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Loughnan, Arlie; Shackel, Rita --- "The Travails of Postgraduate Research in Law" [2009] LegEdRev 5; (2009) 19(1) Legal Education Review 99

[*] Lecturers, Faculty of Law, University of Sydney. The authors would like to thank Jordi Austin, Sabine Selchow and Julie Stubbs for their assistance in the preparation of this article and would like to acknowledge the excellent research assistance of Adriana Edmeades and Tanya Mitchell.

[1] As the Council for Australian Law Deans has noted, this began from ‘an historically low base’, reflecting a variety of factors including the absence of a requirement that ‘a beginning academic in law will necessarily have a completed PhD’: see Council of Australian Law Deans, Statement on the Nature of Legal Research (2005) 5

<http://www.cald.asn.au/docs/cald%20statement%20on%20the%20nature%20of%20legal%20research%20-%202005.pdf> at 23 December 2009.

[2] For discussion, see Margaret Thornton, ‘The Law School, the Market and the Knowledge Economy’ (2007) 17 Legal Education Review 1; Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality and Prospects for the Future’ [2004] SydLawRw 26; (2004) 26 Sydney Law Review 537; Christine Parker and Andrew Goldsmith, ‘“Failed Sociologists” in the Market Place: Law Schools in Australia’ (1998) 25 Journal of Law and Society 1, for critical and historicised discussion of these and other issues. For a discussion of developments in legal education beyond Australia, see William M Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (2007). This Carnegie Foundation for the Advancement of Teaching report was highly critical of American legal education. For a discussion of the relevance of the report in the Australian context, see Susanne Owen and Gary Davis, Report to Council of Australian Law Deans (Summary) (2008)

<http://www.cald.asn.au/docs/altc_Davis_Owen_report_comb.pdf> at 23 December 2009.

[3] For a recent and detailed consideration of these and other issues, see the Department of Education and Workplace Relations, Review of Australian Higher Education (2008)

<http://www.deewr.gov.au/HigherEducation/Review/Pages/ReviewofAustralianHigherEducationReport.aspx> at 23 December 2009 (the Bradley Report). See also Law Council of Australia, 2010: A Discussion Paper: Challenges for the Legal Profession <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=0BE36A97-1C23-CACD-2225-CBD6713A3E09 & siteName=lca> at 23 December 2009.

[4] This tension has been widely acknowledged: see, eg, Council of Australian Law Deans, above n 1, 1. For a detailed discussion of the professional dimensions of legal education in the US context, see Sullivan et al, above n 2, ch 1.

[5] These degree programs are available through the University of Sydney, see Faculty of Law, University of Sydney, Research Programs @ Sydney Law School <http://www.law.usyd.edu.au/fstudent/research/programs.shtml> at 23 December 2009.

[6] For instance, the SJD at the University of Sydney permits students to enrol in coursework subjects that provide a ‘staged and formative introduction to the process of creating a doctoral thesis’: Faculty of Law, University of Sydney, above n 5.

[7] The range of higher degree research programs in law must be viewed alongside the more recent moves on the part of a number of Australian law schools to offer a Juris Doctor (JD) degree as an alternative to the Bachelor of Laws (LLB) for students with an undergraduate degree. In keeping with the North American model on which it is based, the JD is not a doctorate and does not bring with it the right to use the title ‘doctor’.

[8] For a discussion of the broader changes to doctoral education in Australia, including the advent of ‘professional doctorates’, see Alison Lee, Marie Brennan and Bill Green, ‘Re-Imagining Doctoral Education: Professional Doctorates and Beyond’ (2009) 28(3) Higher Education Research and Development 275–87; Ruth Neumann, ‘Policy Driving Change in Doctoral Education’ in David Boud and Alison Lee (eds), Changing Practices of Doctoral Education (2009) ch 16. For a critical assessment of the state of doctoral education in the US, see George E Walker et al, The Formation of Scholars: Rethinking Doctoral Education for the Twenty-First Century (2008).

[9] Council of Australian Law Deans, above n 1, 3. See also Terry Hutchinson, Research and Writing in Law (2nd ed, 2006) 7–8.

[10] Hutchinson, above n 9, 4.

[11] Council of Australian Law Deans, above n 1, 2.

[12] For a useful list of questions to ask about a research project at this point, see Hutchinson, above n 9, 137–43.

[13] See Ruth Neumann, The Doctoral Education Experience: Diversity and Complexity (Department of Education, Employment and Workplace Relations, 2003) 4.5 (DEST Report).

[14] The examiner’s report form is available from University of Sydney, PhD Award Sub-Committee Forms <http://www.usyd.edu.au/ab/committees/rrtc/phd_award/forms.shtml> at 23 December 2009.

[15] David Evans and Paul Gruba, How to Write a Better Thesis (2nd ed, 2002) 5.

[16] While most universities and some faculties produce handbooks for doctoral or other students, these may include only practical information such as the formal requirements of a research degree program. However, even this type of information, along with induction programs, may assist with quality assurance and student satisfaction: see DEST Report, above n 13, 6.2, 8.3.

[17] Evans and Gruba, above n 15, 7.

[18] See Patrick Dunleavy, Authoring a PhD (1st ed, 2003) 3. In reflecting on the growing emphasis on teaching writing skills as part of doctoral programs across disciplines, Alison Lee and Claire Aitchison note that ‘the problem of writing’ is constructed as the ‘dirty linen’ of the institution, a source of discomfort for managers and academics, and separate from the ‘real work’ of the doctorate: see Alison Lee and Claire Aitchison, ‘Writing for the Doctorate and Beyond’ in David Boud and Alison Lee (eds), Changing Practices of Doctoral Education (2009) 95.

[19] This emphasis in undergraduate legal education has been widely noted and criticised: see, eg, Keyes and Johnstone, above n 2.

[20] See, eg, Dunleavy, above n 18, 1–18; Lee and Aitchison, above n 18, 90–3.

[21] See Hutchinson, above n 9, 19.

[22] See also Hutchinson, above n 9, 19–22.

[23] See Council of Australian Law Deans, above n 1, 3.

[24] See Hutchinson, above n 9, 87–118.

[25] See, eg, Reza Banakar and Max Travers (eds), Theory and Method in Socio-Legal Research (2005); Alan Bryman, Social Research Methods (2nd ed, 2004); Sharlene Nagy Hesse-Biber and MichelleYaiser (eds), Feminist Perspectives on Social Research (2003); John Law, After Method: Mess in Social Science Research (2004); David Silverman (ed), Qualitative Research: Theory, Method and Practice (2nd ed, 2004).

[26] See, eg, Terry Hutchinson and Fiona Martin, ‘Multi-Modal Delivery Approaches in Teaching Postgraduate Legal Research Courses’ (1997) 15(2) Journal of Professional Legal Education 137.

[27] See Hutchinson, above n 9, 23–6.

[28] See, eg, Keyes and Johnstone, above n 2, 4.

[29] While some research indicates that research postgraduate students are more integrated into faculties and departments via research clusters and staff seminars. See, eg, Robin Humphrey and Peter McCarthy, ‘Recognising Difference: Providing for Postgraduate Students’ (1999) 24(3) Studies in Higher Education 371, 375. There is also research to suggest that research postgraduate students might feel particularly isolated; for discussion, see Stephen Colbran and Belinda Tynan, ‘Australian Legal Postgraduate Network’ (2006) 16 Legal Education Review 35.

[30] For information on postgraduate completion rates at Australian universities across all disciplines, see Yew Martin, Maureen MacLachlan and Tom Karmel, Postgraduate Completion Rates (1999) Department of Education, Training and Youth Affairs <http://www.dest.gov.au/archive/highered/occpaper/01d/01d.pdf> at 23 December 2009. This report indicates that postgraduate students in science disciplines are significantly more likely to complete than those in arts disciplines: at 9. The likelihood of completion generally decreases with age: at 9. The authors were unable to find more recent statistical information on the completion rates of students enrolled in postgraduate degree programs.

[31] See Parts III and IV below.

[32] See University of Sydney, Degree of Doctor of Philosophy Examiner’s Report on Thesis <http://www.usyd.edu.au/ab/committees/rrtc/phd_award/PhD_Forms/Examiners_Report_Form_PhD.pdf> at 23 December 2009.

[33] See Estelle Phillips and Derek Pugh, ‘How Not to Get a PhD…’, The Guardian (London), 8 November 2002 <http://www.guardian.co.uk/education/2002/nov/08/highereducation.books> at 23 December 2009. For a useful and critical discussion of the requirements of a PhD in the Australian context, including originality, see Rob Gilbert, ‘The Doctorate as Curriculum’ in David Boud and Alison Lee (eds), Changing Practices of Doctoral Education (2009) ch 5.

[34] Ibid.

[35] See Louis Menand, ‘The End Matter’, The New Yorker (New York), 6 October 2003 <http://www.newyorker.com/archive/2003/10/06/031006crbo_books1> at 23 December 2009.

[36] Colbran and Tynan, above n 29, 37.

[37] The databases searched were: AGIS Plus Text (1975–present); Index to Foreign Legal Periodicals & Index to Legal Periodicals (1987–present): LegalTrac (1980–present); ERIC (1966–present); Expanded Academic ASAP. One article was found, which included discussion of doctorates in law in a comparison of ‘professional doctorates’ and PhDs: Ruth Neumann, ‘Doctoral Difference: Professional Doctorates and PhDs Compared’ (2005) 27 Journal of Higher Education Policy and Management 173. The absence of research on the student perspective on doctoral research has been noted by other authors: see Diana Leonard and Rosa Becker, ‘Enhancing the Doctoral Experience at the Local Level’ in David Boud and Alison Lee (eds), Changing Practices of Doctoral Education (2009) 71.

[38] Kay Harman, ‘Producing “Industry-Ready” Doctorates: Australian Co-operative Research Centre Approaches to Doctoral Education’ (2004) 26 Studies in Continuing Education 387, 393.

[39] For example, what is the mean age of doctoral candidates in law? Are students enrolled in PhD programs in law, on the whole, a slightly older group compared to other doctoral students? Unfortunately, there is little published research on the demographics of students enrolled in postgraduate research degree programs in law. Most law faculties are likely to collect this data but what is needed is collation and synthesis of such data across law schools to provide a broader snapshot of student demographics and ideally a national picture. Alternatively, the Australian Law Postgraduate Network (ALPN), for example, may in the future consider collecting such data through its membership and infrastructure. On application, the authors were informed that CALD did not have any Australia-wide statistical information (email on file with authors).

[40] This issue was identified as a problem by the then Federal Minister for Education in 1999: see The Hon Dr David A Kemp MP, Knowledge and Innovation: A Policy Statement on Research and Research Training (Department of Education, Training and Youth Affairs, 1999) 17.

[41] Ibid 394.

[42] This view is consistent with the informal feedback received by the current authors at a recent seminar on ‘Surviving the PhD’ experience presented at the Sydney Law School’s Postgraduate Students Conference 2008. Students expressed relief that the possible ‘personal’ challenges that may face doctoral students in law were openly canvassed with a view to stimulating an exchange around these issues. This informal feedback formed part of the impetus for the preparation of this article.

[43] Annick Janson, Laurie Howard and Michele Schoenberger-Orgad, ‘The Odyssey of PhD Students Becoming a Community Practice’ (2004) 67 Business Communication Quarterly 168, 171.

[44] Ibid 172.

[45] Ibid.

[46] In the federal government’s Department of Education Science and Training (DEST) study of students undertaking Australian doctoral degrees, disciplinary specificity was identified as one of the features affecting doctoral experiences: see DEST Report, above n 13, ch 2. See also Harman, above n 38.

[47] Colbran and Tynan, above n 29, 39.

[48] For a discussion of issues relevant to offering doctoral students adequate financial support and resources, see DEST Report, above n 13, 5.6.

[49] See DEST Report, above n 13, 4.5.1, for a discussion of industry-funded doctoral topics and the challenges posed by such programs.

[50] For a discussion of support structures and mechanisms in doctorate education, see DEST Report, above n 13, 5.

[51] Janson, Howard and Schoenberger-Orgad, above n 43, 178.

[52] Ibid 179.

[53] This was identified by DEST as most noticeably affecting acculturation opportunities for doctoral researchers in the ‘soft’ disciplines: see DEST Report, above n 13, 4.7

[54] DEST Report, above n 13, 4.8.

[55] Colbran and Tynan, above n 29, 50.

[56] In their study of 139 doctoral degree holders, Dinham and Scott found that the majority of participants completed their degrees in either three (20 per cent), four (18 per cent) or five years (20 per cent). Women were more likely to take longer to complete their degrees with 25 per cent taking five years to complete their doctorate: see Steve Dinham and Catherine Scott, The Doctorate — Talking About the Degree (University of Western Sydney, 1999). This research is not specific to doctoral candidates in law but, arguably, provides a snapshot of trends generally amongst doctoral students.

[57] DEST Report, above n 13, 6.3.

[58] See Part I of this paper.

[59] DEST Report, above n 13, 4.5.

[60] Janson, Howard and Schoenberger-Orgad, above n 43, 173.

[61] See, eg, Rodger W Griffeth, Kerry D Carson and Daniel B Marin, ‘Information Load: A Test of an Inverted-U Hypothesis with Hourly and Salaried Employees’ (2006) 22 Journal of Applied Psychology 763. This study examined the impact of information load in an employment context but the findings are, arguably, generalisable to other settings as well, such as study.

[62] The authors are grateful to Ms Jordi Austin, Head, University of Sydney Counselling Service, for providing the data cited here. This service has also identified the difficulties that may arise in accessing postgraduate students and getting them to participate in one-to-one sessions or group programs. Since 2006, the University of Sydney Counselling Service has been running some outreach programs targeted specifically at PhD students and this has resulted in a slight increase in the proportion of postgraduate students using the service, but still proportionally lower than the undergraduate population.

[63] Due to the constraints of the service’s database, reporting is limited to a single presenting issue per consultation. This does not adequately reflect the complexity of problems students are bringing to the consultations. For example, it is not uncommon for a student to present with a study-related problem that is causing distress, and interpersonal conflict. Females are generally much better users of all health and mental health facilities, and this is also true for female PhD students. At the University of Sydney Counselling Service, male students constitute roughly 32 per cent of clients (on the rise from 28 per cent in 2006).

[64] Norm Kelk et al, ‘Courting the Blues: Attitudes Towards Depression in Australian Law Students and Legal Practitioners’ (2009) Brain and Mind Research Institute Monograph 1.

[65] See, eg, Dinham and Scott who reported that the majority of their sample had worked either full-time or part-time during their degree: above n 56, 46.

[66] Ibid 11–12.

[67] Ibid 53.

[68] Dinham and Scott reported that almost a quarter of their participants stated that they found it difficult to support themselves during their PhD: ibid 38.

[69] DEST identified stark resource differences and opportunities for doctoral students in the hard and soft disciplines as a cause for governmental concern: see DEST Report, above n 13, 8.2.

[70] Most scholarships available to PhD students, such as an Australian Postgraduate Award, can be held only for three years (two years for Research Masters) with the possibility of a maximum extension of up to six months, subject to satisfactory progress and provided the grounds are related to study and are beyond the control of the student: Commonwealth Scholarship Guidelines <http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200510274?Open Document> at 23 December 2009.

[71] DEST Report, above n 13, 4.8.

[72] Dinham and Scott, above n 56, 12 found women were slightly more likely to undertake their doctorate degree part-time (37 per cent) compared to men (32 per cent).

[73] DEST Report, above n 13, 4.5.

[74] See Angela Brew and Tai Peseta, ‘Supervision Development and Recognition in a Reflexive Space’ in David Boud and Alison Lee (eds), Changing Practices of Doctoral Education (2009) ch 10.

[75] Mutual respect and trust between student and supervisor have been identified as key factors that influence some students’ choices for supervision: DEST Report, above n 13, 4.4.

[76] Dunleavy, above n 18, 4.

[77] For useful discussions on the supervisory process, see Stephen Colbran, ‘Collaborative Supervision of Legal Doctoral Theses through E-Learning’ [2004] UNELawJl 1; (2004) 1 University of New England Law Journal 1–29. See also Desmond Manderson, ‘Asking Better Questions: Approaching the Process of Thesis Supervision’ (1996) 46(3) Journal of Legal Education 407.

[78] Colbran and Tynan, above n 29, 38.

[79] Dunleavy, above n 18, 4.

[80] Brew and Peseta, above n 74, 126.

[81] Ibid.

[82] Dinham and Scott, above n 56, 2.

[83] For example, this is the policy of the University of Sydney: see University of Sydney (Doctor of Philosophy (PhD)) Rule 2004, 9.1, <http://www.usyd.edu.au/calendar/05j_PhD_rule.shtml> at 23 December 2009.

[84] Ibid.

[85] DEST Report, above n 13, 3.4.

[86] Ibid.

[87] Ibid.

[88] Ibid 3.5.

[89] Ibid 4.4.

[90] Brew and Peseta, above n 74, 136–7.

[91] See DEST Report, above n 13, 4.4.

[92] Ibid 4.3.

[93] Brew and Peseta, above n 74.

[94] Ibid.

[95] See DEST Report, above n 13, 4.5.

[96] See Sid Bourke, Jill Scevak and Robert Cantwell, PhD Examination and Examiner Characteristics, Australian Association for Research in Education <http://www.aare.edu.au/01pap/bou01588.htm> at 23 December 2009.

[97] Ibid. In some overseas jurisdictions, the PhD in law is also examined by an oral examination, the PhD viva, in which the candidate defends the outcome of their research work, usually before two or three academic experts in the field. This form of examination of a PhD in law is not common in Australia.

[98] Ibid.

[99] See University of Sydney, Degree of Doctor of Philosophy Examiner’s Report on Thesis, above n 32.

[100] See Hutchinson, above n 9, 5–6. In the context of criminology, Lucia Zedner has suggested that a discipline might mark its own maturity when it comes to mainly employ its own PhDs: see Lucia Zedner, ‘Pre-Crime and Post-Criminology?(2007) 11(2) Theoretical Criminology 261, 268.

[101] The DEST report into the doctoral education experience identified a lack of support for career development for students as a cause for concern: see DEST Report, above n 13, 8.3. For a sophisticated set of discussions about doctoral research in Australian universities, see the special edition on doctoral degrees in the knowledge economy of Higher Education Research and Development 21(2).