Terry C. Hutchinson

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.

Legal research project management: Skills extension for upper level law students

SUPERVISION OF research papers can be a time consuming and exhausting teaching process. This paper outlines and critiques a web-based teaching and learning initiative formulated for the use of research students in an Australian law school. The project was designed to extend the research capabifities of those students who had completed the three undergraduate levels of legal research skills required in the Queensland University of Technology law degree. The project was developed for those students enrolled in self-directed academic research units and sought to enhance their learning experiences in research project management and deepen their engagement with their literature by encouraging critical thinking and facilitating reflection. This paper provides the theoretical and actual learning contexts for this project, and backgrounds the interlinking themes of graduate capabilities, on-line and flexible teaching, completion strategies and supervisory relationships. It details the methodology, describes the tools and evaluates the outcomes.

Empirical methodologies knowledge and expertise: a ‘necessary’ skill for lawyers?

Legal training focuses on the study of the nature of legal rules using ‘legal reasoning’. This emphasis on rules has the potential to obscure the importance of facts in the determination of the law. Judges use general facts about the world in developing and interpreting the law in addition to the facts they use that are specific to the dispute between the parties. Practicing lawyers present versions of the facts as truth in arguing their client’s case in court. Facts about society also provide an evidence base for lawmakers to formulate policy and draft new laws and rules. ‘Evidence-based’ practice is used widely in the fields of medicine and business. This chapter describes evidence-based practice. It argues that facts about society gleaned from social research form a legitimate evidence base that is important for legislative reform. An evidence-based approach seems an obvious step in formulating effective laws and providing legal solutions to social problems. Common sense suggests that the existing social evidence base should be used to assist legislators in developing and ensuring well-founded public policies leading to sound legislation. However, in law reform, the evidence base is often overshadowed by populist perceptions and political ideology. A recent legislative amendment to youth justice sentencing options provides a pertinent case study where the evidence base was largely disregarded.

‘A Slap on the Wrist’? The Conservative Agenda in Queensland, Australia:

Recent amendments to youth justice legislation in Queensland include opening Children’s Court proceedings, removing the Principle of Detention as a Last Resort, facilitating transfers of 17 year-old offenders to adult prisons, instigating new bail offences, and introducing mandatory boot camp orders. This article examines the context of these changes including the inadequacies of the public policy process, and the impassioned political rhetoric imbued with simplistic slogans. This is a case study of regressive youth justice policy and the article reflects on the many causes underlying the reactive winding back of reform.