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Legal commentary: Contemporary Legal Scholarship

Contemporary legal scholarship can provide useful and authoritative commentary on current legal issues. Due to the timely nature of the commentary, it is not usually peer-reviewed. However, it can be an authoritative source on current issues of law, policy and society, and is often written by academics, experts and those with experience in the field. It is important for students and researchers to verify the source of information, for example by selecting sources from trusted websites and established experts.

Many modern law firms, NGOs and government agencies use the internet to quickly and freely disseminate information. Information may take the form of informative blogs or FAQs which offer a practical perspective on recent or proposed changes to the law or simply general overviews of an emerging or established area of law. 

Examples of contemporary legal scholarship include blog posts, opinion pieces in news media, and research-based articles in online magazines or on websites from government, organisations, or law firms. See below for a range of resources and links.

Blogs

Twitter

Twitter can be a useful source to identify new research and very recent publications. Always cite the research/publication rather than the Tweet.

Using contemporary legal scholarship 

Accounting for bias

Finding and reading sources is just one part of research. It is also critical to evaluate the sources we decide to use in assignments. This does not just mean evaluating the utility or relevance of each source, but also its bias. Every secondary source we come across will be biased in some way because each author or authors will have a particular viewpoint which informs their research.

This does not necessarily equate to one author being right and another being wrong, but showing your examiner that you are aware that the source may be impacted by individual or institutional opinion. For example, if you choose a statement released by a trade union and the research topic concerns labour law, it would be wise to be aware of the potential biases in the document.

Your examiners expect you to be able to read a source and determine whether or not the source is reliable. Below you will find some useful questions to help you make this evaluation.

  • Author credentials: is the author qualified to write on this topic? Are there any potential biases?
  • Author affiliations: some websites, such as The Conversation, explicitly state an author's affiliations i.e. with a university, organisation, union. These affiliations may impact an author's point of view, however their insights may still be useful for your research. 
  • Sources cited: does the author cite evidence for their statements, and does this evidence appear to be credible?
  • Use critical thinking when assessing the credibility and usefulness of a source. Try to verify statements where possible - have other authors or resources made similar claims? If not, is this new argument credible? 
 

It is important to keep in mind that this form of writing is not usually peer reviewed. This means that the authors’ have not usually had their writing vetted by anonymous experts for accuracy, relevance and argument. Therefore, it is critical to use these sources in conjunction with academic sources in order to produce a well-rounded and researched argument.

Writing for the internet

Occasionally, an assignment at law school may require you to write a blog post-style piece of short, informative writing on a legal issue. If you find yourself writing these kinds of pieces for an assignment or in the workplace, we have put together some helpful tips here.

  • Understand your audience and write what they want to read.
    • Plain English is critical here, as is understanding the need to write for a broad audience who might include colleagues, possibly law students and potential clients. Indeed, it is this latter group for whom you are writing primarily and they will be alienated if your writing contains too much technical language and jargon.
  • Use evidence.
    • If you are writing about a recent or proposed legislative change, for example, evidence is crucial for establishing your authority on the subject, and to convince your reader of the importance of its implications for their situation. As you are not advising anyone in particular, you need to keep your comments broad, but nonetheless based on the evidence.
  • • Don’t forget analysis.
    • Although there are many examples of descriptive writing in blog posts, the posts which stand out are those which provide a reasoned, yet clear analysis of the evidence. This includes drawing out the confirmed or potential implications of the recent changes to the law and what sort of hypothetical situations to which the changes might apply. Being able to apply critical thinking will also ensure the blog post stands out in a sea of more journalistic content.
    • If you are writing on an “evergreen” topic, that is, one which is likely to stand the test of time, think about the types of questions clients might have. These are the questions which will drive visitors, but also serve as a guide to what you should prioritise when writing about legal topics for a layperson.
  • Write with your reader’s questions in mind.
    • When framing your reporting and analysis of recent changes or a well-established element of law, remember that most readers will arrive at your blog through a search engine. This typically means they are searching for an answer to a particular question.
  • Break up information to improve readability
    • Make sure to provide that information in a clear way using appropriate structure, including headings if appropriate, as well as referencing.

Examples

Employment law is a popular area of “research insights” and FAQs for law firms. These research insights and responses to FAQs tend to focus on providing an overview of the law with key takeaways, implications, or next steps for potential clients.

Example One:

Boutique law firm specialising in workplace relations from the employee perspective

The below article provides answers to commonly asked questions about pregnancy and parental responsibilities as well as possible avenues for resolving complaints.

I feel I am being discriminated against due to my pregnancy and parental responsibilities. What are my rights as a working parent?

Example Two:

Large law firm specialising in workplace relations from the employer perspective.

The below article provides a variety of hypothetical situations, using subheadings to break up the information.

Your casual employee does not want to return to the workplace ... but still receives JobKeeper. What can you do?

Example Three:

In areas of law which tend to have clients with a greater awareness of legal issues, the language can become more technical, and, on occasion, take a position on controversial changes.

The below example provides a critique on government changes to disclosure laws.

COVID-19: important changes to continuous disclosure provisions

Example Four:

Finally, some firms may also choose to issue insights which provide an action plan for certain groups to incorporate as part of their business.

The below example breaks down the concept of the Consumer Data Right and its practical applications. It provides an explanation of who in an organisation should take note of its implications and how practice should be pivoted to accommodate the regulations.

Carrots and sticks: enforcement of the Consumer Data Right