Loughnan, A; R Shackel, R --- "The travails of postgraduate research in law" [2010] LegEdDig 9; (2010) 18(1) Legal Education Digest 30

• The travails of postgraduate research in law

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The travails of postgraduate research in law

A Loughnan & R Shackel

Legal Education Review, Vol 19, No. 1, 2009, pp99-132

The number of students completing postgraduate research degrees at Australian law schools has burgeoned. The increase in the number of students undertaking postgraduate research degree programs in law has given rise to a particular set of structural issues relating to funding, training, progression, supervision and examination. Pursuing a postgraduate research degree in the current era occurs in the context of historically low levels of public funding to universities, a looming shortage of academics, the ‘internationalisation’ of the student cohort and the globalisation of higher education more generally. In relation to law in particular, it would seem that these issues exacerbate the longstanding tension in legal education in Australia, and in other comparable common law countries, between studying law as training for professional practice and studying it as an intellectual discipline in its own right.

This picture is further complicated by the fact that, in recent years, research degree programs in Australian law schools have multiplied and diversified.

Taken together, these changes are significant and it is therefore timely to advance the conversation about the current state of higher degree research in law in Australia.

As the Council for Australian Law Deans (CALD) has acknowledged, legal research is both similar to and different from research in the humanities and social sciences. Acknowledging the difficulty of the task of pinning down what it is that is distinctive about legal research, CALD suggests that, in part because of the primacy of doctrinal research and the distinctive notion of ‘legal reasoning’, legal research falls neither wholly within one or other category. In their Statement on the Nature of Legal Research, CALD has stated that legal research may be described as occurring in varying combinations of the following categories: doctrinal, theoretical, critical/reformist, fundamental/contextual, empirical, historical, comparative, institutional, process-oriented and interdisciplinary. This list demonstrates the wide parameters of legal scholarship in the current era. In relation to interdisciplinary research, it should be noted that law students (like law academics) may be engaged in research that overlaps with that otherwise conducted under the umbrella of criminology, philosophy, business and economics, sociology and history, to name just a few allied disciplines.

A student embarking on a postgraduate research degree may have only sketched out the broad contours of a research project, or perhaps merely have identified a particular topic or area of research, by the time he or she commences study. There is a significant difference between a research area (such as human rights law) and a research project (the development of a right to water in international law, for example). One of the first tasks postgraduate research students face is refining (and possibly defining for the first time) their research project. This process may, but will not necessarily, involve supervisor input and direction. In this respect, the humanities differ from the hard sciences as often, in the latter, students are presented with an already well-developed and clearly mapped out research project.

The task of formulating a research project might require some revision of territory covered for the purposes of preparing a research proposal. The task of refining and even reconceptualising research is likely to recur throughout the project as it evolves and changes over time, and may even be at issue in the final stages of a research project.

Over the course of a postgraduate research degree, a research topic should become a thesis. Students may be unclear about the scope and requirements of a thesis, even after having committed to at least commencing to write one. In general, a thesis may be understood according to the criteria set down for the award of a degree based on a thesis.

Providing detailed information about the nature of postgraduate research even prior to enrolment may assist in debunking any myths that may exist around the nature of a postgraduate thesis.

At the outset of a postgraduate research degree, students may find it useful to access and familiarise themselves with the requirements for the award of the postgraduate research degree they are pursuing. Supervisors may be able to recommend particular theses which students may then use as a model for their own research and writing.

Proficiency as a writer is a requirement of postgraduate legal research distinct from, although connected to, competency as a researcher in law.

Thesis writing is widely acknowledged to be a particular style of writing. In addition, as it generally requires authors to carve out a particular space for their own contribution, and defend a particular approach (methodological, analytical or discursive), a thesis may have a more defensive tone than other forms of academic writing. In part, in light of this, some scholarship on higher education research has stressed the importance of authoring, as opposed to writing, with the former encompassing skills such as managing readers’ expectations, and others have advocated approaches to writing that regard it as a social practice and a social action. Taking these aspects of thesis writing together, it becomes apparent that postgraduate research degree training involves becoming an author as much as it involves becoming an expert with knowledge of a certain area or field of law.

Like writing, discussed above, methodology should not be dismissed as merely incidental to the particular research involved in completing a thesis, or indeed to any academic research. Ability to execute particular kinds of research as well as knowledge of specific areas is part of the skillset of postgraduate research degree programs.

If methodology refers to the techniques to be used in undertaking research, it is clear that a wide range of methodologies will be potentially relevant to those engaged in legal research.

A rich set of resources, much of them originating outside the legal academy, exist to assist students in understanding and developing a methodology for their research. Methodology may well also form the subject of discussion in postgraduate legal research courses alongside consideration of rapidly developing research techniques. In determining which methodology will best suit their needs, students may be advised to think about the range of ways in which one topic or question may be approached and to read widely (even indiscriminately), in order to expose themselves to different perspectives on their selected topic. As part of the process of undertaking research, students may consider recording and reflecting on their research by keeping a research diary, or by preparing a series of short memos for their supervisor. Such a reflective activity is useful because it will help to ensure that students do not unthinkingly pursue particular sources or approaches to the exclusion of others. It will also provide a helpful grounding when the student comes to explain the particular approach he or she has taken in introducing his or her research in the thesis.

Maintaining momentum and intellectual interest in a thesis are distinct challenges encoded in a postgraduate research project. In this context, the issue of the individualist culture of law schools, which has been widely noted and criticised, is arguably exacerbated when it comes to postgraduate research students. The characteristics of higher degree research – a specific and independent project of interest to a narrow range of people even within a particular discipline – arguably promote isolation and even alienation among students.

In terms of the intellectual dimensions of a sustained and independent research project, it is important for potential or commencing students to keep a number of factors in mind. First, students will arguably be better served by selecting a topic which will interest them beyond the short term, as well as one that will have sufficient breadth and depth such that it unfolds over the life of the project. Second, it is likely that the research project will change form (possibly significantly) by the time it is completed. Third, while it might be readily acknowledged that enthusiasm for a particular project will necessarily wax and wane over a significant period of time, it is important to maintain a working rhythm with regard to the thesis. In relation to each of these factors, supervisors will be able to guide students as an individual scholar and for this reason, among others, it is vital to keep communication channels with supervisors open.

One of the particular features of a PhD as opposed to other postgraduate research degrees is the requirement of originality.

In law, an ‘original contribution to the knowledge of the subject’ is likely to be evidenced by the ‘exercising of independent critical ability’. The requirement of originality in the thesis should be borne in mind from the first stages of a research project. For example, the requirement should encourage students to develop, with their supervisor(s), a well defined doctoral research topic, ensuring that they are not vulnerable to critique for having attempted to ‘cover the field’ in their area of research rather than focusing on a discrete question or topic.

However, it is important not to overestimate the difficulty of meeting the requirement of originality in a doctoral thesis.

For students undertaking a postgraduate degree in order to enter academia, and as part of a process of managing students’ own expectations of their performance, it may be useful to note that a Masters’ or Doctoral thesis is unlikely to be their life’s best work.

For students completing higher research degrees in order to enter academia, the issue of whether and how to publish work during the degree will arise. With the ‘publish or perish’ mantra echoing in all levels of the academic establishment in the current era, students seeking entry level positions may seriously consider the need to publish while completing their degree. Students will be able to receive advice from their supervisors regarding publication, and establish the balance between publication and completion that is optimal in their case. In seeking to strike this balance, students should bear in mind considerations such as the progress of their research to date, the best forum in which to air the arguments or data included in their thesis, and the imperative of developing an expertise in a particular field over the course of the degree program.

The process of moving a thesis to completion and submission involves its own distinctive set of challenges. At this stage, careful (and even ruthless) editing of a thesis is essential. It is not unreasonable to allow two to three months for final editing, printing and binding of a PhD thesis.

There are advantages at both the institutional level and the individual level in recognising and addressing the personal challenges of postgraduate research. Identifying the personal challenges which commonly confront postgraduate research students is critical in order to assist law faculties and supervisors to consider how best to support students in need and make the postgraduate research experience as rewarding as possible for students. This is particularly important in light of high attrition rates, relatively slow completion rates in doctoral and research degree programs generally, and some Australian research findings that indicate low levels of satisfaction on the part of postgraduate research students with their overall course experience and the quality and effectiveness of supervision.

Students may often begin postgraduate research feeling positive and excited about their research. However, it is not uncommon for students to experience a negative shift in their feelings and, at some point in their candidature, begin to experience isolation and loneliness.

Most PhD and other postgraduate research students in law, not unlike many legal academics, undertake their research independently and not as part of a research team. This is quite different to doctoral candidates in some other disciplines, such as the basic sciences, where doctoral students may be engaged in experimental work alongside other scientists in a laboratory or similar setting, and may even be carrying out their research as part of a team or institutional or industry research program.

The potential social isolation of the postgraduate research student points to the need for institutions and departments to ensure that students are at least provided with strong support structures within the institutional setting.

At an individual level, postgraduate research students in law need to be able to identify the point at which feelings of isolation become counterproductive for them and to their goals, and find ways to move through this critical point. Supervisors also represent an important link between postgraduate students and the broader faculty and its activities, and can help postgraduate students tap into ‘loose networks’ of support or scholarly exchange. At an institutional level, law faculties and research clusters may need to work to counter the effect of the absence of a formal departmental role (in a laboratory, for example) for postgraduate researchers. Postgraduate students should be encouraged to participate in the scholarly life of the law faculty; for example, by inviting students to participate in staff seminars and to present papers in appropriate forums. Law faculties can help students to combat such isolation by facilitating the organisation of postgraduate events, where students can meet one another, talk about their research and doctoral related experiences and, importantly, share common experiences. Research has identified the pivotal role of the department or faculty in providing ‘doctoral students with their most important educational, academic and administrative relationships’. As reflected in the goals of the Australian

Law Postgraduate Network (ALPN), there is also increased recognition that the development of collaborative structures for postgraduate research supervision between law schools, particularly for doctoral candidates, with a view to building a community of practice, may represent an important paradigm shift for legal academia in the future.

Structured progress reviews, such as annual panel reviews in the absence of the supervisor, can assist in identifying and solving problems and are reported to be particularly welcomed by doctoral students across disciplines and universities. Goals need to be continually revisited and reviewed as the research project develops. The supervisor may have a key role in assisting students with this process.

It is also in the interest of institutions to establish appropriate support services to assist students to deal with stress and burnout. Most universities have a university counselling service that can assist students with such issues. Unfortunately, postgraduate students may be less likely to access such services compared to undergraduate students. The most common mental health difficulties are anxiety, depression and stress, followed by interpersonal difficulties and then study-related difficulties.

Achieving a work–life balance is notoriously difficult for postgraduate research students (and arguably academics as well). Steve Dinham and Catherine Scott reported that almost half of their sample of doctoral students across a range of disciplines were in their 30s at the time the doctorate was awarded, with an approximately equal number being in their 20s and 40s. Women (32 per cent) were more likely than men (22 per cent) to be in their 40s. This means that many postgraduate students in law are more likely to be at a point in their life when they are facing major life events such as marital or relationship breakdown, illness in a loved one or even be facing their own health issues. Dinham and Scott found that the vast majority (91 per cent) of participants in their study reported changes in their personal life while completing their doctorate.

Often, postgraduate research students have financial commitments that must be met despite their study; for example, due to family responsibilities. In particular, students may be faced with substantial financial pressures if they had to give up full-time work to undertake postgraduate study. For those postgraduate research students who are recipients of a scholarship, the time constraints for completion imposed by the scholarship may be an added pressure and thus the scholarship may represent something of a mixed blessing.

Postgraduate research students from the outset of their candidature need to carefully consider how they work best and what conditions are likely to optimise their productivity. An experienced supervisor who is well attuned to the diverse needs of doctoral students and whose pedagogy in supervision reflects the need for flexibility in supervisory practices can assist the individual student to identify particular approaches which are most likely to suit the student in their doctoral project.

At the outset of a postgraduate research project, students should also give careful consideration to the formal requirements they must meet in completing their thesis; for example, the word limit, how the thesis should be presented, and what is involved in the examination process.

Sometimes, potential supervisors are limited in their capacity for supervision due to limited resources and other workload demands. Central to a functional student-supervisor relationship is a strong match between the proposed research project and supervisor expertise and skills. Compatibility of personalities between student and supervisor is also important.

A strong and productive relationship requires mutual understandings and expectations as between student and supervisor(s). At the outset, students should seek to develop mutual understanding with their supervisor(s) on issues such as: key goals in the research project; the direction and focus of the research project; and what approach the student wants to adopt in their project (both in terms of the content and the approach to research and writing). Students should be supported with a view to facilitating constructive exchange with supervisors about potential impediments to their progress including conceptual schisms and any other issues such as work commitments or other responsibilities – it is better to deal with such issues upfront and early on in the piece rather than after problems become entrenched or incompatible expectations have been allowed to fester which undermine the student-supervisor relationship.

If a breakdown in communication does occur, or the relationship between student and supervisor becomes strained, the situation should be addressed urgently by all concerned. Many law faculties have some form of annual progress review or mid-point review for research students that will often represent an appropriate avenue for such difficulties to be raised and solutions advanced either independently of, or in conjunction with, supervisor(s).

It is important for the student and supervisor to understand how compatible their respective expectations are in terms of issues such as: the approach the student wants to take in their research and writing; how much direction is to be given to the student by the supervisor; whether the student will work independently or require closer supervision; and whether the student will require the imposition of informal deadlines for regular submission of work.

A particularly difficult situation is when a student is provided with conflicting feedback or advice from different supervisors. Supervisors need to be mindful of such issues and consider the possible difficulties the student will face in trying to resolve potentially conflicting feedback.

There have been claims that the examination of PhD theses continues to be ‘shrouded in mystery’. However, students should make every effort to understand the examination process that is followed at their institution. Supervisors usually have a central role in making recommendations for the appointment of examiners and accordingly students should ensure they discuss with their supervisor(s) any concerns around the appointment of appropriate examiners.

Students should also know how long the examination process is likely to take – in most law faculties in Australia students will be advised of the outcome of the examination in three to six months from the time of submission. Students should also understand what outcomes are possible on examination.

Students should consider the potential impact of the different possible outcomes on their situation; for example, if a student has commenced full-time work after submission of their thesis, how will they manage extensive emendations or even resubmission of it. Fortunately, an experienced supervisor will usually provide their student with a good indication of what the outcome of their examination is likely to be.

In relation to the overall purpose or purposes of higher degree research in law, it may be that the time is right for a consideration or a reconsideration of what these overall purposes might be. If the proliferation and increased popularity of postgraduate research degrees in law is to be both a positive and sustainable development in legal education, this discussion should be robust and wide-ranging, taking into account the range of particular concerns considered in this article as well as broader structural and temporal considerations canvassed by way of introduction.