Hutchinson, Terry --- "Developing Legal Research Skills: Expanding the Paradigm" [2008] MelbULawRw 33; (2008) 32(3) Melbourne University Law Review 1065
[*] BA, LLB (UQ), DipLib (UNSW), MLP (QUT), PhD (Griffith); Senior Lecturer, Faculty of Law, Queensland University of Technology.
[1] Faculty of Law, Queensland University of Technology, Legal Research Profile (1992). See also Council of Australian Law Deans (‘CALD’), The Research Quality Framework (RQF): Responses to the Issues Paper (2005) <http://www.dest.gov.au/NR/rdonlyres/62C38170-6F41-45F1-9180-D0065FB33089/6011/RQF010117CALD.pdf> .
[2] Dennis Pearce, Enid Campbell and Don Harding (‘Pearce Committee’), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) 307–8.
[3] Sue Milne and Kay Tucker, A Practical Guide to Legal Research (2008) 1. See also CALD, Statement on the Nature of Legal Research (2005) <http://www.cald.asn.au/docs/cald%20
statement%20on%20the%20nature%20of%20legal%20research%20-%202005.pdf>.
[4] It was reported in a 1991 survey that only two faculties in the respondent group had no formal courses in legal research. Nine schools had separate research subjects and seven taught legal research as a component of another subject, invariably the first year ‘Introduction to Law’ unit: Terry Hutchinson, ‘Legal Research Courses: The 1991 Survey’ (1992) 110 Australian Law Librarians Group Newsletter 87, 88. See also Robert C Berring and Kathleen Vanden Heuvel, ‘Legal Research: Should Students Learn It or Wing It?’ (1989) 81 Law Library Journal 431; Sharon Christensen and Sally Kift, ‘Graduate Attributes and Legal Skills: Integration or Disintegration?’ (2000) 11 Legal Education Review 207, 213.
[5] See generally Terry Hutchinson, Legal Research in Law Firms (1994) 28–49; MSJ Keys Young, Legal Research and Information Needs of Legal Practitioners: Discussion Paper (1992); Avrom Sherr, Solicitors and Their Skills: A Study of the Viability of Different Research Methods for Collating and Categorising the Skills Solicitors Utilise in Their Professional Work (1991); Kim Economides and Jeff Smallcombe, Preparatory Skills Training for Trainee Solicitors (1991); Christopher Roper, Senior Solicitors and Their Participation in Continuing Legal Education (1993); Deedra Benthall‑Nietzel, ‘An Empirical Investigation of the Relationship between Lawyering Skills and Legal Education’ (1975) 63 Kentucky Law Journal 373; Robert A D Schwartz, ‘The Relative Importance of Skills Used by Attorneys’ (1973) 3 Golden Gate Law Review 321; Gerard Nash, ‘How Best to Refresh Our Legal Knowledge’ (Paper presented at the 7th Commonwealth Law Conference, Hong Kong, 18–23 September 1983) 222–3; John K de Groot, Producing a Competent Lawyer: Alternative Available (1995) 2–3; J A Smillie, ‘Results of a Survey of Otago Law Graduates 1971–1981’ [1983] OtaLawRw 6; (1983) 5 Otago Law Review 442, 450; Frances Kahn Zemans and Victor Rosenblum, ‘Preparation for the Practice of Law — The Views of the Practicing Bar’ (1980) 1 American Bar Foundation Research Journal 1, 5; Leonard L Baird, ‘A Survey of the Relevance of Legal Training to Law School Graduates’ (1978) 29 Journal of Legal Education 264, 273–4; The Committee on the Future of the Legal Profession (‘The Marre Committee’), A Time for Change: Report of the Committee on the Future of the Legal Profession (1988) 113; John R Peden, ‘Professional Legal Education and Skills Training for Australian Lawyers’ (1972) 46 Australian Law Journal 157, 167.
[6] Michael Chesterman and David Weisbrot, ‘Legal Scholarship in Australia’ (1987) 50 Modern Law Review 709, 710.
[7] Pearce Committee, above n 2.
[8] Ibid vol 3, 17.
[9] Social Sciences and Humanities Research Council of Canada, Law and Learning: Report to the Social Sciences and the Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (1983) 66.
[10] See Australian Bureau of Statistics, Australian Standard Research Classification (ASRC) 1998, ABS Catalogue No 1297.0 (1998) <http://www.abs.gov.au/ausstats/abs@.nsf/0/2d3b6b2b68a 6834fca25697e0018fb2d> . For the current scheme, see Australian Bureau of Statistics, Australian and New Zealand Standard Research Classification (ANZSRC) 2008, ABS Catalogue No 1297.0 (2008) <http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/809BF4F37565C3
7ECA2574180004B6EA>.
[11] Australian Bureau of Statistics, Australian and New Zealand Standard Research Classification (ANZSRC) 2008, above n 10, ch 2 <
http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/ 1297.0Main%20Features42008>.
[12] Australian Bureau of Statistics, ARC Proposals Received and Funded for Legal Research, Since Submit Year 2001 (2008).
[13] Email from Yong Jiang (Officer of the ARC) to Terry Hutchinson, 31 October 2008.
[14] Hilary Charlesworth, ‘Challenges for Legal Research in Australia’ (Paper presented at the Australasian Law Teachers Association Conference, Victoria University of Technology, Melbourne, 4–7 July 2006) 3. ‘RFCD’ refers to Research Fields, Courses and Disciplines Classification: Australian Bureau of Statistics, Australian and New Zealand Standard Research Classification (ANZSRC) 2008, above n 10, ch 3 <http://www.abs.gov.au/Ausstats/abs@.nsf/Latest
products/1297.0Main%20Features52008>.
[15] Department of Education, Science and Training, Research Quality Framework: Assessing the Quality and Impact of Research in Australia — Issues Paper (2005).
[16] Ibid.
[17] Andrew Brennan and Jeff Malpas, ‘Researchers Drowning in Sea of Paper’, The Australian (Sydney), 16 April 2008, 25.
[18] Department of Education, Employment and Workplace Relations, Review of Australian Higher Education (2008) <http://www.dest.gov.au/sectors/higher_education/policy_issues_reviews/
reviews/highered_review/default.htm>.
[19] Australian House of Representatives Standing Committee on Industry, Science and Innovation, Inquiry into Research Training and Research Workforce Issues in Australian Universities (2008) Parliament of Australia <http://www.aph.gov.au/House/committee/isi/research/index.htm> .
[20] Department of Innovation, Industry, Science and Research, Review of the National Innovation System (2008) Department of Innovation, Industry, Science and Research <http://www.innovation.gov.au/Section/Innovation/Pages/ReleaseOfTheReviewOfTheNational
InnovationSystem.aspx>.
[21] Department of Education, Science and Training, above n 15, 3; Australian Research Council (‘ARC’), Consultation Paper: Excellence in Research for Australia (ERA) Initiative (2008) <http://www.arc.gov.au/era/consultation.htm> .
[22] CALD, above n 1, 3 (emphasis in original).
[23] Ibid.
[24] See, eg, Westlaw’s Key Number System.
[25] See, eg, the Queensland Legal Information Retrieval System (QLIRS), established to consider options for making legal information publicly available. For information, see G W Greenleaf, A S Mowbray and D P Lewis, Australasian Computerised Legal Information Handbook (1988) 34. Another example is AustLII <http://www.austlii.edu.au/> .
[26] Colin Fong and Terry Hutchinson, ‘Evaluating Australian Legal Research Guides on the Internet’ [2000] UTSLawRw 5; (2000) 2 University of Technology Sydney Law Review 47, where Fong and Hutchinson provide a criterion that lawyers should use in evaluating websites.
[27] Brendan Nelson, Our Universities: Backing Australia’s Future (2003) 31–3 <http://
www.backingaustraliasfuture.gov.au/policy_paper/policy_paper.pdf>.
[28] Terry Hutchinson, ‘Using the Internet for Research Training: Project Timelines, Reflective Journals and the Foundations Project’ (Paper presented at the Association of American Law Schools Conference on Educating Lawyers for Transnational Challenges, Hawaii, 26–29 May 2004) 1.
[29] Technological advancements in teaching are discussed in Michael A Adams, ‘Special Methods and Tools for Educating the Transnational Lawyer’ (Paper presented at the Association of American Law Schools Conference on Educating Lawyers for Transnational Challenges, Hawaii,
26–29 May 2004) 4.
[30] Hutchinson, ‘Using the Internet for Research Training’, above n 28.
[31] J S Dawkins, Higher Education: A Policy Statement (1988).
[32] For the objects of the Act, see Higher Education Support Act 2003 (Cth) s 2.1.
[34] Australian Learning and Teaching Council, About Us (2008) <http://www.altc.edu.au/carrick/
go/home/about>.
[35] Theresa Shanahan, ‘Legal Scholarship in Ontario’s English‑Speaking Common Law Schools’ (2006) 21(2) Canadian Journal of Law and Society 25, 32.
[36] Ibid. See further Connie Backhouse, ‘The Changing Landscape of Canadian Legal Education’ (Paper presented at the Excellence, Competition and Hierarchy Workshop on the Future of Canadian Legal Education, University of Manitoba, 3–4 May 1999).
[37] See, eg, Margaret Thornton, ‘The Law School, the Market and the New Knowledge Economy’ (2007) 17 Legal Education Review 1.
[38] Kim Carr, Minister for Innovation, Industry, Science and Research, Australian Government, ‘New ERA for Research Quality: Announcement of Excellence in Research for Australia Initiative’ (Media Release, 26 February 2008) <http://minister.innovation.gov.au/Carr/Pages/NEW
ERAFORRESEARCHQUALITY.aspx>.
[40] Erica McWilliam and Patrick Palmer, ‘Pedagogues, Tech(no)bods: Re‑Inventing Postgraduate Pedagogy’ in Erica McWilliam and Peter G Taylor (eds), Pedagogy, Technology, and the Body (1996) 163, 165.
[41] Erica McWilliam et al, Commonwealth Department of Education Science and Training, Research Training in Doctoral Programs: What Can Be Learned from Professional Doctorates? (2002) 10–13 <http://www.dest.gov.au/archive/highered/eippubs/eip02_8/default.htm> .
[42] Christopher K Knapper and Arthur J Cropley, Lifelong Learning in Higher Education (3rd ed, 2000).
[43] Paul Ramsden, Learning to Teach in Higher Education (2nd ed, 2003) 7, 43–6.
[44] John Biggs, Teaching for Quality Learning at University (2nd ed, 2003) 2.
[45] Ibid 5.
[46] Ibid 6–7.
[47] Peter Clinch, Teaching Legal Research (2006) 23–6.
[48] Craig McInnis and Simon Marginson, Australian Law Schools after the 1987 Pearce Report (1994).
[49] John Bowden et al, Generic Capabilities of ATN University Graduates (2000) Australian Technology Network <http://www.clt.uts.edu.au/ATN.grad.cap.project.index.html> . See also Peter Kearns, Review of Research: Generic Skills for the New Economy (2001), discussing other contributors to graduates’ success.
[50] John Bowden et al, above n 49.
[51] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (1999) 148.
[52] Terry Hutchinson and Natalie Cuffe, ‘Legal Research Project Management: Skills Extension for Upper Level Law Students’ (2004) 38 Law Teacher 159, 162–3.
[53] William M Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (2007) 76, 194–7.
[54] John Seely Brown, Allan Collins and Paul Duguid, ‘Situated Cognition and the Culture of Learning’ (1989) 18 Educational Researcher 32.
[55] Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (AUTC) (2003) 1.
[56] Avrom Sherr, ‘Foreword’ in Julian Webb and Caroline Maugham (eds), Teaching Lawyers’ Skills (1996) i, ix.
[57] Christensen and Kift, above n 4.
[58] Christine Bruce and Phil Candy, ‘Developing Information Literate Graduates: Prompts for Good Practice’ in Di Booker (ed), The Learning Link: Information Literacy in Practice (1995) 245, 247.
[59] Christensen and Kift, above n 4, 221.
[60] Natalie Cuffe, Legal Information Literacy: Student Experiences and the Implications for Legal Education Curriculum Development (Master of Information Technology (Research) Thesis, Queensland University of Technology, 2003).
[61] Ibid 132.
[62] Ibid app 4.
[63] Roger Holmes, ‘Foreword’ in Ortrun Zuber‑Skerritt and Yoni Ryan (eds), Quality in Postgraduate Education (1994) xi.
[64] Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995), annex 1B (General Agreement on Trade in Services) 1869 UNTS 183.
[65] [2005] ATS 1 (signed and entered into force 1 January 2005).
[66] Christopher Arup, ‘Law without Borders?’ (2003) 77(8) Law Institute Journal 48, 50; Mark Vaile, ‘GATS to Open Doors for Australian Exporters’ (Press Release, 1 July 2002) 1 <http://www.trademinister.gov.au/releases/2002/mvt064_02.html> .
[67] This has been happening throughout the university sector: see, eg, Maria Macindoe, Socially and Culturally Responsive Curriculum: Getting Systematic; Broadening the Perspective — An Investigation into Inclusive and Internationalised Curriculum at QUT (1999).
[68] ILSAC, Parliament of Australia, Internationalisation of the Australian Law Degree (2004)
11–12.
[69] Sir Ninian Stephen, ‘Once and Future Law Schools’ in John Goldring, Charles Sampford and Ralph Simmonds (eds), New Foundations in Legal Education (1998) 216, 218–19.
[70] John Jones, ‘Undergraduate Students and Research’ in Ortrun Zuber‑Skerritt (ed), Starting Research — Supervision and Training (1992) 50, 54.
[71] Ibid.
[72] Peter Ziegler, ‘A General Theory of Law as a Paradigm for Legal Research’ (1988) 51 Modern Law Review 569.
[73] See further ibid 578–80.
[74] Ian Dobinson and Francis Johns, ‘Qualitative Legal Research’ in Mike McConville and Wing Hong Chui (eds), Research Methods for Law (2007) 16, 21.
[75] Hutchinson and Cuffe, above n 52, 160–3.
[76] See further below Part IV(E). This is a similar concept to ‘situated cognition’ as espoused in the literature on cognitive apprenticeship: see Brown, Collins and Duguid, above n 54.
[77] See, eg, Enid Campbell, Lee Poh‑York and Joycey Tooher, Legal Research: Materials and Methods (4th ed, 1996); Jacqueline R Castel and Omeela K Latchman, The Practical Guide to Canadian Legal Research (2nd ed, 1996); Peter Clinch, Using a Law Library (2nd ed, 2001); Catriona Cook et al, Laying Down the Law (6th ed, 2005); J Myron Jacobstein, Roy Mersky and Donald Dunn, Fundamentals of Legal Research (8th ed, 2002); Andrew D Mitchell and Tania Voon, Legal Research Manual (2000); Irene Nemes and Graeme Coss, Effective Legal Research (2nd ed, 2001); Amy E Sloan, Basic Legal Research: Tools and Strategies (3rd ed, 2006); Philip A Thomas and John Knowles, Dane and Thomas How to Use a Law Library: An Introduction to Legal Skills (4th ed, 2001); Robert Watt, Concise Legal Research (5th ed, 2004).
[78] Terry Hutchinson, Researching and Writing in Law (2nd ed, 2006) 34.
[79] Christopher G Wren and Jill Robinson Wren, ‘The Teaching of Legal Research’ (1988) 80 Law Library Journal 7; Christopher G Wren and Jill Robinson Wren, ‘Reviving Legal Research: A Reply to Berring and Vanden Heuvel’ (1990) 82 Law Library Journal 463, 466.
[80] Wren and Wren, ‘Reviving Legal Research’, above n 79, 466.
[81] Ibid.
[82] Pearce Committee, above n 2; Social Sciences and Humanities Research Council of Canada, above n 9.
[83] See generally Ann Majchrzak, Methods for Policy Research (1984) 12; Peter Bridgman and Glyn Davis, The Australian Policy Handbook (3rd ed, 2004).
[84] Hazel Genn, Martin Partington and Sally Wheeler, Nuffield Foundation, Law in the Real World: Improving Our Understanding of How Law Works — Report Summary (2006) 3.
[85] Ibid 9 (emphasis omitted).
[86] Terry Hutchinson, ‘Where to Now? The 2002 Australasian Research Skills Training Survey’ (2004) 14 Legal Education Review 63, 79–80.
[87] Robert Ellickson, ‘Trends in Legal Scholarship: A Statistical Study’ (2000) 29 Journal of Legal Studies 517, 528–9.
[89] Ibid 36–7 (citations omitted).
[90] See, eg, Association of Legal Writing Directors <http://www.alwd.org/> .
[91] Carnegie Report, above n 53, 4.
[92] Hutchinson and Cuffe, above n 52, 159.
[93] Jeremy Webber, ‘Legal Research, the Law Schools and the Profession’ [2004] SydLawRw 27; (2004) 26 Sydney Law Review 565, 567.
[94] Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality and Prospects for the Future’ [2004] SydLawRw 26; (2004) 26 Sydney Law Review 537, 564.
[95] One example at the institutional level is the scheme at the Queensland University of Technology, which offers a number of Vacation Research Experience Scholarships in most faculties and centres during the summer vacation period. Vacation Research Experience Scholars are normally expected to participate in a project related to a researcher’s ongoing research program: Queensland University of Technology, Vacation Research Experience Scholarships (2008) <http://www.fit.qut.edu.au/scholarships/PostgradutateResearch/vacation.jsp> .
[96] Martina Sharpe, Making Meaning through History: Scaffolding Students Conceptual Understanding through Dialogue (PhD Thesis, University of Technology Sydney, 2003); Judith F Trump and Ian P Tuttle, ‘Here, There, and Everywhere: Reference at the Point‑of‑Need’ (2001) 27 Journal of Academic Librarianship 464.
[97] Christensen and Kift, above n 4, 220. See also Barbara de la Harpe, Alex Radloff and John Wyber, ‘Quality and Generic (Professional) Skills’ (2000) 6 Quality in Higher Education 231; Bobette Wolski, ‘Why, How and What to Practice: Integrating Skills Teaching and Learning in the Undergraduate Law Curriculum’ (2002) 52 Journal of Legal Education 287; Rachel Spencer, ‘Teaching Legal Skills at Flinders — An Integrated Practical Legal Training Program’ [2003] FlinJlLawRfm 6; (2003) 6 Flinders Journal of Law Reform 217, 219–21.
[98] For a discussion of the various models, see generally Hutchinson, ‘Where to Now?’, above n 86.
[99] Charles Sampford, ‘Rethinking the Core Curriculum’ in John Goldring, Charles Sampford and Ralph Simmonds (eds), New Foundations in Legal Education (1998) 129, 147.
[100] Terry Hutchinson and Jo Moran, ‘The Use of Research Assistants in Law Faculties: Balancing Cost Effectiveness and Reciprocity’ (Paper presented at the Faculty of Law Research Interest Group, Brisbane, September 2002) 1, 4 <http://eprints.qut.edu.au/2725/1/2725.pdf> .
[101] For more discussion of such units, see Terry Carney, ‘Graduate Research Seminars: Theory or Praxis?’ [1993] LegEdRev 7; (1993) 4 Legal Education Review 165; Terry Hutchinson, ‘Taking Up the Discourse: Theory or Praxis’ [1995] QUTLawJl 3; (1995) 11 Queensland University of Technology Law Journal 33; Terry Hutchinson and Fiona Martin, ‘Multi‑Modal Delivery Approaches in Teaching Postgraduate Legal Research Courses’ (1998) 15 Journal of Professional Legal Education 137; Hutchinson and Cuffe, above n 52.
[102] Phillip C Candy, Gay Crebert and Jane O’Leary, Developing Lifelong Learners through Undergraduate Education, National Board of Employment, Education and Training Commissioned Report No 28 (1994) <http://www.dest.gov.au/sectors/training_skills/publications_
resources/profiles/nbeet/hec/developing_lifelong_learners_through_undergraduate.htm>.
[103] Michael Adler, Recognising the Problem: Socio‑Legal Research Training in the UK (2007).