Deakin Law Review最新文献_第9页

Defining and describing what we do: Doctrinal legal research 定义和描述我们的工作:理论法律研究

Deakin Law Review Pub Date : 2012-10-01 DOI: 10.21153/DLR2012VOL17NO1ART70

Terry C. Hutchinson, N. Duncan

{"title":"Defining and describing what we do: Doctrinal legal research","authors":"Terry C. Hutchinson, N. Duncan","doi":"10.21153/DLR2012VOL17NO1ART70","DOIUrl":"https://doi.org/10.21153/DLR2012VOL17NO1ART70","url":null,"abstract":"The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67649014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 265

'Crime and Justice: A Guide to Criminology (4th ed)' by Marinella Marmi, Willem de Lint and Darren Palmer (eds) 《犯罪与正义:犯罪学指南(第4版)》作者:Marinella Marmi, Willem de Lint和Darren Palmer(编)

Deakin Law Review Pub Date : 2012-07-30 DOI: 10.21153/DLR2012VOL17NO1ART74

Bridget A. Harris

引用次数: 0

Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy 改革救济:建立正确的救济结构以保护个人隐私

Deakin Law Review Pub Date : 2012-07-01 DOI: 10.21153/DLR2012VOL17NO1ART71

Nicholas Petrie

引用次数: 0

Section 116 of the Australian Constitution and dress restrictions 澳大利亚宪法第116条和着装限制

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/DLR2011VOL16NO2ART105

A. Gray

引用次数: 4

Fair Enough? The National Security Information (Criminal and Civil Proceedings) Act 2004 够公平吗?《2004年国家安全信息(刑事和民事诉讼)法》

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/DLR2011VOL16NO2ART108

Luke Beck

引用次数: 1

Physicality in Australian patent law 澳大利亚专利法中的物质性

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/DLR2011VOL16NO2ART110

B. McEniery

{"title":"Physicality in Australian patent law","authors":"B. McEniery","doi":"10.21153/DLR2011VOL16NO2ART110","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART110","url":null,"abstract":"It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods — namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Insights into Gender, 'Rurality' and the Legal Practice Experience 对性别、“乡村性”和法律实践经验的洞察

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/DLR2011VOL16NO2ART109

T. Mundy

引用次数: 2

'Commercial Arbitration in Australia' by Doug Jones 道格·琼斯的《澳大利亚的商事仲裁》

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/DLR2011VOL16NO2ART113

B. Hayward

引用次数: 0

2011 Deakin Law Oration: The Legal Basis for US Military Action in the International Realm 2011年迪肯法律演讲:美国在国际领域军事行动的法律依据

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/dlr2011vol16no2art104

J. Bleich

引用次数: 0

'Fortunately We in Victoria Are Not in That UK Situation': Australian and United Kingdom Perspectives on Plea Bargaining Reform “幸运的是，我们维多利亚州没有英国的情况”:澳大利亚和英国对辩诉交易改革的看法

Deakin Law Review Pub Date : 2011-12-01 DOI: 10.21153/DLR2011VOL16NO2ART107

A. Flynn

{"title":"'Fortunately We in Victoria Are Not in That UK Situation': Australian and United Kingdom Perspectives on Plea Bargaining Reform","authors":"A. Flynn","doi":"10.21153/DLR2011VOL16NO2ART107","DOIUrl":"https://doi.org/10.21153/DLR2011VOL16NO2ART107","url":null,"abstract":"The polarisation between consistency, controls and the unscrutinised discretionary powers held by criminal justice agencies is a complex issue that transcends jurisdictions. In the Australian State of Victoria, this conflict is particularly evident in the prosecutor’s decision-making powers in the plea bargaining process, because these powers are not subject to scrutiny and the decisions made under them are not transparent. Furthermore, plea bargaining itself is a non-formalised and unscrutinised method of case resolution. While the use of discretion is an important component of prosecutorial work, it is the potentially individualised and idiosyncratic nature of unscrutinised discretionary decisions that results in plea bargaining and prosecutorial decision-making in Victoria giving rise to perceptions of inappropriateness and misconduct. Drawing upon the voices of Victorian and United Kingdom legal professionals, this article critically analyses the controls placed on United Kingdom prosecutors by the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise 2009 (UK), and considers whether similar guidelines could be implemented in Victoria to redress problems surrounding the idiosyncratic nature of prosecutorial decision-making in plea bargaining. By offering a unique insight into the perspectives of those involved in plea bargaining, this article explores the benefits of implementing a transparent and scrutinised control on prosecutorial discretion in plea bargaining, and considers whether this would in turn offer greater safeguards, consistency and transparency of prosecutorial decision-making in Victoria.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67648663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 8