. Legal storytelling also includes ‘higher level’ stories – ‘stock stories’ or dominant narratives that frame, inform and influence these specific legal stories (for example, settler law narratives of property and sovereignty, and narratives about gender, race, class and disability).

    In this topic you will explore the genre of legal thought known as ‘Legal Storytelling’ and utilise its methods and insights to produce a research paper on a case study of your choice. For an example of writing within this genre see Lisa Sarmas, ‘Storytelling and the Law: A Case Study of Louth v Diprose’ (1994) 19(3) Melbourne University Law Review 701.

  • Renewable Energy Law and Policy
    (Dr Brad Jessup)

    Australia’s energy transition is in full swing: with climate commitments only realisable with the construction of and continued support for renewable energy across scales and landscapes. We are at a moment of time in that energy transition when it has become apparent that law and policy do not function independently of each other; rather they must be self-supporting and coherent. For example, a policy of just transitions needs to be translated into law if it is to have legitimacy; meeting renewable energy targets has caused states to legislate the recreation of state-owned energy enterprises, and legal changes supporting infrastructure development will be frustrated without policies supporting wary communities who host that infrastructure.

    This research stream will explore two decades of policy and legal changes around renewable energy – from early approaches to targets, subsidies for household solar, and wind farm consent laws to current and evolving frameworks around renewable energy zones, offshore wind, and transmission infrastructure. It will invite students to conduct their own research on renewable energy infrastructure and the interconnected laws and policies that either support or curtail the development of renewable energy. Students will consider the intended and unintended effects of those laws and policies – both of reducing carbon emissions and of causing other impacts on communities, the environment and landscape.

  • The Idea of Equity
    (Professor Matthew Harding, The Hon Justice Stephen Kós KNZM KC and The Hon Joseph Santamaria KC)

    Equity plays a distinctive role in the common law. The law expresses norms that focus on external conduct and are absolute in their application. The only exceptions are those that are themselves provided for at law. The principles of equity, which began to develop in Chancery in the late 15th century, mitigate the absolute impact of the law. In establishing those principles, the Chancellors explored the concept of conscience, something internal. Equity restrained the pursuit of legal remedies where the insistence upon legal rights was considered to be ‘against conscience’. It also closely regulated certain essential relationships in which one party to the relationship was peculiarly vulnerable to exploitation by the other. Although equitable principles have become established, their application depends upon a finding that a party has behaved unconscionably. More recently, the law has itself begun to adopt equitable principles as Parliament has expressed legal norms in terms previously deployed solely in equity, for example where it has proscribed conduct said to be ‘unconscionable’.

    This research topic offers participants the opportunity to reflect upon equity and its relationship to the law. That reflection may generate research papers that explore the origins and development of equity, its peculiar features, how and why it has come to regulate certain relationships, the rationale behind its maxims, the meaning of its touchstone ‘against conscience’ and the relatively modern development in which equitable principles are used in statute.

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?