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A properly functioning legal system can be seen as a defining characteristic of modern society. The adversary system can be seen as a defining characteristic of a common law legal system. But as times change, both the common law and the adversary system of trial have changed and will continue to change. What then are the bases of these systems? What corollaries follow from adopting a particular mode of trial? What are the challenges with which the Australian legal system must now deal in resolving disputes? How might those challenges be dealt with and are there implications for what we define as the adversary system and, more generally, the rule of law in a properly functioning legal system?
Principal topics include:
- Development of the common law
- The 20th century adversary system
- The adversary system today and its implications
- Statutes and the common law
- Lessons from other systems
- Complexity – issues, evidence, experts and costs
- Curial method – the law, facts and findings
- Economic and commercial implications – class actions, alternative dispute resolution, arbitration and access to justice
- Legislative and executive power
- Implications for the rule of law and the practitioner.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the adversary system in today's Australian judicial system
- Have an advanced understanding of how and why the adversary system has developed to its present state
- Be able to critically examine, identify and assess the implications and effectiveness of that system
- Have the cognitive and technical skills to independently identify, examine, research and analyse present and emerging challenges to the continued use of an adversary system
- Have the communication skills to articulate and convey complex information regarding the adversary system, its implications and possible modification.
Last updated: 6 December 2019