Kylie Louise Burns

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.

The Australian High Court and Social Facts: A Content Analysis Study

Judicial reasons often include general statements about the nature and behaviour of people and institutions and the nature of the world and society. These statements might be called social facts (‘SF’) and are made as part of judicial development and general application of law. The presence of SF statements in judicial reasoning in Australian cases has been acknowledged by commentators and judges. However, there has been little empirical examination of this phenomenon. This article discusses a content analysis study of SF in negligence cases in the Australian High Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play a range of roles in judicial reasoning. This includes predicting social, economic and behavioural consequences of legal rules, as part of setting a context or background to judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally dominate judicial reasoning. However, they appear to have a significant role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some individual differences between judges emerged. Judges do not use SF in all cases in the same way. Judges referred to SF more in high significance cases, and cases with multiple separate judgments. Judges also referred to SF more in single and dissenting judgments than in joint and majority judgments. Most SF referred to by judges were not sourced or referenced in any way and reference to empirical research was very rare. Where a source or reference for a SF was given by a judge it was usually to a legal source. Most SF appeared to source from judicial ‘common sense’ with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

Group Learning in Law

Working effectively in groups in higher education has important theoretical, practical and pragmatic justifications. Yet group work remains under-utilised in formal tertiary legal education. Individualism heavily dominates students’ educational experiences and law school curricula. Recent research suggests that a far greater role for cooperative learning is warranted, and greatly improves student learning outcomes. Skills in group work are also highly sought after by the employers of law graduates. In this article, we outline the objectives and processes of collaborative learning, emphasising the benefits in terms of student outcomes. We also discuss the implications of the general research into group work by reference to our own practices in facilitating this kind of learning in legal education. We argue that, despite some practical difficulties which are commonly associated with group work, this kind of learning environment offers significant advantages over individual work which cannot otherwise be realised. It also offers significant benefits to teachers in terms of satisfaction and efficiency. Therefore we encourage other legal educators to use and evaluate group work as part of their formal course and curriculum design.

Judicial decision-making and ‘outside’ extra-legal knowledge: breaking down silos

Judges apply law to facts. While this‘umpire’ description of judicial decision-making is rhetorically (and often politically and publicly) attractive, it is of course a very incomplete account of judicial decision-making.1 Judges frequently experience factual ‘gaps’ they need to fill in order to reach a decision. Judge Richard Posner has recently suggested this is a very significant problem facing judges in the twenty-first century as the technological complexity of cases before courts exponentially increases.2 The judiciary, the legal profession, and the academy have failed to respond to the challenges of filling ‘gaps’ in the factual record, through the use of extra-legal knowledge from disciplines outside the law.3 Adjudicative facts,4 presented by the parties and admitted in accordance with the rules of evidence, are sometimes (and perhaps often) simply not enough to enable a judge to reach a decision. Legal standards, for example, the ‘reasonable person’ or the ‘best interests of the child’, may incorporate broad judicial discretion which requires judges to apply wider understandings of the nature of the world and society and how human beings behave. Adjudicative fact evidence may not have meaning without the application of a ‘lens’ or framework of broader knowledge (through expert evidence or knowledge of other disciplines).5 Judges may be unable to evaluate the veracity of forensic expert evidence6 without an understanding of whether there is actually a scientific basis for the relevant forensic claims; what processes must be followed to ensure the reliability of forensic testing; and what cognitive impact the particular ways of presenting forensic evidence to judges and juries may have on ultimate decision-making.7 The advent of the internet and social media means knowledge can be rapidly and extensively disseminated and accessed across the world. Yet, paradoxically, despite this the relationship between the law and knowledge from other disciplines, including science and social science, is at best uneasy and at worst counter-productive to just outcomes. We argue that the silos around law and other academic disciplines need to be broken down.8

Judges, ‘common sense’ and judicial cognition

ABSTRACT Judges are like other human beings. They use their ‘common sense’, their common understanding, their contemporary knowledge of society and the expectations of the community, as part of judicial decision-making. Judicial common sense understandings about the world and human behaviour may also form a silent lens through which judges interpret the meaning of matters such as reasonableness and normality of human behaviour, and assess the meaning of visual phenomenon such as signs, pictures and video. However, judges may be unconsciously impacted by cognitive limitations. Judge’s factual assumptions may be influenced by their own cultural worldviews. Judicial use of common sense can be the vehicle through which error and discrimination enter the law. Part 2 of this article examines how judges use common sense in their judicial reasoning. Part 3 suggests that judicial construction of common sense is a cognitive process with the consequent impact of bounded rationality, heuristics, biases, emotion and cognitive illusions. Part 4 discusses whether judges can overcome the limitations of common sense reasoning. The article argues that while common sense and common understandings will always be an inevitable part of judicial decision-making more attention is required to address the limitations of common sense judging.

Australia: A land of plenty (of legislative regimes)

Australia is a common law-based federation of states and territories that derived its legal system from England. Australia has no national Bill of Rights but its federal constitution grants specific powers to the federal government with the remaining powers exercised by each state. Two states have created human rights statutes. The federal powers to govern crime and tort are limited to crimes or torts falling within one of a number of narrow federal constitutional heads of power. Therefore, most criminal law and tort law is state based and, hence, varies across Australia. On the one hand, each state legislature has ultimate constitutional power to alter the common law through legislation. The federal constitution also enables the enforcement throughout Australia of tortious and criminal decisions by state courts. On the other hand, the High Court of Australia is the ultimate arbiter of the common law of Australia as applicable in each state. The common law system of precedent applicable in Australia thus enables the High Court to bring significant uniformity to tort and crime law in Australia albeit constricted by potentially conflicting state legislation. During the past few decades, statute-based law has proliferated in Australia in many areas including both the criminal and tort spheres. Much of this legislative reform has been driven by ‘law and order’ politics, public policy objectives and lobbying by a powerful insurance industry. Overall, the proliferation of statutes has increased the diversity of both criminal and tort law throughout Australia. Particularly in the area of tort, different states have adopted quite disparate statutory regimes for resolving high frequency disputes such as those involving motor vehicles and work place injuries. However, there remains a strong common law of both tort and crime with a unifying thread provided by the High Court of Australia. There are eight state/territories in Australia of which New South Wales (NSW), Victoria and Queensland are by far the most populous (containing over 75 per cent of the Australian population between them). This chapter most commonly uses NSW as an example because over 30 per cent of Australias population resides in NSW.