Increasing concern is being expressed within the academy
and the user community about a perceived dwindling of capacity to undertake
rigorous empirical research in law. While a generation of skilled research
scholars is approaching retirement age, there is little evidence that the
following generations are equipped to take its place. This decline in capacity
is happening at a time when there are excellent opportunities to enhance
understanding of legal phenomena by building on foundational empirical work
completed over the last twenty years, and when the demand for empirical research
to inform and evaluate policy is actually growing.
Questions about ‘capacity’ in empirical
legal studies are not new. Nor is the Nuffield Foundation’s engagement
with this issue. In 1971 the Foundation was concerned enough to set up its
own Legal Advice Research Unit, which eventually led to the formation of
the Legal Action Group. At the same time, it launched a scheme of Social
Science Fellowships for Law Teachers, so that university teachers of law
could spend a year working in a social science department on a socio-legal
research project. In the first year, there were no applicants and the scheme
seems to have closed after a few years.
In 1994 the ESRC commissioned a Review
of Socio-Legal studies after the decision to end core funding of the Oxford
Socio-Legal Centre. In its Conclusion the
Review of Socio-Legal Studies noted that “There is a shortage of staff
within law departments to provide training in socio-legal research, and social
science departments do not have legally trained academics who can assist
in developing an interest in, and knowledge about, law as a focus for research
The most recent Annual Conference of the Socio-Legal
Studies Association in 2003 was attended by 370 UK academics, 87% of whom
were based in law departments. Of the 327 academics listed in the SLSA Directory,
only 57 could be said to include funded empirical inquiry in their profile
and 26 of these were located in departments other than law (principally criminology,
sociology, social policy, politics and government). This picture of relatively
low levels of empirical activity among legal academics is also supported
by ESRC information on applications for research funding and supported posts
where the number of applications has remained consistently low.
The concern about capacity to conduct empirical legal
research goes well beyond the need and interests of academic practitioners
and users. Rigorous empirical research of law and the institutions of law
as they operate is needed to underpin many areas of legal policy. An obvious
example is the public funding of legal services. The Nuffield Foundation
funded much of the work that looked at the first round of changes to the
public funding of legal services, but there is little capacity to take a
broader look at areas that seem to be causing specific problems in the delivery
of legal services, including public family law. Another area in urgent need
of an empirical evidence base is the proposed radical change to the system
of tribunals in England and Wales, predicated on many assumptions about the
needs of tribunal users and the public more generally. The system of tribunals
produces judicial decisions in over 1 million cases annually, frequently
touching the lives of some of the most disadvantaged groups in society. Empirical
research evidence on tribunals is patchy and some of it quite old, and yet
recently there has been difficulty in finding skilled researchers with the
time to undertake such research. More generally government is making increasing
use of law to regulate economic, social and family relationships and processes,
and yet we have remarkably little empirical evidence about what types of
regulation may work in what circumstance or how regulatory control could
be improved. Regulation affects areas such as school decisions, planning,
regulation of services and so on. The fundamental point is that while law
is an increasingly important feature of modern life, it seems that we have
a decreasing capacity to keep it under policy-relevant empirical examination.
Although the problem of under-capacity to undertake
high quality empirical research is not confined to the discipline of law,
there are probably unique factors in the legal field that need to be understood
and addressed by a specific strategy rather than via a more generic approach
as envisaged, for example, in the current ESRC research methods programme.
This inquiry will bring together parts of the academy,
professions and users of research to examine this important issue and identify
the ways in which it may be possible to work together to improve the situation
in the future. The Inquiry will:
Provide factual information about current capacity;
Articulate the different aspects of the capacity
Understand the causes of the problem including incentives
and disincentives for conducting empirical research in law, drawing on
evidence from a wide range of sources, including overseas experience;
Bring together a range of people who do not often
get together, including the major players in legal education and training,
users of research and a wide range of policy-makers to develop a shared
understanding of the issues and see if concerted action is possible;
Identify a range of possible solutions; and
Make recommendations for a programme of short, medium
and longer-term initiatives and activities that might help to alleviate
To achieve the objectives of the Inquiry a number of
activities will be undertaken over a one-year period, including: v Publication
of a consultation document to be widely distributed within the academy and
among relevant users inviting written responses.
Four or five regional meetings with academics to
discuss the issues raised in the consultation document.
Research to catalogue available and relevant research
methods training programmes.
Research among existing legal scholars engaged in
empirical research. This work will detail demographic profiles and explore
career trajectories and expectations in order to understand how these are
shaped within different disciplinary identities.
Research on capacity issues in other jurisdictions
that will identify similarities with and differences from the UK situation
and suggest whether there are lessons that can be learned.
A series of four seminars to be held at the Nuffield
Foundation for academics, policy-makers, the judiciary, practitioners and
other non-academic users of empirical research in law.
Publication of a final report with recommendations.