The Hypocritical Hype about ‘Hypothesis’

Cohen Morris Raphael , ‘Law and Scientific Method’ (1926–1930) 6 American Law School Review 231, 232–3.

Selecting and Developing a Legal Research Topic (20 February 2014) The University of Melbourne Library <http://unimelb.libguides.com/developing_a_thesis>.

Research Degree Information, Bond University <http://bond.edu.au/faculties/law/research/research-degree-information/index.htm>.

Volokh Eugene , ‘Writing a Student Article’ (1998) 48 Journal of Legal Education 247, 248.

Marcu Nicoleta Aurelia , ‘Drawing Up Academic Articles on Legal Matters’ (2013) 16(3) Juridical Current 110, 110.

Nagel Stuart S , ‘Testing Empirical Generalizations in Legal Research’ (1962–1963) 15 Journal of Legal Education 365, 366.

A move away from the dictatorial role of the hypothesis may be detected in some forms of research: Although there is a variety of different research approaches that are inspired by poststructural and discourse-theoretical premises, with respect to research strategy and methodology, these approaches are united in that they do not set out to verify a pre-determined hypothesis.' ( Loughnan Arlie Shackel Rita , ‘The Travails of Postgraduate Research in Law’ (2009) 19 Legal Education Review 99, 107).

Posner Richard , In ‘Memoriam: Bernard D. Meltzer (1914–2007)’ (2007) 74(2) University of Chicago Law Review 435, 437. As found in Hutchinson Terry Duncan Nigel , ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17 Deakin Law Review 83, at 107.

Volokh Eugene , ‘Writing a Student Article’ (1998) 48 Journal of Legal Education 247, 248.

It goes without saying that some commentators may disagree with my assertion here. See, eg, Cohen , above n 1, 233 as to what is scientific in law.

To use one of Solum's examples, walking one's dog does not violate the antitrust law and as a result the antitrust laws are not completely indeterminate – this is an easy case, and a case that I think unsuitable as a PhD topic. See further: Solum Lawrence B , ‘On the Indeterminacy Crisis: Critiquing Critical Dogma’ (1987) 54 University of Chicago Law Review 462–503, 472.

Svantesson Dan , ‘What is “Law”, if “the Law” is Not Something That “Is”? A Modest Contribution to a Major Question’ (September 2013) 26(3) Ratio Juris 456–85, 465.

Dickerson Reed , ‘Legal Drafting: Writing as Thinking, or, Talk-Back from Your Draft and How to Exploit It’ (1977–1978) 29 Journal of Legal Education 373, 374–5.

Ibid 376.

Hutchinson Terry , Researching and Writing in Law (Lawbook Co, 2nd ed, 2006) 147.

Hutchinson acknowledges that ‘the “hypothesis” used may simply be a working idea of what the outcome of the study might be’ and that it is ‘likely to be tentative and provide possible explanations only.’ In fact, she states that at an early stage ‘it is likely to be no more than a “gut” feeling’. (Ibid).

I am indebted to two of the anonymous reviewers for this perspective.

Frankfurter Felix Llewellyn Karl N Sunderland Edson R , ‘The Conditions for and the Aims and Methods of Legal Research’ (1926–1930) 6 American Law School Review 663, 668.

For an interesting discussion see: Hutchinson Terry Duncan Nigel , above n 8.

Volokh , above n 9, 249.

See further: Svantesson Dan , ‘A Legal Method for Solving Issues of Internet Regulation’ (Autumn 2011) 19(3) International Journal of Law and Information Technology 243–63.

Llewellyn Karl N , ‘On What Makes Legal Research Worth While’ (1956) 8 (4) Journal of Legal Education 399, 402.

Cohen , above n 1, 236.

Ibid 233.