Doherty, M; Leighton, P --- "Research in Law: Who Funds It and What Is Funded? A Preliminary Investigation" [2004] LegEdDig 59; (2004) 13(2) Legal Education Digest 15

Research in Law: Who Funds It and What is Funded? A Preliminary Investigation

M Doherty & P Leighton

[2004] LegEdDig 59; (2004) 13(2) Legal Education Digest 15

38 Law Teacher 2, 2004, pp 182–201

This paper sets out our findings following a two-year study of research funding for law in the United Kingdom covering the period 1997 to 2001. It is primarily a preliminary fact-finding exercise, largely descriptive, but with some comments as to the implications of the findings. The project’s major aims were, by focusing on the research funding supply side, to identify the main funding bodies and the nature of legal topics that receive funding.

Defining research in law is difficult. Some will question whether, say, criminology, ethics and regulation theory are properly classified as law. The first category used in this project contained, primarily, doctrinal research into law, including through the application of theoretical perspectives and empirical studies. The second category, usually inter-disciplinary in nature, involved research where law was a major discipline and where a legal researcher could contribute to a research team comprising scholars from other disciplines. A third category was sometimes considered, namely, research where law played a minor role, referred to as ‘law-marginal’ research. However, the authors were unable to obtain sufficient, reliable data so as to systematically analyse this type of research, though they do make occasional references to it.

In order to keep their enquiries within manageable proportions they had to exclude some forms of funding that supports research, including direct and indirect institutional funding by universities and colleges to support law and other staff in terms of relief from other duties, especially teaching, in order to undertake research. Externally funded fellowships and study grants provided by external funding bodies were also excluded for similar reasons of difficulty in obtaining data and the fact that they can support non-research activities. It was also necessary to define the recipients of research funding in order to assess the extent to which law, legal researchers and law schools were contributing to overall research in the UK and wider.

The main funding bodies fell into two broad groups. The first was governmental bodies. These included central and devolved government departments, the higher education funding councils’ research councils/boards and European Union institutions. The second group was the major non-governmental funding bodies. The methodology was to systematically analyse data from funding bodies covering the period 1997-2001, relying on published data, including annual reports and material available on websites. The intention was to identify the title of a funded project, the names and workplace of the recipients of funding, the amount of funding and the period of funding and outcomes of a funded project, such as a research report, article or book.

It quickly emerged that there was no consistency in publicly available data on research funding. Despite the fullness of some data, it was generally necessary to undertake secondary research to ascertain whether the researcher was a legal researcher and/or was based in a university law school or in another grouping.

The first conclusions to be drawn are that few schools have substantial income from outside funding bodies; mostly the income was below one hundred thousand pounds, typically, but not exclusively, earned by old university law schools. Overall and in comparison with both the total of funding available from the Research Assessment Exercises (RAEs) the income derived from outside sources is not substantial and many law schools reported no income at all.

Research funding by government departments tends to have a number of features. First, there is an in-house research and policy development capability and, typically, some research is undertaken by these specialists. This tends to be statistical analyses or policy overviews. Second, the research strategy is clearly articulated and specific projects are allocated to research policy themes. Third, there are often clear policies within departments to outsource for research and subject it to competitive tendering. This department funds a range of topics, broadly concerned with the legal system. The data relied upon here was primarily drawn from research publications, so the length, sum awarded and other information about the researchers can only be speculated. Overall, these projects are a mixed bag but legal researchers appear to have been in receipt of a significant amount of funding and have made an important contribution to policy development. (Editor’s note: A discussion then follows of specific government departmental funding bodies, the Lord Chancellor’s Department, the Home Office, the Department of Trade and Industry and the Department of Works and Pensions. There is also a description of the activities of higher education funding bodies, European Union funding and various non-government funding bodies.)

The major bodies that funded research in law between 1997 and 2001 each operate in very different ways. Some focus on specific topics and priority areas, especially government departments and non-governmental bodies with a particular mission. Some funding bodies also rely heavily on in-house researchers and research teams or centres of excellence. This is not only the case with governmental funding bodies but also specialist bodies such as the Equal Opportunities Commission and EU bodies. The opportunities for academic researchers in law may thus be limited, although over the period of this study there was a discernible move towards outsourcing research. Insofar as could be told, competition for funding was fierce, with most funding bodies encouraging potential researchers to look first at the dedicated research programs or themes. Researcher-driven projects seem much less likely to be supported.

It will be recalled that one of the major aims of this investigation was to look at the incidence and nature of funded projects in law. It appears that, although legal researchers in law schools have received funding from some government departments, the number of projects is not high.

Also of considerable concern is the fact that many legal subjects of major practical importance appeared to have received no funding at all. Of those law topics funded, there was a concentration on public law, socio-legal studies, criminal justice and criminology and various aspects of legal systems. Sometimes this could be explained by the policies of the main, especially governmental, funding bodies. A high percentage of these projects did not appear to require empirical research skills; yet few legal researchers undertook them. The neglect of funding for some core legal topics may be a reflection of the fact that there is no funding body with law as its major focus.

In conclusion, there was an even spread between funded projects undertaken as part of a theme or priority area of a funding body and ‘freestanding’ projects. Also, relatively few legal researchers contributed to inter-disciplinary research teams. The lack of projects in law funded by the major funding bodies clearly requires explanation. Representatives of the bodies take every opportunity to state that they want applications from legal researchers; that not having a ‘track-record’ is no inevitable barrier to success; that new researchers are especially welcomed and that the applications procedure is clear and the selection process open and transparent.

Most universities and law schools are putting increased emphasis on the need to generate external income, including research income. In part, this reflects the concentration of RAE research funding on fewer and fewer universities and schools. It is understandable that those law schools that are well funded in this way would see the often complex and long drawn out process of applying to funding bodies as a low priority.

So, why is funded research not attractive to many law teachers? A number of possibilities come to mind. First, the norms and priorities of the RAE Panel in law cannot be discounted. Funded and often empirical research may not, therefore, be seen as important. In addition, the often complex and tense relationship between funded and contract researcher is a particular one. Projects may anyway be incapable for a variety of reasons of leading to refereed publications. Second, many law teachers themselves may not see their priority in terms of funded research which is often very demanding and time consuming. Most law teachers give a high priority to research but apparently the attractions of funded research are not quite so compelling. Third, some may wish to engage in funded research but may consider they lack the skills or confidence to do so. Yet, virtually all law degree and postgraduate courses put an increasing emphasis on research methods, often involving empirical methods, and most universities offer training programs in the area.

The nature of contract research is intrinsically distinctive from undertaking work that you yourself have selected, in that the notion of the ‘customer’ of your research is a very important one. The funding bodies stress the need to have strong budgetary and management control in projects. Some academics may also feel that the system is loaded against them. They may not work in a prestigious law school, have little or no track record and consider that projects tend to go to favoured and established researchers.

The authors have concluded that the opportunities are there for law researchers and have suggested strategies that might help. They have also expressed concerns about the serious neglect of core legal topics and the relatively narrow range of legal topics that are funded. The implications not only for the delivery of legal education but also for our understanding of the practical workings of legal rules and the efficiency or otherwise of law making, regulatory forms and enforcement processes are major.