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Legal Research

Dr Georgia Antonopoulou

Birmingham Law School, University of Birmingham

British Academy International Writing Workshops

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WHAT IS RESEARCH?

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Research is…

  • A way of thinking about a question/problem/issue and a way of finding and using material to allow us to address the question.

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  • It is a ‘scientific’ and disciplined process rather than a form of written advocacy.

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  • We do not start with an answer, and if we have one in mind that should be turned into a hypothesis that we seek to undermine/prove wrong.

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Research process …

  • A systematic enquiry through which we:
    • Develop a research question (what do I want to know?; why does it matter?)
    • Consider what others have found before us when looking at a similar issue (literature review: helps us identify gaps in knowledge)
    • Undertake our own review of source material/data (laws, cases: doctrinal research) and/or generate source material/data (through interviews/observations/analysis of other documents: socio-legal research): how will I conduct my enquiry?
    • Analyse the material so as to reach well-evidenced conclusions (and answer our original question)
    • Communicate those conclusions to an audience (e.g., in dissertation or journal article).

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Research may …

  • Involve comparisons between different contexts and/or jurisdictions, sometimes known as ‘comparative research’.

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  • Involve the researcher applying a theoretical perspective to the question/issue, sometimes known as a ‘theoretical lens’.

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Summary

  • Research is a way to:
    • Think about a question or issue;
    • Systematically to dissect it, then seek to answer it;
    • Using high quality relevant evidence;
    • Systematically and effectively analysed;
    • To reach a defensible, rounded, critically analytical answer;
    • Which is open to scrutiny by others.

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YOUR APPROACH TO ANSWERING QUESTIONS THROUGH RESEARCH

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Stages of Producing Excellent Work

  • Diagnosis of the question given (or developing your own).
  • Research leading to high quality notes of the relevant evidence.
  • Evidence being weighed to reach conclusions.
  • Conclusions being crafted into high quality arguments.
  • Advice, dissertation or journal article being redrafted and refined to become as persuasive as possible.

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Begin at the beginning: diagnosis

  • Begin with the question – either the one that has been set for you, or one you develop to guide your enquiry.
  • Dissect the question:
    • Write it in your own words so that it is as clear to you as possible.
    • Be sure to stick to the question set rather than to write an alternative question for yourself.
    • Keep the question in front of you at all times.
    • Identify the concepts/ideas (keywords) in the question that you may need to research

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Research to gain understanding and evidence

Keywords

Jurisdiction, synonyms, narrowing words

Search

Google Scholar/legal and library databases

Sort for relevance

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Reading your materials

  • Articles, books, etc: read with purpose, to extract the elements relevant to the question.
  • Read the introduction, methods (if any), and conclusions first, to get a sense of what the author has concluded and why. Make notes from these sections.
  • If the piece does not seem relevant, move on.
  • Reread more slowly once you are clear on the key findings. Only note down the absolute essentials.
  • Keep your thoughts/impressions/ideas separate from quotes/paraphrasing from the source (beginning of analysis).

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Efficient, effective reading and note-taking

Our reactions

What do these findings mean for our question?

Of what do we remain unsure?

What were their findings (relevance to our question)?

What do you agree with and why?

With what did you disagree, and why?

Who conducted the research? Why? How?

Relevance?

Quality?

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The importance of referencing

  • Referencing/citing others’ work or the data that you are using as evidence, is key to a strong answer.
  • We use the OSCOLA (Oxford University Standard for Citation of Legal Authorities) system, Bluebook etc.
  • Key things to note:
    • the difference between quoting and paraphrasing;
    • the importance of taking down references correctly at the note-taking stage.

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Then to other sources of material

  • After your academic literature review (academic commentary) you can then move on to other sources: cases, legislation, government and parliamentary reports etc.

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Key Components of a Paragraph

Analysis

    • What you have worked out having weighed up the evidence on a “point”.
    • This needs to be expressed clearly in connection with the question.
    • This would often begin each substantive paragraph.

Justification with Evidence

    • How you know that you are right.
    • Your arguments that demonstrate that your analysis is correct.
    • The justification needs to include an explanation of how your evidence leads you to your analysis.
    • This would often form the middle portion of each paragraph.

Critical Analysis

    • How and/or why your analysis is important or relevant in the context of the question.
    • Sometimes useful to think of it as the answer to “so what, who cares?”
    • This would often be a conclusion to your paragraph.
    • The critical analysis from each individual paragraph would often form the basis for your overarching conclusion to the question.

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Analysis

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    • What you have worked out having weighed up the evidence on a “point”.
    • This needs to be expressed clearly in connection with the question.
    • This would often begin each substantive paragraph.

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Justification with Evidence

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    • How you know that you are right.
    • Your arguments that demonstrate that your analysis is correct.
    • The justification needs to include an explanation of how your evidence leads you to your analysis.
    • This would often form the middle portion of each paragraph.

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Critical Analysis

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    • How and/or why your analysis is important or relevant in the context of the question.
    • Sometimes useful to think of it as the answer to “so what, who cares?”
    • This would often be a conclusion to your paragraph.
    • The critical analysis from each individual paragraph would often form the basis for your overarching conclusion to the question.

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�

  • Though historically important, equity’s position in modern contract law is ambivalent. [point of the paragraph]. On one hand, equitable principles still feature prominently in contract doctrine (rectification; undue influence; rules against penalties and forfeitures; estoppel in various forms). On the other, recent judicial encounters with these doctrines has tended to curtail their application or has sought to impose rule-bound structure on their operation. [n] Waddams notes a reluctance to develop the equitable jurisdiction of the courts since fusion in 1875, which he attributes to declining awareness of equity amongst practitioners and an unwillingness amongst judges to resort to equitable principles.[n] Lack of chancery experience amongst Supreme Court judges has also been blamed for waning equity influence over the law.[n] The introduction of equitable concepts into commercial dealing has been discouraged for fear of imposing trustee- or fiduciary-type duties on commercial contractors acting at arm’s length. [n] [evidence].These sentiments undermine the potential of equity to balance out the more commercially-oriented tenets of contract law. [conclusion]

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Evidence (references)

  • Nelson Enonchong, ‘The Modern English Doctrine of Unconscionability’ (2018) 34 Journal of Contract Law 211, 217.
  • Stephen Waddams, Sanctity of Contracts in a Secular Age (Camb UP, 2019), 34 and 158-9.
  • Man Yip and James Lee ‘The Commercialisation of Equity’ [2017] 37 Legal Studies 647, 650.
  • William Goodhart and Gareth Jones, ‘The Infiltration of Equitable Doctrine into English Commercial Law’ [1980] 43 MLR 489; Sir J Mummery, ‘Commercial Notions and Equitable Potions’ in Sarah Worthington (ed), Commercial Law and Commercial Practice (Hart Publishing, 2003) 29, 42–43; UBS AG (London Branch) v. Kommunale Wasserwerke Leipzig GmbH [2017] EWCA Civ 1567; [2017] 2 Lloyd’s Rep. 621, per Gloster LJ at [347]; Yeoman’s Row Management Ltd v. Cobbe [2008] UKHL 55, [2008] WLR 1752, per Lord Walker at [85] and [91].

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Developing and Refining Your Text

  • Redrafting gives you the opportunity to turn your writing on its head within each paragraph, section, the whole publication:
    • Your original analysis (your conclusion – your point) will often come first.
    • The rigorous evidence that you have in support (your explanation of how other people’s findings, or the data led you there) will be used to justify your analysis.
    • Your critical analysis will conclude each paragraph as a means to explain the significance of your analysis.

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  • Evidence should be put to work, to be used, not described or exhibited.

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IN SHORT

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Success is

  • Dissecting the question effectively;
  • Undertaking targeted high-quality research to gather evidence;
  • Analysing the material in the light of the question, either using a hypothesis (if you think you know the answer) or by keeping an open mind to reduce the risk of bias;
  • Redrafting your work to develop analysis and critical analysis that is well evidenced and fully cited.