Empirical legal research teaching in Australia: Building an empirical revolution

Abstract

There is a growing need for empirical legal research, and for lawyers and judges who are empirically literate. In this article, I consider the role legal education can and should play in achieving this empirical literacy, to enable law students and staff to be both skilled consumers and producers of empirical legal research. Drawing on a case study of initiatives at Melbourne Law School, I consider how empirical legal research could be embedded into law teaching, to better support the future of empirical legal scholarship.

Law and legal education are sitting at a crossroads. Bound by the requirement to teach the Priestley 11 subjects, law teaching tends to be doctrinally focused, emphasising legal rules, case law and legislation. But, at the same time, there is a growing emphasis on empirical legal research. Politicians, regulators and policy-makers are increasingly interested in studies examining the practical impact of law and regulation. Further, judges are being required to grapple with statistics and social science evidence in their decision-making. There is a growing need – and desire – for empirical legal research, and for lawyers who are empirically literate. In this article, then, I consider the role legal education can and should play in achieving this empirical literacy. Drawing on a case study of initiatives at Melbourne Law School (MLS), I consider how empirical legal research could be embedded into law teaching. I consider what this example tells us about the future of empirical legal research teaching in law schools, and for the empirical legal revolution.

An empirical legal revolution? The growing demand for empirical legal research

Baldwin and Davis define ‘empirical research’ both positively and negatively, as being

not purely theoretical or doctrinal; it does not rest on an analysis of statute and decided cases; and it does not rely on secondary sources. What empiricists do, in one way or another, is to study the operations and the effects of the law. … [E]mpirical research in law involves the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. ¹

For Genn and others, empirical research benefits our understanding of law, and of the society in which it operates:

Empirical legal research helps to build our theoretical understanding of law as a social and political phenomenon and contributes to the development of social theory. Put simply, empirical research helps us to understand the law better and an empirical understanding of the law in action helps us to understand society better. ²

The Genn Report mapped the value of empirical legal research, and the growing demand for such research, from politicians, government departments, policy-makers, business, non-governmental organisations and legal practitioners. ³

Despite this growing demand and desire for empirical legal research, there are also concerns that there is insufficient empirical capacity in the legal discipline. ‘Empirical capacity’ can take two forms. First, it can reflect our ability to read, process and critically evaluate both qualitative and quantitative empirical data. This might be described as ‘empirical literacy’, or the ability to be a critical consumer of empirical scholarship. Second, ‘empirical capacity’ might relate to our ability to be skilled producers of empirical scholarship, as researchers. Obviously, these two capacities will often be intertwined; but it should be possible to become a critical consumer of empirical scholarship, without necessarily being a producer of such scholarship.

Regardless, there is significant concern that empirical capacity in law schools is limited. First, there is concern that there are too few empirical legal scholars to meet the growing demand for empirical legal research ⁴ – that we are not yet skilled producers of empirical legal scholarship. In the UK, the Genn Report raised critical concerns of a lack of capacity among legal researchers to conduct empirical research, and the lack of a next generation of empirical scholars. ⁵ As the Genn Report said,

the number of empirical researchers working on any particular area is very small and the coverage of issues is thin and patchy, with entire areas largely untouched. There are many fields calling out for empirical research [and] … [t]he field is therefore wide open for researchers and the scarcity of empirical legal research virtually guarantees originality. ⁶

The Genn Report therefore called for ‘a strategy designed to strengthen and increase capacity in empirical legal studies’, targeted at undergraduate, graduate and academic levels. ⁷ And yet, in UK law schools, most law courses do not integrate empirical legal research, and few texts and resources ‘build in empirical material’. ⁸ The Genn Report therefore identified a critical absence of empirical legal teaching, and empirical legal materials that could support legal education. ⁹

Bradney similarly has found that empirical legal research is ‘largely absent’ from law school curricula in the UK and USA. ¹⁰ This is despite the dominance of (quantitative) empirical legal scholarship at some US law schools, ¹¹ and the growth in the number of US law professors who hold statistical qualifications. ¹² Cornell, for example – home of the Society for Empirical Legal Studies (‘SELS’) and the Journal of Empirical Legal Studies – does not offer a concentration in empirical legal studies in its JD programme. Only three courses in Cornell’s 2023–24 subject offerings include the word ‘empirical’ in their course description, ¹³ and one of these references explicitly deters students from attempting an empirical thesis. ¹⁴ Only one subject is focused on empirical scholarship, and that course confines its focus to quantitative methods only. ¹⁵

A brief survey of course offerings currently available at US law schools illustrates that empirical legal studies subjects are comparatively rare, and often focused on quantitative methods or targeted to research (not JD) students. The University of Virginia, for example, offers a course on Empirical Legal Studies, but this is confined to quantitative analysis and methods. ¹⁶ Courses at Stanford are broader, encompassing both qualitative and quantitative approaches to research design, and aimed at both research students and JD students (with special permission from the instructor). ¹⁷ The University of Michigan Law School hosts an Empirical Legal Studies Center, but this is primarily aimed at supporting the work of law faculty. What appears to still be missing, then, is a holistic approach to promoting and supporting empirical literacy across law students, graduate researchers, and faculty, and across all empirical methods (not just quantitative methods).

These concerns are equally applicable in Australia. Writing a decade after the Genn Report, Bell similarly identified a lack of empirical training for law Higher Degree Research (‘HDR’) students, as well as law faculty. ¹⁸ For Bell, this raises problems for legal scholars as producers of empirical research; there is insufficient guidance available for HDR students, and too few supervisors who are able to supervise and guide empirical research projects. ¹⁹

Bell attributes this gap to empirical legal research remaining largely absent from the law curriculum. ²⁰ This absence might be attributable to two key factors. First, empirical research can be more time consuming, costly, and harder to publish than doctrinal scholarship, reducing incentives for time-pressed academics to prioritise such work. ²¹ If law academics are not committed empirical scholars themselves, they are unlikely to impart this knowledge to their students. ²² Second, the need to cover the Priestley 11 subjects, to ensure students are eligible for admission to practice, tends to confine legal education and focus attention on legal rules rather than law in action. ²³ As Keyes and Johnstone have observed,

Merely covering the subject matters identified as essential by the Priestley requirements accounts for a large part of the LLB program in most law schools. In conjunction with the traditional focus on teaching legal rules, this concentration on content leaves little space in the LLB curriculum[.] ²⁴

As a result, the ‘traditional model of legal education’ has proven difficult to break away from. ²⁵ This traditional model – individualised, teacher-focused, with an emphasis on teaching legal rules drawn from case law, positioning law as an autonomous discipline, and with an emphasis on private practice – neglects interdisciplinarity, skill development and approaches that challenge the status quo. ²⁶ While the law curriculum is crowded, there are important initiatives emerging to enrich legal education, including to ‘Indigenise’ the law degree ²⁷ and decolonise legal education, ²⁸ better embrace technology and technology law, ²⁹ ‘decentre’ law and embrace interdisciplinary perspectives, ³⁰ and to embed new skills in legal education, including coding skills. ³¹ Enhancing empirical literacy – with its interdisciplinary, skills focus – extends and builds on these emerging developments.

A renewed emphasis on skills in legal education – including skills in assessing and evaluating empirical data – is also consistent with the Australian Law Reform Commission’s call for legal education to include, ‘[i]n addition to the study of core areas of substantive law … the development of high level professional skills’. ³² More specifically, we could add empirical literacy as one of these high-level professional skills.

Indeed, the implications of a lack of empirical literacy in legal education resonate for those we educate, across their careers. Gaps in empirical teaching have flow-on effects for how legal practitioners and judges engage with and understand empirical evidence, a critical professional skill. As Burns has argued, the use of ‘social facts’ can build (flawed) assumptions into judicial decision-making. ³³ Judges often rely on ‘empirical facts’ – that is, ‘assertions of facts about society, the world and human behaviour’ – to ground their decision-making, but are rarely trained in how to meaningfully assess and evaluate relevant empirical evidence. ³⁴ Judges and legal advocates need to engage with empirical evidence to challenge these assumptions, and build better linkages between law and society. ³⁵ This is critical for maintaining the legitimacy of the law. ³⁶ Burns and Hutchinson have therefore called for stronger integration of empirical research methods into the law curriculum, ³⁷ to better equip the next generation of lawyers, judges and academics to use, evaluate and deploy empirical evidence in their work – that is, to be empirically literate.

At a broader level, without reference to empirical legal research and its findings, our legal education becomes impoverished. Empirical legal research reveals new insights into both law and society. ³⁸ As Bradney compellingly argues, it should be part of a law school education:

Quantitative and qualitative empirical research into law and legal processes provides not just more information about law; it provides information of a different character from that which can be obtained through other methods of research. It answers questions about law that cannot be answered in any other way. To ignore empirical legal research is thus to ignore some of the things that can be said about law and thereby decrease our potential knowledge of law. It is this unique character of empirical legal research that provides the prima facie justification for its presence in the curriculum. ³⁹

It is critical to note, too, that Australia has a strong advantage over the UK: unlike most law students in the UK, Australian law students often undertake a double degree (such as an LLB/BA or LLB/BSc); and JD students have generally already completed some other undergraduate degree in another discipline. Arguably, then, Australian law students are well positioned to integrate interdisciplinary ideas into their law studies. Some students will undertake training in qualitative or quantitative methods as part of their other or prior degree(s). The quest to enhance empirical literacy in legal education therefore starts from a good basis, and we can capitalise on this interdisciplinary grounding. The challenge, though, is to prompt and encourage students to create linkages across and between their studies, and across and between disciplines. As Economides argues in the context of New Zealand legal education:

[M]ost law students are enrolled on double degrees that provide more than a ‘taste’ of other disciplines; they actually ground law students in a wide range of other academic disciplines so that by the time of graduation they can think not only ‘like a lawyer’ but are skilled in, rather than knowledgeable about, other disciplinary perspectives associated with the sciences and humanities. At present it is largely fortuitous whether students … make connections across these disciplines and it seems probable that, in the absence of institutional encouragement and reward, most ‘compartmentalize’ their studies. ⁴⁰

The challenge, then, is for legal education to create ‘bridges’ that span disciplines, and encourage interdisciplinary thinking. ⁴¹ For Economides, this would help realise the ‘full potential’ of a double degree arrangement, as well as create ‘stronger foundations … for the research skills and working collaborations needed for socio-legal projects in higher degrees and beyond.’ ⁴²

Integrating empirical legal research into legal education: A case study

This article presents a case study of one such ‘bridge’ adopted at MLS, which I have championed and implemented. With my guidance, MLS has designed and implemented an integrated strategy to build empirical legal research capacity, across multiple levels, to support empirical training and development for JD students, ⁴³ PhD students and staff. This article presents these initiatives as works in progress, to model the possibilities and challenges of increasing empirical literacy in legal education.

At MLS, this empirical research strategy and capacity development has been designed to support empirical literacy among law students, promote rigour in empirical PhD projects, and help develop a new generation of legal practitioners, judges and scholars who are able to skilfully use and engage with empirical evidence. It is aimed at supporting students and staff to be both critical consumers of empirical legal research, as well as producers of empirical legal research. The strategy was developed through a consultative process, including surveys of those undertaking empirical research at MLS, as well as stakeholder meetings with representatives from the Library, Office for Research, Ethics Committee, Graduate Research Coordinators, the Research Support Programme, the Deputy Dean, the Associate Dean (Research), and senior members of Faculty, to collaboratively identify gaps and needs within the MLS empirical research community.

First, to build capacity in empirical legal research among academic staff and PhD supervisors, MLS established an Empirical Research Network (ERN) in 2019, to support peer-led research capacity development in empirical research methods. The only network of its type in Australia, the MLS ERN has over 60 members. It profiles innovative empirical research occurring at MLS and offers targeted training in empirical methods to contribute to capacity development, including on topics such as NVivo, spatial analysis, survey design and statistical analysis. The work of the ERN supports a significant number of MLS graduate students (who represent half the ERN’s members), as well as post-doctoral researchers and faculty members, to increase capacity to teach and support students undertaking empirical projects. The ERN promotes the work of members through a dedicated website, ⁴⁴ which has attracted new PhD students to MLS with an interest in empirical legal research. One of the critical contributions of the ERN, as well as providing peer support and training, has been to reveal the sheer scale of empirical research being undertake at MLS – to researchers themselves, as well as to leaders in the School.

Second, to develop empirical capacity among the MLS JD student body, we introduced a JD Legal Research stream dedicated to Empirical Legal Research. Legal Research is a capstone unit in the MLS JD programme. It requires students to complete an extended research essay (of 8000 words) on a topic of their choosing, with the guidance and supervision of their teacher. In the Empirical Legal Research stream, JD students are asked to apply empirical legal methods to scrutinise an area of law or legal impact, with the aim of building ‘bridges’ between law and their other degree and cultivating a genuine interest and engagement with empirical legal research.

The course commences by introducing students to the range of empirical legal research approaches and methods that exist; considering how we evaluate empirical legal research and ensure ‘rigour’ in empirical methods; and flagging areas of and gaps in empirical legal research. After three weeks of classes, students are assisted in framing their own research topic through one-on-one consultations with their teacher. Students then work independently on their research essay throughout the semester, with the ability to attend regular consults with their teacher. In the final two weeks of semester, classes resume, and students are required to deliver a hurdle presentation, as a work-in-progress to share their ideas and receive formative feedback on their essay.

In selecting a research essay topic, students might choose, for example, to critique the use of empirical legal methods in a particular area of law or scholarship; or the use of a particular empirical method to answer legal questions (as, for one student, the use of the Delphi method in legal research); or critically apply empirical legal research methods to an area of law, using public data (as, for one student, considering the impact of judicial age on decision-making and appeal decisions; for another, evaluating the scope of the National Disability Insurance Scheme in relation to long-COVID). Students are not able, within the confines of the 12-week course, to obtain ethics approval to collect their own, original, empirical data. Instead, the course emphasises critically evaluating existing scholarship, or using existing public data in new ways to examine questions of law and legal impact.

Overall, the course provides students with support and mentorship to produce empirical legal research essays of publishable quality, enabling them to become independent researchers and scholars, as well as critical consumers of others’ empirical scholarship. It is, at present, the only course of its type offered by law schools in Australia at JD or LLB level and represents a critical means of addressing gaps in empirical legal research capacity among law students. Critically, too, it helps to shape empirical literacy at JD level, rather than relying on students undertaking further graduate study.

Third, to help build capacity among PhD and graduate research students, the MLS Research Support Program (RSP), a methodology seminar series for MLS PhD and MPhil students, has been expanded to include a seminar on empirical legal research methods. Again, this seminar introduces students to the range of empirical legal research approaches and methods that exist and considers how we evaluate empirical legal research and ensure ‘rigour’ in empirical methods. This addition to the RSP has proven critical in helping students to frame and develop their research projects. It has also helped PhD students to identify additional avenues of support and advice (beyond their supervisors) as they embark on empirical projects, forging connections between the ERN and incoming HDR students. This has proven to be a critical support for those who may not have supervisory teams skilled in empirical research methods. It has also helped to awaken curiosity in those who had not yet considered empirical methods for their thesis and promoted empirical literacy more broadly.

Building capacity: Pragmatic interventions, challenges and barriers

To date, evaluation of these initiatives has been largely informal – the University of Melbourne does not provide subject feedback for individual Legal Research streams, for example, and the RSP does not evaluate specific seminars. Attendees at ERN seminars have not been asked to evaluate each seminar. This may mean it is difficult to evaluate the impact of these multiple initiatives. However, the importance of these measures is illustrated by positive feedback received, and the ongoing presence of these initiatives at MLS. Indeed, in 2021, supporting empirical legal research was identified as a key priority for MLS research support going forward.

One challenge in adopting these initiatives has related to the relative lack of accessible, targeted scholarly resources and publications to support and extend empirical curricula design in legal education. To address this gap in educational materials, it has been necessary to develop scholarly resources. ⁴⁵ My book, for example, maps the benefits and challenges of conducting empirical research, particularly in the field of equality law, and offers an introductory review of the different empirical methods that might be adopted in legal research. It critically considers gaps in the field, helping to position new empirical projects. It is used to support both the JD and HDR courses on empirical legal research, although students are often undertaking projects well beyond the field of equality law.

A further challenge relates to how these initiatives can be strengthened and broadened beyond just one institution. Empirical teaching diagrams have been developed and shared on Twitter/X and Figshare, an online open access repository for research outputs, to support others wishing to engage in this area. A visual map of empirical legal research topics, for example, has been viewed 398 times on Figshare, and downloaded 133 times since it was uploaded in 2021. ⁴⁶ And, to help prompt broader change, I am sharing progress to date in this journal.

The interventions at MLS were supported by strong buy-in from senior leaders, and one very enthused staff member with a grant buy-out from teaching, which provided the time and capacity to build these interventions. Yet these initiatives are still works in progress, and fragile. There is a risk that these initiatives can come to rely too much on one person, or one (elective) subject, which students can choose to undertake (or not).

To encourage deeper empirical literacy across the legal discipline, there is a need to build enduring, resilient and widespread change. Beyond creating specific units – like JD Legal Research – it is critical that we effectively integrate empirical literacy into law school education. For example, teachers can and should reference relevant empirical studies when teaching core law units. These studies can help us to understand law, justice and the impact of law on society. They can and should become a critical part of a law education. Law students might also be involved as researchers in academics’ empirical research projects, building empirical literacy by ‘doing’. ⁴⁷

Further, establishing a peer-led network to support and encourage empirical legal research among academic staff and HDR students is a cost-effective, low demand initiative, that can be adopted at any institution with at least two researchers interested in empirical methods. These initiatives are scalable, and adaptable, and can become a critical means of expanding empirical literacy across Australian legal education.

Conclusion

The empirical revolution may still feel a way off; but these glimmers of progress offer a positive way forward, to support law students and legal academics as both producers and consumers of empirical legal research. Empirical literacy is arguably becoming even more essential as generative artificial intelligence (AI) challenges empirical scholarship, legal education and legal practice. ⁴⁸ In an era where researchers are attempting to use AI to conduct qualitative interviews, ⁴⁹ there is a compelling need for law students and legal educators who are able to critically evaluate empirical data and how it is being generated. Empirical literacy among legal practitioners and judges is becoming critical for securing access to justice. Legal education and the law curriculum must play its part in building the next generation of empirically literate advocates and scholars.