Transcript Legal Research - Association of Law Teachers

Defining What
We Do Doctrinal Legal
Research
Dr Terry Hutchinson
(QUT) and
Nigel Duncan (City
University London)
Today’s session
1. A brief history of legal research and practice
in Australia and the UK
2. Features of the Emerging Australian and
UK Research Contexts in particular
changing government policies (ERA&REF)
3. Describing the Doctrinal Research
Methodology
4. Theorising and Categorising the Doctrinal
Research Methodology
Terry Hutchinson and Nigel Duncan ALT
2010
2
Our Contention ..
Because of govt policy to direct funding to
support what is judged to be ‘quality’
research, it is imperative that lawyers
examine closely their methodologies and
attempt to explain and justify what it is
they do in terms that are broadly
understandable, so that they can compete
more successfully with other disciplines.
Terry Hutchinson and Nigel Duncan ALT
2010
3
1.Firstly some history …
Terry Hutchinson and Nigel Duncan ALT
2010
4
1. Some history of legal research and practice in Australia –
Categorising Legal Research
Pearce D, Campbell E and Harding D, Australian Law Schools: A
Discipline Assessment for the Commonwealth Tertiary Education
Commission 1987
Doctrinal Research — ‘Research which
provides a systematic exposition of
the rules governing a particular legal
category, analyses the relationship
between rules, explains areas of
difficulty and, perhaps, predicts
future developments.’
Terry Hutchinson and Nigel Duncan ALT
2010
5
1. Some history cont’d – Pearce C’tee
Definitions of Legal Research 1987
Reform-Oriented Research — ‘Research
which intensively evaluates the adequacy
of existing rules and which recommends
changes to any rules found wanting.’
Theoretical Research — ‘Research which
fosters a more complete understanding of
the conceptual bases of legal principles and
of the combined effects of a range of
rules and procedures that touch on a
particular area of activity.’
Terry Hutchinson and Nigel Duncan ALT
2010
6
1. Some history cont’d –
Law and Learning: Report to the Social Sciences and the
Humanities Research Council of Canada by the Consultative
Group on Research and Education in Law Ottawa: Information
Division of the Social Sciences and Humanities Research
Council of Canada, 1983
Fundamental Research — ‘Research
designed to secure a deeper understanding of
law as a social phenomenon, including
research on the historical, philosophical,
linguistic, economic, social or political
implications of law.’
Terry Hutchinson and Nigel Duncan ALT
2010
7
1. Some history cont’d – Arthurs
Report
We conclude that law in Canada is made
administered and evaluated in what often
amounts to a scientific vacuum. Without
overstraining analogies to the “hard” sciences,
the state of the art of all types of legal research is
poorly developed. Clients are advised, litigants
represented and judged, statutes enacted and
implemented in important areas of community life
on the basis of “knowledge” which, if it were
medical, would place us as contemporaries of
Pasteur, if it related to aeronautics, as
contemporaries of the Wright Brothers’ ….. 1983.
Terry Hutchinson and Nigel Duncan ALT
2010
8
2.Features
of the
Emerging
Australian
and UK
Research
Contexts …
Terry Hutchinson and Nigel Duncan ALT
2010
9
2. Features of the Emerging Australian
Research Context
• More emphasis on group,
interdisciplinary and empirical research
rather than an individual researcher
working alone
• Emphasis on increasing links with
industry and funded applied research
• Government encouragement of
institutional specialisation and centres
of excellence
Terry Hutchinson and Nigel Duncan ALT
2010
10
2. Features of the Emerging
Australian Research Context cont’d
• Government funding for research
infrastructure and research training
• Competition between law schools for
students and research funds because
the operating grant is no longer ‘as of
right’ but tied to research outcomes and
student numbers.
• Emphasis on gaining funds for research
through external competitive grants
Terry Hutchinson and Nigel Duncan ALT
2010
11
2. Features of the Emerging
Australian Research Context
cont’d
• A ‘publish or perish’ mentality with
academics being directed towards
publishing in refereed / peer reviewed
journals listed as having A* (Tier 1)
ratings rather than practitioner
journals – with many of these A* being
US rather than Australian (Washington
and Lee rankings)
• Textbooks having a lower research
output standing judged on the new
criteria
Terry Hutchinson and Nigel Duncan ALT
2010
12
2. Features of the Emerging
Australian Research Context
cont’d
• A ‘vocationalist shift’ towards the
professional doctorate which is more
aligned with applied research
• The importance of international law,
comparative law and the growing trend
of the transnational lawyer
Increasing amounts of legal data more
freely available through information
technology
Terry Hutchinson and Nigel Duncan ALT
2010
13
2. Features of the Emerging Australian Research
Context cont’d
a)
b)
c)
Bradley Report: Department of Education, Employment and
Workplace Relations, Review of Australian Higher Education (2008)
Department of Education, Employment and Workplace Relations
<http://www.dest.gov.au/sectors/higher_education/policy_issues_revi
ews/reviews/highered_review/default.htm>.
House of Representatives Industry, Science and Innovation
Committee: Australian House of Representatives Standing
Committee on Industry, Science and Innovation, Inquiry into
Research Training and Research Workforce Issues in Australian
Universities (2008) Parliament of Australia - Building Australia's
Research Capacity
http://www.aph.gov.au/House/committee/isi/research/report.htm
Cutler Report: Department of Innovation, Industry, Science and
Research, Review of the National Innovation System (2008)
Department of Innovation, Industry, Science and Research
<http://www.innovation.gov.au/Section/Innovation/Pages/ReleaseOf
TheReviewOfTheNationalInnovationSystem.aspx>.
Terry Hutchinson and Nigel Duncan ALT
2010
14
2.New ERA for research quality Excellence in Research for Australia initiative 27th Feb
2008 to replace the Research Quality Framework (RQF)
• The new Minister for Innovation, Industry, Science and
Research, Senator Kim Carr, in the Rudd gov’t elected
Nov 2007 announced plans for a new research quality
and evaluation system.
• The Excellence in Research for Australia (ERA) initiative,
to be developed by the Australian Research Council
(ARC) in conjunction with the Department of
Innovation, Industry, Science and Research, will assess
research quality using a combination of metrics and
expert review by committees comprising experienced,
internationally-recognised experts.
• http://www.arc.gov.au/era/default.htm
Terry Hutchinson and Nigel Duncan ALT
2010
15
2. ERA 2010
These evaluations will be informed by three broad
categories including • Indicators of research quality based on ranked outlets,
citation analysis and peer-reviewed Australian and
international journals, research income,
• Indicators of research volume and activity based on the total
research outputs and research income within the context
of the eligible researcher profile, and
• Indicators of research application based on the research
commercialisation income and other applied measures.
Terry Hutchinson and Nigel Duncan ALT
2010
16
2. RAE to REF in UK
In 2005 HEFCE proposes to replace RAE
with a more bibliometrics-oriented
method designed also to test economic
and social impact.
Claimed to reduce burden yet to maintain
robust benchmarking.
Use of metrics and introduction of element
of ‘Impact’ highly controversial.
2. Research Excellence
Framework
• Replacing Research Assessment Exercise
(RAE)
• Consultation process finished Dec 2009
• The first REF exercise is due to be
completed in 2013.
• http://www.hefce.ac.uk/Research/ref/
2. The UK REF
The REF will focus on three elements:
Outputs
The primary focus: to identify excellent research of all kinds,
assessed through a process of expert review, informed by
citation information in subjects where robust data are available.
Impact
Significant additional recognition where researchers build on
excellent research to deliver demonstrable benefits to the
economy, society, public policy, culture and quality of life.
Environment
The quality of the research environment in supporting a
continuing flow of excellent research and its effective
dissemination and application.
Terry Hutchinson and Nigel Duncan ALT
2010
19
3. So what steps are involved in our
starting point - the doctrinal
method?
Terry Hutchinson and Nigel Duncan ALT
2010
20
NOT
Terry Hutchinson and Nigel Duncan ALT
2010
21
3. Doctrinal Research (from Latin Doctrina – to
instruct, a lesson, a precept)
• Doctrine = legal concepts and principles of
all types – cases, statutes, rules
• Dominant influence in 19th and 20th
century view of law and legal scholarship
• Therefore tends to dominate research
design.
Terry Hutchinson and Nigel Duncan ALT
2010
22
3. Doctrinal Research
In simple form 1.
Legal researcher takes one or a series of legal
propositions as a starting point and focus of the
research objective;
– and designs the research methodology and
structure around / for them.
2. Conventional legal research takes place in a law library
to locate authoritative decisions, applicable legislation
and any secondary discussion
3. Reads and analyses the material
4. Formulates a conclusion
5. Writes up the study results.
Terry Hutchinson and Nigel Duncan ALT
2010
23
3. Problem Based Approach
with Research Sources
1.
2.
3.
4.
Assemble facts
Identify the legal issues
Analyse the issues with a view to searching for the law
Background reading
Legal Dictionaries
Legal Encyclopaedias
Textbooks
Law reform and policy papers
Looseleaf services
Journal articles
)
)
)
5. Locate primary material
Legislation and delegated legislation
Case law
6. Synthesise all the issues in context
7. Come to a tentative conclusion
Terry Hutchinson and Nigel Duncan ALT
2010
24
Of course the methodology is
not always linear!
4.How can we categorise Law as
a discipline and describe the
doctrinal method?
It’s certainly more than simply
using
GOOGLE!!!
Terry Hutchinson and Nigel Duncan ALT
2010
26
4.How can we categorise Law as a
discipline?
• ERA categorises Law within the
Humanities and Creative Arts cluster
• Previously the RQF included Law on the
same panel as Criminology and Education
and Librarianship (Panel 11 – Law,
Education and Professional Practices)
• REF categorises Law within the Social
Sciences Panel
Terry Hutchinson and Nigel Duncan ALT
2010
27
4. Describing the doctrinal
method
Some terminology • Empirical
• Non-doctrinal
• Quantitative
• Qualitative
4. What is the doctrinal
methodology like and unlike?
• A Literature Review
• Historical Analysis: Using all sources
• Content Analysis: Reading judgments,
legislation and policy documents as text
• Discourse analysis:
Terry Hutchinson and Nigel Duncan ALT
2010
29
4. Compare
• Internal – doctrinal research
methodologies – from the inside studying the texts of the law – what the
law is
• External – empirical research
methodologies – from the outside studying how law works in society
Terry Hutchinson and Nigel Duncan ALT
2010
30
4. Qualitative, Quantitative or
aspects of both?
• Depends on and varies according to the
expertise of the individual scholar
• Cannot be replicated exactly by another
researcher
Terry Hutchinson and Nigel Duncan ALT
2010
31
4. The role of the Hypothesis in
doctrinal research
• Does a doctrinal study need a hypothesis?
• What format does a doctrinal hypothesis
take?
• Examples of doctrinal hypotheses -
Terry Hutchinson and Nigel Duncan ALT
2010
32
4. Therefore we suggest that doctrinal
research is • Mainly Qualitative
• Distinctive
• Undertaken according to accepted discipline
standards and rules
• Requires specific language and knowledge
skills by those undertaking it
• Includes higher level critique
• Includes a lit review as contextual
background
• Is centred on the reading of primary sources
of doctrine
• Needs a guiding principle or pseudohypothesis
2010
Terry Hutchinson and Nigel Duncan ALT
33
What do you think?
Terry Hutchinson and Nigel Duncan ALT
2010
34