The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (‘empirical facts’). Legal education needs to prepare our students for this broader legal context. This paper examines how ‘empirical facts’ are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.

Defining and describing what we do : doctrinal legal research

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.

Academic legal research and academic research capacity enhancement working topic : "purposes and objectives of law schools beyond educating students (research, capacity building,community service and outreach)"

One of the main objectives of law schools beyond educating students is to produce viable legal research. The comments in this paper are basically confined to the Australian context, and to examine this topic effectively, it is necessary to briefly review the current tertiary research agenda in Australia. This paper argues that there is a need for recognition and support for an expanded legal research framework along with additional research training for legal academics. There also needs to be more effective methods of measuring and recognising quality in legal research. This method needs to be one that can engender respect in an interdisciplinary context.

Valé Bunny Watson? Law librarians, law libraries, and legal research in the post-internet era

Katharine Hepburn’s entertaining portrayal of reference librarian Bunny Watson in Desk Set (1957) moves her character from apprehension about new technology to an understanding that it is simply another tool. This article outlines the impact of technology on academic legal research. It examines the nature of legal research and the doctrinal method, the importance of law libraries (and librarians) in legal research, and the roles and implications of the Internet and web search engines on legal research methods and education.

Doctrinal research : researching the jury

This chapter examines the doctrinal methodology which many lawyers consider best typifies a distinctly legal approach to research. Legal research skills have been identified as a core skill for lawyers, and within the profession, such skills are regarded as synonymous with the doctrinal research method. Good legal research skills are a necessary step in attaining the ability to ‘think like a lawyer’ and achieving valid legal reasoning outcomes. For lawyers, therefore, the doctrinal method is an intuitive aspect of legal work. Yet as this chapter demonstrates, the doctrinal methodology is not without its detractors. There have been serious criticisms of the method put forward by exponents of the various critical legal theories, as well as a perception in some academic circles that the doctrinal research method is nothing more than mere ‘scholarship’ and as a result less compelling or respected than the research methods used by those in the sciences and social sciences. Despite these attacks, and the incursions on the method posed by the growth in the use of non-doctrinal and interdisciplinary research work by lawyers, the argument put forward in this chapter is that the doctrinal method still necessarily forms the basis for most, if not all, legal research projects.

Researching and writing in law (3rd ed.)

The revolution in legal research provides exciting challenges for those exploring and writing about the legal landscape. Cumbersome paper sources have largely been replaced by electronic files and a new range of skills and sources are required to successfully conduct legal research.--------- Researching and Writing in Law, 3rd Edition is an updated research guide, mapping the developments that have taken place and providing the keys to the fundamental electronic sources of legal research, especially those now available on the web, as well as exploring traditional doctrinal methodologies. Included in this edition are extensive checklists for locating and validating the law in Australia, England, Canada, the United States, New Zealand, India and the European Union.-------- This third edition includes expanded discussion of the process of formulating a research proposal, writing project abstracts and undertaking a literature review (Chapter 7). Research methodologies are also extensively examined, focusing on the process of doctrinal methodology as well as discussing other useful methodologies, such as Comparative Research and Content Analysis (Chapter 5). Further highlighted are issues surrounding research ethics, including plagiarism and originality, the importance of developing skills in critique, and the influence of current university research environments on postgraduate legal research.-------- Law students and members of the practising profession aiming to update their research, knowledge and skills will find Researching and Writing in Law, 3rd Edition invaluable.

Rethinking financial literacy in the aftermath of the Global Financial Crisis

Systemic risks and other factors that contributed to the global financial crisis have highlighted the need to reconsider the scope and nature of financial literacy initiatives and programs. In this article, we argue the case for rethinking financial literacy and the need for integrated solutions that explicitly incorporate solutions to behavioural shortcomings exhibited by individuals in their financial decision-making. While recognising the need to consider behavioural biases in individuals’ financial decisions, to date regulatory responses have largely ignored those biases in their proposed education and other strategies designed to address poor financial literacy and improve financial disclosure that, in turn, will improve financial decision-making.

QUT Digital Repository: Integrating the University’s IR with other digital collections

Queensland University of Technology’s Institutional Repository, QUT ePrints (http://eprints.qut.edu.au/), was established in 2003. With the help of an institutional mandate (endorsed in 2004) the repository now holds over 11,000 open access publications. The repository’s success is celebrated within the University and acknowledged nationally and internationally. QUT ePrints was built on GNU EPrints open source repository software (currently running v.3.1.3) and was originally configured to accommodate open access versions of the traditional range of research publications (journal articles, conference papers, books, book chapters and working papers). However, in 2009, the repository’s scope, content and systems were broadened and the ‘QUT Digital repository’ is now a service encompassing a range of digital collections, services and systems. For a work to be accepted in to the institutional repository, at least one of the authors/creators must have a current affiliation with QUT. However, the success of QUT ePrints in terms of its capacity to increase the visibility and accessibility of our researchers' scholarly works resulted in requests to accept digital collections of works which were out of scope. To address this need, a number of parallel digital collections have been developed. These collections include, OZcase, a collection of legal research materials and ‘The Sugar Industry Collection’; a digitsed collection of books and articles on sugar cane production and processing. Additionally, the Library has responded to requests from academics for a service to support the publication of new, and existing, peer reviewed open access journals. A project is currently underway to help a group of senior QUT academics publish a new international peer reviewed journal. The QUT Digital Repository website will be a portal for access to a range of resources to support copyright management. It is likely that it will provide an access point for the institution’s data repository. The data repository, provisionally named the ‘QUT Data Commons’, is currently a work-in-progress. The metadata for some QUT datasets will also be harvested by and discoverable via ‘Research Data Australia’, the dataset discovery service managed by the Australian National Data Service (ANDS). QUT Digital repository will integrate a range of technologies and services related to scholarly communication. This paper will discuss the development of the QUT Digital Repository, its strategic functions, the stakeholders involved and lessons learned.

Interest rate caps : protection or paternalism

In a context where over-indebtedness and financial exclusion have been recognised as problems in Australia, it is undesirable that those who can least afford it, pay a high cost for short-term consumer credit. Evidence points to an increase in consumer debt in Australia and consequential over-indebtedness which has been shown to lead to a wide range of social problems.2 There is also evidence of financial exclusion, where consumers suffer a lack of access to mainstream financial services, and in Australia this is particularly the case with regard to access to safe and affordable credit.3 Financial exclusion can only exacerbate over-indebtedness, given that financially excluded, predominantly low income consumers , have been shown to turn to high cost credit to meet their short term credit needs. This is a problem that has been explored most recently in the Victorian Consumer Credit Review...

Australasian Torrens automation, its integrity, and the three proof requirements

New Zealand and Australia are leading the world in terms of automated land registry systems. Landonline was introduced some ten years ago for New Zealand, and the Electronic Conveyancing National Law (ECNL) is to be released over the next few years in support of a national electronic conveyancing system to be used throughout Australia. With the assistance of three proof requirements, developed for this purpose, this article measures the integrity of both systems as against the old, manual Torrens system. The authors take the position that any introduced system should at least have the same level of integrity and safety as the originally conceived manual system. The authors argue both Landonline and ECNL, as presently set up, have less credibility than the manual system as it was designed to operate, leading to the possibility of increased fraud or misuse.

Empirical facts : a rationale for expanding lawyers' methodological expertise

This article examines the importance of the social evidence base in relation to the development of the law. It argues that there is a need for those lawyers who play a part in law reform (legislators and those involved in the law reform process) and for those who play a part in formulating policy-based common law rules (judges and practitioners) to know more about how facts are established in the social sciences. It argues that lawyers need sufficient knowledge and skills in order to be able to critically assess the facts and evidence base when examining new legislation and also when preparing, arguing and determining the outcomes of legal disputes. For this reason the article argues that lawyers need enhanced training in empirical methodologies in order to function effectively in modern legal contexts.

Women's health in the global village

As we stand at the beginning of the 21st century and behold the world before us, it seems that we are living in a time of profound change. Everywhere we look change seems afoot, demolishing our traditional securities and hastily building new ones in their place. Modern medical science has been an integral part of this change. It is not possible to ignore the advances of modern medicine nor the realities of scientific uncertainties for they are part of the shared context of our lives today. I In the past 50 years we have witnessed the discovery of DNA and more recently the mapping of the human genome, the birth of the world's first in-vitro fertilisation baby, followed by thousands worldwide in the period since, the discovery of human stem cells and the birth of Dolly the cloned sheep in Scotland. Furthermore, the processes of globalisation have ensured that an event that occurs on one side of the globe becomes an item on the evening news on the other side, creating the impression that all change takes place on our doorstep. Some of these events have provoked deep angst in the community, sparking public debate over the ethics of science and the boundaries to be imposed by law. All of these developments have changed the realm of the possible. While these advances in medical science spark debate in the developed countries, in less developed countries high rates of infectious diseases and infant and maternal mortality and the challenges of access to adequate food and clean water are priorities, highlighting international differences in health care. This article explores these differences through an analysis of globalisation and reproduction. It seeks to analyse both the meaning of globalisation and the impact of globalising trends on health laws and policies as regulators of women's health within the global village.