Alysia Blackham, Melbourne Law School, The University of Melbourne, Australia and Kylie Burns, Griffith Law School, Griffith University, Australia

There is a growing need – and desire – for empirical legal research, and for lawyers who are empirically literate, that is, able to use, evaluate and deploy empirical evidence in their work. 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. Despite this growing demand and desire for empirical legal research, there are also concerns that there is insufficient empirical capacity in the legal discipline.

Legal education and the law curriculum must play its part in building the next generation of empirically literate advocates and scholars, to enable law students and staff to be both skilled consumers and producers of empirical legal research.

In this workshop, we sought to support and enable legal educators to build empirical legal scholarship into their teaching, and to create a community of practice for those interested in empirical legal teaching. We asked participants to consider how and why empirical research might be embedded in the law curriculum, including by enriching the teaching of core law units – in Australia, known as the Priestley 11 subjects. We sought papers that considered how empirical legal research could be embedded into law teaching, to better support the future of empirical legal scholarship. This might relate to, for example:

• Subjects dedicated to empirical legal research or empirical methods
• Drawing on empirical scholarship to enrich teaching, including in core law subjects
• Including law students as researchers or research assistants in empirical legal projects
• Building capacity of academics to integrate empirical research in their teaching

The workshop involved participants from Australia, New Zealand, Japan and Canada.

A number of key themes emerged.

First, we can embed empirical research in teaching through a focus on law in context. This might involve, for example, using statistics to contextualise experiences of legal problems, and to challenges students’ assumptions about who might experience legal problems, and what those problems look like (as raised in Jess Mant’s and Dominique Allen’s presentations). By arming students with data regarding how legal problems are experienced, Jess Mant empowers students to co-develop scenarios for a client interview simulation, supporting professional skills development grounded in real-world problems.

Relatedly, we can frame our teaching to prompt students to ask: who is law serving well? And who is being served poorly? In Kylie Burn’s tort law classes, for example, law is framed as part of an ecosystem responding to injury, which supports some people and not others. Students are prompted to ask: why do we have the schemes we have? Is tort the best way to compensate for injury? This puts context around the law, and legal teaching (as raised in Kylie Burns’s presentation).

Second, we can use empirical research to encourage students to engage critically with law and judicial decision-making. For example, we might use the idea of ‘social facts’ to frame and critique judicial decision-making (as raised in Kylie Burns’s presentation). In considering how judges use social facts, classes raise the idea that judges are (only) human, and they have a tendency to rely on assumptions and ‘common sense’, rather than empirical evidence. Causation, in particular, is infused with assumptions about how people operate. Students are prompted to ask: should we be asking for more, from our judges and their decisions? Should we be seeking decisions grounded in empirical evidence?

Third, we explored how group work activities might be deployed to better engage classes with empirical evidence. David Tilt, for example, considered how FOI requests developed by students might be used as a teaching tool, to enable students to become comfortable with using and engaging with empirical data. FOI requests are a low stakes, low cost tool, which can be deployed in a way that centres students as co-producers of knowledge. Developing FOI requests in class – and considering the exceptions to FOI legislation that need to be navigated – gives students a deeper sense of their political and institutional context.

Fourth, it is not enough to simply teach in this way; these ideas and approaches need to be embedded in assessment, as well as teaching. This often involves developing assessment tasks that engage with the real world, and offer more authentic approaches to assessment. Genevieve Grant’s presentation, for example, explored how to embed evaluation research skills in Civil Dispute Resolution through an assessment focused on evaluation design. Students are asked to design part of an evaluation of a civil justice intervention, and to propose civil procedure rules that should be adopted to make the intervention effective. Assessment tasks draw on real world examples, and ask students to identify data sources that might be used to evaluate effectiveness. Ultimately, students are asked to consider: will this improve access to justice?

Fifth, in integrating empirical research in legal education, we need to consider both what is feasible for our (often undergraduate) audience, as well as what is the aim or objective of using empirical research in legal education (as raised in Genevieve Grant’s and Dominique Allen’s presentations). An undergraduate audience is different to a PhD cohort, for example – they may be less engaged in empirical methods, and perhaps even slightly jaded in later years of study. A continuing challenge, then, is to better engage students with the study of empirical research.

For participants, the workshop was inspiring, offering new yet practical ways to better embed empirical research in our teaching. It flagged, too, the critical ongoing relevance of the teaching-research nexus, as we use our research to inform teaching, and teaching to inform our research (for example, as teaching revealed gaps in existing research relating to how workers experience the resolution of disputes). The workshop also offered insight into the overlap and dynamic interplay between empirical research, socio-legal research, and law in context, all of which offer insights that can strengthen our teaching.

Overall, though, the workshop showed the critical importance of enabling, encouraging and supporting law teachers to embed empirical research in their teaching, including by continuing these critical discussions. Join the discussion at empiricalrevolution.net.

Photo by Clint Adair on Unsplash