Defining What We Do Doctrinal Legal Research Dr

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 . 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 . Terry Hutchinson and Nigel Duncan ALT 2010 14

2. New ERA for research quality Excellence in Research for Australia initiative 27 th 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 19 th and 20 th 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

1. 2. 3. 4. 3. Problem Based Approach with Research Sources 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 Terry Hutchinson and Nigel Duncan ALT 2010 33

What do you think? Terry Hutchinson and Nigel Duncan ALT 2010 34