Law Commons^™

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …

Avoiding Adversarial Adjudication, Michael T. Morley

Scholarly Publications

There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the …

The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin

Scholarly Works

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in …

Engendering 'Rural' Practice: Women’S Lived Experience Of Legal Practice In Regional, Rural And Remote Communities In Queensland, Trish Mundy

Faculty of Law, Humanities and the Arts - Papers (Archive)

The experience and marginalised status of women lawyers within the Australian legal profession has been well documented over the past two decades. However, very little is known empirically about the ways in which 'rural' space and place might transform or impact that experience, and their relationship with the retention of women in rural, regional and remote (RRR) practice. This article reports on a phenomenological study of the lived experience of female solicitors practising in RRR communities in Queensland. The study asked 23 solicitors (male and female) about their experience of life and legal practice in their communities. This article concludes …

Enforcement Cooperation In Combating Illegal And Unauthorized Fishing: An Assessment Of Contemporary Practice, Stuart Kaye

Faculty of Law, Humanities and the Arts - Papers (Archive)

The emergence of the exclusive economic zone (EEZ) in the 1970s placed potentially vast areas of the sea under national jurisdiction. Moving from relatively modest territorial seas close to the coast as the only basis of fisheries jurisdiction for States, the international community suddenly embraced a new form of jurisdiction over resources that extended fisheries up to 200 nautical miles from land. This extension brought over one third of the world's oceans, or, more importantly, approximately 90% of the world's wild fish catch, under national jurisdiction.

Explainer: How Do Australia's Laws On Hate Speech Work In Practice?, Luke Mcnamara, Katharine Gelber

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Abbott government’s intention to amend national racist hate speech law has reignited a debate that has raged in Australia for decades: is there a place for laws that condemn public conduct that is likely to cause harm or generate ill-feeling towards racial minorities?

It’s an important question, and diverse views should be ventilated.

But the grand claims made from both corners – that hate speech laws have no place in a democracy, or that they are a valuable way of protecting minorities – are rarely backed up with evidence. This is unfortunate and unnecessary. Today, more than 20 years …

Rtop’S Second Pillar: The Responsibility To Assist In Theory And Practice In Solomon Islands, Charles Hawksley, Nichole Georgeou

Faculty of Law, Humanities and the Arts - Papers (Archive)

This paper explores the implementation of a regional capacity-building program in Solomon Islands, a state that experienced significant violence and political tension between 1998 and 2003. As Bellamy notes, the July 2003 intervention of the Regional Assistance Mission to Solomon Islands (RAMSI) is a useful and relevant case study for understanding the operationalization of Pillar II of RtoP, which we have termed the “Responsibility to Assist” (RtoA).1 While RAMSI has not consciously adopted RtoP language in its operations, the rationale for the intervention included humanitarian as well as wider regional security concerns.2 The mission’s emphasis on developing the state’s capacities …

Educating Law Students For Rural And Regional Practice: Embedding Place Based Perspectives In Law Curricula, Amanda Kennedy, Trish Mundy, Jennifer Nielsen, Caroline Hart, Richard Coverdale, Reid Mortensen, Theresa Smith-Ruig, Claire Macken

Faculty of Law, Humanities and the Arts - Papers (Archive)

The attraction and retention of professionals generally in rural and regional Australia is an on-going concern. Recent attention has focused upon the recruitment of lawyers and legal professionals to rural and regional areas, where the proportion of lawyers practising has steadily declined over the past twenty years. While the precise extent of the decline is difficult to assess, and the causes of recruitment and retention issues for lawyers in rural and regional areas are nuanced and can vary from region to region, it is clear that concern about attraction and retention is a national one. A national survey conducted in …