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Abstract

Extract:

This Part of ‘The fog has not lifted’ discusses the application of certain theories and principles regarding alleged litigant and non-litigant behaviour as developed and analysed in a US or European context. Such models may not exactly correspond to the behaviour of legal professionals or litigants in Australia. This article does not attempt to advocate for a specific approach, but rather presents one possible option of addressing the issue of a lack of objective, empirical methods and data when enacting legislation that inevitably affects a large constituency and key stakeholders such as the legal profession. To the extent that a given theory or principle may possibly be relevant, it is arguably more useful to the presumed alternative of ‘shooting in the dark’.

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