Judicial Reasoning

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of all the below subjects:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

This subject seeks to understand how judges arrive at judgments and thus the complex question of adjudication. By examining key elements of the vast literature which has analysed the process of adjudication, the course attempts to develop the conceptual tools by which each student can approach the reading of judgments of courts. The subject then intensively discusses a number of important cases from various jurisdictions - the UK, the USA, Australia, South Africa and Canada. By applying the insights learnt from the earlier conceptual discussion, the course examines the judicial mind which has given rise to the judgments so studied. In this way, the subject talks to practitioners who litigate and can reflect on the means of help shaping the judgment they so seek as well as to those lawyers who wish to develop a comprehensive understanding of both the theory and practice of adjudication.

Principal topics include:

• A critical reading of key texts – Hart, Raz, Fuller, Dworkin, Habermas, Derrida and Kennedy
• Language, linguistic theory and the law
• Reading judgments (Australian and comparative) – both in the area of constitutional/human rights law and private law
• The impact of political emergency upon the judicial function/adjudication.

A student who has successfully completed this subject will:

• Have a sophisticated awareness of the range of factors that shape a judgment
• Understand and be able to evaluate the weight of precedent, legal discourse, political ideology, judicial philosophy and advocacy upon the outcome of the case
• Be able to critically evaluate the key academic texts that have set out the main theories of adjudication, at an advanced level
• Have heighted critical capacities to understand judgments and to examine legal developments through the courts by employing a theory or theories of adjudication.

• Take-home examination (5,000-6,000 words as specified in the subject reading guide) (100%) (9 - 12 December)
  or
• 10,000 word research paper (100%) (30 January 2017) on a topic approved by the subject coordinator, a rough preliminary draft of which is to be presented in class

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.