1500 Law Proposal Due in 6 Hours

RESEARCH METHODS, LLM Law Full Time – 2017/18

Leicester De Montfort Law School

LLM Full Time

RESEARCH

METHODS

15 Credit Module

2017-18

CONTENTS

LEARNING OUTCOMES AND READING	2

TOPIC 1. RESEARCH STRATEGY	5
TOPIC 2. EMPIRICAL METHODS	16
TOPIC 3. DOCTRINAL RESEARCH	21
TOPIC 4. PREPARATION FOR ANALYSIS	25

TOPIC 5. CRITICAL AND REFLECTIVE WRITING	29
	32
TOPIC 6. YOUR OWN RESEARCH

APPENDIX A: COURSEWORK ASSIGNMENT	37
APPENDIX B: SEMINARS	40
APPENDIX C: READING LIST AND SOURCE EVALUATION MATRIX	66
APPENDIX D: RESEARCH PROPOSAL TEMPLATE	69
APPENDIX E: THE WORK PLACEMENT DISSERTATION	70

MODULE LEADER:

Caroline Coles BSc (Econ), CPE, M.Ed., Solicitor, Principal Lecturer

Tel: 0116 257 7180

Email: [email protected]

LEARNING OUTCOMES

On successful completion of the module, a student should:

· have a significant ability to work and research independently and seek advice as required;

· have a significant ability to identify and prioritise source materials needed for a clear and proper understanding of the subject;

· have a critical awareness of the factors which currently shape Research Methodology issues;

· have a sound analytic and critical appreciation of practices within the Research Methodology field;

· have a wide awareness of issues at the forefront of Research Methodology theory and practice, and the ability to apply it critically in a variety of contexts.

SELF-STUDY AND COURSEWORK

Directed reading is provided and questions are posed within the topic units, labelled “CONSIDER” to draw your attention to the issues which arise from the prescribed reading and to help you to understand the legal issues in question. Please reflect upon these questions, make notes and bring your notes to the seminars to aid our discussion.

There is a significant amount of preparation for each seminar as this is a large topic. Be prepared to spend at least one whole day of preparation on each seminar; it may take longer. Please try to support your Seminar answers with the leading academic authority on Research Methods as detailed in the Reading List. We will not only be learning about the principles of research but will also be gaining practical experience of valid research during the discovery of these principles. Thus you are doing research as you are learning about it. There are also online quizes to complete and online wiki discussions to which you should contribute. We will review your answers to the online quizzes at the start of each seminar. There are many concepts in this module that will be new to you. Many of these concepts overlap. Please ensure that you raise questions in class if you are unsure about any of them.

Formal assessment will be by way of coursework. There is one assignment of 5,000 words that is in two parts. Coursework should be completed in accordance with the general assessment requirements for this course, for which you are referred to the course handbook. Should you need a time extension, you should contact your programme leader.

Word Limits

You must indicate at the end of your coursework the total number of words used. You are not allowed to exceed the word limit and if you do so, the coursework mark will be reduced.

For the purposes of the word limit, the following are not included:

· The coursework question

· The bibliography

· References (case, book, journal, website, lecture materials and other references). If you use footnotes, any information in them (other than references) will be counted.

Reductions for exceeding a word limit

Your coursework mark will be reduced as follows:

· Up to and including a 5% overshoot – one mark reduction. There is no de minimis rule and even an overshoot of one or two words will be penalised.

· Thereafter, an additional one mark reduction for every additional 5% overshoot.

· The original mark will not be reduced below 50% and the maximum possible

E.g., if the coursework has a word limit 2,000 words and you exceed this by 400 words, then the penalty will be a reduction of 4 marks – i.e. a mark of 61% will be reduced to 57%.

Any attempt at misrepresenting the number of words submitted amounts to cheating and could incur the relevant penalty for an academic offence. Please remember that the Turnitin report for your coursework will indicate the word count for it and tutors will check this to ensure that you have correctly stated the number of words used.

READING

Here are the key texts. Please ensure that you read one of the textbooks thoroughly:

· Denscombe, M. (2014) The Good Research Guide, 5th edition, Maidenhead: Open University Press. Also DMU e-book.

· Denscombe, M. (2010) Ground Rules for Social Research, 2nd edition, Maidenhead: Open University Press. Also DMU e-book

· Bell,J (2014) Doing your research project, 6th ed, Buckingham: OUP. Also DMU e-book

· McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) Edinburgh: Edinburgh University Press. Also DMU e-book.

· White,R (2009) Writing Guide 2: Writing a Research Paper. Leicester University. Available on the Blackboard shell

· Wilkinson, D (2000) The Researcher’s Toolkit, Routledge

· Yates,S.J.(2004) Doing Social science Research. Sage Publications

· Higher Education Assignment Toolkit [www] Available from CLaSS section Guides and Resources within DMU Learning and study support, part of DMU Library and Learning Services.PDF chapters can be downloaded.

The leading journals in this area, covering mainly empirical method, are:

· Oxford Journal of Legal Studies (available on Hein Online upto 1998 and via e-journals in DMU library)

· The Journal of Law and Society (available on Hein Online upto 2007 and via e-journals in DMU library)

· Legal Studies (available on Hein Online upto 2008).

· American Journal of Comparative Law (available on Hein Online)

The leading research groups or reports in this area are:

· The Economic and Social Research Council http:// www.esrc.ac.uk

· Genn, Partington and Wheeler (2006) The Nuffield Inquiry on Empirical Legal Research available from http://ww.ucl.ac.uk/ socio-legal/empirical

· The National Centre for Research Methods http://www.ncrm.ac.uk contains some interesting videos and podcasts by researchers especially at the annual conferences, called Research Methods Festivals (RMF), particularly T. Hooley (2010) What is online research? and Wiles (2012) What is qualitative research?

· The Society for Socio-Legal Scholars http://www.slsa.ac.uk

· The Institute for Advanced Legal Studies http://www.ials.sas.ac.uk

TOPIC 1 RESEARCH STRATEGY

READING

A selection from:

· Denscombe, M. (2014) The Good Research Guide, 5th edition, Part 1 Strategies and chapter 17 ethics, Maidenhead: Open University Press.

· McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.), especially Introduction by the editor pp 3-7 , and chapter 3 Doing ethnographic research by S.Choongh, Edinburgh: Edinburgh University Press

· Bell,J (2014) Doing your research project, 6th ed, chapters 1-3, Buckingham: OUP.

· DMU Dissertation Handbook 2015-16, Part 1, Steps 1-3

· DMU Guides to Writing at Masters Level [www] Available on Bb

· Morrow,A.(2011) What is a critical voice [www] Available on Bb

· Higher Education Assignment Toolkit [www] Available from CLaSS section Guides and Resources within DMU Learning and study support, part of DMU Library and Learning Services.PDF chapters can be downloaded.

THE RESEARCH PROCESS

The research process is a fundamental part of your work for your masters’ degree.

You will need to be aware of the issues within this process not only for specific use in your own research and dissertation but also in the general sense to satisfy the learning outcomes of masters’ courses for a general awareness of sound research principles and practice. Many elements of the process will be familiar to you as they build upon skills that you developed in your previous academic courses. However, you are now refining these to work at a more critical, evaluative level. Take a moment to look at the documents on the Research Methods shell on Blackboard that give some tips about working at masters’ level, specifically Writing at Masters Level and What is a Critical Voice?

Previously most of your research will have concerned secondary materials e.g. text books, or accepting the judgement of others in primary materials e.g. case law. At the masters level you should be aiming to evaluate and criticise these prior materials and begin to create your own primary material via your evaluation. You should aim to add to the sum total of what is known about a selected area of law. Your contribution can be commentary on other sources including case law, legislation, articles or textbook but this commentary must be original to you , not merely a précis of someone else’s work: alternatively your material can be fresh empirical data that you create e.g. via survey. You may also make recommendations for an area of future reform or make conclusions about the effectiveness of current law. If possible you should attempt to demonstrate how your research could be used in a wider context then the facts of your own dissertation or study, for example what can national law teach European law or even what can the work of business people teach lawyers?

Your work at masters’ level will involve problems concerning the strategic issues within the law. Here you are concerned with identifying “how things are” in order to answer questions such as “how things might be” or “how things ought to be”. You need to know the factors, legal and otherwise, which may impinge on any recommendations you make.

You will need to research not only the materials which are traditionally aligned to solving legal problems but also to include a range of perspectives on the problem from areas outside traditional legal writing and thinking. You may, for example, need to apply political, ethical or social perspectives to the issue.

Sound academic research requires you to set aims and to define objectives for your research in order to prescribe the parameters and context within which your research is to be undertaken. Accordingly you need to be able to evaluate the wide range of research approaches and methods that are available, and be able to justify your selection from these for your own research.

A suggested practical process for achieving this is:

· Gain an appreciation of the different strategies of research (Topic 1)

· Review the alternative research methods that are available to retrieve and analyse the information (Topics 2- 5)

· Select a valid research topic and set some achievable objectives (Topic 6)

· Conduct a literature review and evaluate the current knowledge (Topics 1,5 and 6)

· Conduct your own research

· Create an original analysis of your research, presented in a clear, well referenced manner (Topics 5 and 6).

We will examine the elements of this process in more detail in the seminars (see Appendix B). It will be helpful to you if you can have an almost complete idea of your title, previously discussed with a subject tutor, by Seminar 3 so that you can use these seminars to discuss your own title and start conducting research.

Your assessment for this module is in two parts (see Appendix A). Your Research Methods Assessment Part A must identify the benefits and risks of your selection of alternative strategies and methods on a given research question. The Research Methods Assessment Part B, the Dissertation Proposal, must identify and justify your choice of strategy and method for your own dissertation. Please note it is possible to change these during your research but you must keep in frequent contact with your supervisor if you wish to do this.

For your own dissertation or work placement report, it is imperative that your choice of research strategy and method links directly to your research question and your objectives: it is not uncommon to use more than one strategy or method. We will discuss the benefits and risks of doing this.

It is also vitally important for you to demonstrate the skills of critical thinking and analysis of your results as part of your dissertation. Your ability to do this will be effected by your choice of topic for your dissertation title (see Dissertation Handbook, Part 1, Step 2). Thus, as soon as you are ready to draft your research proposal, you must discuss how you will conduct your research with your supervisor to ensure that you meet the standard of a masters’ dissertation.

CONSIDER

· what factors should be considered when choosing a valid topic for research and analysis, and

· what topic most interests you for your dissertation?

STRATEGIES FOR RESEARCH

INTRODUCTION

There are different ways in which the world can be viewed and understood. In research terms, these differences are essentially epistemological, i.e. they are about how we define knowledge and ‘truth’ or, less controversially “validity”. Some researchers view the world in a “positivist” way believing that “truth” can only come through scientific experiment, whereas others use an “ethnographic” view looking at the effect of culture and community to explain the world.

In the world of research, these different views are called “research strategies.” The researcher needs to make the choice between these strategies. They key ones are summarised below. The books often raise more. This choice will be influenced by their research objective and asking the questions – What is suitable? What is feasible? What is ethical? You will need to do this for your dissertation.

The strategy taken will influence the research methods to be used. Although many methods are flexible enough to be used across different strategies, their exact execution will differ dependent upon the strategy. Note one view is that positivism and phenomenalism are at a higher level of strategy than the others; they could be described as “meta-strategies”. Hence a researcher could decide to be first a positivist then apply that to an ethnographic strategy then use observation method to conduct the research

Here are some details about different research strategies

POSITIVISM

Positivism seeks to apply the natural science model of research to investigations of the social world. It is based on the assumption that there are patterns and regularities, causes and consequences in the social world that can be discovered and analysed, just as there are in the natural world. Although social phenomena lack the levels of uniformity of most scientific phenomena, positivistic social research nevertheless operates on the basis of certain assumptions (postulates) about the uniformity of human behaviour. Thus a positivist strategy is likely to start with a theory ( hypothesis) and test this out with research. An example of this might be

“To what extent are intellectual property rights worth protecting because they add to the national gross domestic product “

For an example of such research see Hargreaves, Digital Opportunities (2011).

Critics of the positivist strategy in social science research say that the pure scientific and statistical approach cannot fully explain the complexities of human interaction that involves feeling and human perception.

The most relevant research methods are those that are used within pure science and often rely upon empirical observation and measurement for the collection of quantitative data, such as a highly structured questionnaire survey that attempts to quantify observable social characteristics or behaviour. The risks of such methods are that researchers should adopt highly rigorous sampling testing techniques in quantitative research, and support their conclusions by statistical analysis which often describes research findings in term of levels of probability.

The general stages in the positivist strategy are:

a) The recognition of a problem, for example the differences in national laws within the EU

b) Location and definition of the difficulty or problem, for example contradictory case law decisions

c) Suggesting solutions to the problem via the formulation of a hypothesis;

e) Testing out the hypothesis by research.

ETHNOGRAPHY

Ethnography has its origins in the study of peoples or cultures as used in social anthropology. It involves the observation of the everyday life of groups and seeks to find connections between processes, thoughts and relationships within a culture. It aims to explain lifestyles and perceptions within society, for example online communities or social networking. It rarely starts with a hypothesis but instead results in the creation of a theory from an analysis of the behaviours that it has observed. Critics of this strategy point to the representative nature of the group that is being observed, namely how representative is the observed group of people doing the same work, or of people in general.

Ethnographic methods often involve empirical field work, such as an observation or action research with groups of workers say in a solicitors’ firm or a business or a court. The researcher is often working within the participant environment, hence the effect of issues of access, ethics and insider research need to be considered as part of any analysis of this research. Qualitative analysis is most often used here.

PHENOMENALISM

Phenomenology is concerned with how humans experience their surroundings. It involves the recognition of the different perceptions and beliefs of humans as a reaction to situations, or “phenomena”. It appreciates that this may create multiple realities as different people perceive the same situation in different ways. However it recognises that people work within social groups and thus are likely to produce a group perception.

Phenomenological methods have evolved both because researchers have begun to question the relevance of the notion of scientific objectivity when exploring the social world, and because it has become apparent that the scientific method has little capacity to explore social phenomena in great detail. A different approach to research was needed. Empirical methods are still relevant here but, as the researcher rarely formulates precise questions prior to the research, use of an unstructured type of survey may be most appropriate (see Topic 2).The researcher stands outside the research environment, attempting to gain an objective outsider’s view. Phenomenological research in general begins with the proposition that any situation, circumstances or event is essentially unique and offers, in itself, a potential for useful research. An example might be to what extent lawyers and clients see the value of the use of an expert witness.

The researcher may have a general feeling of the problematic nature of the situation to be studied. This may be derived from the work of other researchers, personal experience, or the experience of other participants in the process who the researcher has sought out in order to obtain a ‘feel’ for the situation. Although phenomenological research does not have the same kind of discernible structure or method as that characterising research employing the scientific method, it still needs to be rigorous and systematic in both implementation and reporting. Description is central to phenomenological research methods and great emphasis is placed on the methods of recording events, circumstance and situations, whether the phenomena being studied are real life situations or projections in literature or film. The resulting analysis is an interpretation reflecting both the content of the event and the perceptual frame of the researcher/interpreter. Because phenomenological enquiry is based, to some degree, on the subjectivity of the researcher, two researchers may interpret the same event or phenomenon differently, both equally valid in this context.

The phenomenological research approach most frequently leads to qualitative analysis.

EMPIRICISM/SURVEY

An empirical strategy seeks to produce its own original data, whether by collecting the views of other people or by gathering statistics, hence Denscombe (2011) calls this a strategy of “survey”. It often collects data from a contemporary “snap shot in time” though from a variety of sources. The decision about sampling is crucial to the validity of this strategy and the objectives of the research proposal must relate to this. As the variety of methods often involves dealing with human participants, the need to secure ethical approval must be recognised early in the decision to use this strategy.

An example might be

“What are the current views of legal practitioners about the introduction of an EU Directive for a Community contract law?”

GROUNDED THEORY

It may be said that this strategy was founded by Glaser and Strauss (1967). It emphasizes the importance of research that generates theories. Unlike many research strategies that start with a hypothesis to be tested, the grounded theory demands that the researcher starts with an open mind and uses rigorous research methods to collect and then analyse the data. Empirical methods are used most often, for example questionnaires or interviews. An example might be

““European courts use case law precedent” Discuss.”

It is likely to lead to qualitative analysis where it is vital to ensure that the theory comes from the data. There are significant challenges for the new researcher in keeping an open mind during this analysis (see Topic 5). In a dissertation, the researcher would also need to be able to respond to the criticism of this approach that the results are not generalisable outside the context of the specific research topic or that the data does not support a clear theory.

However, it provides an effective structure for small scale human research and should be considered especially for a reflective piece upon work based research where empirical methods can be used.

CASE STUDY

The Case Study strategy involves concentration on one ( or a small number of) focus points of research that will be examined in depth. Note: Case Study is NOT the study of legal case law. The study of these points will look in detail at the specific relationships within the subject matter and the links between them. It will have a finely defined scope thus is often specific to a particular environment. However like positivism, the assumption is that there are common patterns of behaviour that can be analysed in one context, for example a factory, and inform another, say a lawyer’s office. Multiple methods are likely to be used in order to find the maximum amount about the point of focus. An example might be

“What issues are influencing the reform of European commercial law today?”

The advantages of this strategy are that, like grounded theory, it provides an effective structure for small scale human research: the difference is that the case study has a more concentrated focus on its research material. However, as a disadvantage, like grounded theory, critics have doubted the generalisability of this approach. The researcher is likely to need to use various research methods, and of course, have permission from the subjects , often within a work environment, for the access to conduct the research. Students planning to produce a reflective report on work experience should also investigate this approach in greater detail.

ACTION RESEARCH

Action Research commonly involves the researcher, usually in conjunction with other participants in the organisation, recognising a need for development within an organisation, initiating an agenda for change, and observing its implementation. The lessons learned may also feed back into process, often developing into a cyclical pattern of experience, evaluation and testing. This type of strategy might, for example, prove particularly effective in assessing the implementation of a new piece of legislation. It is primarily used to investigate practical law-in-context problems using empirical methods but could conceivably ( although with some difficulty) be used by a team of researchers using doctrinal methods searching out developments in the law. Students planning to produce a reflective report on work experience should investigate this strategy in greater detail.

DOCTRINAL RESEARCH

On the LLM Law, many students are likely to use this strategy for academic research via dissertation. It underpins the traditional concern with the description and analysis of ‘black-letter’ law. Doctrinal research, sometimes called “documentary research”, avoids grand theoretical explanations for legal phenomena. It often aims to systemise, rectify and clarify the law on a particular topic by the use of authoritative texts that include legislation, case law , regulations and secondary works such as academic articles, books and even web sites or blogs, provided all are analysed for their level of authority (see Appendix C the Source Evaluation Matrix).

In recent years, this approach has included a “law in context approach” that includes the examination of the social and economic context of the law, for example the ethics of pharmaceutical patent law or the implication of practice in housing law.

In addition, Doctrinal Research may be approached via a Comparative Legal Method, with the aim of considering different national solutions to common legal problems, for example consumer protection , or advising emergent nations for the development of national law. This approach has been particularly extensive in the USA.

The risk of using this strategy is that sources are not challenged nor counter views recognised. Doctrinal research can lack evaluation as researchers fall into the trap of merely describing the law and not analysing it for common themes. It is vital that the analysis from doctrinal research looks across the sources for these themes in the law, for example the use of precedent, and by a process of drawing these together, produces conclusions thereby avoiding the trap of a mere description of prior writing.

We will examine the requirements of valid doctrinal research further in Topics 3 and 5.

COMMON PRINCIPLES IN RESEARCH

Whatever strategy and method you select there are some common principles of good practice for legitimate research. You must consider how your research will achieve these principles and describe this in your dissertation proposal. Understanding these is vital for your dissertation and your Assessment for this module.

TRIANGULATION

Triangulation involves viewing things from more than one perspective. This idea is familiar to anyone who is an experienced fell-walker. If you are out on the hills you take the bearings of a variety of landmarks to pinpoint your position with considerable accuracy. So too with research; if you can examine the same issues from different viewpoints, then, provided your method of comparison is sufficiently rigorous, the more confident you can be that your conclusions are meaningful.

There are several forms of triangulation as follows.

In doctrinal research you will of course be investigating many different sources, called documentary triangulation. However remember that you will need to consider that documents may have a particular bias or want to persuade their audience that a certain analysis is true, say the bias may be Marxist, capitalist , pro liberty, or feminist, for example, a student of mine discussing the justifications for and efficacy of intellectual property law included the Marxist view that all property is theft. Triangulation involved recognition of this bias and a search for the counter view.

There is also methodological triangulation that uses a selection of the methods described in Topics 2-3. Mixing methods may bring you additional insight into your conclusion, for example reading a book / article then interviewing a lawyer or collecting data from court records. In the professional research world, there is also investigator triangulation where someone else repeats your research as a check against the bias of the researcher. This is clearly inappropriate for assessed student work.

The advantage of triangulation is that you are likely to get improved accuracy in your evidence because you have tested it against other sources. When you use this evidence in your analysis , it will give your conclusions greater substance and increase the likelihood of their truth. On the other hand, it does require you to compare and contrast any differences in the findings and thus time must be allocated for this sometimes lengthy task. It may also produce non-corroborative or awkward questions for the researcher; these must be dealt with but are the hallmarks of valid research.

VALIDITY

Validity refers to authenticity of the research method. It is essential that a method actually measures what it sets out to measure. The source, and the researcher’s record of it, should be accurate and truthful, at least from the point of the view of the source. Where bias exists, as it is present in every social dealing, the researcher should recognise it and make account in the conclusions. Triangulation will assist in this process to test the validity of a source.

In doctrinal research, the selection of sources must be carefully considered. Review how you searched for the documents that you are using, what parameters did you use for your search, for example search terms, time, national law, type of source? Once you have the source, ensure you review it objectively. Use the Information Source Evaluation Matrix in Appendix C as a guide. You may wish to add these forms as an appendix to your dissertation; discuss this with your supervisor.

RELIABILITY

Reliability may be considered as the consistency of the method. If a similar piece of research was carried out another time by another person, would a similar result be produced? If it could not, then the results may be entirely anecdotal and not the foundation for reliable research e.g. a variable thermometer would be of little use to anyone!

Empirical methods are particularly prone to difficulties of reliability, for example the responses from participants to survey may be effected their mood on the day or what they perceive the researcher wishes, or the influence of bias in the researcher or an unclearly drafted survey question. Pilot studies, such as pilot questionnaires play an important part in minimising such difficulties.

Doctrinal research may also suffer a lack of reliability if the researcher does not account for the author’s bias or his own, or there has been insufficient evaluation of the source, or insufficient comparison with opposing views and authorities.

ANALYSIS OF DATA

Any account of research, whether a dissertation, reflective piece or published article must contain an evaluation of the findings and draw a conclusion. There are two main types – quantitative and qualitative analysis. Quantitative analysis looks at the statistical occurrence of issues, for example how many participants answered in a certain way or how many cases have followed a particular precedent. Qualitative analysis will draw out common themes from the variety of sources from reading.

Any analysis must include your comments on the evidence that you have gathered and should not be a mere description of it, for example not only a detailed description of a piece of legislation or a set of cases. A common error is to copy large parts of legislation into a dissertation. This should be the original element of your dissertation, so that even if you are relying on pre existing literature, you are adding your own new viewpoint to all the reading that you have done. Recommendations for future law reform are most welcome. Study the methods for identifying themes in the recommended reading.

Any analysis you make must be based in your research and be supported by authoritative evidence. You will need to demonstrate how you arrived at these conclusions, whether your evidence is from your own empirical research or from reading widely.

For further information, see Topics 4 and 5

RESEARCH ETHICS

All research must be undertaken in an ethical manner. It must be carried out with honesty and integrity, respecting the rights of those participating in the research and avoid or minimise any harm to the participants.

In doctrinal research, integrity will be established via the appropriate selection of sources, the triangulation of findings and keeping an accurate record of the work and views of others. The contributions of others must be accurately reported and contrasting views must be recognised. Conflicts of interest or bias must be recognised; in particular researchers must be wary of those from their own institution or employer, where present. Researchers should recognise their role to contribute to the sum total of knowledge, helping to review, criticise and even reform the law. We will discuss these throughout this module.

In empirical research, proposals to involve any other human participants, for example via survey or observation, must receive approval by the university ethics process before any research is commenced. At the earliest opportunity, this should be discussed with your supervisor. You will need to complete the approval form, available from the Research Methods site on Blackboard and submit this to the Law School Ethics co-ordinator. This will detail how you plan to gain informed consent from your participants, maintain their confidentiality and protect their data, amongst other things. You will need to detail the purpose, methods, risks and inconveniences of the research. You must allow sufficient time for this process in your research plan.

· CONSIDER

· the definition of the Common Principles by Denscombe and also by Bell in the recommended reading,

· the risks and rewards of using the various methods (neatly summarised by Denscombe at the end of each chapter),

· how the choice of research strategy effects the research methods that you would use

· the impact that the need to conduct a critical review will have upon your dissertation and your research, and

· what you would tell a human participant to make sure that they are giving fully informed consent to your empirical research with them.

TOPIC 2 EMPIRICAL RESEARCH METHODS

READING

A selection from:

· Denscombe, M. (2014) The Good Research Guide, 5th edition, Part II Methods Maidenhead: Open University Press.Also DMU e-book

· McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.), chapter 2 pp32- 41, Edinburgh: Edinburgh University Press. Also DMU e-book

· Bell,J (2014) Doing your research project, 6th ed, chapters 8,9,10,11, Buckingham: OUP. Also DMU e-book

· Finch,E. & Munro,V.E. (2008) Lifting the Veil: the use of focus groups.Journal of Law and Society Vol 35 Issue Supplement p35-51

· Genn, Partington and Wheeler (2006) The Nuffield Inquiry on Empirical Legal Research [www] Available from http://ww.ucl.ac.uk/ socio-legal/empirical

· Hunter et al (2008) Researching the judiciary Journal of Law and Society Vol 35 Issue Supplement p76-90

· Pallant, J.(2010) SPSS Survival Manual 4th ed. Buckingham: Open University Press. Also DMU e-book.

INTRODUCTION

Empirical research methods have been defined as

“a range of methods that try to deal with primary sources of information about the social world – actual people and events that can inform us about the processes, practices and ideas in the social world around us”

Yates (2004), Doing Social Science Research,p1

An empirical method seeks to produce its their own original data, whether by collecting the views of other people or by gathering statistics. Valid research objectives may include an investigation of the views of practitioners who work in an area of law. It gives the researcher greater opportunity for control over the information that they are using and the chance to find a unique view that has not been written about before. However they do present technical challenges; thus a researcher must learn about how to do valid empirical research before they start. The researcher must also be clear about the achievable objectives from this research ie what do they hope to achieve, how realistic are the objectives, how will they analyse the empirical data that they receive.

This topic deals first with three of the possible empirical methods adopted by researchers: the survey via one of its main forms, that is the interview; the observation; action research. Note that many of the points made about the interview are equally relevant for another type of survey, the questionnaire. The benefits and risks of each method are summarised at the end. Denscombe provides more details. The existence of the risks will harm the validity of the research. In addition, note that for all empirical methods the lack of ethical approval and a lack of clarity about how you are going to use the data will also harm validity.

SURVEY

Surveys are carried out mainly in two forms – the interview and/or the questionnaire. They seek to find out what people think about an aspect of the law. It is crucial for the researcher to consider at the beginning what they can hope to achieve from a survey, in particular what will be the use of the data obtained. The researcher needs to be aware of the risk of receiving mere anecdotal comment or erroneous responses from participants and also the presence of bias on the part of the participant in their answers and on the part of the researcher in the wording of their questions.

A key issue is the size and selection of the sample to be researched. This includes the number of participants that will be used, and how they will be selected. As with all selections of research methods, the research objectives are crucial. If the research objective is to advance a persuasive argument for, say, a critical review of the law or to propose future law reform then a large number of participants via a questionnaire is preferred so that a valid democratic view can be gathered. However, for a masters dissertation, it is permissible to conduct “small scale research” where a small number, that is, less than a dozen views, would be acceptable. The researcher needs to recruit these views with care, for example choose experts in the field who can demonstrate a rational view. The researcher will need to recognise, in their analysis, the limitations of their own data and not make excessively wide claims such as “it is a widely held view that..” if they have only asked a “small” number of participants.

The researchers also has to consider how they have selected their participants, known as “sampling”. Drawing participants from a certain class such as employed colleagues, students or even people living in a particular area will limit the likely range of views and hence reduce the validity of the research. The sampling technique may be based on probability or non-probability. Probability sampling is based on the idea that the people or events that are chosen will be representative of the whole potential research population. This helps the researcher to draw a conclusion that they wish to expand to the larger population, for example the views of some judges may be expanded to all judges. Non-probability sampling knows that it cannot make this assumption, for example possibly the views of some work colleagues cannot be expanded to be representative of them all. If using probability sampling, consider the many different modes of gathering your representative sample: by random selection from the electoral register or by systematic selection of a group known to be representative. The researcher needs to consider the impact of the assumptions that are being made here on the reliability of the data. Non-probability sampling may be used when the assumption about representation cannot be made or a sufficient participant size cannot be found.

Note that surveys can be used in a quantitative format , for example how many times have you .. , or a qualitative format , for example what are your view upon ...

Each survey may be designed around one of three models:

· Structured or standardised surveys are those where the form and order of questions is fixed and determined in advance. All surveys will therefore follow the same pattern regardless. The benefit is that they can produce data that is often capable of quantitative analysis.

· Semi-structured surveys are designed around a schedule – i.e. a framework of basic questions. In this format, however, the researcher will be free to probe beyond these questions as they see fit. This method provides generally richer, more detailed, data than the structured format. However, it is more susceptible to bias being introduced by the researcher.

· Unstructured surveys are based on a set of simple topics or prompts. The researcher has considerable latitude as to specific questions, the ordering of topics and the degree of their participation in the survey. For this reason, unstructured interviews are good for gathering in depth description, but are the most susceptible to researcher bias, and are thereby dependent on the skills and ability of the researcher to keep the survey on course. An unstructured survey may also produce non-comparative data making the recognition of themes difficult to identify (see Topic 5).

Within each model the style of individual questions may vary

· Questions may be open – giving respondents a free choice as to how they respond (e.g. leaving it open to respondents to determine how they understand the law) but may leave the researcher with issues of comparability within the data, or

· Questions may be closed – giving the respondents a pre determined set of options to choose from. Greater statistical comparisons can be made with these compared to open questions but key issues for the participants may be missed.

The inclusion of a scale in answers ie strongly agree, mildly agree, known as a “Likert scale” forces respondents to be more discriminatory than ‘yes/no’ ‘agree/disagree’ in their responses . This can result in more sensitive data for analysis.

Once the target sample has been selected and the survey written, the researcher often faces difficulties of response rate. The response rate of participants to postal or unscheduled face to face survey is quite low; many postal questionnaires produce as little as 5-10% response. The response group may be un-representative of the total population as some people are more likely to complete surveys than others, particularly in internet surveys that are often used as in attempt to reach more potential participants.

Despite these issues, the use of surveys has many advantages for the researcher, namely:

· One of the simplest and low cost method to produce empirical data

· It is a very versatile method, able to cope with very small and very large research

· It can be adapted not only to produce qualitative, but also quantitative data if the questions are specific enough.

On the other hand, the disadvantages are,

· The responses may not be reliable or honest

· An unrepresentative selection of the sample and a low response rate

· It can be challenging to write clear, objective questions, without bias, that will target the issues under research.

OBSERVATION

Observations involve the researcher watching and making a note of what people do that may be more reliable than what they say. An observation may take place in a work environment or by asking participants to do a certain task.

There are essentially two versions:

· Participant observation i.e. where the observer is also participating in the interaction, for example how a law office operates. This has the advantage of enabling the observer to blend into the research environment, but it can raise issues of researcher objectivity, and some ethical difficulties if the researcher acts covertly, i.e. goes into the environment without their dual status known to other participants.

· Systematic observation, i.e. where the researcher acts as a complete observer, for example observing court proceedings. This may avoid problems of researcher objectivity, but it may still be difficult to be sure that the researcher’s presence has not itself influenced the interaction under observation.

The value of observation is its ability to enable the researcher to ‘get inside’ the culture or group being studied.

Reliable observation is best suited when the behaviour is open , clear, precise and easy to record. As with survey the researcher must be clear about their objectives and check that these can be reasonably and objectively achieved from an observation. The reliability of the observation should be considered so that the researcher thinks whether an analysis they make can be expanded to other situations or whether it is entirely dependent upon the surroundings, thus only of limited importance.

The issues of sampling as seen above are also relevant here.

Recording the observation in a valid and reliable way often presents challenges. The researcher is advised to draw up an observation schedule so that they can look for repeated activities, responses and timescales. The identification of potential events etc in advance is vital and often comes from the prior literature review that highlights behaviour to be observed , for example the reliability of witness testimony in court. Observation often requires triangulation with another researcher as one individual may misinterpret an event or simply miss it. The schedule is vital to aim for consistency in the record. A sufficiently empirical schedule will permit quantitative data to be collected.

The advantages of the observation method are:

· Data from a naturalistic setting , for example a court room, a parliamentary debate

· Improved honesty of data as it records what people actually do, rather than what they say they do

· Can be an efficient way of collecting large amounts of qualitative or quantitative data

The disadvantages of the method are:

· It focuses on overt behaviour , not motives or intentions thus can oversimplify the research process

· Recording what you are seeing provides considerable practical difficulties

· Triangulation and objectivity can be difficult to achieve as individual perceptions of the events will differ

· Data can be anecdotal if expected activities are not accurately identified in advance

· CONSIDER AND COMPARE the risks and rewards of using empirical methods when compared to doctrinal research

· CONSIDER what facts would you use to decide which empirical method could be best used for :

· An LLM dissertation on the effectiveness of the Council Directive 2001/29/EC on laws relating to copyright in the Information Society.

TOPIC 3 DOCTRINAL AND COMPARATIVE RESEARCH

READING

A selection from:

· Denscombe, M. (2014) The Good Research Guide, 5th edition, chapter 12. Maidenhead: Open University Press. Also DMU e-book

· Zweigert& Kotz (1998) An Introduction to Comparative Law 3rd ed Oxford: OUP.

· Dobinson,I and Johns,F in McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) chapter 1. Edinburgh: Edinburgh University Press. Also DMU e-book

· Wilson,G. in McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) chapter 4. Edinburgh: Edinburgh University Press. Also DMU e-book

· Findlay,M. & Henham,R. in McConville & Wing Hong Chui (2007) Research Methods for Law (eds.) chapter 5. Edinburgh: Edinburgh University Press. Also DMU e-book

· Bell,J (2014) Doing your research project, 6th ed, chapters 5,6,7. Buckingham: OUP. Also DMU e-book

· Hill, J. ‘Comparative Law, Law Reform and Legal Theory’ (1989) 9(1) Oxford Journal of Legal Studies

· Legrand,P. (1995) Comparative Legal Studies and Commitment to Theory 58 Modern Law Rev 262

· Salter, M & Mason, J (2007) Writing law dissertations, chaps 4 and 6. Harlow: Pearson

· Reitz,J.C.(1998) How to do comparative law. 46 American Journal of Comparative law 617

· DMU Dissertation Handbook 2013-14 Part 1,Steps 4,5

DOCTRINAL RESEARCH

On the LLM, you are likely to use this strategy to academic research predominantly (Note authors differ whether doctrinal research is a strategy or a method. Denscombe calls this the “document method”). It underpins the traditional concern with the description and analysis of ‘black-letter’ law. Doctrinal research aims to systemise, rectify and clarify the law on a particular topic by the use of authoritative texts. Valid objectives for this research may include an examination of the difference of views on the interpretation of law or an examination of the historical development of a law or a comparison between jurisdictions. Examples of doctrinal issues to be researched include variations that exist in the ratio of case law (whether common or civil law, or a comparison between both), the amendment to national law from EU law, the implementation of Council Directives such as Misleading Advertisement or TFEU, such as the free movement of goods, or the social impact of law, for example criminal enforcement.

More recently, doctrinal research has covered a comparison between the laws of nation states, particularly when implementing international treaty e.g. TFEU, ECHR, or dealing with international problems e.g. international fraud (see Comparative Research below).

The first crucial aspect of this method is the investigation of authoritative sources. Valid doctrinal research must involve a rigorous selection of search terms and a comprehensive investigation of the various sources for documents in order to

discover a full range of opinion and argument. A thorough working knowledge of the use of legal databases within and outside the University is vital. See the Guide to using LexisLibrary on Blackboard and the information within the law section of the Subject Guides in the DMU Library site.

Your starting point in any project will involve a consideration of current legal materials. Most of this will be familiar to you from your previous academic study and possibly from employment. A great deal of these are now accessible via subscription websites Westlaw, LexisLibrary or HeinOnline so you must increase your skills in using these at the earliest opportunity. Each major database has a large number of online tutorials via the onscreen Help tab or the DMU librarians can assist. Chief primary resources are case law, national legislation, EU Directives and international conventions. Chief secondary resources are commentary, textbooks, journals, theses, and newspapers. You should also consider the preparatory papers while legislation is being prepared including the public responses, often from skilled experts, to impending legislative change , for example the responses to the Leveson Inquiry on Press ethics (see http://www.levesoninquiry.org.uk) and response to the Hargreaves Report (2011) on Intellectual Property, called Digital Opportunity ( see http://www.ipo.org.uk)

Considerable insight can, in appropriate cases, also be provided by consideration of materials from other jurisdictions and disciplines. The databases of HeinOnline and Westlaw are particularly useful for cross-jurisdictional sources.

The full range of document type must be appreciated, for example books, newspapers, articles, conference papers, records of meeting, letters, diaries, visual images. The use of government statistics should be considered that may add a useful quantitative viewpoint. There is still significant data freely available via the British Library, Europa web site, Google Scholar, iTunes U, the web sites of individual authors and central government sites. Ensure that you allow yourself sufficient time to gain experience with the library online search system. The law librarian’s talk will assist here. Do use the help of the Law Librarians ( see the Just Ask email connection on the Library web site). Ensure that you start your bibliography at the earliest possible moment as it is very frustrating to forget the source of a highly useful piece or not to be able to use something because you have lost the source !

Each source must evaluated for its objectivity, authority and reliability. See the Information Source Evaluation Matrix in Appendix C .

There are particular challenges in writing up such research as the researcher must create their own analysis of the sources by theme and avoid the pitfall of a mere description. See Topics 5 and 6.

COMPARATIVE RESEARCH

Comparative analysis may be seen as a variant of doctrinal research as it takes the results from documentary research across various jurisdictions or subject areas and compares them with each other. It identifies the differences and similarities across two or more legal systems and provides a critical analysis of their causes and effects. There remains relatively little written about the process of actually doing comparative research outside of the USA and they key author Otto Kahn-Freund, although the articles above will assist. This can be a very valuable research method for doctrinal law and may be of specific interest to students on LLM Full Time thus there are a number of points that can be made.

• Generally compare like with like, for example comparing legal systems which have a shared history (South Africa and the Netherlands, for example) or are at equivalent stages of economic development;

• To acquire a general understanding of the main institutions and principal divisions and classifications of law in each system, before advancing more detailed analysis;

• More controversially, to recognise that a comparative perspective is inevitably subjective. Legrand (1995) argues that the comparativists is inevitably a ‘participant observer’ in their research.

N.B.When employing this method, care must be taken to ensure that a true comparison is carried out , thus the subject of your work concentrates on common themes or practical solutions , and is not a mere description of different sources of law.

SOCIO-LEGAL RESEARCH OR ‘LAW IN CONTEXT'

Since the early 1970’s there has been a growing academic movement in law which has attacked past research for its failure to assess the role of law in society. This has influenced approaches to legal teaching and research, characterised by the use of inter- or multi-disciplinary concepts and methods – e.g. drawing on disciplines as diverse as sociology, economics, anthropology, history, literary studies etc. As an approach to legal research, it has been particularly encouraged by policy-makers and governments who are now significant sponsors of socio-legal research output.

The socio-legal field, it has been said, has been dominated by three agendas, which together serve to give a feel for the interests and methods of socio-legal research, namely

· the analysis of the social, political, cultural, and economic forces that shape the formulation of law and the design and function of legal institutions.

· the behaviour of legal institutions, for example in USA studies concerning whether the individual judges’ political party membership, their prior career experience, the status, wealth or race of the parties effect decisions

· the social effects of law

If you wish to pursue this strategy you are recommended to join the Socio-Legal Studies Association ( http:// www.slsa.ac.uk ) and keep a watching brief on the National Centre for Research Methods ( http://www.ncrm.ac.uk )

The advantages of the doctrinal method are

· the large number and ease of availability of sources in a form familiar to most law students

The disadvantages of the doctrinal method are

· linked to the perceived ease of discovery, misleads the researcher to keeping to a limited familiar range of resources that are dealt with via a mere description with little originality, and

· sources are not evaluated but accepted at face value despite dubious authority.

· CONSIDER how the learning outcomes for originality and analysis for a masters’ degree can be met by doctrinal research

· CONSIDER the arguments for and against taking a comparative research method to the following research questions:

· How effective is the development of sale of goods legislation in protecting the consumer?

· What are the difficulties to be overcome in establishing a pan-European code for contract law?

TOPIC 4 PREPARATION FOR QUANTITATIVE AND QUALITATIVE ANALYSIS

READING

A selection from:

· Denscombe, M. (2014) The Good Research Guide 5th edition, chaps 13 and 14. Maidenhead: Open University Press. Also DMU e-book

· Wing Hong Chui in McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) chapter 2.Edinburgh: Edinburgh University Press. Also DMU e-book

· Pallant, J.(2010) SPSS Survival Manual 4th ed. Buckingham: Open University Press. Also an e-book from DMU library

This topic covers the preparation of data for qualitative and quantitative analysis before the researcher produces their evaluation. Analysis of qualitative data usually involves words and images; these may have been collected as comments from empirical methods or from documents. Analysis of quantitative data will involve presentation of statistics also collected via empirical or documentary methods. The researcher must move from a mere descriptive record of the data they have collected towards an evaluation of this. This topic deals with this preparation stage where the researcher starts to work with the information they have collected to get it into a form so they can start to draw evaluation from it (see Topic 5).

PREPARATION FOR QUALITATIVE ANALYSIS

RECORDING AND CODING

Effective research starts with valid data that is accurately recorded. Qualitative research generates a large amount of data that can prove quite unwieldy, for example the summary of an article, a piece of legislation or participants’ comments from a survey. Data management needs to be considered as a priority when planning your research. The researcher’s aim is to produce what Denscombe (2011) has described as 4 guiding principles for qualitative data analysis:

· Conclusions must be drawn from the data

· Meticulous reading of the data is required

· Avoid unsupportable preconceptions

· Engage in an iterative process

The researcher’s preliminary reading will have suggested some themes, concepts, or questions to be answered. These should have informed the dissertation proposal and then either the search terms for doctrinal research or the questions for empirical research. The data gathered from these sources must now be arranged into these themes, and it is likely that new themes will be suggested by the research, described by Denscombe (2011) as the “iterative process”.

To help with this arrangement ,a coding system should be developed so that each issue within the research has a separate code, for example, in a dissertation about the infringement of music copyright via illegal downloads, the codes may cover “originality”, “ peer to peer sharing” and “ISP liability”. This can be done manually or a digital online coding system can be used, for example NVIVO, available to use from DMU Library and Learning Services or to download at home via the Faculty IT technicians .

A manual approach will involve making a note either in the work or in a separate document each time this issue is covered by your sources. This may mean that an academic article or book chapter has very many codes within it. To start ,codes may be fairly descriptive that cover large issues, termed “open codes”. As the research continues, the iterative process may discover relationships between the issues and thus axial codes are allocated. The aim of this system is that you should be able to review all your data by issue, compare and contrast them and use this comparison to create your own critical review. The coding system will need to be written with care to cover all relevant issues and used consistently throughout all the data. A separate note may be needed of a good quote, but take care that an accurate record of the source is kept for which you must give the page reference to avoid inadvertent plagiarism. This is a good time to review and learn the referencing system.

For doctrinal research, you will be bringing together the views from all your documents, highlighting any gaps in an argument and identifying where there have been opposing views.

For empirical research, your data may be spoken word, non-verbal responses or a more extensive range of activities. Recording and coding such real time data is challenging particularly if the researcher is carrying out the research themselves, for example in an interview. In this situation, the researcher needs to deal with the division of their attention between running the interview and recording the data

and also consider the effect that is has upon the research itself. If you use a recording mechanism , be wary of the huge time that is required to transcribe a recording. This will affect the number of interviews that can be carried out.

If you are planning to produce a reflective placement report from work experience, you are likely to have produced a diary thus planning your coding system in advance will be vital for the production of valid, insightful data.

Remember details fade.

Once you have prepared your qualitative data in this way, you may then examine the next topic Critical Writing to produce your analysis

QUANTITATIVE ANALYSIS

Quantitative research generates data for statistical analysis. Data may be gathered by survey (see Topic 3) or interrogation of a pre-existing database e.g the Office of National Statistics (see http://www.statistics.gov.uk ). It may also be produced from documents via a coding system that identifies the frequency of words (or similar); the collection of the data may be done manually or via the use of software such as NVIVO.

The types of statistical data include:

· Nominal data – that is how many times something happens eg cases at the ECJ, the occurrence of the word “fair” in English legislation ( this is more a concept in civil jurisdictions than it is in the English common law), the incidence of disruption in the class room linked to poor weather ( Badger &O’Hare (1989) and

· Ordinal data – that is how often a view occur within a class eg how many people answered a survey “strongly agree.”

Once the raw data is collected, the researcher may wish to present the findings for their own use either in a table or scatter graph ( see Figures 1 & 2) .

Figure 1

Strongly agree	Slightly agree	Dont know	Slightly disagree	Strongly disagree
1	6	2	10	5

Figure 2 ( fictitious results)

How often was the word ”fair” used in English legislation published over 5 years?

2009	2010	2011	2012	2013
65	60	45	40	35

The researcher then needs to draw an analysis from the presentation. The initial stage may be calculating various statistical calculations known as :

· The mode – that is the most popular response ; in Figure 1 this is “slightly disagree”, or

· The mean – the official name for what is commonly known as the average; in Figure 2 this is 245/5 = 49.

Once the data is tabled , the researcher seeks to raise comments from these calculations (For a more light hearted example see Badger & O’Hare (1989) Disruptive behaviour and weather patterns in a West Cumbria School British Educational Research Journal (available in hard copy only)). The researcher will look for patterns in the data but will not accept mere chance occurrences as evidence for a theory. This may involve the calculation of the probability of a link between events, that may include the calculation of a chi-square test for large amounts of data or a t-test in small scale research. By convention, in social science if a probability is less than 1 in 20, then the link is mere chance and of no analytical value.

Care is needed when presenting the data in a dissertation to ensure that the meaning is clear. Here simplicity is key, in particular ensure that any titles and labels are clear to the reader.

The analysis and the calculation of probability can usually be carried out within software such as Microsoft Excel or SPSS. If you want to undertake this type of analysis there is a maths skills centre for researchers as part of DMU Library and Learning Services.

TOPIC 5 CRITICAL AND REFLECTIVE WRITING

READING

A selection from:

· Denscombe, M. (2014) The Good Research Guide, 5th edition, chaps 18 Maidenhead: Open University Press. Also DMU e-book

· Pendleton in McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) chapter 7. Edinburgh: Edinburgh University Press. Also DMU e-book

· Bell,J. (2014) Doing your research project, 6th ed. chap 6 Buckingham:Open University Press Also DMU e-book

· Finch,E & Fafinski,S (2011) Legal Skills 3rd ed Oxford: Oxford University Press

· Salter, M & Mason, J (2007) Writing law dissertations. Harlow: Pearson

· Coles, C. (2012) DMU Guide to Writing a Reflective Journal [www] Available on Bb.

· Morrow, A. (2011) What is a critical voice? [www] Available on Bb.

· White, R. (2009) Writing a research paper [www] Available on Bb.

· Your notes from the Writing Skills seminars at the start of the course.

THE CRITICAL VOICE

Take another look at the learning outcomes for a masters’ degree and a masters’ dissertation ( See LLM Student Handbook and Dissertation Handbook). A common error in dissertations is to have a title that promises a “critical review” or an “in depth” study, but then either proceeds to be merely descriptive of the current law or leaves any critical review to a tiny conclusion of only 1 – 2 pages almost as an after thought. Your critical review should form a major part of the dissertation. If using documentary method it should be an integral part of your findings and be the predominant style in your work. If you use an empirical method you are permitted to merely describe your findings ( see Topic 4) but then at some point you will need to evaluate these in a separate chapter, possibly against pre-existing reading.

Critical writing has been described as a “forceful case to the reader” (Cottrell (2005)).It should break down an idea or an argument into its component parts and assess the validity of each of these parts. It should use the most relevant evidence, either your own or from others, to support this assessment. It should make judgements on the validity of evidence and any argument. It should make links between ideas, examine from different perspectives and recognise contrasting evidence.

This may be demonstrated by such examples of writing as

“Smith’s view (2011) illustrates the impact of ... Likewise Jones (2012)

takes this further by reinforcing the idea that ........”

“ In contrast to those authors whose concern is with .... Smith (2011)

and Jones (2012) consider the idea that........

“However not all authors agree that.... some describe

a different approach in which.......”

A practical way to do a critical review is that each time you read a document or review some data, raise the following questions:

· Does it relate to the objectives and scope of my research?

· Are there any new ideas introduced by the work; these may require new codes and a second reading of earlier sources

· How far does this agree/oppose earlier views?

When you are ready to construct your own writing with a critical voice, consider this checklist

Is my writing....?
Authoritative	It must include the most relevant, reliable sources and recognise any limitations of the sources. All arguments must be supported by valid sources. No unsubstantiated claims should be made
Clear	It must form a coherent and logical argument, avoiding digressions. Key terms , especially unusual ones e.g. ABS for alternative business structures, must be defined and used consistently.
Honest	Every source must be critiqued for its reliability. Limitations and alternative arguments must be recognised. Themes must be covered fairly and accurately summarised. Consistent use must be made of an academic referencing system
Neutral	Views vary concerning whether a formal academic language must be employed with use of the neutral third person , not “I”. Discuss this with your supervisor. All conclusions must be suggested rather than stated as fact
Have an objective	There must be a rationale for your writing. Questions posed must be answerable, even if there are opposing answers.

See the Dissertation Handbook for further details about the presentation of your work.

EVALUATION OF YOUR RESEARCH

When you have finished your research and codification, begin to compare and contrast the viewpoints within each code group. This is a particular skill that can prove very challenging. Ensure that you have read some of the recommended reading on critical writing before starting. We will also practice this in a seminar. The following list of practical steps provide some starting points:

· Make a list of the differing viewpoints

· Ask yourself whether there is a clear line of argument in each

· Is there sufficient evidence to support each argument, and what, if anything, is missing?

· Is there sufficient consideration to alternative points of view?

· What are the implications of the arguments

Handling statistical information

If you are seeking to use statistical or empirical data you will need to become familiar with the methods of handling statistics. At this level, much of the data handling can be done by commonly available statistics software packages, including NVIVO,SPSS and Microsoft Excel. Ensure that you leave sufficient time in your initial research plan to improve your skills in this area. See the recommended reading and there are student training sessions available on the DMU campus.

Some academic dictionary definitions in writing

	Definition
Describe	A mere list , giving facts e.g. “Article 101 TFEU says that”. The lowest level of academic writing that should only be used to a minimum amount at masters level. A lot of detail here is still only description and will not reach a higher level of review
Review in depth ( similar to evaluate)	Examines the reasons and the background for the law. May cover criticisms of the law from authoritative sources
Compare	Examines themes or ideas across two or more sources. Takes one source and looks at what is similar in other sources.
Contrast	Examines themes or ideas across two or more sources. Takes one source and looks at what is different in other sources.

· CONSIDER

· The role of coded data in establishing authority for your research.

· How far do the examples from your reading , including on the wiki pages titled Critical Review demonstrate a critical voice ?

TOPIC 6 YOUR OWN RESEARCH PROCESS

READING

A selection from:

· Denscombe, M. (2014) The Good Research Guide, 4th edition, chapter 18, Maidenhead: Open University Press. Also DMU e-book

· Pendleton, M. in McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) Edinburgh: Edinburgh University Press

· DMU LLM Dissertation Handbook

· Coles,C. (2012) DMU Guide to Writing at Masters Level [www] Available on Bb site.

· Ford, Johnston, Mitchell & Myles (2004)Social work, Education and Criticality:some thoughts from research [www] Available on Bb site.

· Fink, A. (2010) Conducting research literature reviews from internet to paper, Thousand Oaks,London:Sage

· Guidance from the Plain English Campaign [www] http://www. plainenglish. co.uk

· Higher Education Assignment Toolkit [www] Available from CLaSS section Guides and Resources within DMU Learning and study support, part of DMU Library and Learning Services.PDF chapters can be downloaded.

The notes here are a brief summary of the total research methods process. It is vital that you review these in conjunction with the LLM Dissertation Handbook that provides the details and key dates for the process at DMU.

THE RESEARCH PROCESS

Good practice demands a systematic approach to the conception, design and conduct of research. Whatever kind of dissertation you are undertaking; the process is always the same. You should select your subject area, define your research question(s), establish your objectives, execute your research method and evaluate your data.

SELECTING AN AREA OF STUDY

Many of us undertake research because some experience or event triggers an

idea that we want to pursue. Alternatively, you may know of a major change in the law that is being developed or has just occurred, or a major issue of debate in the political and legal world. You may need to do some research in major newspapers, other media or professional journals to find these issues. After this you will need to convert this general interest into something more concrete. Consider what do you want to do, why do you want to do it and why is the area worthy of research?

Even at this early stage, this will involve some preliminary reading to more clearly define the subject area and the issues so that you can begin formulating your research objective(s).

DEFINING THE RESEARCH OBJECTIVES

One of the most difficult tasks is formulating meaningful research objective/s that can be answered within the scope of a masters’ dissertation. A common error is to select an objective that is too large. This is likely to result in the researcher taking a surface descriptive approach to their work that provides an insufficient level of depth of research in the dissertation. Examples of this have been

“Recent developments in commercial law”

“The existence of racial discrimination in employment in the western world”

Another common error is that the above titles are essentially descriptive, asking the researcher merely to describe the law. To start here gives little opportunity for a critical review of the law and thus is likely to produce a low quality dissertation. It often helps to define your objective/s as questions , such as

“To what extent..”

“How far..”

“What are the reasons for”

Beware setting objectives for which you cannot find an answer, for example to forecast an unknown future, or to review a vague or wide issue or to review an issue for which no /little literature currently exists.

A meaningful research question is one that can be expressed in such a way that it indicates what it is that you will accept as an answer. Non-meaningful questions in research terms are those which are not answerable as a result of enquiry alone. These include metaphysical questions such as ‘Does God exist?’ or judgmental questions such as‘Was nuclear power a more important discovery than steam power?’ These are more suited to philosophical research than legal research and would not be accepted.

It is a good idea to try and construct a research question which adopts an interrogatory form: ‘What is…..’ ‘To what extent…’ ‘Does the ….’ However, although the questions may sound similar, they are often very different in the extent to which they can be answered. It is often better to select a dozen well selected words than a rambling question that may lack focus

For example:-

Is a soft law approach sufficient protection for the environment of the Artic region?

Many research questions can be usefully divided as a set of sub-questions as a means of further clarifying your research objectives.

The focus of the research can be implied in the question itself.

For example;

‘What political and economic factors led to the introduction of artist resale rights in copyright in the UK?’

The information required would include economic factors such as the income to be earned by artists on their work, and political factors such as the desirability for harmonized EU copyright law.

Thus it is recommended that you research and summarise a significant amount of pre-existing literature on the whole breadth of your research topic, and analyse the common themes from these before you draft your own proposed title for the dissertation co-ordinator and later for the Research Methods Assignment. Subject tutors may be able to help you with this to some degree but they should not be asked to define the objective for you as this is part of your research assessment.

It may be possible to refine your title and objectives during the research process but this must be agreed in advance with your supervisor and the implications of this upon your time plan should be considered.

SELECT RESEARCH METHODOLOGY

Your selection must be led by your own research objectives. The selection must include the research strategy and the individual method/s that you will use, as described earlier in this module. You will need to have done considerable research on the benefits and risks of each of the strategies and methods before you can do this. You will need to justify your choice.

It will help you later if you are as specific as possible here in the planning stage. For example with doctrinal research, it is not helpful to say “look at materials on LexisLibrary”, or “look in the library for books on this subject” as you may later find that there is very little. It will be more helpful to identify what sources you will start with including specific legislation (UK, EU, international), books, journals and government reports. Your supervisor may be able to recommend others after you have found some. You should also aim to specify the search terms that you will use within the identified sources and how you will keep a watching brief during your research period. It is highly likely that you will add to this list as your research progresses but a good starting point is essential to avoid wasting your time.

If you are proposing to conduct empirical research, you must submit the form for ethical approval with your research proposal that you must have discussed with your supervisor in advance (see the link on Blackboard).

WRITE YOUR RESEARCH PROPOSAL

Before writing your Research Methods Assignment Part B Research Proposal ( See Appendix A), submit the proposed title form in the Dissertation Handbook to the course administrators who will forward it onto Ian Kilbey, the Dissertation Module co-ordinator. He will allocate a supervisor who will be marking your Part B. It is advisable that you meet , or email, your supervisor to discuss your Research Proposal before submitting the final version as part of your Assignment for this module.

In deciding your research method, follow the recommended reading that goes with this course and complete the seminar exercises so that you can make an informed choice about your own research method. Ensure that you are familiar with the practical guidance given in the materials. The materials in this module will also help with Research Methods Part A.

Note the guidance structure for your Part B in Appendix A and the precedent proposals on Bb.

CONDUCTING YOUR RESEARCH

Whatever method you have chosen do make sure that you are familiar with the elements of good practice for that particular method and that you can demonstrate these in your dissertation. Good record keeping and keeping up to date are essential in this phase. See Step 5 in the Dissertation Handbook. Time planning is particularly essential as it is easy to under-estimate the amount of time needed to investigate the range of sources, make your notes and then draw together your conclusions. See the guidance in Step 3 in the Dissertation Handbook. Ensure that you are always reading the sources with a critical mind, that you are using discrimination in your selection of material.

WRITING YOUR DISSERTATION

Use the outline of a dissertation in Step 6 Dissertation Handbook Part 1 Step 6 copied below, and further in Step 7.

“Most dissertations will cover:

· a description of the purpose and scope of the dissertation

· the methods used to raise the information

· a survey of the literature

· the findings from any primary research

· the conclusions reached and, if appropriate, recommendations”

DMU Dissertation Handbook, Step 6

It may be that if you are using the doctrinal research method, there will be some overlap between a survey of the literature and your own findings. However, note that your own findings will be a critical review of the pre-existing literature and you should avoid the common error of merely copying out what has gone before.

Ensure that you are able to construct your dissertation at the appropriate level for a masters’ degree following guidance in the LLM Dissertation Handbook and other sources such as What is a Critical Voice? and Writing at Masters Level in the recommended reading. Read the materials on critical writing so you are familiar with this style.

In outline, ensure that you are constructing an objective piece of academic writing that will demonstrate a logical argument and critical review of original research. You must provide evidence for views that are stated and cover the counter arguments.

Ensure that you go back to your research title and its objectives. You may need to abandon some parts of your research plan in order to improve the logic of your work. Remember you are seeking to produce a depth of analysis not mere description of the law.

There is a conventional structure for an academic dissertation so do refer to the Dissertation Handbook, Part 1, Step 7.

It is vital that you use a consistent authoritative system of academic referencing. There are 3 main systems that are all detailed in the Business and Law Community Blackboard site either in the DMU Guide to the footnote system (based upon Oscola), the DMU Guide to the Harvard system or Oscola. The DMU Library also has a guide to the Harvard system on the Welcome to Library and Learning services page.

Write in a gender neutral language unless directly relevant to the text , for example law within the women’s movement. Some academics prefer writing in the third person, such as “it is said that..” so do check with your supervisor.

Check that you have a copy of the presentation requirements and a guide to referencing.

APPENDIX A: COURSEWORK ASSIGNMENT

Assignment : word limit 5000 words

Submission date: Friday 15 December

Your assignment is in two parts, Part A and Part B ; you are advised to spend approximately 3,500 words on Part A and 1,500 words on Part B. Please start Part B on a fresh page. You can submit both parts as one document onto Turnitin.

The mark for the assignment will be calculated as an average on the basis of 70% of the total mark from Part A and 30% from Part B. You do not have to pass each part separately.

Please note it is still subject to External Examiner approval

Part A

Consider the following legal research question

“Identify the effect on the value and content of domestic trade exports from the UK as a result of Brexit”

With reference to valid academic literature concerning research methods, write a critical justification for the use of one research strategy and one research method that could be used for tackling the above legal research question.

Notes to students: You must select a strategy and method that you judge to be most appropriate to the research question. Justify your choice with their respective advantages and disadvantages, having regard to the fundamental principles of good research as recognised by the leading author/s in methodology. Your answer should concentrate on the research strategy and method and should NOT seek to answer the substantive research question. You should not consider every strategy or method that we have studied – your skill is evaluating for the most appropriate and supporting your choice via argument and academic evidence.

Part B

Write a research proposal for your own dissertation covering the following:

· Title

· Abstract: a brief summary with reasons why you have chosen this topic

· Research Objectives: define the boundaries of the proposed dissertation, such as the questions you intend to cover and what you seek to achieve

· Research Strategy and Methodology: identify the methods that you will employ to achieve these objectives and the reason why you are using these. Explain how you will ensure the validity of the research data (including document research).

· Ethics: any ethical issues as detailed in the methodology must be addressed at this point. The application forms for ethical approval are not part of this assignment but must also be submitted within 4 weeks of the submission date.

· Indicative Content and time plan.

Note to students: Your awareness of valid research methods will be evidenced by your choice of title and sources, thus, although you may ask your tutors for guidance, the choice of topic and sources for your own dissertation must be your own.

The assessment criteria for both Parts match the learning outcomes for this module, for example your work should demonstrate “a critical awareness of factors”(p2) including:

· the common principles of valid research (p12) i.e. validity, reliability, triangulation, ethical practice.

· the benefits and risks of the strategy and methods you have selected.

· An application of your understanding above to the specific question.

Ensure that you have read the Dissertation Handbook regarding your choice of a topic for your dissertation before attempting this assignment. You are also advised to have discussed this with your potential dissertation supervisor. It cannot be the same as any coursework and you are advised to have received approval from the dissertation module leader before you submit this assignment.

Note that if you plan to do a reflective piece from a work placement instead of a traditional dissertation but you do not have your placement and its objectives agreed, you should complete this research proposal as if you were completing a traditional dissertation. If you do have a work placement arranged you should speak to Caroline Coles, the research methods tutor at the earliest opportunity.

Word Limits

You must indicate at the end of each part of your coursework the total number of words used. You are not allowed to exceed the word limit and, if you do so, the coursework mark will be reduced.

For the purpose of the word limit, the following are not included:

· the coursework question

· the bibliography

· references (case, book, journal, website, lecture materials and other references). If you use footnotes, any information in them (other than references) will be counted.

Reductions for exceeding a word limit

Your coursework mark will be reduced as follows:

· Up to and including a 5% overshoot – one mark reduction. There is no de minimis rule and even an overshoot of one or two words will be penalised.

· Thereafter, an additional one mark reduction for every additional 5% overshoot.

· The original mark will not be reduced below 50% and the maximum possible reduction is 10 marks.

e.g., if the coursework has a word limit of 2000 words and you exceed this by 400 words then the penalty will be a reduction of 4 marks – i.e. a mark of 61% will be reduced to 57%.

Any attempt at misrepresenting the number of words submitted amounts to cheating and could incur the relevant penalty for an academic offence. Please remember that the Turnitin report for your coursework will indicate the word count for it and tutors will check this to ensure that you have correctly stated the number of words used.

APPENDIX B: SEMINAR TOPICS

It is proposed to that the seminar sessions should be used to provide opportunity to

· review the reading of the topics above, and

· review issues relating to your dissertation

Please note that in advance of each seminar, there will be specific tasks to be completed. Please check your seminar handout well in advance.

Seminars are interactive and you will be expected to ask questions as well as answer questions. The role of the tutor is to chair the discussion and provide authoritative input only where necessary. Please note that seminar preparation is essential. To assist you in your studies, additional online exercises and discussions will be placed on Blackboard for your completion and contribution

Seminar Schedule

Week commencing	Topic	Bb test	Wiki task
09.10.17	Research strategies	***	***
16.10.17	Empirical methods	***	***
23.10.17	Doctrinal research (1)	***
30.10.17	Doctrinal research (2)		***
13.11.17	Critical review	***

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar One Research strategies

Learning outcomes

As a result of this seminar you should be able to :

· have a critical awareness of the factors which currently shape Research Methodology issues, in particular research strategy and research ethics

· have a wide awareness of issues at the forefront of Research Methodology theory and practice, and begin to develop the ability to apply it critically in a variety of contexts

· have a significant ability to identify and prioritise source materials needed for a clear and proper understanding of the subject of research methodology

· start work on the module assessment

Preparation

In preparation for this seminar you must:

· Prepare an answer to all the Questions and bring your answers to the seminar for discussion in the seminar

· Read Topics 1 and 2, Attachment One for this seminar, and some of the recommended reading. In particular for Question 1 I recommend Denscombe (2014) chapters 1 and 4 or Bell (2010) elements of chapter 1; for doctrinal strategy , I recommend a critique from Genn, Partington and Wheeler (2006) The Introduction

· Read the SLSA Statement of Principles for ethical research practice available from the research area of the website of the Socio-Legal Studies Association http://www.slsa.ac.uk and the DMU request for approval for ethical research forms available from the Blackboard Research Methods site.

· Complete Blackboard Quiz 1 Research Strategies and add a comment to Wiki Page 1 Good Research. Make a note, or print out your answers as we will discuss them briefly in the seminar

· Bring this Module Handbook with you to all seminars.

Please note that the work is cumulative for this module so that if you miss some preparation in one week you must catch up as quickly as you can within the module.

Background

I will give a brief introduction to this module, its resources and the assessment and review your answers to Bb Quiz 1and Wiki Page 1

Use the recommended reading to complete the following tasks.

Question 1 Research Strategies

Find definitions of a research strategy and a research method from the leading authorities, and explain the difference between a strategy and a method in your own view. When giving the definition, you MUST state the author.

Define the 3 strategies listed below. What are the benefits and risks of using each of the following strategies?

· Empirical

· Ethnographic

· Doctrinal

Which of these strategies would you use for each of the 3 research proposals in Attachment One? Give reasons for choosing or rejecting each strategy, supported by a leading authority from the reading list. Students will be asked to present their answers for one of the briefs allocated by the tutor.

Note: This task is very similar to Part A of the assessment for this module so you are advised to prepare well and take good notes.

After the Seminar,

· look at the wiki page titled Seminar One Research Strategies and add a comment on the article included in the page

· prepare for Seminar 2 by doing the reading and answering the questions to the best of your ability

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar One Research Strategy

Attachment One

Proposal One EU law

Currently patents can only be registered on a country by country basis. This has led to significant differences in interpretation of what can be patented and there is no central court that can judge on the differences. The new European Unitary patent that would permit the grant of one single patent across the whole of the European Union.

Research question: To what extent can the aims of the proposed Council Directive for a Unitary Patent be achieved?

Proposal Two Legal Services in the UK

Traditionally, many English solicitors ( lawyers who deal directly with clients) operate within “firms”; ownership of the firm is divided between some of the solicitors, who are called “equity partners”. The Legal Services Act 2007 permitted greater freedom of ownership of UK businesses that provide legal services. This may mean that large corporate companies that are owned by investor shareholders or other non legal businesses may own providers of legal services e.g. The UK Co-operative Wholesale Society is establishing a legal service business. This is likely to increase the competition in the provision of legal services in the UK.

Research question: What are the likely implications of this Act for a traditional firm of solicitors that is owned solely by lawyers as equity partners?

Proposal Three Prison privatisation

Historically Her Majesty’s Prisons (HMP) in the UK have been run by HM Government as a public service, funded by national taxation income. The UK Coalition Government have decided to privatise parts of HMP, selling off the capital property and transferring the services of the care of offenders to the private sector e.g. G4S.

Research question: What issues should be considered with the implementation of this decision?

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Two Empirical methods and the research proposal

Learning outcomes

As a result of this seminar you should be able to :

· have a sound analytic and critical appreciation of empirical methodology practice within the Research Methodology field

Preparation

In preparation for this seminar you must:

· Prepare an answer to Questions 1 and 3 and bring them to the seminar for discussion with the group.

· Read Topic 2, a selection from the recommended reading for Topic 2, Finch,E. & Munro,V.E. (2008) Lifting the Veil: the use of focus groups.Journal of Law and Society Vol 35 Issue Supplement p35-51, Hunter et al (2008) Researching the judiciary Journal of Law and Society Vol 35 Issue Supplement p76-90 and White (2009) “ Writing Guide 2: Writing a Research Paper” in the Additional Materials Section on Bb Research Methods site

· Complete the quiz on empirical methods in the Learning Materials folder on the Research Methods shell on Bb.

Question 1 Comparison of empirical methods

Returning to Proposal Two in Attachment One of Seminar One, draw up a table to compare the benefits and risks of 3 possible empirical methods of your own choice that could be used. Students who did not present in Seminar One will be asked to present their table.

Note: Should you choose empirical methods for Part A of the assessment, this question is similar to this part of the assessment

Question 2 Writing Interview Questions

If you choose to use empirical survey, one of the most difficult tasks is to write clear questions that will give you comparable, meaningful data.

Hence, as preparation

· identify and give sources for your view from RM literature, the main risks to the “validity” of a questionnaire, and

· define a participant sample , identify the risks that are associated with this research method ( giving reference to RM literature) and consider the issues that a researcher should consider in determining his participant sample

In class, write 3 valid questions as if you were going to use interview for your own dissertation research.

We will then conduct a short interview when you will put your questions to another student. After the short 5 minute interview, we will critique the validity of the questions

Question 3 Ethical research

Returning to the second research proposal in Attachment One and the plan to use a questionnaire, draft Section 2 of the DMU form for ethical approval for empirical human research and the 2 accompanying letters (See Blackboard). Think about the requirements of the SLSA Principles of ethical research practice (See web link on Bb). Students will be asked to demonstrate their completed Section 2 to the class.

After the Seminar,

· review the wiki page titled Seminar Two Empirical methods that will contain further examples of proposals to critique and some tasks as practice for your own dissertation

· Look at the additional examples of past research proposals on the wiki on Blackboard

· prepare for Seminar 3 by doing the reading and answering the questions to the best of your ability .

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Three Doctrinal Research (1) Elements of good practice

Learning outcomes

As a result of this seminar you should be able to :

· have a significant ability to identify and prioritise source materials needed for a clear and proper understanding of the subject of research methodology, in particular use the online legal databases

· have a significant ability to work and research independently and seek advice as required, in particular with the draft of a valid research proposal

Preparation

In preparation for this seminar you must:

· Prepare an answer to all Questions.

· Read Topics 3 and 6, Attachment One, a selection from the recommended reading and review your notes from the Writing at Masters Level in the Induction Programme

· Bring a copy of a referencing guide to the seminar – either the DMU Guide to Referencing available from the Library (paper and online) , or the Harvard Guide available online from the Library. Review your notes from the Academic Writing Skills Seminars in the first two weeks.

· Bring along a piece of academic writing, such as an article or a book chapter for the class to evaluate.

· If you have decided the outline topic of your dissertation, bring that with you to the seminar as you will be starting to do some library research in this session. Otherwise you can research possible topics

Question 1 Elements of doctrinal research

From your reading, answer the following questions, with reference to a leading authority:

· What are the elements of good practice in doctrinal research?

· What are the benefits and risks in selecting doctrinal research as your research method?

· What are the ethical risks in doctrinal research?

Question 2 Evaluating doctrinal research

Evaluate the article by Scanlan as a piece of doctrinal research. In particular consider:

· The authority of the sources that Scanlan has used

· The number of the sources, relevant to the size of the piece

· The way that Scanlan has used the sources

· Does he create a persuasive argument?

Be familiar with the Information Evaluation Matrix ( Appendix C) and the CARS system from Leicester University ( White (2009)). You will need to use at least one of these documents in future seminars.

Question 3 Research proposals

3.1 Evaluate the extracts from some research proposals for doctrinal research in Attachment One, according to the following criteria:

· Is the methodology clear and unambiguous?

· How likely is it that this will lead to valid research ?

3.2 Review Attachment Two

Evaluate, and suggest improvements for the example of a research proposal that proposed 3 types of empirical research.

In evaluating the proposal, consider the following questions:

· Are the research objectives valid i.e. specific, achievable?

· What are the benefits and risks in the 3 selected empirical methods for this specific

· Who, other than the researcher, may have a view on the objectives of the research ?

· What issues of research ethics arise within this proposal?

Note : Part B of your Assessment is to produce a valid research proposal hence this question will help you to prepare a strong proposal yourself

After the Seminar,

· review the wiki page titled Seminar Three Doctrinal methods and add a critical review of the examples of doctrinal research

· review your technical research skills with the databases. Do you need to spend more time developing your skills?

· prepare for Seminar Four by doing the reading and answering the questions

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Three

Attachment One Extracts from research proposals for doctrinal research

Example 1

The methodology used will primarily be interpretivist. An historical method of data

gathering will be used. This being secondary analysis of statistics obtained in relation to other purposes. Quantitative data will be analysed and evaluated in order to support the conclusion. The chosen method of research will review current published evidence in respect to current workings of diversion schemes. Focus will be on literature available through the De Montfort University Catalogue. On-line material may also be considered where appropriate.

Example 2

This research will be based exclusively on qualitative research, utilising both doctrinal and non-doctrinal research methodologies, consequently it will encompass a blended approach.

In terms of doctrinal methods this will involve making an assessment of both common and statutory law, evaluating the stated cases to identify principles of a more general application. This approach will be facilitated through the collection of secondary data.

It is primarily concerned with statutes and the decisions of appellate courts, the European Court of Human Rights, the Supreme and Appeal Courts, the decisions of Surveillance Commissioners . It will also include decisions of Commonwealth and US Courts, where they are considered relevant and applicable.

Analysis will look for lacunas and principles and seek to identify appropriate areas for reform and for application in practice. The specialist resources required for this type of research are law reports, statutes, appropriate textbooks etc. Most of which are available on such legal databases as Westlaw and Lexis Nexis Butterworths.

Example 3

“The history of the law on child protection reveals tragedies resulting from excessive intervention in family life as well as gross failure to intervene.”Herring (2009)

Analysis of how the law on children protection tackles the problem of intervention and provides protection to children.

The dissertation will cover how the law on child protection has developed and an analysis of the current law, including cases, to determine the effectiveness of the protection for children. The aim of the dissertation is to assess the problems of intervention or non-intervention and how effective the current law is. In doing so it will highlight both the negative and positive aspects of the law and suggest reforms.

To research the topic I will use Library research including books and journal articles. I will examine the legislation surrounding the subject and look at documents and reports published by the Government. I will also look at publications from charitable organisation and guidance published and news articles on the subject.

Note: these extracts are not to be used as examples of good practice

Leicester De Montfort Law School

LLM Full time Research methodology

Seminar Three

Attachment 2 Extract from a Past Empirical Research Proposal

1. Introduction

The proposed title for the Stage II dissertation is ‘Should Local Planning Authorities adopt the optional charging regime introduced by the Community Infrastructure Levy provisions in the Planning Act 2008?’ This topic has been chosen for the following reasons:

1.1 It is contemporary, pertinent to legal practice and has sufficient scope to by worthy of in depth practical research for a dissertation of this nature.

1.2 It is of significant importance to Local Planning Authorities, developers and ultimately, communities, because any decision as to whether or not to adopt the Community Infrastructure Levy (“CIL”) will have an impact on sustainable development.

1.3 Much has already been written about CIL over the past twelve months. Its controversial nature will ensure that it will continue to attract academic, legal and journalistic comment, thus providing significant secondary sources to critically review.

2. Objectives

The main purpose of the Dissertation is to carry out research in order to determine whether or not there is any likelihood of CIL being adopted by charging authorities and if there is, to what extent it will be adopted. The reasons for support or rejection of CIL are crucial in examining its likely impact. These will typically range from financial, strategic or political reasons, to such things as being unprepared and lack of resources, but other reasons may emerge.

CIL was introduced by the Planning Act 2008 in support of the Government’s aim to make the planning system fairer, more transparent and speedier. It has long been accepted that developers should be responsible for providing or contributing towards infrastructure to support their developments. The current system of using section106 Agreements can be unfavourable to developers because of uncertainty as to the amount of their contributions, which have to be negotiated and differ from authority to authority . The Government previously endeavoured to introduce an explicit tax on development gains, but in view of negative support following consultation, the proposal was abandoned. The Dissertation aims to review past legislation and guidance and assess the suitability of the latest statutory initiative. It will also explore developer reaction to the legislation.

3. Methodology

The research will fall broadly into two categories, library research and empirical research. This will be conducted in the following manner:

3.1 Library Research [not copied]

3.2 Empirical Research

3.2.1 Make Freedom of Information Act 2000 (‘FOIA’) requests to a sample number of Local Planning Authorities to ascertain what system of developer contributions they are currently using, whether or not they plan to implement CIL and their reasons for or against its adoption.

3.2.2. Interview work colleagues in both the legal, planning and regeneration departments in order to ascertain their views on CIL.

3.2.3 Dependent upon the responses to FOIA requests, if necessary, carry out a survey by way of questionnaires, to other Local Planning Authorities.

4. Intended Programme of Action

The intended date for completion and submission of the Dissertation is XX/XX/XX. As the regulations have now been published and will be in force shortly, this date should be achievable.

Work will commence on the Dissertation at the beginning of xx following confirmation of satisfactory completion of Stage1. During April and May research will concentrate on a full literature review with the aim that items 5.1 and 5.2 are prepared and the draft submitted to the supervisor by no later than mid May. The intention is to then meet with the supervisor to review progress and receive any guidance for progression to the next stage of the Dissertation.

Also during April, FOIA requests will be prepared and sent to at least 30 Local Planning Authorities. Given the statutory time limit for responding, this should ensure that responses are received by mid May. This will enable the researcher to continue work on items 5.2 and 5.3. Interviews will be arranged during May, subject to receiving ethics approval.

A further draft of the Dissertation will be submitted to the supervisor by no later than the end of July. At this point a further meeting will be arranged to discuss progress. It is envisaged that a final draft of the whole Dissertation will be available by the end of August. This should allow sufficient time for comments and final submission.

5. Proposed Structure of Indicative Content [not copied]

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Four Valid Doctrinal Research (2) Conducting the research and its analysis

Learning outcomes

As a result of this seminar you should be able to :

· have a significant ability to work and research independently and seek advice as required;

· have a significant ability to identify and prioritise source materials needed for a clear and proper understanding of the subject, in particular working with legal referencing systems

· have a sound analytic and critical appreciation of the practice of the evaluation of source material within the Research Methodology field;

Preparation

In preparation for this seminar you must:

· Prepare an answer to all Questions, bring your answers to the seminar and add a comment to Wiki Page Seminar 4

· Bring the referencing guide that you were using either the DMU Guide to Footnote Referencing or the Harvard guide from the Library.

· Bring to this seminar a copy of one of the sources that you found for your own research in Question 4 in the last Seminar.

Question 1 Library exercise to be carried out at the computer labs , or your own laptop

You will now move to the computers and start to research some literature for your own research subject.

First gain practice with the key databases of LexisLibrary,Westlaw and PLC, especially looking at journals

Second move onto researching the wider DMU library via library.dmu.ac.uk> Finding information>enter various tabs such as a)search library catalogue, b) open access research,c) search for electronic books entering the search terms relevant to your dissertation. At some point ensure to look at EBSCOHost portal as this is a major portal to a huge range of sources.

Produce a list of approximately 5 items. Ensure that you research widely to include , as appropriate, case law, legislation, academic articles, books, professional guidance, government report, blogs, newspapers, TV reports etc.. For each search, note:

· Your search terms

· What database you used

· A correct reference for the source that you found using a reputable referencing guide.

Check that your referencing follows a recognised scheme, that is the DMU Footnotes Guide or Harvard Guide available from the Library

Complete the Information Source Matrix for one of the sources ( see Appendix C).

We will exchange the prepared list of items and discuss the following questions:

· How did you select these items?

· How authoritative/reliable are they?

· How could you find more reliable sources?

· What sources should you treat with particular care?

· Are the items correctly referenced?

Reflect upon your own technical skills in searching for documents. Do you need additional training now to conduct doctrinal research using a law library? If you do, raise this with me or the law librarians

After the Seminar,

· Re- visit the wiki page titled Seminar Four Doctrinal methods and add a critical review of the examples of doctrinal research

· prepare for Seminar Five by doing the reading and answering the questions to the best of your ability .

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Five Critical Writing in your dissertation and Assignments

Learning outcomes

As a result of this seminar you should be able to :

· have a sound analytic and critical appreciation of the practices of critical and reflective writing within the Research Methodology field;

· apply a system of coding to a document

· make a first draft of your dissertation title

Preparation

In preparation for this seminar you must:

· Prepare an answer to Questions 1-3.

· Read Attachments One and Two

· Read Topic 5 and a selection from the recommended reading, especially Bell (2010) chapter 6 The Review of the Literature. Read again White (2009) “Writing a research paper” and “What is a critical voice”, available in the Additional Materials folder in the Blackboard Research Methods site

· Read Appendix D

· You are likely to be reading around your own subject now. So, if you wish, you may answer Questions 1 and 2 based on your own article instead of Attachment One. Please bring a spare copy of your article so that you can present your answers to the class.

If you wish, you may bring in your own draft dissertation proposal for some outline comments although there will not be time to give detailed feedback on your proposal.

Question 1

Evaluate the extract from the article by Mendis (2010) in Attachment One against the criteria for a masters’ dissertation of

· Objectivity

· Logical argument

· Critical analysis

Question 2

Review the extract with comments in Attachment Two. How far do you agree with the comments provided?

Question 3

Using a coding system is a vital preparatory stage to constructing your own evaluation of documents. What is meant by a coding system that is used with multiple sources of doctrinal research?

Returning to Mendis ( 2010) in Attachment One, or one of your own articles, decide what themes you would code and apply the codes to the document.

Question 4 Preparing for Research Methodology assessment

In class, there will be time to review the structure of your research proposal (Part B Assessment) and a recommended structure for the research methods essay (Part A Assessment) with reference to Appendix D.

Please note: If you would like to submit a work placement report instead of a traditional dissertation, please read Appendix E. If you have not yet organised your work placement, you will be required to submit the research proposal for a traditional dissertation as Part B of your assignment for this module. Once you have agreed your placement you must submit a short amended research proposal for your work placement report by email to the course administrator so that we can check whether your existing supervisor is able to continue to supervise you and for us to check the validity of the proposal.

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Five Critical review and reflection

Attachment One Annotated extract from Mendis ( 2010) EIPR 582

Back to the drawing board: pods, blogs and fair dealing - making sense of copyright exceptions in an online world

Dinusha K. Mendis

Note to students: Note the list of legislation and cases separate from the bibliography

Legislation: Copyright, Designs and Patents Act 1988   s.30 , s.182CA

Copyright and Related Rights Regulations 2003 (SI 2003 2498)   reg.10

Cases: Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 W.L.R. 605 (CA (Civ Div))

Time Warner Entertainments Co LP v Channel Four Television Corp Plc [1994] E.M.L.R. 1 (CA (Civ Div))

Note to students :The use of an abstract is voluntary for your own dissertation

Abstract

This paper will consider copyright issues surrounding the various social media platforms within Web 2.0. It will particularly focus on UK copyright exceptions and will question whether the existing law provides adequate protection for the copyright user. In an attempt to answer this question, the paper will consider cases from the offline and online world and will discuss the UK Government's response to the EU Green paper on this issue.

Introduction

This paper will take an insight into the “criticism and review” aspect of the fair dealing exception as set out in Copyright, Designs and Patents Act 1988 revised by the Copyright and Related Rights Regulations 2003, which implemented the EU Information Society Directive in 2003. 1 The reason for taking an in-depth look in to this particular aspect of the fair dealing exception is to assess the effectiveness of the law as it applies to bloggers and podcasters in an online world. The issue is further compounded by the fact that as yet, there is a lack of precedent in this area of the law. Whilst there have been a number of cases dealing with libel, privacy and the infringement of copyright generally, there has been a significant lack of fair dealing for purposes of criticism and review, in relation to blogs and podcasts. As such, the paper will aim to address this specific copyright exception and consider “cases” which although have not reached a court of law in the UK, have provided a number of valuable lessons.

From a consideration of these cases or examples, it can be questioned whether the law is clear to be understood by the average online user and capable of protecting such a user? The recent EU Green Paper titled “Copyright in the Knowledge Economy” identified that:

“… Consumers are not only users but are increasingly becoming creators of content … Web 2.0 applications such as blogs, podcasts … enable users easily to create and share … and to play a more active and collaborative role in content creation and knowledge dissemination.” 2

However, the reality is that copyright law and specifically the recent EU Information Society Directive, does not contain an exception which would allow the use of existing copyright protected content for creating new or derivative works. This discussion will consider the law, the proposals put forward by the EU Green Paper, the surveys conducted by the Consumers International IP Watch List in 2009-2010, 3 and the recent Digital Britain Report 4 published in the UK in order to question whether an exception for user-generated content should be introduced in to copyright law. The discussion will commence with an introduction to the Web 2.0, pods, blogs and micro-blogging before setting out the law and moving on to examine two significant cases 5 which applied the criticism and review exception, in the “off-line” world. The aim here is to analyse the principles on which those cases were decided and consider whether the basis of those principles can be applied to the online world. The discussion will conclude by analysing the issues prevalent for the blogger and podcaster and will examine the potential liabilities which could arise from the Web 2.0 services.

An introduction to Web 2.0: Blogs, Micro-blogs and Podcasts

Web 2.0 refers to the second generation of web development and web design which allows users to do more than just retrieve information. It allows the Internet to be used as a platform for the creation, design and collaboration on the World Wide Web--which was once a place solely reserved for the IT specialists with in-depth knowledge in computing and programming. Through applications such as social networking sites, wikis, blogs, pods, mashups and video-sharing sites, etc. users are able to create, design and publish content with ease and speed for collaboration and knowledge-sharing.

Web logs, Blogs and Blawgs

The word “web log” or “weblog” was coined in 1997 by Jorn Barger to refer to online personal journaling. 6 Jorn Barger devised a theoretical methodology in the 1970's that “demanded hypotheses be expressed as computer simulations and that the simulations be refined by analysing literary descriptions of human behaviour”. He called this method Robot Wisdom and created the first “weblog” under this name, which exists to date. 7 Later, in 1999 the term “web log” was shortened to blog, with the editor of a blog, referred to as “blogger” and the world of blogs and blogging known as “blogosphere”. 8 A blog about law, legal practice or legal issues was identified as a “blawg”. Blawgs, as one would expect, cover developments in the legal field, with comments on these issues. 9

Scott Rosenberg, the author of the recently-published book “Say Everything ” 10 goes further back in time and attributes the concept of blogging to Justin Hall, who created the site Links.net in 1994 whilst still at College to showcase his stories, life stories, news and pictures together with hyperlinks to other sites (which were relatively few in number). 11 Rosenberg states that it was Hall's concept and idea that paved the way towards the “web log” “weblog” or “blog”.

Since the early days of the blog, there is no doubt that it is now a social phenomenon, with millions of blogs being maintained by people all over the world. In June 2009, Technorati, an internet search engine for searching blogs, indexed 133 million blogs, 12 showing its vast popularity. It is a platform which encourages audience participation and brings together like-minded people to share their thoughts and views. Through sites such as the Google-owned Blogger.com 13 anyone can set up and start blogging--within minutes. This is probably one of the reasons why there are many risks associated with blogging. As a blogger shares their individual ideas, thoughts, opinions, and the thoughts and opinions of others, they could easily be opening themselves up to claims of libel, 14 doocing 15 and copyright to name just a few legal issues.

Micro-blogging and the Tale of “Twitter”

The move from blogging to “micro-blogging” entered a new phase with the influx of Twitter in 2006. 16 Twitter, the micro-blogging service which enables users to send and receive updates--known as “tweets”--has reached a level of unprecedented popularity since then. 17 It's free, easy to use and distinctive as each comment has to be limited to 140 characters--in other words, a single opinion, comment, thought, breaking news (a tweet) has to be limited to 140 characters. A Twitter user will “follow” like-minded people or organisations and can also be “followed” in turn. It has become a forum for expressing opinions (similar to blogs), but with its unique feature of limiting what one has to say to 140 characters, it has also become a popular platform for breaking news, posting an opinion or asking a question on the very latest news. The relevance of Twitter to this paper, lies in questioning whether postings on Twitter, i.e. “tweets” as they are known, are copyright protected? The July 2009 Magazine of the World Intellectual Property Organisation (WIPO) published an article asking this question: “Are Tweets Copyright Protected”? 18 In this article Reinberg argued that tweets cannot be copyright-protected because of size (140 characters and therefore impossible for it to reach the level of creativity needed for copyright protection); content (as tweets are mostly factual) and scènes à faire (tweeters will describe a commonly occurring situation with the same or similar expressions, as those scenes cannot be expressed in any other way). 19 However, the article also goes on to say that a collection of tweets--taken as a whole--may meet the criteria to be copyrighted and yet at the same time the article questions what one can do with it, if they own a tweet. For these reasons, and based on the premise that micro-blogging services such as Twitter which leads to a 140-character tweet would be a “difficult-to-make” and “hard-to-enforce legal claim” in the area of copyright law, this paper will focus on blogging and podcasts. 20

Podcasts--the blending of Apple's iPod and broadcast

Apple's “iPod” and the term “broadcast” blended together bring about the word and technology--Podcast. It is made available for download by means of a web feeder and client software known as a podcatcher or aggregator. 21 This type of software automatically identifies and retrieves new material from a chosen broadcast programme which a user can choose to listen to, at a time that is convenient to that individual.

The issues surrounding blogs and podcasts become further complicated, when a podcast is embedded within a blog. Over and above the concerns surrounding blogs, which include amongst others, the above-mentioned issues of libel, privacy and copyright infringement, it also raises questions regarding reproduction with/without consent of broadcasts in so far as podcasts are concerned. For example, has a whole or substantial part of the podcast been reproduced? What message is being conveyed through the podcast if a “substantial part” of the podcast is reproduced? Does it retain the meaning of the original broadcast programme? Is the copyright holder acknowledged?

This paper will seek to answer these questions which have arisen in the copyright battlefield between bloggers, podcasters and right holders.

The Law--fair dealing for the purposes of criticism and review

Section 29 of the Copyright, Designs and Patents Act 1988 (hereinafter 1988 Act) states that:

“copying that would otherwise infringe copyright in a work will not do so if it can be considered fair dealing for the purposes of research or private study, criticism or review or reporting current events.”

Section 30(1) which is the relevant section to this paper states that:

“Fair dealing with work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.”

In order to address the issues thrown up as a result of the digital age, new provisions were drafted to transpose the fundamental principles contained in the 1988 Act. The result was Copyright and Related Rights Regulations 2003 22 (hereinafter 2003 Regulations) which in turn, transposed the EU Information Society Directive 2001 (hereinafter InfoSoc Directive) 23 in to UK law.

The 2003 Regulations alter the definition of the so-called “fair dealing” exception in copyright work and the wording appears different to the original wording in the 1988 Act. Section 10 of the 2003 Regulations defines fair dealing for criticism and review (previously s.30(1) of the 1988 Act) as follows.

“Fair dealing with a performance or recording for the purpose of criticism or review, of that or another performance or recording, or of a work, does not infringe any of the rights … provided that the performance or recording has been made available to the public. ”

Whilst it can be observed that that the main change here lies in the wording which replaces “accompanied by a sufficient acknowledgement,” with “made available to the public” the effect of this minor change, is significant. To assess the change, it is important to consider what is meant by “made available to the public”.

Section 182CA of the revised 1988 Act states that consent is required for making available to the public and reads as follows.

“A performer's rights are infringed by a person who, without his consent, makes available to the public a recording of the whole or any substantial part of a qualifying performance by electronic transmission in such a way that members of the public may access the recording from a place and at a time individually chosen by them. ” (emphasis added)

A reading of this section highlights “consent” and “access the recording from a place and at a time individually chosen by them” as two of the more important concepts in the amended 1988 Act. Applying this section to s.10 of the 2003 Regulations (fair dealing for criticism and review), it can be deduced that criticism of a work or of a performance of a work, does not infringe any copyright in the work where it has been electronically transmitted in such a way that members of the public may access the recording from a place and at a time individually chosen by them, provided it is done with consent.

At first blush, the law appears clear and straight-forward. However, a deeper insight illustrates that in practice, it is a legal minefield. When put to practice, what does “consent” really mean and is the law “wrong” to word it, in this manner? These are the kind of questions which are put forward by aggrieved Web 2.0 users who seek answers to what they believe is a “complex copyright system”.

The next part of this paper will take a look at three cases--which revolve around the criticism and review aspect of the fair dealing exception. The first case highlights the issues faced by bloggers in an online world. The two cases which follow look at the application of fair dealing for criticism and review as it applies to media and entertainment. Although these cases do not reflect *E.I.P.R. 585  the online position, the principles which can be drawn from them can be equally useful for cases which will be decided in an online world in the future.

[part omitted] ....................

The contentious issues

In the Court of Appeal, the defendants relied on s.30(1) of CDPA 1988. The plaintiff conceded that the “sufficient acknowledgement” had been satisfied as the closing credits clearly acknowledged Stanley Kubrick. 37 The defendants accepted that the inclusion of the clips from “A Clockwork Orange” in “Forbidden Fruit ” represented a “substantial part” of that film for the purposes of s.16(3) of the 1988 Act. 38

In giving the lead judgment in the Court of Appeal, Neill L.J. stated that there were four principal submissions advanced by Time Warner in support of its contention that the defendants were not entitled to rely on the fair dealing defence in s.30(1). These were that: 39

(1) The programme did not constitute fair dealing because of the laser disc of the film had been obtained in an underhand manner.

(2) The programme did not constitute fair dealing because the scenes depicted in the clips were all scenes of violence and did not accurately represent the film as a whole or give a proper indication of its contents (emphasis added).

(3) The programme did not constitute fair dealing because the clips amounted to over 8 per cent of the film as a whole and about 40 per cent of the programme itself (emphasis added).

(4) The purpose of the programme was not for criticism or review but had the ulterior motive of giving a public viewing of some of the film's most controversial scenes in the interests of sensationalism, as part of a campaign to persuade the plaintiff to re-release the film, and to criticise the plaintiff for declining to do so.

Of these, (2), (3) and (4) apply to most, if not, all fair dealing cases concerned with criticism and review, whether it be in the “offline” or “online” world. Therefore, as it was in the Clockwork Orange case and as raised in Dr Goldacre's issue the question remains whether criticism and review depicts or accurately represents the work as a whole (i.e. does the material used for criticism and review purposes retain the essence of the original work?); how much of the actual work is presented (i.e. in Clockwork Orange the clips taken together amounted to 12 1/2 minutes of the original film; the podcast embedded in “Bad Science” amounted to 44 minutes of a three-hour show); and the intention for presenting it (i.e. is there an element of “sensationalism” in using the material for criticism and review purposes?).

In “A Clockwork Orange ” case, the court held in favour of the defendants. Neill L.J. opined:

“I am satisfied that the Court should be very slow before it rejects a defence of fair dealing on the ground that the criticism covers only one aspect of a film or book or as the case may be. One can envisage many cases where it would be legitimate to select and criticise, for example, a single scene of violence even though the rest of the work was free of objectionable material.” 40

In agreeing with Neill L.J., Henry L.J. stated:

“Fair dealing in its statutory context refers to the true purpose (that is, the good faith, the intention and the genuineness of the critical work)--is the programme incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work?” 41

In relation to the length of the clips, Neill L.J. ruled that there was no unfair dealing by the defendants by reference to the overall length of the film extracts used in “Forbidden Fruit ”.

The judgments by Neill L.J. and Harman L.J. in this case, explore the essence of fair dealing for the purposes of criticism and review; the amount used and the intention for using it and set out an important precedent in the “offline” world the same year that Sir Tim Berners-Lee invented the World Wide Web. It is therefore fitting to *E.I.P.R. 587  bring the discussion of this case to a conclusion by quoting Harman L.J., who quoted Ungoed-Thomas J. in one of the landmark cases concerning fair dealing, Beloff v Pressdram Ltd. 42 --

“‘Fair dealing is a question of fact and of impression’. One has to consider whether the allegedly infringing material may amount to an illegitimate exploitation of the copyright holders' work.” 43

[part omitted]...............................

UK's response to the EU Green Paper on “Copyright in the Knowledge Economy”:

In March 2009, the UK Government responding to the EU Green Paper on copyright reform, 53 established that there should be no new exemption from copyright law, for users' adaptations of copyright-protected content. 54 The statement comes in answer to the questions posed in the EU Green Paper on user-generated content.

[part omitted]...................................

Conclusion

With the Internet constantly growing, thereby creating opportunities for users to be involved in the creation, design and collaboration of the Web, may be the time has come for copyright law to adapt more effectively towards Web 2.0 and to the future of the Web. Eric Schmidt, CEO Google, referring to the Web 2.0 strategy simply stated: “don't fight the internet” to capture the essence of the second-generation of the Internet. 69 This is equally true as far as copyright law is concerned. Copyright law should stop fighting the Internet and make the best use of technology in seeking solutions and providing clarity for users of Web 2.0.

Whether this will be effective in reality will also depend on the Digital Economy Act 2010 and the effect that it will have on the user. 70 This Act which received Royal Assent on April 12, 2010 will have significant consequences on those who infringe copyright law, in particular those involved in illegal file-sharing. 71 Whilst illegal file-sharing is not the focus of this paper, it is important to highlight this current development which ultimately will have an effect on the end-user.

The UK copyright system is very much an economic right which in turn explains the late acceptance of the private copying exception, for example. However, whilst this may be the case, there are arguments to establish the “authorial role of the public”. Lior Zemer argues that authorial knowledge and creativity rests on the two complementary pillars: collective and subjective. 72 The “collective” pillar refers to the contributions from the public--i.e. “interaction between the collective and subjective is what makes copyright protection real: innate capacities are transformed into actual abilities by experiencing, interpreting and enclosing collectively produced and owned properties.” 73 This makes a lot of sense when applied to Web 2.0 applications such as blogs and podcasts: a blog commentary, such as the one written by Dr Ben Goldacre, is original and is his own work, which he then elaborates by “enclosing collectively produced and owned properties” such as the podcast he embedded.

Ultimately, an author has to rely on other sources and “feed” on the work of others to create something new. Without such “authorial collectivity” creativity, literary work and copyright will not exist. It therefore seems appropriate to bring this paper to its conclusion by setting out two contrasting views, taken from Mark Rose and Benjamin Kaplan respectively--

“Copyright depends on drawing lines between works, on saying where one text ends and another begins. What much current literary thought emphasizes, however, is that texts permeate and enable one another, and so the notion of distinct boundaries between texts become difficult to sustain.” 74

“The author was not, like a crow, to try to patch up a disguise with peacock's feathers; like a bee, he must steal, but then he must transform the sweetness of the flowers. Still in the final count, imitation was essential; innovation was dangerous … The literary hero is one who, having little learning or disdaining whatever learning he has, takes a fresh look at nature and feeds his art direct from that source. The confrontation must be personal, not filtered through past authority.” 75

E.I.P.R. 2010, 32(11), 582-590

Leicester De Montfort Law School

LLM Full Time Research methodology

Seminar Five Critical review

Attachment Two Extract from Exemplar dissertation with comments

APPENDIX C: READING LIST AND SOURCE EVALUATION FORM

Key texts

Denscombe, M. (2014) The Good Research Guide, 5th edition, Maidenhead: Open University Press. Also DMU e-book.

Denscombe, M. (2010) Ground Rules for Social Research, 2nd edition, Maidenhead: Open University Press. Also DMU e-book

Bell,J (2014) Doing your research project, 6th ed, Buckingham: OUP. DMU e-book

McConville, M. & Wing Hong Chui (2007) Research Methods for Law (eds.) Edinburgh: Edinburgh University Press. Also DMU e-book.

White,R (2009) Writing Guide 2: Writing a Research Paper. Leicester University. Available on the Blackboard shell

Wilkinson, D (2000) The Researcher’s Toolkit, Routledge

Yates,S.J.(2004) Doing Social Science Research. Sage Publications

Higher Education Assignment Toolkit [www] Available from CLaSS section Guides and Resources within DMU Learning and study support, part of DMU Library and Learning Services.PDF chapters can be downloaded.

Additional sources

Banakar R and Travers M (2005) Theory and Method in Socio-Legal Research. Oxford: Hart publishing.

Coles,C. (2012) Guide to searching LexisLibrary [www] Available from http://library.dmu.ac.uk

Cotterrell, R. (2006) Law, Culture and Society: Legal Ideas in the Mirror of Social Theory, Ashgate.

Clinch,P. (2001) Using a law library: a student’s guide to legal research skills 2nd ed,London: Blackstone

Dane,J & Thomas,P. (2001) How to use a law library 4th ed London:Sweet & Maxwell

DMU Guide to Referencing in the Law School 2nd ed [www] Available from http://www.library.dmu.ac.uk/Images

DMU Guide How to undertake a literature search and review [www] Available from http:// www.library.dmu.ac.uk/Images/Howto/LiteratureSearch

Finch,E & Fafinski,S (2011) Legal Skills 3rd ed Oxford: Oxford University Press

Fink, A. (2010) Conducting research literature reviews from internet to paper, Thousand Oaks,London:Sage

Finch,E. & Munro,V.E. (2008) Lifting the Veil: the use of focus groups.Journal of Law and Society Vol 35 Issue Supplement p35-51

Genn, Partington and Wheeler (2006) The Nuffield Inquiry on Empirical Legal Research [www] Available from http://ww.ucl.ac.uk/ socio-legal/empirical

Gorard, S. (2003) Quantitative methods in social science. London: Continuum

Glaser,B.& Strauss,A. (1967) The Discovery of Grounded Theory.Chicago:Aldine.

Hargreaves (2011) Digital Opportunity [www] Available from http://www.ipo.gov.uk.

Hart, C., (1998) Doing a Literature Review, London, Sage Publications

Hill, J. ‘Comparative Law, Law Reform and Legal Theory’ (1989) 9(1) Oxford Journal of Legal Studies 101.

Hunter et al (2008) Researching the judiciary Journal of Law and Society Vol 35 Issue Supplement p76-90

Israel,M & Hay, I (2008) Good ethical practice in empirical research on law [www] Available from http://www.ukcle.ac.uk/research/ethics

Kumar, R. (2011) Research methodology: a step-by-step guide for beginners 3rd ed.London:Sage.

Legrand, P. (1996) How to Compare Now 16 Legal Studies 232.

Menski, W. (2006) Comparative Law in A Global Context: The Legal Systems of Asia and Africa, 2nd edition, Cambridge University Press.

Pallant, J.(2010) SPSS Survival Manual 4th ed. Buckingham: Open University Press. Also an e-book from DMU library

Salter, M & Mason, J (2007) Writing law dissertations. Harlow: Pearson

SLSA Statement of Principles of ethical research practice (2009) [www]. Available from http://www.slsa.ac.uk

Tamanaha, B. Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law, Oxford : Clarendon Press,.

Zimbardo P.G.,Maslach,C. & Heiney,C. (1999) Reflections on the Stanford Prison Experiment [www] Available from http://www.prisonexp.org/pdf/blass.pdf

Zweigert& Kotz (1998) An Introduction to Comparative Law 3rd ed Oxford: OUP.

Leicester De Montfort Law School

LLM Full Time Research Methodology

Appendix C Evaluating a source

Information Source Evaluation Matrix

1 2 3 4 5 Mark Who? - is the author Author background is unknown Some evidence author works in this area but few articles Evidence of some publications in this area by author Author has several published works in this area Author is a known authority in this area Score What ? - is the relevance of points made Content and arguments of little or no relevance to the task Only of peripheral /little relevance to task being undertaken Some of the content is relevant to task requirements Several points made are of relevance to task Content and arguments closely match your needs Score Where? – context for points made Situation to which author applies points is different to that of the task Minimal similarity between author’s context & the task context Author’s situation and that of the task have some similarity Reasonable similarity between author’s and task context Author’s context and that of the task very similar Score When? – was the source published Date is unknown or older than 20 years old Old reference – between 10 and 20 years old Reference is between 5 to 10 years old Recent reference is 2 to 5 years old Up-to-date source – published in last two years Score Why? – author’s reason/purpose for writing the article No apparent motivation seen in article News paper (or online) article opinion – not evidenced Trade magazine / commercial paper – might have some bias Book source / conference paper or subject interest forum/blog Academic journal paper – peer reviewed Score Source/Reference: Task/Question: Total marks

Leicester De Montfort Law School

LLM Full Time Research Methodology

Appendix D Research Proposal Template

This template is to provide guidance only and is not meant to be a compulsory pattern for your proposal. Please note that you will not be permanently bound to follow these elements during your dissertation research, as research objectives and indicative content often change with time. However, major changes must be discussed with your supervisor

Headings	Guidance notes
TITLE	Ensure that this is achievable and will demonstrate a critical or analytical approach. Consider the demands of your pathway. You could discuss this with a subject tutor or your supervisor in advance
ABSTRACT	A brief summary of your proposal. Explain some back ground for your choice of title e.g. recent legal change, an ongoing legal problem,
RESEARCH OBJECTIVES	What you hope to achieve. Be as exact as possible – avoid generalisations. Make sure they are achievable
RESEARCH STRATEGY AND METHODS	What you will use and why. How you will avoid the risks that are inevitably involved in your choice
INDICATIVE CONTENT	A list of chapters or sections that you intend for your dissertation and what you will cover. Identify major sources if you can
ACTION PLAN	An approximate plan by month. Be realistic – consider other commitments, holidays ( including your supervisor’s holiday!) and re-drafting. Start early with an application for consent for empirical research if you intend to use it.

Leicester De Montfort Law School

LLM Full Time Research Methodology

Appendix E The Work Placement Dissertation

Introduction

As an alternative to a traditional academic dissertation that must be submitted for the 60 credit module LLM 5272, you are permitted to write a reflective report on your work placement. This arrangement is mainly to assist the students on the LLM who are required to write a work placement report by their home university but others may choose to take this route independently. Note that we wish to be flexible in the type of employment upon which you can report for your work placement .Thus we will accept a report on working in private business as well as legal practice, provided you can cover the outcomes of the LLM.

Please note that whatever you submit for your 60 credit dissertation module the work must achieve the learning outcomes of a masters dissertation as detailed in the Dissertation Handbook and thus must be of a standard that is suitable for a masters course incorporating valid research and critical evaluation.

Many of the issues that we have covered on the research methods module will apply equally to a work placement report. However, this note describes some of the issues specific to a work placement report concerning research methodology in Section A and concerning practical matters in Section B

SECTION A

A work placement report is likely to involve the methodology known as reflection in action. A significant body of literature exists around this method. The leading source is Schon (1991) The Reflective Practitioner. Aldershot: Ashgate Publishing Ltd and most work is a comment upon his early work. See also Boud et al (1994) Reflection:Turning Experience into Learning.London:Kogan Page. Articles in this area are often written about social work but the principles of research can be transferred into law. Judith Bell's Doing your Research Project (2010) is also useful as she is focussed on research in schools and colleges.The Journal of Law and Society ( sometimes called the British Journal of Law and Society ), available from DMU library e-journals, is a useful journal. Two examples of previous work based dissertations on the Research Methods Blackboard site.

The essence of analysis in your work placement will be to pause, step back and reflect on the events and practices in the law around you. You will be looking for patterns and links in behaviour and evaluating the effectiveness of the law. You may start by asking questions of your surroundings, such as

· why does someone do that?

· what are the challenges that this law brings to the work?

· who works in this area of law?

Once you have the answers, you should analyse this by asking questions such as

· what if someone else did this work?

· what if the law was different?

· what law reform could be brought in next?

Consider how you will keep a record of these observations to provide you with reliable data. Remember any evaluation in a dissertation must be backed up with evidence whether from documents or from events.

Writing on this reflection provides particular challenges. A common error is to provide a descriptive diary list of what you did; this will not be acceptable for a masters dissertation. Your analysis must combine academic evaluation backed up your practical evidence. You must maintain honesty and transparency in your evaluation, recognising the limitations, maybe linked to a particular placement or group of people. Objectivity must be maintained so you are reviewing the law and processes not the people. This will provide a greater challenge than a document based dissertation as you will get to know the work and the people personally .You are likely to see only one example of working in the law so you will need to check that your work is more than a series of anecdotes based on one place of employment only.

It is not inevitable that your research method is empirical here, although if you need to complete the report for your home university, you must check their requirements. It may be possible to write an academic evaluation of the law, informed by your experience. However, you will need to be very careful here as any use or mention of human participant data must have gained prior approval via the ethics procedure of DMU and any other professional body and your employer.

SECTION B

The steps will be similar to a traditional dissertation hence my comments that are specific to a work placement report are based on the Steps detailed in your Dissertation Handbook pp 3-36.

Step 1 Before you start

If you must submit a work placement report to your home university and you intend to use this within your LLM Dissertation, you will need to look at the requirements from your home university first. In particular, does it require you to comment on the practical nature of the work that you did? You must make your DMU supervisor aware of these at the earliest opportunity, ideally within your full research proposal. Look at Steps 5 and 6 below for other implications from your home university.

Assuming that you have some freedom concerning approach, there are several ways to approach the work placement report as a Dissertation. You could use the experience from your work placement to write an "insider's" view as part of a traditional academic dissertation. This is the style of example WP1 on Blackboard. Alternatively, you could blend an evaluation of the “black-letter” law with insight about how the law works in practice. This is the style of example WP 2 on Blackboard.

The decision on what to write about is likely to be influenced by your employer. You will need to consider the common issues described in Step 1 of the Dissertation Handbook but in addition it is likely that the decision will be influenced by

· Whether your employer wants you to look at a specific task or at least will he allocate you to a specific department,

· your choice of topic may be influenced by what issues are relevant to the industry that your employer works in,

· what access to materials or employees will your employer permit,

· what rights of review after completion of your dissertation, if any, will your employer request,

· what will happen if he refuses to allow submission, and

· how will you guarantee that your work is evaluative, objective and your own work after your employer’s comments?

Often a work placement report will deal with the analysis of the effectiveness of the law with a practical perspective. There are other documents concerning evaluations of reflective practice available on the Research Methods site on Blackboard. The report may consider the implications for the law from work practices, for instance you may look at

· the challenges within the law that hinder practitioners

· whether the law meets the requirements of business

· the need for reform of the law as suggested by these challenges

· how lawyers see the ways that a government funds the implementation of law

· the procedures surrounding the operation of the law and how effective they are, or

· the impact of any internal regulation or professional management upon the law.

Occasionally a work placement report will expect the student to reflect on the impact upon them personally via the improvement of their own skills such as

· commercial awareness ,

· understanding how the law is applied,

· dealing with personnel,

· resolving legal disputes through negotiation, the courts or ADR

· drafting documents or

· presentational skills in the workplace.

Notice in particular the advice about the scope of the objectives in Section 2 of the Dissertation Handbook that need to cover as much and as little as 15,000 words. Consider this in your choice of objectives for the work placement and do not select objectives that are too wide such as "how the law operates". Remember you will be expected to write about the objectives that you set, so write them carefully.

Step 2 Making the proposal

The matters to be covered in both the outline proposal in the Dissertation Handbook and the full assessed research proposal will be the same whether you do a traditional academic dissertation or a work placement report. However do take particular care with the following:

· your objectives may need to be agreed with your employer ( see Step 1),

· your home university may have some requirements as well that must go in your objectives,

· your research objectives are likely to involve comment upon the work practice. If they do not, you should consider doing a traditional academic dissertation

· the likelihood of an application for ethical approval

However, one of the challenges of selecting to do a work placement report is that you are unlikely to have your placement agreed before the submission dates of your outline dissertation proposal for the allocation of your supervisor (30 November 2012) or your full assessed research proposal (January 2013). In this instance, you will need to submit alternative proposals for the completion of a traditional academic dissertation. You will use these proposals if you do not manage to secure a work placement so think carefully about them.

If you do secure a work placement later, you should re-submit a brief version of your full proposal (approximately 500 words) to your supervisor and gain his approval so that we can check that it is a viable proposal. Be aware of the implications if your work placement report involves reporting on human action and thus becomes empirical research including that you will need to submit an application for ethical approval that may take several weeks before starting any research.

The deadline for this submission if you do not need ethical approval is 30 April 2013

Step 3 Plan of Action

Given the likely timing of your work placement over Summer 2013, this will be particularly important. Note how many of the stages recommended in this Section in the Dissertation Handbook may not be finalised until S+ 7 months, hence you will have to work fast to catch up on the earlier planning stages.

Consider that you may wish to keep a diary of your time at the work placement thus you need to learn from the research methods sources about how to compile an authoritative record.

Consider that you will not have control over the timing of events in the work place so you should not rely on the occurrence of a critical event during your placement. Consider the impact of the time that you will have to spend doing your placement, away from study and the time needs of your employer and, if relevant, your home university.

Writing a work placement report provides many challenges and you are strongly advised to communicate fully and frequently with your supervisor and agree timing, such as holiday absences, well in advance.

Step 4 Research

You will need to decide your methodology. Ensure that you agree your methodology with your supervisor and your employer well in advance. You may need to look at practice manuals for the work and professional conduct codes as well as traditional academic legal documents. You may need to write a glossary of terms specific to the industry of your placement.

You may wish to use statistics and government data so be sure that you can report these in a meaningful way, often this involves the use of graphs and appendices.

As mentioned above, you may be able to use documentary methods, subject to the requirements of your home university, using your work placement to inform your evaluation. However if you intend to report on conversations or observe anyone at your work placement and you want to use these in your dissertation, you must have prior ethical approval from De Montfort University ( see the procedure in the Dissertation Handbook)

Step 5 Carrying out the work

These sections detail the good practical steps for research whatever methodology you adopt so ensure that you follow the checklists provided in the Dissertation Handbook.

Step 6 and 7 Writing and presenting the Dissertation

This is where your objectives become crucial as these objectives set out what you will be expected to achieve. Refer back to Step 1 above. Consider whether anyone else at the location of your work placement needs to review or approve the dissertation before submission.

If you are producing this for your home university as the work placement report, it is likely to need to be in two different languages. Will the De Montfort format be acceptable?

Alternatively, will you provide a smaller report to your home university as usually work placement reports are shorter than the needs of a 60 credit dissertation? Will your employer want a copy as well?

Finally, remember that if your plans change , we will need as much notice as possible as this may affect your choice of supervisor, so do keep in touch.

� Circular 05/05 sets out guidance but this is open to interpretation

� Pursuant to the Planning-gain Supplement (Preparation) Act 2007