potentially legitimating grounds for legal coercion Legitimate basis for coercion? Harm to Others? Offence to Others? Harm to Self? Legal Moralism?
Proponents of the harm principle often proceed without supplying any definition or understanding of “harm”. Mill himself gives no explicit general definition of what he means by the word, satisfying himself with various examples, contextual stipulations and hints:
he seems throughout to think no further explanation is necessary, and to count on any literate speaker of English to accept his application of the word or of some proxy for it. (Brown 2017: 411)
As we will see, other writers consider they can detect in Mill one or more ways to define or understand the term. Perhaps, as well as relying on general linguistic intuitions, one can simply cite paradigm cases. These come easily to mind; harm as “broken bones and stolen purses” as Joel Feinberg puts it (Feinberg 1984: 214). Certainly, one harms others, on any folk understanding of the term, by killing, raping, beating, defrauding, or stealing. But the ordinary sense of harm may also suggest that a transitory pain is a harm and may also have rather porous borders with other normative concepts such as “wrong”, May there, then, be trouble ahead developing a sufficiently determinate, discriminating, and workable conception of harm for purposes of applying the harm principle?
Various definitions and understandings of “harm” have been offered. One derived from Mill takes harmful conduct to be “other-concerning” or “other-regarding conduct” and, conversely, harmless conduct is “self-regarding” (Mill On Liberty , ch. 1, para 9). Accordingly, if some actions have no social consequences, they affect only the actor and are therefore harmless. Hart seems discomforted enough by “critics” of this Millian suggestion to have been unwilling to adopt it himself across the board. He surely had James Fitzjames Stephen’s critique of Mill in mind among others (Stephen 1873 [1993]). These critics, he says,
have urged that the line which Mill attempts to draw between actions with which the law may interfere and those with which it may not is illusory. “No man is an island”; and in an organised society it is impossible to identify classes of actions which harm no one or no one but the individual who does them. (Hart 1963 [1982: 5])
Despite seeming to take Stephen’s point against Mill, however, Hart goes on to adopt the other-regarding/self-regarding understanding in a limited context: so far, he says, as the “special topic of sexual morality” is concerned there may exist a realm or area of conduct that is harmless; here it does seem, “prima facie plausible that there are actions immoral by accepted standards and yet not harmful to others” (Hart 1963 [1982: 5]). It is not, however, clear how this understanding of harm is to be reconciled with Hart’s other uses of the term. For example, he discusses (sceptically) whether the “moral distress” of persons occasioned by the moral wrongdoing of others should count as harm to them (Hart 1963 [1982: 46]); cf. Waldron 1987 [1993]); and he asserts that animal cruelty should be criminal, not pace Devlin to “enforce a moral principle”, but on account of animal suffering. If there is a coherent way of bringing these various understandings of harm together, Hart does not himself supply it.
Another understanding of “harm” again takes its cue from Mill, this time from his many references to the “interests” of persons—for example: “insofar as these concern the interests of no person but himself” and “such actions as are prejudicial to the interests of others” (Mill On Liberty , ch. 5, para 2). The important distinction is not that which regards others versus that which regards oneself. It is that which is in the interests of others versus that which is in the interests of oneself. The seminal essay for this reading is from 1960 by John Rees (Rees 1960; cf. Saunders 2016), though Hart appears not to have been aware of it. Rees paved the way for Feinberg’s development of harm as “the setback of interests”. Hence, in addition to Feinberg’s addition of wrongfulness commented on above, Feinberg’s defines harm as “those states of set-back interest that are the consequence of wrongful acts or omissions by others” (Feinberg 1984: 215).
This Mill-inspired move of Rees and Feinberg, of defining harm in terms of interests, smacks of defining one unclear concept in terms of another unclear concept (Miller 2010: 119). The question of what is in a person’s interests—what is at stake for her—is itself a question that requires considerable elucidation. In Derek Parfit’s terms should we understand “interests” in “desire-fulfilment” terms, in “hedonistic” terms, or in accordance with an “objective list” which holds
certain things are good or bad for people, whether or not the people would want to have the good things, or to avoid the bad things? (Parfit 1984: 499)
Might one reasonably think that adjudicating the conflict between hedonistic, desire-fulfilment and objective list understandings of interests is an undertaking no less complex than the harm principle/legal moralism conflict itself? Take an “objective list” understanding of a person’s interests. According to Parfit this might include—as good for a person—“moral goodness, rational activity, the development of one’s abilities” and so on; and it might include—as bad for a person—being “deprived of dignity” (Parfit 1984: 499). If this is always or sometimes the best account of interests, the whole question of “moral harm” that the harm principle aims to expel is potentially reintroduced. The question of which account, or combination of accounts, is the most compelling is very much a live issue (Fletcher 2016).
Another influential understanding of “harm” is that initially proposed by Raz: “To harm a person is to diminish his prospects, to affect adversely his possibilities” (Raz 1986: 414; Gardner & Shute 2000; Simester & von Hirsch 2011; Edwards 2014, 2019). Harm is essentially understood not as a setback to interests, but a setback to autonomy. Autonomy is essentially understood as the ability to choose between an adequate range of valuable options, while in possession of the appropriate capacities to make such choices and while sufficiently independent of others. There are plainly numerous ways one can set back such autonomy. The problem of explaining why pain is harmful raises its head again. Many would take the infliction of pain on another to be harmful, without waiting to ask if the victim has suffered any setback in her ability to choose between an adequate range of valuable options, which surely, she will often not have done. And what of Devlin’s case of harm to animals? Devlin is likely to pop up at this point to repeat his view that the reason we criminalize cruelty to animals is that it is morally wrong and no potential defeating factor is strong enough to overturn that judgement for purposes of criminalization. There is no need to establish any harm in the first place. Hart, as touched on above, while accepting harm must be part of the story, offered the avoidance of “suffering” as the ground for criminalizing animal cruelty. Setback to autonomy or prospect-harm, however, looks like a non-starter, for animals, though beings that can be harmed, are not autonomous beings, at least on any standard account. Similarly, severely mentally disordered persons may in some cases lack the capacity for autonomy, but it is plain as day that they can be harmed, something the “setback to autonomy” or “prospect harm” conception seems ill equipped to account for (Stanton-Ife 2010: 157–162; Tadros 2011).
One upshot of the varying, sometimes implicit, understanding of harm is surely that anyone propounding an argument based on the harm principle needs to be clear about how they are using the term “harm”. For the term may hide a host of questions that themselves need to be resolved.
Moving on from questions of definition, what are the foundations of the harm principle? Mill, together with Jeremy Bentham and Henry Sidgwick, was one of three giants of nineteenth century utilitarianism. He declared utility to be the ultimate appeal on all ethical questions. Speaking of his harm principle, he also declared:
I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent from utility. (Mill On Liberty , ch. 1.11 [1993: 79])
The harm principle sounds rather like the (foregone) stuff of abstract right, so how is utility to give any support to the harm principle? At first sight, the principle of utility looks like a straightforward rival to the harm principle, not its sturdy foundation. Mill held of the principle of utility that
actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. (Mill Utilitarianism , ch. 2.2 [1993: 7]
This last formulation seems to counsel states to keep their options open in their law-making. “Do what you can to reverse unhappiness”, the advice seems to be, “and do what you can to promote happiness”,
Coerce to prevent harm to others if that will reverse unhappiness; coerce for some other end if that will equally do the trick.
But as we have just seen, coercion to prevent harmless wrongdoing is ruled out by Mill, irrespective of whether such an action is the state’s best bet for reversing unhappiness.
The path to reconciling the harm principle with utilitarianism is often thought to be some form of indirect utilitarianism (Gray 1996; Mulgan 2007: 117–119). The distinction is drawn between a criterion of rightness and a decision procedure (Mulgan 2007: 117–119). Thus, on this indirect view the words “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” is not any part of a decision procedure; it is a criterion of rightness. Sometimes, perhaps often, a criterion of rightness will itself feature heavily in a decision procedure. But at other times a decision procedure will not contain the supreme criterion of rightness. Acting always to promote happiness or minimize unhappiness may be self-defeating for various reasons or impossible in the practical circumstances of ignorance that ordinary people face. Over the course of a lifetime and across all the activities of a legal system, more utility will be produced and disutility avoided if the harm principle has the place Mill argues it has, despite the fact that this will repeatedly require the sacrifice of some utility in day to day legal dealings. Much of this, for Mill, relates to the importance of human liberty to happiness (Gray 1996: 136). Demonstrating that one can really derive something as strong as the harm principle (“to govern absolutely”) in this way is a formidable challenge. It is subject, among other things, to scepticism about the workability of the distinction between criterion of rightness and decision procedure (Griffin 1994; Mulgan 2007). John Gray’s book-long attempt to spell out how the harm principle can be underpinned by indirect utilitarianism came to be repudiated by Gray himself (Gray 1996: postscript) . Contemporary consequentialism, however, continues to flourish (Sinnott-Armstrong 2019); and many accounts of the harm principle still see a form of utilitarianism as the best grounding for the harm principle (Sumner 2004, 2011). Moreover, there are non-utilitarian writers making related arguments in support of the harm principle. Les Green for example argues that
There can be reasons to promulgate, and attempt to conform to, an absolute norm even if the reasons that justify having a norm in that field are defeasible. (Green 2013: 191 )
Other accounts of criminalization maintain utilitarianism or a broad consequentialism but conclude the harm principle must be rejected (Petersen 2020a,b).
In recent years, value-pluralist perfectionism has been more influential than utilitarianism as a foundation for the harm principle, whether argued for explicitly or assumed (Raz 1986; Gardner & Shute 2000; Simester & Von Hirsch 2011; Edwards 2014, 2018 [2021]). Joseph Raz’s classic work The Morality of Freedom contains a defence of the harm principle (Raz 1986; cf. Raz 1989—other leading accounts of perfectionism include Hurka 1993 and Sher 1997). Raz claims that
the autonomy-based principle of freedom is best regarded as providing the moral foundation for the harm principle. (Raz 1986: 400)
At first sight this may be surprising, given the openness of perfectionists to moral reasons in general, an openness that might suggest legal moralism is its natural home so far as the limits of law are concerned. Raz asserts that there is “no fundamental principled inhibition on governments acting for any moral reason” (Raz 1989: 1230, emphasis added). Even reasons that are not “neutral”, or not “public” or some such are not in principle excluded by perfectionism (cf. G. Dworkin 2007). Again: “It makes no sense to say of a state of affairs that it is good, but that fact is no reason to do anything about it” (Raz 1989: 1230). By the same token, presumably, one could substitute the word “bad” for “good” in the previous sentence and the proposition would remain accurate. Thus our starting point is that the law should have available to it any moral reason and has the function to promote the quality of life, including the moral quality of life, of those whose lives and actions the government can affect (Raz 1986: 415). This aspect of perfectionism is apt to make some fear the oppressive imposition of styles of life on unwilling individuals (Sher 1997: 106).
However, such alarmism cannot fairly be applied to a perfectionist view such as Raz’s. It is not that anything one might describe, rightly or wrongly, as a moral reason will do. Raz’s concern is limited to states with “autonomy-respecting cultures” and with what it is to live a good life in such societies. The key, as the phrase “autonomy-respecting culture” would suggest, is autonomy. It is a state’s primary duty in the relevant kind of society to promote, protect and foster the autonomy of all citizens . This requires—on Raz’s account—furnishing all with, or preserving for all, an “adequate range of valuable options”. It also requires seeing to it that persons have the appropriate mental and other capacities to be genuine choosers in conditions of freedom and independence (Raz 1986: 372–373).
Given, then, that Raz’s starting point is that there is no principled inhibition to the law deploying any valid moral reason, an account is plainly needed of how that can be reconciled with his support for the harm principle, a large part of the point of which is to rule out certain moral reasons. But before coming to that, it will be helpful to dwell on autonomy a little longer. In section 2.2 above, the familiar distinction between two kinds of liberty, negative and positive, and a similar distinction within liberal feminist writing, were noted. Autonomy-based accounts plainly go beyond negative liberty as the absence of obstacles, barriers or constraints, and embrace the notions of positive liberty, in terms of authorship (or part-authorship) of one’s own life, ability to choose between options, realize purposes within bounds as the case may be. Furthermore, autonomy is often contrasted with heteronomy. As Marilyn Friedman puts it,
heteronomy…involves behaving or living in accord with what is in some important sense not , or other than , one’s own. (Friedman 2005: 155, author’s emphasis)
There are at least two senses, as she continues, of heteronomy, one whose sources “arise within the self, considered in abstract social isolation;” the other whose sources “derive from interpersonal relations and the treatment of a self by others” (Friedman 2005: 155). The first sense is of course important. It relates, for one thing, to the very real problems that can emerge when an agent’s “desires, emotions, passions, inclinations, drives” are not in good order, or where the agent is addicted or in the grip or a compulsion (Friedman 2005: 155). However, for all its importance, Friedman argues that heteronomy in this sense has been the “almost exclusive” focus in mainstream philosophy. The sorts of heteronomy that are by contrast based on interpersonal relations and the way some agents are treated by others, has been largely neglected outside of liberal feminist circles, where “relational autonomy” has received considerable attention (Friedman 2005: 171; cf. Mackenzie & Stoljar 2000; Friedman 2003; Stoljar 2018). This has led to the underplaying of such phenomena of considerable importance to autonomy as male dominance. Interestingly, Friedman explicitly cites Raz’s account of autonomy as a rare exception to the neglect by the mainstream of the social or interpersonal aspects of autonomy ((Friedman 2005: 171).
Thus the criticism sometimes levelled at perfectionist accounts of the good life, government or law, that they imply the oppressive imposition of styles of life, looks unlikely to get much traction on a form of liberal perfectionism, such as Raz’s, with autonomy for all so embedded in it. This, however, does not explain how an account such as Raz’s can explain its adoption of an anti-moralist harm principle in tandem with its in-principle openness to all valid moral reasons. In other words, how can one derive an anti-moralist harm principle from a position that takes any valid moral ground as in principle available to the state and the law?
Raz’s answer focusses on the coercive means at the law’s disposal:
His autonomy principle “permits and even requires governments to create morally valuable opportunities, and to eliminate repugnant ones ” (Raz 1986: 417). It must, however, respect the harm principle in doing this. It must not use coercion to eliminate repugnant, wrongful opportunities if they are not also harmful in the relevant sense. Coercive interference is a special threat to autonomy. It often violates autonomy in two ways:
First it violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy. (Raz 1986: 418)
Let us consider both points, beginning with the second. In what sense is the use of coercion a “global and indiscriminate invasion of autonomy”? There is no doubt that sometimes it is. “Depriving a person of opportunities or of the ability to use them is”, as Raz says, “a way of causing him harm”. Again “frustrating [a person’s] pursuit of projects and relationships he has set upon” can cause harm (Raz 1986: 413). Raz alludes to the most common context for the invocation of the harm principle, namely the criminal law. Much behaviour that is criminalized is done under the threat of imprisonment and imprisonment can cut off a very large range of options; or it can reduce them considerably by various forms of disruption or destruction: of family life, deep personal relations, work opportunities, pursuit of valuable outdoor activities, political participation and so on. Richard Lippke distinguishes between the material and the symbolic dimensions of imprisonment. The symbolic dimensions relate to what message the fact of imprisonment conveys to the public and to the prisoner. The material dimensions break down into
Though only one of Lippke’s six material dimensions explicitly mentions autonomy, all have some significant effect on it. Moreover, a similar point applies to the compulsory detention in certain circumstances of mentally disordered persons under the civil law. All of Lippke’s material dimensions can be present there too; and, while the symbolic dimensions of a criminal conviction and punishment are absent, the often-attendant stigma can compromise the autonomy of the detained mentally disordered person in question still further (Stanton-Ife 2012).
Raz, then, is right that coercion by criminal penalties can be “a global and indiscriminate invasion of autonomy”, However, there seem to be two problems with this as a basis for reconciling perfectionism and the harm principle. First, the scope of the justification seems significantly limited; while the criminal penalties can have such an effect, they often will not. For there are many more forms of criminal law coercion in regular use than imprisonment: fines, community service orders and electronic tagging orders are three examples. These methods short of imprisonment can affect options, without necessarily leaving the convicted criminal short of an adequate range of valuable options—in Raz’s terminology; the assault on autonomy will not in most be total or near-total. Take the last-mentioned example: the mandatory wearing of electronic tagging devices. There have been several high-profile cases of sports stars and other celebrities being required to wear such devices. An early example is the English soccer player, Jermaine Pennant. He broke into the first team of a top professional team—the stuff that most English lads’ dreams are made of!—but, soon after, was convicted of a drunk-driving offence. His sentence required him to wear an electronic tag but allowed him to play in top division games with his tag under his sock. [ 12 ] Despite the cloud he was under he certainly did not appear to have an inadequate range of valuable options. The argument at best seems to support the deployment of the harm principle only where lengthy periods of incarceration are deployed or threatened.
Raz does acknowledge that “other forms of coercion may be less severe”. However, he adds that
they all invade autonomy, and they all, at least in this world, do it in a fairly indiscriminate way. That is, there is no practical way of ensuring that the coercion will restrict the victims’ choice of repugnant options but will not interfere with their other choices. (Raz 1986: 418–419)
Leaving the criminal law to one side, there are other legal contexts where Raz intends the harm principle to apply where this argument appears overstated. Consider tax. Of the operation of the harm principle in relation to taxation, Raz writes:
the measures I [support] avoid direct coercion for perfectionist causes. The coercion that they involve can be fully justified on the grounds of protecting and promoting individual autonomy. The simplest example is that of taxation. Taxation is coercive. It is justified in my view only inasmuch as it is useful for the promotion and protection of autonomy for all. (Raz 1989: 1232)
Raz takes taxation to be coercive (indirectly) and argues it should be raised only subject to the terms of the harm principle. But the derivation of a perfectionist harm principle here cannot be based on any “global and indiscriminate” invasion of autonomy, because tax—except in extreme cases where imposed oppressively—does not attack autonomy that hard and, if suitably progressive, should leave the person taxed with her abilities to choose between an adequate range of valuable options intact (Stanton-Ife 2017). Of course, taxation, conceived in this way, does not imply what Raz elsewhere describes as “a coercive imposition of a style of life” (Raz 1986: 161). This seems to reveal that a much more nuanced account of coercion, in its various manifestations, is required, not that coercion “in this world” is always “global and indiscriminate”,
The second problem with Raz’s (correct) observation that coercion by criminal penalties can on occasion be “a global and indiscriminate invasion of autonomy”, is summarized in the question “what follows when it is?” What does follow, surely, is that such coercion must shoulder a large burden of justification. What does not appear to follow is anything to do with what kind of valid moral reason—be it harm-based or wrong-based—should be doing the needed justificatory work. The perfectionist starting point, as we have seen, is that there are no principled limits to the pursuit of moral goals by the law. It is the job of the harm principle to provide them if the harm principle can be successfully derived. Pointing to global and indiscriminate coercion points us to something that requires justification, but not yet to what kind of justification is needed.
As noted above Raz has another argument for liberal perfectionism’s right to claim the harm principle for its own: namely coercion
violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. (Raz 1986: 418)
Might this argument make up the slack? Gerald Dworkin counters that coercing someone based on their wrongful or immoral behaviour need not show disrespect for such a person, “but merely for his conduct” (G. Dworkin 2007: 447). Alternatively, if it be accepted that coercion is disrespectful and expresses a relation of domination, one might again ask why that is not true of someone one coerces out of harming others as much as it is true of coercing someone out of some morally wrongful conduct? In both cases, does the legitimacy of the coercion not turn on the presence of sufficient justification, be that harm-based or wrong-based? Furthermore, if the key argument for the harm principle is really based on respect for independence and opposition to domination, it may seem particularly puzzling to identify how it is really a harm -based argument at all. It is true that independence, is for Raz, part and parcel of his understanding of autonomy (Raz 1986: 377–378); and it is also true that he understands harm in terms of setbacks to autonomy. However, if the argument turns on independence alone, the question arises of whether it does not collapse into—or keep sufficient distance from—certain principles devised in explicit opposition to the harm principle, such as Arthur Ripstein’s “sovereignty principle”? Ripstein argues that conduct should not be legally coerced if it does not wrongfully interfere with the sovereignty of others (Ripstein 2006: 231; for critique, see Tadros 2011).
Raz’s “one simple reason” why “the harm principle is defensible in the light of the principle of autonomy”, viz. that “the means used, coercive interference, violates the autonomy of its victim” (Raz 1986: 418) runs into the difficulty that often coercion does not do that or does not do that very significantly, let alone globally and indiscriminately. Furthermore, where coercion does violate autonomy globally and indiscriminately, it is either wrongful all things considered or justifiable only on the basis of strong valid reasons, which may include (exclusively) wrongness-based reasons for all that is as yet established. Finally, to the extent that the argument turns on independence it is not clear that harm is really doing the work.
As we have seen, several leading legal writers—be they in favour or against—continue to take Mill’s harm principle in original or modified form to be “the dominant theory as to what limits on criminal legislation should be observed by liberal democratic states” (Moore 2017: 461). Katrina Forrester’s post-war history of liberal political thought, however, emphatically puts John Rawls, rather than Mill, at the centre (Forrester 2021); and Piers Norris Turner, in an essay on Mill and modern liberalism, opines that public reason liberalism—whose leading light is Rawls—has become the dominant tradition within liberal thought “over the past three decades” (Turner 2017: 576; cf. Turner and Gaus 2017; Rawls 1999; Quong 2018; Hartley & Watson 2018; Freeman 2020). However, the growing and highly sophisticated literature on public reason among specifically political philosophers has not yet—at least not to the extent that it has in relation to legal moralism and the harm principle—received the sustained study of writers as heavily steeped in the law as Feinberg, Hart or Devlin. Specific legal applications of the public reason approach are, however, already in existence (for example Flanders 2016) and the approach continues to develop.
The approach suggests a different limit of the law: that laws must in some sense be based on public reasons , not reasons harvested from, or based on, comprehensive moral, ethical or religious theories. We saw above that while Devlin, Moore and Hart all supported the decriminalization of gay sex, they did so on very different understandings. Devlin did not rule out circumstances, admittedly extreme ones, in which criminalization might be justifiable in virtue of the intensity and comprehensiveness of the beliefs of ordinary persons in a society. Moore and Hart, by contrast, did implicitly rule out criminalization in such circumstances. Moore because the moral truth of the matter is highly pertinent, indeed decisive —there being nothing morally wrong with gay sex—Hart, despite assuming the moral truth of the matter to be irrelevant— gay sex is not harmful, so the conclusion goes through whether such conduct is wrongful or not. Rawls for his part would no doubt agree with all three on the correctness of decriminalization. But he would seek to exclude, as did Hart and Devlin, any Moore-style or perfectionist appeal to a comprehensive moral understanding to determine the issue. Devlin for his part would have had Moore down as one of the “moral rationalists” whose views he wanted side-lined in favour of the reasonable citizen.
In one way, then, Devlin anticipates a major preoccupation of Rawls. Rawls did not, to be sure, take Devlin’s apparent view that the moral beliefs of a society constitute (its) moral truth. His was not a scepticism about the existence of moral truth, merely a determination to avoid “the zeal to embody the whole truth in politics” (Rawls 1999: 132–133, emphasis added). But both Devlin and Rawls demanded that political power and legal coercion should be justifiable to those subject to them, provided they are reasonable. Thomas Nagel similarly insists a state’s law must do better than just tell those with certain conceptions of the good that they are mistaken, which seems the implication of Moore’s and of the perfectionist view; something more must be offered to them relating, he argues, to the point of view of such persons. According to him we must support:
… the exclusion of certain values from the admissible grounds for the application of coercive state powers. We must agree to refrain from limiting people’s liberty by state action in the name of values that are deeply inadmissible in a certain way from their point of view. (Nagel 1991: 155)
Devlin and Rawls, however, differed in how justification to reasonable citizens should be spelt out and it is here that Rawls develops much of his account. Devlin’s model of the reasonable person was the jury. To the question how the lawmaker is to ascertain the moral judgements of society, Devlin answered,
the moral judgement of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous. (Devlin 1965: 15).
To insist, as both do, that justification must be targeted at the reasonable citizen is to idealize the agreement on which their views were based (Raz 1990 [1994]; Enoch 2013; Billingham & Taylor forthcoming), since neither is saying one should simply seek the acceptance of (all) the citizens as they are, reasonable or not. Insisting on the actual agreement of citizens as they actually are is likely to prove excessively demanding, since too much of the rough must be taken with the smooth, accommodating misanthropic, misogynistic, egotistical, anarchic etc views. Devlin does not idealize a great deal, or at least he does not spell out in any detail how he understands what “reasonable” means, beyond insisting the reasonable jury-member must not hold “irrational” beliefs, such as “homosexuality is the cause of earthquakes” (Devlin 1965: viii). In stating one can notionally pick “twelve men or women at random” he appeared to think that a sample of the population is an adequate pointer to the appropriate morality. Here there is a stark contrast with Rawls. For taking a random sample of the population is to underemphasise moral disagreement, as Rawls would see it. It is not reasonable to think that moral disagreement will disappear in the medium- or even the long-term. And much of this disagreement cannot simply be blamed on the bloody-mindedness of some or on those biased in favour of themselves, their families, or groups. Some of the disagreement is based, rather, on differences over what evidence is appropriate, how much weight should be given to the evidence where it can be agreed upon, how priorities and choices should be made among the vast range of possible values and so on. Rawls describes factors such as these as “the burdens of judgment” (Rawls 1993: 56–57). Hence Rawls idealizes the constituency to whom legal coercion must be justified inter alia as the persons who accept the burdens of judgement and the resulting fact of reasonable pluralism.
The idealization involved in the public reason approach is controversial. There is scepticism in some quarters that there really is any genuine “middle way” between “actual (including implied) agreement and rational justification” (Raz 1990: 46). If too many constraints are built in, the very idea of justification-to a given constituency disappears. The leading natural law theorist John Finnis, writes:
Natural Law theory is nothing other than the account of all the reasons-for-action which people ought to be able to accept, precisely because these are good, valid and sound as reasons. (Finnis 1996: 10–11).
Natural law, theory, is a paradigm “comprehensive” doctrine, however, precisely what is to be avoided in Rawls’ view. If justification-to ends up meaning only giving good reasons to a certain constituency, the idea has all but evaporated.
Another contrast with Devlin’s members of the jury, is that Rawlsian public reason is not simply a matter of getting a sample of the people into a notional room and waiting for them to agree, however that is to be done. Public reason is itself a substantive framework to be shared by everyone, a module, “a complete political conception” whose principles and ideals are to be elaborated and whose arguments are to be deployed in legal argument (Rawls 1999: 138). It has content, in other words, “given by a family of reasonable conceptions of justice” (Rawls 1999: 132). While, as we have just noted, a natural law or Roman Catholic world view cannot itself be adopted under public reason, its conception of the common good or solidarity when “expressed in terms of political values” can be one grounding for a political conception that gives content to public reason (Rawls 1999: 142). For interesting explorations of the relationship between religious comprehensive doctrines and public reason, see, e.g., An-Na’im 2015, Billingham 2021.
Two kinds of issue of special concern to questions of the limits of law concern, first, the scope of public reason and, secondly, its capacity to account convincingly for certain apparently easy cases of legitimate legal coercion. As for the first, Rawls restricts public reason to “constitutional essentials and matters of basic justice” (Rawls 1999: 133). Is it convincing to thus limit public reason? In the eyes of some Rawls is too permissive about important matters of (non-basic) justice and fairness beyond the constitutional essentials and the basic aspects of justice. Jonathan Quong for example objects to Rawls’ openness to perfectionist values so far as “large resources to grand projects in the arts and sciences” are concerned (Quong 2011: 281; Stanton-Ife 2020).
Secondly, how well does the public reason view handle certain obviously legitimate uses of legal coercion, such as the criminalization of murder and rape? While there is no doubt that a Rawlsian public reason module, duly developed, would straightforwardly deliver the bare bones of coercive laws against murder and rape, can this be done fully and satisfactorily without the sort of recourse to comprehensive moral and metaphysical doctrines Rawls wishes to rule out? Take murder as an example. Standardly murder requires proof of at least causation of death with an intention to kill and penalties are among the severest, stretching in various jurisdictions to mandatory life imprisonment or, in some, to capital punishment. But how is “death” in “causation of death” to be understood? It is common to understand it in terms of the cessation of brain stem functioning. But why this understanding? For some putative victim may have irrevocably lost the capacity for consciousness while his or her brain stem continues to function. Is not the wrong of murder truly captured not only when the brain stem ceases functioning, but (possibly before that) when there is such “irrevocable loss of the capacity of consciousness” (Persson 2002; De Grazia 2017: 4.3)? For, one might say, it is the latter that explains what is horrific about murder. Someone who intentionally brings about the permanent cessation of the brain stem functioning of another should not be thought of as a murderer, the argument goes, where the capacity for consciousness of the victim is already known to have been irrevocably lost. Perhaps such conduct ought still to be criminal and labelled as such, only not as murder meriting the mandatory life sentence. The point for present purposes is not to settle the question of what the best understanding of murder should be, or whether the imaginary case should count as murder, only to suggest that these issues are likely to turn, implicitly or explicitly, on comprehensive moral and metaphysical understandings. Public reason will be insufficient-or so the challenge would run (Tadros 2012: 77). Somewhat relatedly is Rawls’ account of abortion—he argues for a “duly qualified right” on the part of a woman “to decide whether or not to end her pregnancy during the first trimester” (Rawls 1993: 243). Whether Rawls is entitled to this conclusion on the basis of public reason has been hotly contested (see the varying perspectives of George 1997 [1999: 209–213]; J. Williams 2015; Kramer 2017: 92–155; Laborde 2018; Chambers 2018; Arrell 2019).
In the Introduction a distinction was drawn between conceptual and evaluative questions about the relationship between law and morality; and it was said that the limits of law is generally taken to be a strictly evaluative question. The term “law” is generally left largely unanalysed, with the emphasis on the law’s coercive means and the extent to which it may legitimately be deployed in the pursuit of moral ends. But will be seen, there are some approaches sceptical of the distinction’s importance to our understanding of the limits of law.
It is uncontroversial to say that a (further) kind of limit of law is that contained in the idea of legality. Lon Fuller famously identified eight “desiderata” for laws. Laws should be general; they should be promulgated to their norm-subjects; and they should be prospective. They should be understandable (perhaps with professional help); the obligations they impose should be susceptible to being jointly fulfilled; and they should not require anything beyond the capacities of their norm-subjects. Laws should be tolerably stable and, finally, they should actually be upheld by the relevant legal officials, rather than ignored, bypassed or replaced by what the officials applying them consider more congenial standards (Fuller 1964; Rundle 2012: Ch. 4; Waldron 2016 [2020]; Sunstein & Vermeule 2020). Kristen Rundle and Jeremy Waldron both argue that the legal positivism of Hart and Raz, as well as a broader instrumentalism that would take in Devlin, [ 13 ] is too casual and accommodating in allowing the designation “legal system” and “law” to systems and norms that fall short on the criteria of legality (Waldron 2008: 14; Rundle 2012: 202). This implies that one cannot simply take the question of the limits of law to be an evaluative question. This would underestimate the extent to which supposedly conceptual questions about the existence of legal systems and laws are themselves evaluative questions. Hence the limits of the law should be seen squarely as both an evaluative and a conceptual question. Against this, while granting that conceptual questions matter and are themselves a large focus in the philosophy of law, one might wonder how far they matter to the specific issue of the limits of the law. If it is accepted for example that Fuller’s desiderata for legality or something close to them are indeed desiderata as well as to some extent conceptual features of the law (as does Raz 1977), does it greatly matter that one might conceive of such features as conceptual to a still greater extent ?
It is widely said by those sympathetic to the instrumentalist understanding of law that law is a “modal kind” rather than a “functional kind”, distinguished by its means (or techniques) rather than its ends; the moral legitimacy of such ends being contingent (Green 1996: 1711). In the words of John Gardner:
[T]o say that law is a modal as opposed to a functional kind is merely to say that law is not distinguished by its functions—by the purposes it is capable of serving. It is distinguished rather by the distinctive means that it provides for serving whatever ends it serves. Law is what Kelsen memorably called a “specific social technique” (Gardner 2012: 195–220, 207; cf. Kelsen 1941; Summers 1971).
The idea of the legal techniques , developed by Robert Summers, from both the positivism of Hans Kelsen and the anti-positivism of Fuller, points however to a line of thought about the limits of the law that is surely due a revival. The debate as it is mostly prosecuted is too dominated by the one “technique” of coercion. While giving coercion its due Summers also emphasized
educational effort, rewards and other incentives, symbolic deployment of legal forms, publicity (favourable or adverse), continuous supervision, public signs and signals, recognized statuses and entities
grants with strings attached. (Summers 1977: 126)
There is also growing awareness at a theoretical level of the importance of expressive values in the law (McAdams 2015). It is something of a loss that the schema developed by Summers and his collaborators, dividing legal techniques into “grievance-remedial”, “penal-corrective”, “administrative-regulatory”, “public-benefit conferral”, “facilitator of private arrangements”, appears to have fallen largely into disuse (Summers et al. 1986). For it allowed various areas of potential legal concern to be examined against a background of various legal techniques, coercive and beyond. Rawls’ question of how far such techniques should be subject to public reason is a further issue that might helpfully be pressed.
The law’s task, put abstractly, is to secure a situation whereby moral goals which, given the current social situation in the country whose law it is, would be unlikely to be achieved without it, and whose achievement by the law is not counter-productive, are realized. (Raz 2003 [2009: 178])
This remark could be taken as the essence of legal moralism. The basic core of legal moralism, as we have seen, is a two-part structure, compounded of a wrong and a set of countervailing and potentially defeating factors, such as liberty and privacy. From within legal moralism there are controversies over how morality should itself be conceived and controversies over how the first part of the structure should be conceived—all moral wrongs or only a subset of them?—and the second part—which countervailing factors, for example, make the list? And what, if anything, unifies them? While Raz’s remark may serve as a pithy statement of legal moralism, Raz himself rejected legal moralism, in favour of a version of the harm principle. Mill’s original harm principle was based on a monistic utilitarianism. There remain adherents of such a utilitarianism, but more influential today is some version of value-pluralism, such as Raz’s liberal perfectionism. The derivation of the harm principle from such pluralistic premises, is as we have seen, a far from straightforward task. Adherents of the harm principle also manifest a strong divide between those who broadly inherit Mill’s principled anti-moralism without his anti-paternalism, such as Hart and Raz and those who inherit both Mill’s principled anti-moralism and his anti-paternalism, such as Feinberg. Into the mix comes Rawlsian public reason. Like one kind of legal moralist, there is an emphasis on steering the justification of legal coercion to the citizens subject to the coercion themselves and from this an aspiration to develop a “module” of political practical reasoning, the public reason of all subjects of a given legal system independent of the comprehensive ethical or religious commitments of some of their number. For the proponent of public reason it is the “zeal to embody the whole truth” that is anathema (Rawls 1999: 132–133). To legal moralists such as Moore, the moral truth, with due sensitivity to the countervailing factors, should rather be the point. The idea that the law has sometimes no limits to hold back the moral truth—which of necessity must lie in the mouth of some (fallible) human—can induce a feeling of vertigo. Perhaps the question ultimately turns on whether there is a genuine alternative.
How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.
civil disobedience | coercion | consequentialism | constitutionalism | criminal law, theories of | death: definition of | feminist philosophy, interventions: liberal feminism | feminist philosophy, topics: perspectives on autonomy | homosexuality | justification, political: public | legal obligation and authority | liberalism | liberty: positive and negative | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | nature of law: legal positivism | paternalism | perfectionism, in moral and political philosophy | pornography: and censorship | public reason | republicanism | Ross, William David | rule of law and procedural fairness | torture
I am very grateful to Les Green, Julie Dickson and the SEP editors for various kinds of invaluable help and to Joseph Raz, Liam Murphy, Grant Lamond, Dori Kimel and Alan Bogg for their helpful comments on the original version.
Copyright © 2022 by John Stanton-Ife < john . stanton-ife @ kcl . ac . uk >
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Primary legal sources.
The law librarians and library staff at Robert Crown Law Library are here to help you! You can find the latest information about our hours and services on the library homepage . There are several ways to contact us:
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This page provides an introduction to and suggestions for locating U.S. legal primary source materials: legislative materials (constitutions, statutes, and international treaties); judicial materials (cases and court rules) and administrative materials (rules and regulations).
Legislative materials include sources created by the legislature--either by Congress or by any of the state legislative bodies. They include constitutions, statutes, and international treaties. This section provides an overview of each type of source; and suggestions for locating and expanding (e.g. finding sources that discuss, cite back to, or are similar to) those sources.
For additional information about locating legislative history, see our Federal Legislative History research guide; and for detailed information on locating state legislation, see our State Legislative Information research guide.
Source Name | Information about Source | Locating and Expanding the Source |
---|---|---|
U.S. Constitution | The U.S. Constitution sets out the structure of the federal government, provides fundamental laws, and guarantees basic rights for citizens in the United States. | and |
State constitutions | Each state has its own state constitution that governs the individual state. | will link you to individual guides for each state, including their constitutions. and s collection of state material. |
Federal statutes | Federal statutes are enacted by the U.S. Congress. Statutes are first published as slip laws, then compiled chronologically into the U.S. Statutes at Large. They are then organized by subject (codified) into the United States Code (U.S.C.). The U.S.C. is published every 6 years, with supplements published annually. | back to 1994 (published by the Government Publishing Office) through Congress's official website and |
State statutes | Like the federal government, each state legislature passes its own statutes; the process and publication cycle varies by state. | will link you to individual guides for each state, including their statutes. and 's collection of state material. |
Treaties | International agreements that the United States is a party to are also a source of federal law. Treaties become federal law after two-thirds of the U.S. Senate gives their advice and consent. | about current treaties received and approved during the current Congressional session. (1983-current), which provides the full text of treaties. , from 1982-2023 (1950-1984) or the for treaties entered into before 1875 research guide. |
Judicial sources are published by the judiciary and include cases and court rules. This section includes information about each type of source, as well as information about how to locate them, expand them (e.g. find other sources that cite to or are related to a specific case), and use case citators (e.g. confirm the cases are still good law). For more detailed information on how to locate cases, see our Case Finding and Advanced Searching Strategies research guide.
Judicial Source | Information about Source | Where to Find Source |
---|---|---|
U.S. Supreme Court cases | U.S. Supreme Court cases are first published as slip opinions before being published in a bound case reporter (such as the United States Reports, the official reporter of the U.S. Supreme Court). When reading a case, note that annotated information that often appears at the top of the case (such as the syllabus or headnotes). While useful, they are not part of the case and should not be cited. | (official reporter) and . The annotations provides citators to determine if a case is still good law, as well as allow you to locate secondary sources and other cases that cite back to your case. page. research guide |
Federal and state cases | The federal courts and the state courts also publish opinions in bound case reporters. These reporters are typically divided geographically, allowing you to find cases in a specific region. When reading a case, note that annotated information that often appears at the top of the case (such as the syllabus or headnotes). While useful, they are not part of the case and should not be cited. | for links to individual state courts; or the for links to individual federal courts. These sites often post opinions. and . The annotations provides citators to determine if a case is still good law, as well as allow you to locate secondary sources and other cases that cite back to your case. research guide |
Federal court rules | Court rules dictate how a court operates, including rules for individuals appearing before a court. Each court will have its own rules (sometimes individual judges have their own rules), so it's crucial to read those rules before appearing before or submitting any documentation to that court. | applies to the federal circuit courts has its own set of rules and guidance and may also have individual court rules |
State court rules | Court rules dictate how a court operates, including rules for individuals appearing before a court. Each court will have its own rules (sometimes individual judges have their own rules), so it's crucial to read those rules before appearing before or submitting any documentation to that court. | and may also have individual court rules |
Administrative sources are published by the executive branch; most of these sources are referred to as administrative sources, since they are issued by agencies. Administrative sources includes regulations/rules, proposed rules, and administrative decisions and guidance. Additionally, the President (or the Governor, at the state level) often issues statements, orders, and other papers. This section includes information about each type of source, as well as information about how to locate them and expand them (e.g. find other sources that cite to or are related to the source).
Type of Source | Information about Source | Where to find the Source |
---|---|---|
Federal regulations/rules and proposed regulations/rules | Congress, via statutes, will give executive agencies the power to issue rules (or regulations). The rules are first issued as proposed and are published in chronological order in the Federal Register; and the public is allowed to comment on the proposed rule. Once the rule has been finalized, it is organized by subject (codified) and published in the Code of Federal Regulations (C.F.R.). For more information about the rulemaking process, see either or . | (published by the Government Publishing Office; updated quarterly) (updated daily) or . The annotations allow you to locate secondary sources, statutes, and cases that cite back to your regulation. (updated daily) , which allows you to post or view comments on proposed rules |
State regulations and proposed regulations | Like the federal government, states also give state executive agencies the power to issue rules or regulations. Each state has a different process, different agencies, and different sources of power for their executive agencies. | links you to individual state's administrative and executive sites also collects state administrative rules and |
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Preliminary analysis, organization, secondary sources, primary sources, updating research, identifying an end point, getting help, about this guide.
This guide will walk a beginning researcher though the legal research process step-by-step. These materials are created with the 1L Legal Research & Writing course in mind. However, these resources will also assist upper-level students engaged in any legal research project.
Legal research must be comprehensive and precise. One contrary source that you miss may invalidate other sources you plan to rely on. Sticking to a strategy will save you time, ensure completeness, and improve your work product.
Running Time: 3 minutes, 13 seconds.
Make sure that you don't miss any steps by using our:
If you get stuck at any time during the process, check this out:
A legal question often originates as a problem or story about a series of events. In law school, these stories are called fact patterns. In practice, facts may arise from a manager or an interview with a potential client. Start by doing the following:
Legal rules will vary depending on where geographically your legal question will be answered. You must determine the jurisdiction in which your claim will be heard. These resources can help you learn more about jurisdiction and how it is determined:
This map indicates which states are in each federal appellate circuit:
Once you have begun your research, you will need to keep track of your work. Logging your research will help you to avoid missing sources and explain your research strategy. You will likely be asked to explain your research process when in practice. Researchers can keep paper logs, folders on Westlaw or Lexis, or online citation management platforms.
Tracking with paper or excel.
Many researchers create their own tracking charts. Be sure to include:
Consider using the following research log as a starting place:
Westlaw and Lexis offer options to create folders, then save and organize your materials there.
For long term projects, platforms such as Zotero, EndNote, Mendeley, or Refworks might be useful. These are good tools to keep your research well organized. Note, however, that none of these platforms substitute for doing your own proper Bluebook citations. Learn more about citation management software on our other research guides:
There are three different types of sources: Primary, Secondary, and Tertiary. When doing legal research you will be using mostly primary and secondary sources. We will explore these different types of sources in the sections below.
Secondary sources often explain legal principles more thoroughly than a single case or statute. Starting with them can help you save time.
Secondary sources are particularly useful for:
Consider the following when deciding which type of secondary source is right for you:
For a deep dive into secondary sources visit:
Legal dictionaries.
Legal dictionaries are similar to other dictionaries that you have likely used before.
Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions and explaining terms of art. They also provide citations to primary law and relevant major law review articles.
Here are the two major national encyclopedias:
Treatises are books on legal topics. These books are a good place to begin your research. They provide explanation, analysis, and citations to the most relevant primary sources. Treatises range from single subject overviews to deep treatments of broad subject areas.
It is important to check the date when the treatise was published. Many are either not updated, or are updated through the release of newer editions.
To find a relevant treatise explore:
American Law Reports (ALR) contains in-depth articles on narrow topics of the law. ALR articles, are often called annotations. They provide background, analysis, and citations to relevant cases, statutes, articles, and other annotations. ALR annotations are invaluable tools to quickly find primary law on narrow legal questions.
This resource is available in both Westlaw and Lexis:
Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers. They also contain comments, notes, or developments in the law written by law students. Articles often focus on new or emerging areas of law and may offer critical commentary. Some law reviews are dedicated to a particular topic while others are general. Occasionally, law reviews will include issues devoted to proceedings of panels and symposia.
Law review and journal articles are extremely narrow and deep with extensive references.
To find law review articles visit:
Restatements are highly regarded distillations of common law, prepared by the American Law Institute (ALI). ALI is a prestigious organization comprised of judges, professors, and lawyers. They distill the "black letter law" from cases to indicate trends in common law. Resulting in a “restatement” of existing common law into a series of principles or rules. Occasionally, they make recommendations on what a rule of law should be.
Restatements are not primary law. However, they are considered persuasive authority by many courts.
Restatements are organized into chapters, titles, and sections. Sections contain the following:
To access restatements visit:
Primary authority is "authority that issues directly from a law-making body." Authority , Black's Law Dictionary (11th ed. 2019). Sources of primary authority include:
Access to primary legal sources is available through:
Statutes (also called legislation) are "laws enacted by legislative bodies", such as Congress and state legislatures. Statute , Black's Law Dictionary (11th ed. 2019).
We typically start primary law research here. If there is a controlling statute, cases you look for later will interpret that law. There are two types of statutes, annotated and unannotated.
Annotated codes are a great place to start your research. They combine statutory language with citations to cases, regulations, secondary sources, and other relevant statutes. This can quickly connect you to the most relevant cases related to a particular law. Unannotated Codes provide only the text of the statute without editorial additions. Unannotated codes, however, are more often considered official and used for citation purposes.
For a deep dive on federal and state statutes, visit:
Want to learn more about the history or legislative intent of a law? Learn how to get started here:
Regulations are rules made by executive departments and agencies. Not every legal question will require you to search regulations. However, many areas of law are affected by regulations. So make sure not to skip this step if they are relevant to your question.
To learn more about working with regulations, visit:
In many areas, finding relevant caselaw will comprise a significant part of your research. This Is particularly true in legal areas that rely heavily on common law principles.
Running Time: 3 minutes, 10 seconds.
Up to 86% of federal case opinions are unpublished. You must determine whether your jurisdiction will consider these unpublished cases as persuasive authority. The Federal Rules of Appellate Procedure have an overarching rule, Rule 32.1 Each circuit also has local rules regarding citations to unpublished opinions. You must understand both the Federal Rule and the rule in your jurisdiction.
Each state also has its own local rules which can often be accessed through:
Headnotes show the key legal points in a case. Legal databases use these headnotes to guide researchers to other cases on the same topic. They also use them to organize concepts explored in cases by subject. Publishers, like Westlaw and Lexis, create headnotes, so they are not consistent across databases.
Headnotes are organized by subject into an outline that allows you to search by subject. This outline is known as a "digest of cases." By browsing or searching the digest you can retrieve all headnotes covering a particular topic. This can help you identify particularly important cases on the relevant subject.
Running Time: 4 minutes, 43 seconds.
Each major legal database has its own digest:
Start by identifying a relevant topic in a digest. Then you can limit those results to your jurisdiction for more relevant results. Sometimes, you can keyword search within only the results on your topic in your jurisdiction. This is a particularly powerful research method.
After following the steps above, you will have identified some relevant cases on your topic. You can use good cases you find to locate other cases addressing the same topic. These other cases often apply similar rules to a range of diverse fact patterns.
to focus on the terms of art or key words in a particular headnote. You can use this feature to find more cases with similar language and concepts.
A citator is "a catalogued list of cases, statutes, and other legal sources showing the subsequent history and current precedential value of those sources. Citators allow researchers to verify the authority of a precedent and to find additional sources relating to a given subject." Citator , Black's Law Dictionary (11th ed. 2019).
Each major legal database has its own citator. The two most popular are Keycite on Westlaw and Shepard's on Lexis.
This video answers common questions about citators:
For step-by-step instructions on how to use Keycite and Shepard's see the following:
Citators serve three purposes: (1) case validation, (2) better understanding, and (3) additional research.
Is my case or statute good law?
Has the law in this area changed?
Who is citing and writing about my case or statute?
For more guidance on when to stop your research see:
Automated services can check your work and ensure that you are not missing important resources. You can learn more about several automated brief check services. However, these services are not a replacement for conducting your own diligent research .
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A Plain-Language Explainer (With Practical Examples)
By: Derek Jansen (MBA) | Expert Reviewer: Dr. Eunice Rautenbach | May 2024
Research limitations are one of those things that students tend to avoid digging into, and understandably so. No one likes to critique their own study and point out weaknesses. Nevertheless, being able to understand the limitations of your study – and, just as importantly, the implications thereof – a is a critically important skill.
In this post, we’ll unpack some of the most common research limitations you’re likely to encounter, so that you can approach your project with confidence.
At the simplest level, research limitations (also referred to as “the limitations of the study”) are the constraints and challenges that will invariably influence your ability to conduct your study and draw reliable conclusions .
Research limitations are inevitable. Absolutely no study is perfect and limitations are an inherent part of any research design. These limitations can stem from a variety of sources , including access to data, methodological choices, and the more mundane constraints of budget and time. So, there’s no use trying to escape them – what matters is that you can recognise them.
Acknowledging and understanding these limitations is crucial, not just for the integrity of your research, but also for your development as a scholar. That probably sounds a bit rich, but realistically, having a strong understanding of the limitations of any given study helps you handle the inevitable obstacles professionally and transparently, which in turn builds trust with your audience and academic peers.
Simply put, recognising and discussing the limitations of your study demonstrates that you know what you’re doing , and that you’ve considered the results of your project within the context of these limitations. In other words, discussing the limitations is a sign of credibility and strength – not weakness. Contrary to the common misconception, highlighting your limitations (or rather, your study’s limitations) will earn you (rather than cost you) marks.
So, with that foundation laid, let’s have a look at some of the most common research limitations you’re likely to encounter – and how to go about managing them as effectively as possible.
One of the first hurdles you might encounter is limited access to necessary information. For example, you may have trouble getting access to specific literature or niche data sets. This situation can manifest due to several reasons, including paywalls, copyright and licensing issues or language barriers.
To minimise situations like these, it’s useful to try to leverage your university’s resource pool to the greatest extent possible. In practical terms, this means engaging with your university’s librarian and/or potentially utilising interlibrary loans to get access to restricted resources. If this sounds foreign to you, have a chat with your librarian 🙃
In emerging fields or highly specific study areas, you might find that there’s very little existing research (i.e., literature) on your topic. This scenario, while challenging, also offers a unique opportunity to contribute significantly to your field , as it indicates that there’s a significant research gap .
All of that said, be sure to conduct an exhaustive search using a variety of keywords and Boolean operators before assuming that there’s a lack of literature. Also, remember to snowball your literature base . In other words, scan the reference lists of the handful of papers that are directly relevant and then scan those references for more sources. You can also consider using tools like Litmaps and Connected Papers (see video below).
Almost every researcher will face time and budget constraints at some point. Naturally, these limitations can affect the depth and breadth of your research – but they don’t need to be a death sentence.
Effective planning is crucial to managing both the temporal and financial aspects of your study. In practical terms, utilising tools like Gantt charts can help you visualise and plan your research timeline realistically, thereby reducing the risk of any nasty surprises. Always take a conservative stance when it comes to timelines, especially if you’re new to academic research. As a rule of thumb, things will generally take twice as long as you expect – so, prepare for the worst-case scenario.
If budget is a concern, you might want to consider exploring small research grants or adjusting the scope of your study so that it fits within a realistic budget. Trimming back might sound unattractive, but keep in mind that a smaller, well-planned study can often be more impactful than a larger, poorly planned project.
If you find yourself in a position where you’ve already run out of cash, don’t panic. There’s usually a pivot opportunity hidden somewhere within your project. Engage with your research advisor or faculty to explore potential solutions – don’t make any major changes without first consulting your institution.
As we’ve discussed before , the size and representativeness of your sample are crucial , especially in quantitative research where the robustness of your conclusions often depends on these factors. All too often though, students run into issues achieving a sufficient sample size and composition.
To ensure adequacy in terms of your sample size, it’s important to plan for potential dropouts by oversampling from the outset . In other words, if you aim for a final sample size of 100 participants, aim to recruit 120-140 to account for unexpected challenges. If you still find yourself short on participants, consider whether you could complement your dataset with secondary data or data from an adjacent sample – for example, participants from another city or country. That said, be sure to engage with your research advisor before making any changes to your approach.
A related issue that you may run into is sample composition. In other words, you may have trouble securing a random sample that’s representative of your population of interest. In cases like this, you might again want to look at ways to complement your dataset with other sources, but if that’s not possible, it’s not the end of the world. As with all limitations, you’ll just need to recognise this limitation in your final write-up and be sure to interpret your results accordingly. In other words, don’t claim generalisability of your results if your sample isn’t random.
As we alluded earlier, every methodological choice comes with its own set of limitations . For example, you can’t claim causality if you’re using a descriptive or correlational research design. Similarly, as we saw in the previous example, you can’t claim generalisability if you’re using a non-random sampling approach.
Making good methodological choices is all about understanding (and accepting) the inherent trade-offs . In the vast majority of cases, you won’t be able to adopt the “perfect” methodology – and that’s okay. What’s important is that you select a methodology that aligns with your research aims and research questions , as well as the practical constraints at play (e.g., time, money, equipment access, etc.). Just as importantly, you must recognise and articulate the limitations of your chosen methods, and justify why they were the most suitable, given your specific context.
A discussion about research limitations would not be complete without mentioning the researcher (that’s you!). Whether we like to admit it or not, researcher inexperience and personal biases can subtly (and sometimes not so subtly) influence the interpretation and presentation of data within a study. This is especially true when it comes to dissertations and theses , as these are most commonly undertaken by first-time (or relatively fresh) researchers.
When it comes to dealing with this specific limitation, it’s important to remember the adage “ We don’t know what we don’t know ”. In other words, recognise and embrace your (relative) ignorance and subjectivity – and interpret your study’s results within that context . Simply put, don’t be overly confident in drawing conclusions from your study – especially when they contradict existing literature.
Cultivating a culture of reflexivity within your research practices can help reduce subjectivity and keep you a bit more “rooted” in the data. In practical terms, this simply means making an effort to become aware of how your perspectives and experiences may have shaped the research process and outcomes.
As with any new endeavour in life, it’s useful to garner as many outsider perspectives as possible. Of course, your university-assigned research advisor will play a large role in this respect, but it’s also a good idea to seek out feedback and critique from other academics. To this end, you might consider approaching other faculty at your institution, joining an online group, or even working with a private coach .
Understanding and effectively navigating research limitations is key to conducting credible and reliable academic work. By acknowledging and addressing these limitations upfront, you not only enhance the integrity of your research, but also demonstrate your academic maturity and professionalism.
Whether you’re working on a dissertation, thesis or any other type of formal academic research, remember the five most common research limitations and interpret your data while keeping them in mind.
If you need a hand identifying and mitigating the limitations within your study, check out our 1:1 private coaching service .
This post is an extract from our bestselling short course, Methodology Bootcamp . If you want to work smart, you don't want to miss this .
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Limitations don’t invalidate or diminish your results, but it’s best to acknowledge them. This will enable you to address any questions your study failed to answer because of them.
In this guide, learn how to recognize, present, and overcome limitations in research.
Research limitations are weaknesses in your research design or execution that may have impacted outcomes and conclusions. Uncovering limitations doesn’t necessarily indicate poor research design—it just means you encountered challenges you couldn’t have anticipated that limited your research efforts.
Basic research aims to provide more information about your research topic . It requires the same standard research methodology and data collection efforts as any other research type, and it can also have limitations.
Researchers encounter common limitations when embarking on a study. Limitations can occur in relation to the methods you apply or the research process you design. They could also be connected to you as the researcher.
Not having access to data or reliable information can impact the methods used to facilitate your research. A lack of data or reliability may limit the parameters of your study area and the extent of your exploration.
Your sample size may also be affected because you won’t have any direction on how big or small it should be and who or what you should include. Having too few participants won’t adequately represent the population or groups of people needed to draw meaningful conclusions.
The study’s design can impose constraints on the process. For example, as you’re conducting the research, issues may arise that don’t conform to the data collection methodology you developed. You may not realize until well into the process that you should have incorporated more specific questions or comprehensive experiments to generate the data you need to have confidence in your results.
Constraints on resources can also have an impact. Being limited on participants or participation incentives may limit your sample sizes. Insufficient tools, equipment, and materials to conduct a thorough study may also be a factor.
Here are some of the common researcher limitations you may encounter:
Time: some research areas require multi-year longitudinal approaches, but you might not be able to dedicate that much time. Imagine you want to measure how much memory a person loses as they age. This may involve conducting multiple tests on a sample of participants over 20–30 years, which may be impossible.
Bias: researchers can consciously or unconsciously apply bias to their research. Biases can contribute to relying on research sources and methodologies that will only support your beliefs about the research you’re embarking on. You might also omit relevant issues or participants from the scope of your study because of your biases.
Limited access to data : you may need to pay to access specific databases or journals that would be helpful to your research process. You might also need to gain information from certain people or organizations but have limited access to them. These cases require readjusting your process and explaining why your findings are still reliable.
Identifying limitations adds credibility to research and provides a deeper understanding of how you arrived at your conclusions.
Constraints may have prevented you from collecting specific data or information you hoped would prove or disprove your hypothesis or provide a more comprehensive understanding of your research topic.
However, identifying the limitations contributing to your conclusions can inspire further research efforts that help gather more substantial information and data.
A research paper is broken up into different sections that appear in the following order:
Introduction
Methodology
The discussion portion of your paper explores your findings and puts them in the context of the overall research. Either place research limitations at the beginning of the discussion section before the analysis of your findings or at the end of the section to indicate that further research needs to be pursued.
Evidence that doesn’t support your hypothesis is not a limitation, so you shouldn’t include it in the limitation section. Don’t just list limitations and their degree of severity without further explanation.
You’ll want to present the limitations of your study in a way that doesn’t diminish the validity of your research and leave the reader wondering if your results and conclusions have been compromised.
Include only the limitations that directly relate to and impact how you addressed your research questions. Following a specific format enables the reader to develop an understanding of the weaknesses within the context of your findings without doubting the quality and integrity of your research.
You don’t have to identify every possible limitation that might have occurred during your research process. Only identify those that may have influenced the quality of your findings and your ability to answer your research question.
This explanation should be the most significant portion of your limitation section.
Link each limitation with an interpretation and appraisal of their impact on the study. You’ll have to evaluate and explain whether the error, method, or validity issues influenced the study’s outcome and how.
In this section, suggest how researchers can avoid the pitfalls you experienced during your research process.
If an issue with methodology was a limitation, propose alternate methods that may help with a smoother and more conclusive research project . Discuss the pros and cons of your alternate recommendation.
You probably took steps to try to address or mitigate limitations when you noticed them throughout the course of your research project. Describe these steps in the limitation section.
“Approaches like stem cell transplantation and vaccination in AD [Alzheimer’s disease] work on a cellular or molecular level in the laboratory. However, translation into clinical settings will remain a challenge for the next decade.”
The authors are saying that even though these methods showed promise in helping people with memory loss when conducted in the lab (in other words, using animal studies), more studies are needed. These may be controlled clinical trials, for example.
However, the short life span of stem cells outside the lab and the vaccination’s severe inflammatory side effects are limitations. Researchers won’t be able to conduct clinical trials until these issues are overcome.
You’ve already started on the road to overcoming limitations in research by acknowledging that they exist. However, you need to ensure readers don’t mistake weaknesses for errors within your research design.
To do this, you’ll need to justify and explain your rationale for the methods, research design, and analysis tools you chose and how you noticed they may have presented limitations.
Your readers need to know that even when limitations presented themselves, you followed best practices and the ethical standards of your field. You didn’t violate any rules and regulations during your research process.
You’ll also want to reinforce the validity of your conclusions and results with multiple sources, methods, and perspectives. This prevents readers from assuming your findings were derived from a single or biased source.
Dealing with limitations with transparency and integrity helps identify areas for future improvements and developments. It’s a learning process, providing valuable insights into how you can improve methodologies, expand sample sizes, or explore alternate approaches to further support the validity of your findings.
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This blog emphasizes the importance of recognizing and effectively writing about limitations in research. It discusses the types of limitations, their significance, and provides guidelines for writing about them, highlighting their role in advancing scholarly research.
Updated on August 24, 2023
No matter how well thought out, every research endeavor encounters challenges. There is simply no way to predict all possible variances throughout the process.
These uncharted boundaries and abrupt constraints are known as limitations in research . Identifying and acknowledging limitations is crucial for conducting rigorous studies. Limitations provide context and shed light on gaps in the prevailing inquiry and literature.
This article explores the importance of recognizing limitations and discusses how to write them effectively. By interpreting limitations in research and considering prevalent examples, we aim to reframe the perception from shameful mistakes to respectable revelations.
In the clearest terms, research limitations are the practical or theoretical shortcomings of a study that are often outside of the researcher’s control . While these weaknesses limit the generalizability of a study’s conclusions, they also present a foundation for future research.
Sometimes limitations arise from tangible circumstances like time and funding constraints, or equipment and participant availability. Other times the rationale is more obscure and buried within the research design. Common types of limitations and their ramifications include:
Regardless of how, when, or why they arise, limitations are a natural part of the research process and should never be ignored . Like all other aspects, they are vital in their own purpose.
Whether to seek acceptance or avoid struggle, humans often instinctively hide flaws and mistakes. Merging this thought process into research by attempting to hide limitations, however, is a bad idea. It has the potential to negate the validity of outcomes and damage the reputation of scholars.
By identifying and addressing limitations throughout a project, researchers strengthen their arguments and curtail the chance of peer censure based on overlooked mistakes. Pointing out these flaws shows an understanding of variable limits and a scrupulous research process.
Showing awareness of and taking responsibility for a project’s boundaries and challenges validates the integrity and transparency of a researcher. It further demonstrates the researchers understand the applicable literature and have thoroughly evaluated their chosen research methods.
Presenting limitations also benefits the readers by providing context for research findings. It guides them to interpret the project’s conclusions only within the scope of very specific conditions. By allowing for an appropriate generalization of the findings that is accurately confined by research boundaries and is not too broad, limitations boost a study’s credibility .
Limitations are true assets to the research process. They highlight opportunities for future research. When researchers identify the limitations of their particular approach to a study question, they enable precise transferability and improve chances for reproducibility.
Simply stating a project’s limitations is not adequate for spurring further research, though. To spark the interest of other researchers, these acknowledgements must come with thorough explanations regarding how the limitations affected the current study and how they can potentially be overcome with amended methods.
Typically, the information about a study’s limitations is situated either at the beginning of the discussion section to provide context for readers or at the conclusion of the discussion section to acknowledge the need for further research. However, it varies depending upon the target journal or publication guidelines.
It is also important to not bury a limitation in the body of the paper unless it has a unique connection to a topic in that section. If so, it needs to be reiterated with the other limitations or at the conclusion of the discussion section. Wherever it is included in the manuscript, ensure that the limitations section is prominently positioned and clearly introduced.
While maintaining transparency by disclosing limitations means taking a comprehensive approach, it is not necessary to discuss everything that could have potentially gone wrong during the research study. If there is no commitment to investigation in the introduction, it is unnecessary to consider the issue a limitation to the research. Wholly consider the term ‘limitations’ and ask, “Did it significantly change or limit the possible outcomes?” Then, qualify the occurrence as either a limitation to include in the current manuscript or as an idea to note for other projects.
Once the limitations are concretely identified and it is decided where they will be included in the paper, researchers are ready for the writing task. Including only what is pertinent, keeping explanations detailed but concise, and employing the following guidelines is key for crafting valuable limitations:
1) Identify and describe the limitations : Clearly introduce the limitation by classifying its form and specifying its origin. For example:
2) Explain the implications : Describe how the limitation potentially influences the study’s findings and how the validity and generalizability are subsequently impacted. Provide examples and evidence to support claims of the limitations’ effects without making excuses or exaggerating their impact. Overall, be transparent and objective in presenting the limitations, without undermining the significance of the research.
3) Provide alternative approaches for future studies : Offer specific suggestions for potential improvements or avenues for further investigation. Demonstrate a proactive approach by encouraging future research that addresses the identified gaps and, therefore, expands the knowledge base.
Whether presenting limitations as an individual section within the manuscript or as a subtopic in the discussion area, authors should use clear headings and straightforward language to facilitate readability. There is no need to complicate limitations with jargon, computations, or complex datasets.
Limitations are generally grouped into two categories , methodology and research process .
Methodology may include limitations due to:
The researcher is addressing how the large sample size requires a reassessment of the measures used to collect and analyze the data.
Limitations during the research process may arise from:
The author is pointing out that the model’s estimates are based on potentially biased observational studies.
Successfully proving theories and touting great achievements are only two very narrow goals of scholarly research. The true passion and greatest efforts of researchers comes more in the form of confronting assumptions and exploring the obscure.
In many ways, recognizing and sharing the limitations of a research study both allows for and encourages this type of discovery that continuously pushes research forward. By using limitations to provide a transparent account of the project's boundaries and to contextualize the findings, researchers pave the way for even more robust and impactful research in the future.
Charla Viera, MS
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December 12-13, 2016 - Aarhus University, Department of Law
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Either because of the chosen research topics, the applied methods, or the utilized sources a large part of contemporary legal scholarship challenges our traditional understanding of legal research as purely ‘the stringent application of legal research methods on sources of law to answer legal questions’.
First of all , in the complex and increasingly globalized world legal research questions can increasingly contain other than legal considerations, e.g. economic, sociological, psychological just to name a few. These new considerations make it necessary to go beyond the interpretation of legal sources and pertain to, for example, the effects of soft law sources, the use of non-legal considerations in law-making, or the use of an interplay between semi-legal instruments and social or market mechanisms in regulation. Secondly , some legal questions may be better answered using less common legal methods or methods borrowed from other academic areas. Finally , when we speak of sources of law, it is presumed that we have a clear idea about what law is. However, with the transnationalization of personal and business relationships, among other things, the access to different sources of information online, and the trend towards legal pluralism, the definition of law, and thus also delimitation of legal sources becomes blurred.
The course will thus focus on expanding the boundaries of legal research through considering research questions on or beyond the limits of legal research, through applying less common research methods on traditional legal questions, and through using non-traditional sources of law and information to augment legal research.
The purpose of this course is to:
After participating in the course, the students will be able to:
The participants are required to send a max 3 page summary of their research project by 1st December 2016. As part of the summary students are required to analyze whether and how their project challenges the limits of legal research, the description of the chosen (or contemplated) research methods and justification of those methods.
Ca. 200 pages of reading material will be assigned for the course, including specific questions to some of the readings. These will be discussed in the different sessions.
The students are required to read all the project summaries and the selected reading materials. Each participant is required to analyze and comment on the summary of a peer assigned to them.
Please register with Cita Kristensen by e-mail [email protected] before November 18/25, 2016.
In case you have questions regarding the content and assignments of the course please contact the course coordinators.
International and Transnational Tendencies in Law (INTRAlaw), Department of Law, Aarhus University ( http://law.au.dk/forskning/forskergrupper/intralaw/ )
Corporate Social Responsibility Legal Research Network ( http://law.au.dk/forskning/projekter/csr-lrn/ )
Daniel Gergely Szabo, Postdoctoral fellow, Department of Law, Aarhus University, [email protected]
Katerina Peterkova, Postdoctoral fellow/assistant professor, INTRAlaw, Department of Law, Aarhus University, [email protected]
Beate Sjåfjell, Professor, Department of Private Law, Oslo University
Thomas Neumann, Associate Professor, Department of Law, Aalborg University
Step 2 involves searching for relevant secondary sources , which are sources that provide background information, context, and expert commentary on the legal issues involved. These sources, such as legal encyclopedias, treatises, law review articles, and practice guides, offer insights that help to clarify complex issues and guide researchers toward the primary sources of law, such as statutes and case law, that are most relevant to their inquiry.
There are multiple reasons legal researchers should seek out relevant secondary sources:
1. Secondary sources provide background info and help explain the law.
Secondary sources provide an overview of how statutes, regulations, case law, and other authority interface together with your legal issue.
2. Secondary sources lead you to relevant primary sources.
Secondary sources will include citations to primary authority on which you can rely (but see Limitations below). Depending on the source, you may find citations to primary authority that is binding in your jurisdiction.
1. Secondary sources generally provide a broad overview and may not include everything you need for your research.
Instead of relying solely on the secondary source as a source, go to the relevant citation's source for more information.
2. Secondary sources can be outdated and may not address all relevant sources.
Although secondary sources are updated regularly, law can always change before an update. Check the date of any secondary source. Check any primary sources cited to ensure they are still good law.
Do not rely solely on a secondary source. Always check the primary source material!
Consider what secondary sources may be most helpful in researching your topic. If you are looking at Texas law, make sure you consult Texas encyclopedias, for example. If you are dealing with a long-established area of law, consider consulting Treatises or Hornbooks that will provide you with background into the development of your legal issue.
Each page under the Secondary Sources tabs at left will provide some information on each type of secondary source. Refer to these as you proceed with your research to find new potential sources to consider or when need a refresher on what each source includes.
Ultimately, remember that secondary sources are not law. They discuss and interpret the law, but you should always rely on the actual source material for your research.
Students will be able to:
Qualitative legal research aims to study things in their natural settings, understand and interpret their social realities and provide inputs on various aspects of social life. It focuses on people’s feelings, perceptions, and experiences. It differs from quantitative research in matters of nature of data, theoretical basis, and kinds of tools employed for data collection. The combination of two methods brings synergy. Worthy features of qualitative legal research consist of description of social setting, interpretation of social data, verification of assumptions, and evaluation of policies. Its steps include framing of specific questions, choice of data collection tools, sampling, data collection, analysis, and interpretation. This method allows for a mature understanding of the problematic world.
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Minnesota State Law Library G25 Minnesota Judicial Center 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 Phone: 651-297-7651 Hours: 8:00 AM - 4:30 PM, M - F Facebook
The Minnesota Revisor website has compiled an index of various types of cases and the corresponding statutes addressing statutes of limitations.
NOTE: Additional statutes, regulations & opinions may apply to your specific situation. Because these questions can turn on so many individual variables, consultation with an attorney is usually recommended.
In our positions as librarians, not lawyers, we can suggest resources but cannot give legal advice (such as which form to file) or legal opinions (such as how a statute might apply to particular facts). To do so could be considered the unauthorized practice of law. Even though we try to suggest materials that will be of help, more research is often required to find a complete and correct answer. For many questions, the best answer may be to consult an attorney.
Home » Limitations in Research – Types, Examples and Writing Guide
Table of Contents
Limitations in research refer to the factors that may affect the results, conclusions , and generalizability of a study. These limitations can arise from various sources, such as the design of the study, the sampling methods used, the measurement tools employed, and the limitations of the data analysis techniques.
Types of Limitations in Research are as follows:
This refers to the size of the group of people or subjects that are being studied. If the sample size is too small, then the results may not be representative of the population being studied. This can lead to a lack of generalizability of the results.
Time limitations can be a constraint on the research process . This could mean that the study is unable to be conducted for a long enough period of time to observe the long-term effects of an intervention, or to collect enough data to draw accurate conclusions.
This refers to a type of bias that can occur when the selection of participants in a study is not random. This can lead to a biased sample that is not representative of the population being studied.
Confounding variables are factors that can influence the outcome of a study, but are not being measured or controlled for. These can lead to inaccurate conclusions or a lack of clarity in the results.
This refers to inaccuracies in the measurement of variables, such as using a faulty instrument or scale. This can lead to inaccurate results or a lack of validity in the study.
Ethical limitations refer to the ethical constraints placed on research studies. For example, certain studies may not be allowed to be conducted due to ethical concerns, such as studies that involve harm to participants.
Some Examples of Limitations in Research are as follows:
Research Title: “The Effectiveness of Machine Learning Algorithms in Predicting Customer Behavior”
Limitations:
Research Title: “The Impact of Online Learning on Student Performance in Computer Science Courses”
Research Title: “The Effect of Gamification on User Engagement in Mobile Health Applications”
When writing about the limitations of a research study, it is important to be honest and clear about the potential weaknesses of your work. Here are some tips for writing about limitations in research:
There are several purposes of limitations in research. Here are some of the most important ones:
Limitations should be included in research when they help to provide a more complete understanding of the study’s results and implications. A limitation is any factor that could potentially impact the accuracy, reliability, or generalizability of the study’s findings.
It is important to identify and discuss limitations in research because doing so helps to ensure that the results are interpreted appropriately and that any conclusions drawn are supported by the available evidence. Limitations can also suggest areas for future research, highlight potential biases or confounding factors that may have affected the results, and provide context for the study’s findings.
Generally, limitations should be discussed in the conclusion section of a research paper or thesis, although they may also be mentioned in other sections, such as the introduction or methods. The specific limitations that are discussed will depend on the nature of the study, the research question being investigated, and the data that was collected.
Examples of limitations that might be discussed in research include sample size limitations, data collection methods, the validity and reliability of measures used, and potential biases or confounding factors that could have affected the results. It is important to note that limitations should not be used as a justification for poor research design or methodology, but rather as a way to enhance the understanding and interpretation of the study’s findings.
Here are some reasons why limitations are important in research:
Here are some potential advantages of limitations in research:
Researcher, Academic Writer, Web developer
Critically assessing ai-generated content.
While Generative AI can be a useful tool, it should never be your only tool for legal research and writing.
You should always evaluate and assess AI-generated content to ensure it is accurate before relying on it, and then take additional measures to supplement your research.
Use the following steps:
It can be difficult to assess AI-generated output without at least some understanding of how the system works. This will help you assess the strengths and limitations of the output.
One way to start thinking about a system's limitations is to use the 3 layers method. Output is only the last layer of a system but it is the most obvious one—in reality, the input and analysis layers have major effects on the quality of the output.
►See How Does GenAI Work? for more about the 3 layers model.
For example, if the input layer is not focused on Canadian jurisdiction (e.g. includes American content, as is the case with most generic tools), the output may reflect a different jurisdiction or blend information from multiple jurisdictions.
The following questions can help you reflect on the 3 layers of a genAI tool.
►Source: Christa Bracci & Erica Friesen, Legal Research Online (eCampus Ontario Open Library, 2024).
AI-generated text is not a substitute for reading the primary sources (case law and legislation) on your topic.
This is true for any secondary source as well, but is especially dangerous for AI-generated content because they can include factually inaccurate information (often called hallucinations ).
Each AI system treats source citation differently—some may provide a link to a case, while others may only reference a style of cause. This can make it difficult to track down the source because of the lack of information needed to verify which case it is referencing. Never assume a source exists if you cannot find it.
For any sources referenced by a genAI system:
►See Legislation Research Stage and Case Law Research Stage for more information about the steps involved in researching primary sources.
You should never rely on only AI-generated content to answer a legal research question.
Even if you are able to identify and correct any hallucinations, the results may be incomplete. For example, a genAI tool might mislead you by:
You should always consult additional, human-authored sources to confirm that you have correct information that represents a fullsome approach to your legal research question.
►See the chapters on Secondary Sources , Legislation , and Case Law for detailed information on finding sources.
In Step 1 , you assessed the genAI tool's limitations, including the crucial question of how current or up-to-date the input layer's dataset is.
Some genAI tools have a specific knowledge cut off date, such as ChatGPT's various models. This means that any legal answer provided by the system will not necessarily reflect current law.
Other systems, like Lexis+ AI, are hooked up to a broader platform's dataset, which means that they run on the most recent content available on that platform. However, even these systems have currency limitations. For example, Lexis' case databases are updated on a daily basis, but their legislation can often be a week or two behind the state of the law. The result for the researcher is that any legislative summary generated by Lexis+ AI will need to be updated to ensure no amendments have passed since Lexis last updated that statute in their system.
If you know the currency limitations of your genAI tool's input layer, you can simply note up case law and legislation as you would normally in the course of your research. If currency information is not available, do not assume that it is up-to-date information and focus on conducting additional research.
►See Noting Up Case Law and Noting Up Legislation for more information.
Generative AI is necessarily biased in that it reproduces patterns in language that already exist in an underlying dataset. Pattern projection is useful in law because the field relies on precedent, but it can also perpetuate bias in several ways.
Bias has long been a known issue with all types of AI-driven tools. One infamous example is risk assessment software COMPAS, which was found to predict greater recidivism for Black defendants than White defendants.
►See Julia Angwin et al, "Machine Bias" (23 May 2016) ProPublica for more information on COMPAS.
Think carefully about the following types of bias that may be present in your output:
Bias can be incredibly challenging to counteract in research of any kind, but awareness and reflectivity will allow you to take steps to counteract any biases with additional sources, such as those representing diverse perspectives.
►See the chapters on Secondary Sources , Legislation , and Case Law for more information on conducting additional research.
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by Massachusetts Institute of Technology
Legal documents are notoriously difficult to understand, even for lawyers. This raises the question: Why are these documents written in a style that makes them so impenetrable?
MIT cognitive scientists believe they have uncovered the answer to that question. Just as "magic spells" use special rhymes and archaic terms to signal their power, the convoluted language of legalese acts to convey a sense of authority, they conclude.
In a study appearing in the Proceedings of the National Academy of Sciences , the researchers found that even non-lawyers use this type of language when asked to write laws.
"People seem to understand that there's an implicit rule that this is how laws should sound, and they write them that way," says Edward Gibson, an MIT professor of brain and cognitive sciences and the senior author of the study.
Eric Martinez Ph.D. is the lead author of the study. Francis Mollica, a lecturer at the University of Melbourne, is also an author of the paper.
Gibson's research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School. In a 2022 study , Gibson, Martinez, and Mollica analyzed legal contracts totaling about 3.5 million words, comparing them with other types of writing, including movie scripts, newspaper articles, and academic papers.
That analysis revealed that legal documents frequently have long definitions inserted in the middle of sentences—a feature known as "center-embedding." Linguists have previously found that this kind of structure can make text much more difficult to understand.
"Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages ," Gibson says.
In a follow-up study published in 2023, the researchers found that legalese also makes documents more difficult for lawyers to understand. Lawyers tended to prefer plain English versions of documents, and they rated those versions to be just as enforceable as traditional legal documents.
"Lawyers also find legalese to be unwieldy and complicated," Gibson says. "Lawyers don't like it, laypeople don't like it, so the point of this current paper was to try and figure out why they write documents this way."
The researchers had a couple of hypotheses for why legalese is so prevalent. One was the "copy and edit hypothesis," which suggests that legal documents begin with a simple premise, and then additional information and definitions are inserted into already existing sentences, creating complex center-embedded clauses.
"We thought it was plausible that what happens is you start with an initial draft that's simple, and then later you think of all these other conditions that you want to include. And the idea is that once you've started, it's much easier to center-embed that into the existing provision," says Martinez, who is now a fellow and instructor at the University of Chicago Law School.
However, the findings ended up pointing toward a different hypothesis, the so-called "magic spell hypothesis." Just as magic spells are written with a distinctive style that sets them apart from everyday language, the convoluted style of legal language appears to signal a special kind of authority, the researchers say.
"In English culture, if you want to write something that's a magic spell, people know that the way to do that is you put a lot of old-fashioned rhymes in there. We think maybe center-embedding is signaling legalese in the same way," Gibson says.
In this study, the researchers asked about 200 non-lawyers (native speakers of English living in the United States, who were recruited through a crowdsourcing site called Prolific), to write two types of texts. In the first task, people were told to write laws prohibiting crimes such as drunk driving, burglary, arson, and drug trafficking. In the second task, they were asked to write stories about those crimes.
To test the copy and edit hypothesis, half of the participants were asked to add additional information after they wrote their initial law or story.
The researchers found that all of the subjects wrote laws with center-embedded clauses, regardless of whether they wrote the law all at once or were told to write a draft and then add to it later. And, when they wrote stories related to those laws, they wrote in much plainer English, regardless of whether they had to add information later.
"When writing laws, they did a lot of center-embedding regardless of whether or not they had to edit it or write it from scratch. And in that narrative text, they did not use center-embedding in either case," Martinez says.
In another set of experiments, about 80 participants were asked to write laws, as well as descriptions that would explain those laws to visitors from another country. In these experiments, participants again used center-embedding for their laws, but not for the descriptions of those laws.
Gibson's lab is now investigating the origins of center-embedding in legal documents. Early American laws were based on British law, so the researchers plan to analyze British laws to see if they feature the same kind of grammatical construction. And going back much further, they plan to analyze whether center-embedding is found in the Hammurabi Code, the earliest known set of laws, which dates to around 1750 BC.
"There may be just a stylistic way of writing from back then, and if it was seen as successful, people would use that style in other languages," Gibson says. "I would guess that it's an accidental property of how the laws were written the first time, but we don't know that yet."
The researchers hope that their work, which has identified specific aspects of legal language that make it more difficult to understand, will motivate lawmakers to try to make laws more comprehensible.
Efforts to write legal documents in plainer language date to at least the 1970s, when President Richard Nixon declared that federal regulations should be written in "layman's terms." However, legal language has changed very little since that time.
"We have learned only very recently what it is that makes legal language so complicated, and therefore I am optimistic about being able to change it," Gibson says.
Journal information: Proceedings of the National Academy of Sciences
Provided by Massachusetts Institute of Technology
This story is republished courtesy of MIT News ( web.mit.edu/newsoffice/ ), a popular site that covers news about MIT research, innovation and teaching.
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Legal documents are notoriously difficult to understand, even for lawyers. This raises the question: Why are these documents written in a style that makes them so impenetrable?
MIT cognitive scientists believe they have uncovered the answer to that question. Just as “magic spells” use special rhymes and archaic terms to signal their power, the convoluted language of legalese acts to convey a sense of authority, they conclude.
In a study appearing this week in the journal of the Proceedings of the National Academy of Sciences , the researchers found that even non-lawyers use this type of language when asked to write laws.
“People seem to understand that there’s an implicit rule that this is how laws should sound, and they write them that way,” says Edward Gibson, an MIT professor of brain and cognitive sciences and the senior author of the study.
Eric Martinez PhD ’24 is the lead author of the study. Francis Mollica, a lecturer at the University of Melbourne, is also an author of the paper .
Casting a legal spell
Gibson’s research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School. In a 2022 study , Gibson, Martinez, and Mollica analyzed legal contracts totaling about 3.5 million words, comparing them with other types of writing, including movie scripts, newspaper articles, and academic papers.
That analysis revealed that legal documents frequently have long definitions inserted in the middle of sentences — a feature known as “center-embedding.” Linguists have previously found that this kind of structure can make text much more difficult to understand.
“Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages,” Gibson says.
In a follow-up study published in 2023, the researchers found that legalese also makes documents more difficult for lawyers to understand. Lawyers tended to prefer plain English versions of documents, and they rated those versions to be just as enforceable as traditional legal documents.
“Lawyers also find legalese to be unwieldy and complicated,” Gibson says. “Lawyers don’t like it, laypeople don’t like it, so the point of this current paper was to try and figure out why they write documents this way.”
The researchers had a couple of hypotheses for why legalese is so prevalent. One was the “copy and edit hypothesis,” which suggests that legal documents begin with a simple premise, and then additional information and definitions are inserted into already existing sentences, creating complex center-embedded clauses.
“We thought it was plausible that what happens is you start with an initial draft that’s simple, and then later you think of all these other conditions that you want to include. And the idea is that once you’ve started, it’s much easier to center-embed that into the existing provision,” says Martinez, who is now a fellow and instructor at the University of Chicago Law School.
However, the findings ended up pointing toward a different hypothesis, the so-called “magic spell hypothesis.” Just as magic spells are written with a distinctive style that sets them apart from everyday language, the convoluted style of legal language appears to signal a special kind of authority, the researchers say.
“In English culture, if you want to write something that’s a magic spell, people know that the way to do that is you put a lot of old-fashioned rhymes in there. We think maybe center-embedding is signaling legalese in the same way,” Gibson says.
In this study, the researchers asked about 200 non-lawyers (native speakers of English living in the United States, who were recruited through a crowdsourcing site called Prolific), to write two types of texts. In the first task, people were told to write laws prohibiting crimes such as drunk driving, burglary, arson, and drug trafficking. In the second task, they were asked to write stories about those crimes.
To test the copy and edit hypothesis, half of the participants were asked to add additional information after they wrote their initial law or story. The researchers found that all of the subjects wrote laws with center-embedded clauses, regardless of whether they wrote the law all at once or were told to write a draft and then add to it later. And, when they wrote stories related to those laws, they wrote in much plainer English, regardless of whether they had to add information later.
“When writing laws, they did a lot of center-embedding regardless of whether or not they had to edit it or write it from scratch. And in that narrative text, they did not use center-embedding in either case,” Martinez says.
In another set of experiments, about 80 participants were asked to write laws, as well as descriptions that would explain those laws to visitors from another country. In these experiments, participants again used center-embedding for their laws, but not for the descriptions of those laws.
The origins of legalese
Gibson’s lab is now investigating the origins of center-embedding in legal documents. Early American laws were based on British law, so the researchers plan to analyze British laws to see if they feature the same kind of grammatical construction. And going back much farther, they plan to analyze whether center-embedding is found in the Hammurabi Code, the earliest known set of laws, which dates to around 1750 BC.
“There may be just a stylistic way of writing from back then, and if it was seen as successful, people would use that style in other languages,” Gibson says. “I would guess that it’s an accidental property of how the laws were written the first time, but we don’t know that yet.”
The researchers hope that their work, which has identified specific aspects of legal language that make it more difficult to understand, will motivate lawmakers to try to make laws more comprehensible. Efforts to write legal documents in plainer language date to at least the 1970s, when President Richard Nixon declared that federal regulations should be written in “layman’s terms.” However, legal language has changed very little since that time.
“We have learned only very recently what it is that makes legal language so complicated, and therefore I am optimistic about being able to change it,” Gibson says.
Press mentions.
Researchers at MIT have found that the use of legalese in writing “to assert authority over those less versed in such language,” reports Noor Al-Sibai for Futurism . “By studying this cryptic take on the English language, the researchers are hoping to make legal documents much easier to read in the future,” explains Al-Sibai.
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The Fire Safety Research Institute (FSRI), part of UL Research Institutes, seeks to investigate emerging issues related to firefighter personal protective equipment (PPE). This project addresses the evolving challenges that firefighters face, particularly in relation to chemical and thermal hazards.
There has been substantial research to understand the chemical and thermal environment of the fireground. Knowledge of the thermal environment firefighters operate in has driven advancements in turnout gear and in the facepiece of their self-contained breathing apparatus (SCBA). Following research characterizing the chemical environment, occupational exposure as a firefighter was officially recognized as carcinogenic in 2022. In response to this knowledge, PPE technology has advanced to better protect firefighters against these exposure risks. These advancements are often aimed at shielding firefighters from burn injuries or improving chemical protection.
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More than half of suicide deaths in the United States result from self-inflicted firearm injuries. Extreme risk protection order (ERPO) laws in 21 states and the District of Columbia temporarily limit access to firearms for individuals found in a civil court process to pose an imminent risk of harm to themselves or others. Research with large multistate study populations has been lacking to determine effectiveness of these laws. This study assembled records pertaining to 4,583 ERPO respondents in California, Connecticut, Maryland, and Washington. Matched records identified suicide decedents and self-injury method. Researchers applied case fatality rates for each suicide method to estimate nonfatal suicide attempts corresponding to observed deaths. Comparison of counterfactual to observed data patterns yielded estimates of the number of lives saved and number of ERPOs needed to avert one suicide. Estimates varied depending on the assumed probability that a gun owner who attempts suicide will use a gun. Two evidence-based approaches yielded estimates of 17 and 23 ERPOs needed to prevent one suicide. For the subset of 2,850 ERPO respondents with documented suicide concern, comparable estimates were 13 and 18, respectively. This study’s findings add to growing evidence that ERPOs can be an effective and important suicide prevention tool.
More than 800,000 lives were lost to suicide in the United States in the past two decades, over half of them resulting from self-inflicted firearm injuries. 1 A continuing rise in the nation’s suicide rate has coincided with an increase in the proportion of suicides that involve firearms, the most lethal method of intentional self-injury. 2 Interventions that can effectively keep guns out of the hands of people at imminent risk of harm to themselves or others should be a key component of an effective public health effort to reduce the number of these preventable tragedies. 3 , – , 5 That being said, in a nation where private ownership of firearms is commonplace, culturally rooted, and to some extent constitutionally protected, interventions designed to prevent firearm injuries by limiting at-risk individuals’ access to firearms must carefully balance public safety goals with other considerations. 6
In the context of health care encounters, gun safety interventions for individuals at risk of suicide ideally would be voluntary and would engage these individuals in reducing firearm access as part of their treatment plan; options include implementing safe firearm storage, either in the home or out of the home, so that the person of concern no longer has access. Many individuals at high risk of suicide do not come to the attention of health care providers or would not be open to voluntary approaches to reduce lethal means access. To the extent that extreme risk protection orders (ERPOs) can help ensure safety for individuals who pose a risk of intentional self-injury with a firearm, for whatever reason or motivation, these legal tools offer a versatile and promising intervention to prevent suicides. 7
Specifically, an ERPO is an individualized, risk-based, time-limited civil restraining order that, following due process of law, temporarily makes firearms legally inaccessible for the duration of the order, removing guns and prohibiting their purchase for an individual deemed by a court to pose an imminent risk of harm to self or others. 8 For such a person at a time of high risk, an ERPO is designed to foreclose the most lethal method of injury. The question of whether ERPOs actually save lives is not settled. What follows is a report of new empirical evidence from a study of firearm-related suicide and other suicide outcomes in 4,583 individual respondents to ERPOs in four states (California ( n = 1,386), Connecticut ( n = 1,407), Maryland ( n = 1,347), and Washington ( n = 443)) using matched death records to address the question of whether ERPOs have been effective in preventing suicide deaths.
Features of the epidemiology of suicide in the United States provide a compelling rationale for ERPOs as an important suicide-prevention tool. Suicides in the United States were on the wane in the 1980s through the 1990s, but the 21st century marked a disturbing reversal of that trend. 1 Although mortality from most other causes declined, the suicide rate climbed by more than 30 percent for the next two decades, reaching a record annual high of nearly 50,000 deaths in 2022. Suicide increased fastest in nonurban areas and among younger people. 1 Suicide now ranks as the second leading cause of death among those aged 10 to 34. 1 Easy access to firearms has played a significant role in the trajectory of the nation’s suicide epidemic. Between 2019 and 2021, when the nation saw a large increase in firearm sales and the number of first-time gun owners, 9 the nonfirearm suicide rate declined whereas the firearm suicide rate increased by eight percent in the population in the United States overall and increased by 18 percent among adolescent to young adult males living in the nonurban South. 1
Many factors may contribute to suicidal acts (neurobiological vulnerabilities, psychological distress, experiences of loss, social pressures and isolation, peer and social media influences, economic strain, and cultural norms), but the enabling factor of access to lethal means often makes the difference between suicidal behavior and suicide mortality. 10 On average, approximately nine out of ten people who attempt suicide survive nonfirearm methods of self-injury, 11 and those who survive are unlikely to die from suicide in a subsequent attempt. 12 In contrast, firearm-involved suicide attempts are rarely survivable; only about one out of ten people survive, 11 and those few who survive are often left with severe disability. 13 These statistics highlight a remarkable public health opportunity to reduce the suicide rate through policies such as ERPO laws that limit access to firearms specifically for persons known to be at risk of suicide.
In 2021, an estimated 12.3 million adults in the United States had serious thoughts of suicide, 1.7 million made a suicide attempt, 14 and just under 50,000 died. 1 Although firearms are involved in only a small proportion of suicide attempts (about 5%), 15 they account for a large proportion of suicide deaths (about 52%). 1 From a public health perspective, then, although it is a difficult long-term challenge to mitigate the deleterious causal factors, both distal and proximal, that incline people to self-injurious behavior, a more immediate and effective way to stop so many people from dying is to limit access to firearms for people at manifest risk of harm to self, whatever their motivation. Research suggests that only a small minority of individuals who are prevented from suicide through denial of access to a firearm will substitute an alternative method and eventually die from suicide. 12 Also, as already suggested, the large majority of survivors of suicide attempts die of other causes later in life. Risk does not inevitably lead to harm.
ERPOs are designed as a public health-oriented law that does not restrict the rights of law-abiding gun owners unless they are deemed to be a danger to themselves or others. 16 ERPOs fall within a small class of constitutionally permissible, politically tenable, narrowly focused legal or regulatory schemes that can disqualify individuals from purchasing or possessing firearms (for example, having a record of involuntary civil commitment or a felony criminal conviction). 17 A key difference between ERPOs and these other laws is that ERPOs impose a short-term disqualification whereas the others typically confer lifetime disqualifications. These other gun-prohibiting criteria have long been recognized as legitimate constraints on the right to bear arms as set forth in Justice Antonin Scalia’s opinion in District of Columbia v. Heller (2008), to the effect that “the right secured by the Second Amendment is not unlimited” (Ref. 18 , p 626).
As of May 2024, 21 states and the District of Columbia have enacted ERPO laws. All states’ ERPO statutes authorize law enforcement to initiate an ERPO. 19 Some states also authorize family members, clinicians, educators, or other categories of individuals to initiate an ERPO by petitioning a court directly when they observe someone engaging in behaviors demonstrating risk of firearm violence. Most ERPO statutes provide a two-step legal process beginning with an ex parte order for firearm removal in exigent or emergency circumstances, followed by a timely opportunity for a court hearing between seven days and one month following the temporary ERPO, depending on the state. The respondent may be represented by a lawyer in ERPO proceedings, although most states do not pay for a respondent’s lawyer.
At an ERPO hearing, the state has the burden of proving that the individual continues to pose a substantial risk of harming self or others. If a judge finds such evidence sufficient to grant the order according to statutory criteria, a local law enforcement agency or licensed firearm dealer retains the ERPO respondent’s firearms for no longer than a year, in most states. An ERPO also prohibits the respondent from purchasing firearms for the duration of the order. After an ERPO has been issued, a respondent may request a hearing to reconsider the order. The terms of such requests vary among the states.
ERPOs are civil orders that carry no criminal implications unless they are violated. ERPOs were initially designed as a risk-based public safety intervention that could be applied most appropriately to people without criminal legal involvement. In practice, however, ERPOs are being used in different kinds of cases in conjunction with criminal law enforcement and prosecution. Specifically, ERPOs have been used in response to criminal incidents involving firearms, cases where police make an arrest or have probable cause to make an arrest, and where prosecutors exercise discretion in proceeding with a criminal case or withhold or withdraw charges. In this regard, ERPOs can be seen in different contexts as either a form of criminal diversion or enhanced law enforcement. There are legal and public health policy arguments for and against the use of ERPOs in these ways. More research is needed on both their effectiveness and fairness.
ERPO laws were designed to provide robust due process protections, including the requirement for a timely court hearing following an ex parte order, the opportunity for the respondent to be represented by a lawyer, and the state having the burden of proof, typically by the standard of clear and convincing evidence. Such due process protections are considered especially important for ERPOs to the extent that these laws regulate and restrict individuals’ rights based on judgements of future risk and are not a sanction for prior injurious behavior. Legal scholars Joseph Blocher and Jacob Charles examined the features of ERPO laws in relation to constitutional requirements for prehearing deprivation of rights, Supreme Court guidelines for seizures prior to a full hearing, standard of proof principles, and burden of proof in the context of extreme risk; they concluded that ERPOs fit well within the established constitutional due process framework. 16
Subsequently, in the aftermath of the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen , 20 new legal challenges to ERPOs arose, especially regarding due process concerns with gun seizure under an ex parte order prior to a hearing. Following the Bruen opinion, lower courts must now utilize a new method of scrutiny, viewing such challenges solely through the lens of the “text, history, and tradition” of the constitution and thus by appealing to historical analogs or precedents in past laws. This new test and diverging interpretations of its applicability to various firearm restrictions brought a season of uncertainty in gun rights jurisprudence, both with respect to the Second Amendment and due process protections 19 , 21 .
Most recently, in its first post- Bruen gun rights case, United States v. Rahimi , 22 the Supreme Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with history and without running afoul of the Second Amendment. The Rahimi decision reaffirmed the constitutionality of federal laws restricting access to firearms for respondents to domestic violence restraining orders issued after notice and a hearing. While the opinion did not explicitly address ERPOs or ex parte proceedings, its reasoning suggests that risk-based restrictions adjudicated in a civil court proceeding can be constitutionally permissible, especially when based on a court’s individualized determination of a credible threat. Although the Rahimi decision also did not address the potential due process concerns that some critics of ERPOs have raised, academic legal analysis has concluded that ERPOs fit comfortably within the constitution’s protections of an individual’s right to a hearing prior to a lasting deprivation of a protected interest. 16
Table 1 summarizes key statutory features of ERPO laws in the four states that were included in the study.
Features of ERPO Statutes in California, Connecticut, Maryland, and Washington
By legal design, the qualifying criteria for an ERPO do not require a mental illness diagnosis and with good reason; ERPOs focus on emergent indicators of risk of imminent harm to self or others, irrespective of the cause or source of the risk. Despite stigmatizing public opinion to the contrary, 23 , 24 the large majority of people with diagnosable mental illnesses are not at risk of violent behavior directed at others as a result of their illness. 25 That being said, acute mental illness is a significant risk factor for suicide, and a substantial proportion of ERPO respondents are described in ways that suggest, implicitly or explicitly, that they are experiencing a mental health crisis. A Connecticut study found that law enforcement officers detained and transported 55 percent of ERPO respondents to a hospital emergency department, ostensibly for evaluation and treatment of an acute behavioral health condition. 26 Moreover, 46 percent of respondents in the study had a diagnosable behavioral health disorder recorded in the state’s public behavioral health system; three out of four of those with a matched record had a mental health diagnosis, either alone or co-occurring with a substance use disorder, and the remainder had a substance use disorder only. 26
Critics of ERPOs sometimes lament that an ERPO does nothing to address the underlying causes of dangerous behavior but merely mitigates risk associated with exposure to firearms. For their part, proponents of ERPO laws describe this focus as appropriate; by reducing firearm exposure specifically for people at high risk, the chance of a lethal outcome is lessened and an opportunity opens for other interventions that can address a person’s motivation for self-harm. Evidence from ERPO implementation studies shows that, when law enforcement serves an ERPO and finds the respondent to be in a mental health crisis, they often proceed to deliver the individual to a hospital emergency department for evaluation and continuing treatment, as needed. 26 A longstanding body of state laws, separate from ERPO laws, provides police officers with the authority to detain and transport an individual who shows signs of mental disorder and dangerousness. 27 In many cases, then, ERPOs not only can provide a second chance at life but a window of time and opportunity for respondents in crisis to access therapeutic or other interventions that could address their underlying motivations for suicide.
An emerging body of research has described the implementation of ERPO laws in a handful of states and local jurisdictions, but effectiveness studies have been limited. 28 , – , 32 Early studies examined suicide outcomes in small samples of individuals exposed to risk-based firearm-removal laws in Connecticut ( n = 762) and Indiana ( n = 395). 26 , 33 These studies linked ERPO respondent databases to state death records and identified individuals who had later died of suicide, whether by firearm injury or other methods. Using a counterfactual analysis based on case fatality rates (CFRs), these studies estimated that for every 10 to 20 firearm removal actions, one life was saved by averting a suicide.
Kivisto and Phalen later compared trends in population-level suicide rates in Connecticut and Indiana with trends in synthetic control states without ERPO laws. Using a quasiexperimental analysis, these researchers estimated that Indiana’s gun removal law was associated with a 7.5 percent reduction in gun suicides over 10 years and that Connecticut’s law was associated with a 13.7 reduction in the “post-Virginia Tech period.” 34 A commentary by Swanson discussed the uncertainty of this type of study’s conclusions with respect to population-level outcomes, given the relatively small number of individuals actually exposed to the law’s restrictions. 35
Another synthetic control study in San Diego County did not find a significant effect of ERPOs in reducing population rates of violent crime and suicide. 36 Still, given that only a small number of ERPOs had been issued (355 orders over a period of four years in a population of 2.6 million), it is hardly surprising that statistically significant population-level effects could not be detected. 37
For this article, we used the same analytic method that Swanson and collaborators described in their studies conducted in Connecticut and Indiana. 26 , 33 The advantage of the current study is that the estimates of effectiveness of ERPOs are based on a much larger and more diverse sample of ERPO respondents combined across four states.
This study is part of a larger project 32 analyzing ERPO use and outcomes associated with ERPO laws in California (Cal. Penal Code § 18,100–18,205), Connecticut (Conn. Gen. Stat. § 29-38c), Maryland (MD Code, Public Safety § 5–6), and Washington (RCW 7.94). These states were selected to reflect at least some of the geographic and statutory diversity that characterizes ERPO states and to take advantage of access to ERPO data in certain states where academic institutions and prominent researchers in gun violence prevention and policy had existing working relationships with each other and with state entities empowered to provide such data to researchers. Colorado and Florida were included in the larger study but excluded from the current analysis of suicide outcomes owing to limitations of available data. In Colorado, there were not enough ERPO cases to support a valid study of suicide outcomes. In Florida, we were unable to obtain death record data. In California and Washington, public records requests allowed us to obtain ERPO casefiles. The Connecticut data were made available to us through a collaborative arrangement between the site investigators and relevant state agencies. In Maryland, we were granted access to nonpublic ERPO court records. All requests were made for ERPO cases through June 30, 2020, but the start date varied by state, depending on when the law went into effect. 32
We obtained death records from each state’s vital records repository (typically housed in the Department of Health) to identify ERPO respondents who had died. In California, we used Lexis Nexis to identify decedents and then obtained their death certificates to determine cause of death. For decedents who were matched in the search, we merged variables containing the date and cause of death with the larger study database. For suicide cases, we also obtained the specific mechanism of injury.
Trained research associates coded ERPO petitions and the attached supporting affidavits to classify descriptive information about the respondents, including the reasons that an ERPO had been requested from the court. Each research associate double-coded petitions with a lead coder until they reached an interrater reliability score of .80. This study protocol was approved by the institutional review boards at Michigan State University, Johns Hopkins Bloomberg School of Public Health, University of Washington, University of California Davis, Yale University, Duke University, and the Connecticut Department of Mental Health and Addiction Services.
We followed the method of counterfactual analysis that was used in Swanson and collaborators’ previous single-state studies of ERPOs’ effectiveness in preventing suicide. 26 , 33 Specifically, we used published case fatality rates (CFRs) for each method of suicide to extrapolate the number of nonfatal suicide attempts that had likely occurred to produce the corresponding number of recorded deaths among ERPO respondents. Published national CFRs were as follows: ingesting poison or cutting or piercing with a sharp object, one percent fatality; intentional drug overdose, two percent; jumping from a high place or in front of a moving vehicle or object, 28 percent; gas inhalation, 31 percent; hanging, 53 percent; drowning, 56 percent; and self-inflicted firearm injury, 90 percent fatality. 11
We then used the CFR-extrapolated estimates of suicide attempts to create an alternative data array under the counterfactual assumption that these respondents had not been subject to an ERPO and had access to firearms. The analysis also relies on an evidence-based assumption regarding the probability that, in the absence of ERPO, the average ERPO respondent who attempted suicide would have used a firearm rather than some other method of self-injury. For this probability, we applied our previously published estimate of p = .39. 26 That probability estimate was initially calculated from a state-level regression analysis of its linear association with states’ household firearm possession rate.
We applied that result to the counterfactual array to estimate the number of excess fatalities that could have been expected in the absence of gun removal and ultimately the number of granted ERPO petitions needed to prevent one suicide. We conducted the analysis first for the entire pooled study population and then for the subset of 2,850 ERPO respondents with a documented suicide concern as part of their initial ERPO petition.
We also calculated the number of ERPOs needed to prevent one suicide using an alternative estimate of the probability that a male gun owner who attempts suicide will use a gun, an estimate that does not rely on a state-level ecological correlation. In a recent article, Matthew Miller and his colleagues recalculated the probability in question by applying CFRs to a database of suicide death records pertaining to a large number of known handgun owners in California. 38 They calculated the probability to be approximately 28 percent. In what follows, we present the estimate of the number of ERPOs needed to prevent one suicide using both of these probability assumptions (our original 2017 estimate and Miller and colleagues’ updated version) set within a range of possible estimates on a curve.
In addition, we calculated the ratio of firearm-involved suicides to all suicides (FS/S) among ERPO respondents and compared that with an evidence-based counterfactual that could have been expected in the absence of an ERPO. In general, higher proportions of gun suicides are associated with higher absolute suicide rates, because of the high lethality of firearm suicide attempts relative to attempts with other methods. 11 Because the large majority of ERPO respondents are male gun owners, 26 , 30 , 33 , 36 , 39 an informative comparison for the counterfactual can be made to suicide decedents in largely male gun-owning populations. We used data on suicide methods reported by the Centers for Disease Control and Prevention (CDC) for males in five states in the South and Mountain West with the highest rates of firearm ownership: Alabama, Louisiana, Mississippi, Montana, and Wyoming. In those populations, approximately 70 percent of male suicides involve firearms. 1
The study population of ERPO respondents was drawn from California ( n = 1,386), Connecticut ( n = 1,407), Maryland ( n = 1,347) and Washington ( n = 442), for a total of 4,583 ERPO respondents in the pooled database. The petitioners in these cases were as follows: Connecticut, 100 percent law enforcement; California, 97.6 percent law enforcement; Maryland, 56.8 percent law enforcement, 31.7 percent intimate partner, 7.4 percent other family, 3.6 percent “other”; and Washington, 88.8 percent law enforcement, 5.3 percent intimate partner, 4.4 percent other family.
In the pooled study population, 45 individuals went on to die by suicide, 20 by firearm injury and 25 by other methods. Ninety-one percent of all the suicide decedents were male (44 of 45), and 97 percent of the firearm suicide decedents (24 of 25) were males. The average age of respondents in the study was 43.7 years. By extrapolating from published national case fatality rates (CFRs) for each method of suicide recorded, 11 we estimated that there were approximately 22 firearm suicide attempts (.44% of the study population) at 90 percent lethality resulting in the 20 firearm suicide deaths observed. Using the same method, we estimated that there were 794 suicide attempts by other methods (15.1% of study population), ranging from one percent to 42 percent lethality across methods used, resulting in 25 other suicide deaths (see Table 2 ).
Counterfactual Estimation of Number of ERPOs Needed to Prevent One Suicide Death
Following the method described by Swanson and collaborators, 26 we initially assumed a probability of p = .39 that a male gun owner who attempts suicide will use a gun in his attempt, and we further assumed that, but for the ERPO, the respondent would have had access to firearms. Accordingly, we reassigned 39 percent of counterfactual suicide attempts for each method of suicide to firearms with a CFR of 90 percent and the remaining 61 percent to the less lethal method observed for each case as reported. Recalculating from the counterfactual CFR distribution the number of deaths that hypothetically would have occurred without the ERPO, we estimated 315 hypothetical expected deaths in the counterfactual. Subtracting the 45 observed deaths, we estimated that there were 269 averted suicide deaths attributable to the ERPO intervention. Dividing the total number of ERPOs in the pooled four-state study population by the estimated number of lives saved, we calculated that, for every 17 ERPOs, one potential suicide death was prevented, as shown in Table 2 .
We conducted the same analysis on the smaller group of ERPO respondents in which there had been an indication of suicide ideation or attempt coded in the ERPO petition. Specifically, there were 2,850 ERPO respondents with a baseline suicide concern (with or without violent threats directed at others as well) in the pooled database. Within that subgroup, our death record match identified 19 firearm-involved suicides and 19 suicides by other methods, totaling 38 suicide deaths. Using the aforementioned method, we estimated that there were 21 firearm suicide attempts at 90 percent lethality resulting in the 19 firearm-involved deaths. Likewise, we estimated that there were 630 suicide attempts by other methods combined, with an average of three percent lethality resulting in 19 observed nonfirearm suicide deaths.
Recalculating from the counterfactual CFR distribution the number of deaths that hypothetically would have occurred without an ERPO in the subgroup with a suicide concern, we estimated 252 hypothetical expected deaths in the counterfactual compared with 38 observed deaths in the data, for an estimated 214 averted suicide deaths. As before, we divided the total number of ERPOs in the subgroup by the estimated number of lives saved in this group to calculate our estimate that, for every 13 ERPOs issued in cases involving a known suicide risk, one life was saved.
Using Miller and colleagues’ 38 alternative estimate of the probability that a male gun owner who attempts suicide will use a gun, the estimated number of ERPOs needed to avert one suicide in these data are 24 for the whole sample and 18 for the subset with a suicide concern mentioned in the petition. Figure 1 displays the curvilinear relationship between the assumed probability that a male gun owner who attempts suicide will use a gun and the number of ERPOs needed to prevent one suicide. The higher curve represents all ERPO respondents in the study, and the lower curve represents the subset of ERPO respondents for whom a suicide concern was documented in the ERPO petition.
Figure 1. Association between the probability that a male gun owner who attempts suicide will use a firearm in the attempt and the estimated number of ERPOs needed to prevent one suicide death: evidence from 4,583 ERPOs in four states. ERPO = extreme risk protection order.
As further evidence consistent with ERPO effectiveness in suicide prevention, Figure 2 displays the close correspondence between the state-level firearm possession rate and the proportion of male suicides that involved firearms (FS/S) in five states with the highest rates of gun ownership, 39 compared with ERPO respondents, who are depicted as having 100 percent firearm ownership prior to their ERPO. Even though not every ERPO case resulted in a gun removal, most of them did, and the assumption justifying the ERPO is that the person could have obtained access to a gun without the ERPO. The gap between the assumed pre-ERPO (or without ERPO) gun ownership rate and the post-ERPO FS/S ratio is consistent with the ERPO having an effect by removing firearms from individuals at risk of suicide. That the FS/S ratio was still 44 percent suggests that ERPO respondents, as a group, were not entirely deterred from accessing firearms in making a suicide attempt. There may also have been problems in effectively removing firearms in some cases.
Figure 2. Firearm ownership rate and proportion of male suicides that involve guns in selected high gun ownership states, U.S. adult males, and in ERPO respondents. ERPO = extreme risk protection order; FS/S = firearm suicides to all suicides.
In this study of suicide outcomes for 4,583 ERPO respondents in four states, we identified a pattern in the frequency of methods of self-injury among suicide decedents, suggesting that a substantial number of respondents made nonfatal suicide attempts using other methods instead of a firearm. Our study did not observe or measure nonfatal suicide attempts directly. Still, using established data on case fatality rates for different suicide methods and an evidence-based counterfactual assumption regarding the probability that a firearm would have been used if it had not been removed by the ERPO, we estimated that ERPOs likely contributed to the prevention of approximately 269 suicides over an average observation period of two years per respondent, which translated to one life saved for every 17 ERPOs issued. In the subset of 2,850 ERPO cases with a documented suicide concern in the ERPO petition, we calculated that ERPOs likely contributed to preventing 214 suicides: one life saved for every 13 ERPOs. These estimates are consistent with published findings from our previous research in Connecticut and Indiana. 26 , 33
The parameters of any ERPO policy’s application to any local population at risk (the mix of respondents, the reasons for issuing the order, and the resulting outcomes) are likely to vary across states and local jurisdictions. Larger factors external to the policy could also play a role: factors such as the restrictiveness of complementary state gun laws, the targeting priorities of local ERPO implementers, the prevalence of crime involving firearms, the ambient supply of firearms on secondary and illegal markets, and cultural attitudes about suicide and firearms. Regional ERPO practice may also change and evolve over time. The assumption regarding the probability that a gun owner who attempts suicide will use a gun could vary as well. Hence, the number of ERPOs needed to avert one suicide should not be considered as a single objective quantity discoverable by research but may vary with the features of ERPO programs as they are being implemented in the real world. For this reason, we also present the findings in the form of a curve.
It is important to note that, despite receiving an ERPO, 20 individuals in the study went on to die of suicide with a firearm, accounting for 44 percent of suicide deaths in the study population. There are alternative ways to evaluate the significance of this finding. On the one hand, this percentage is substantially lower than in other predominantly male populations of gun owners, where typically about 70 percent of suicides involve firearms, and thus lower than would be expected had the ERPO not been in place. On the other hand, 20 suicides with guns in a group selected for intervention precisely because of their dangerous behaviors suggests that ERPOs, as currently implemented, do not always work to prevent suicide. It is worth noting that only eight of these gun suicides occurred during the period when the ERPO was active, whereas the rest happened after the respondents became eligible to have their guns returned, suggesting that perhaps ERPOs should have been renewed for these respondents.
Clearly, some individuals who are intent on ending their life can still die of suicide even with an ERPO in place, and this calls attention to the importance of ensuring that firearm dispossession occurs when ERPOs are served and that ERPOs are included in background check systems to prevent new gun purchases. This finding also highlights the need for a person at risk of suicide to receive appropriate social, medical, or psychiatric support; firearm removal alone does not address the underlying problems that drive self-injurious behavior. Also, procedural changes could be instituted, such as a required risk assessment before expiry of the ERPO, with renewal indicated if evidence of risk remains. Finally, these results suggest the need to address the problem of illegal access to firearms; too many individuals who should not have a gun can obtain one on the secondary or illegal market without undergoing a background check at a licensed gun dealer.
This study’s results should be considered in light of its methodological and data limitations. Many other factors in addition to ERPOs could have contributed to the patterns we observed in the suicide data. Confidence intervals around the estimated number of lives saved could not be calculated. The study population was drawn from four states, which may not be generalizable to all ERPO states. We did not have a direct measure of suicide attempts but relied on estimates calculated by extrapolating from published case fatality rates for each suicide method. Those published rates, in turn, come from selected medical record data on patients who were seen in emergency departments or hospitalized with a diagnosis of an intentional self-inflicted injury; in some cases, it is difficult to determine whether a patient intended to die, and suicide attempts not resulting in an emergency department visit would not contribute to the analysis. 11 Also, our analysis depended on an indirect (albeit evidence-based) estimate of the probability that an average male gun owner who attempts suicide would use a firearm in the attempt. As mentioned earlier, the large majority (80–90%) of ERPO respondents are male, but clearly not all. An error in this estimate based on males, in either direction, would result in a higher or lower estimate of the number of lives saved by ERPOs. Our estimate of ERPO effectiveness in preventing suicides did not account for the benefit that might have accrued to would-be suicide attempters who, as a result of getting help in conjunction with their ERPO, did not make a suicide attempt with any method. Had we been able to include an estimate of the benefit of not attempting suicide at all, rather than merely the benefit of selecting a more survivable method than a firearm, the calculated life-saving effect of ERPO would have been stronger.
ERPOs would work better if more could be done to reduce the ambient supply of firearms to which an ERPO respondent can still gain access, such as guns sold and resold on the secondary or illegal markets, not subject to a background check, or otherwise accessed or stolen from legal firearm owners. ERPOs would have a bigger impact if more people on the frontlines of responding when people are behaving dangerously and at risk of suicide or interpersonal violence (e.g., clinicians, law enforcement) knew about them and used them, so they could be scaled up and applied to a larger proportion of the population at high risk of gun violence and suicide. Further research is needed to assess more directly the impact of ERPOs and the effectiveness of different approaches to their implementation, as ERPOs are increasingly being brought to scale in a number of states and local jurisdictions. 41 , 42 Clearly, ERPOs alone are not a panacea for preventing firearm injury and mortality in the United States, but they are an important piece in the puzzle of gun violence prevention, and this study adds to the evidence suggesting they have saved lives.
The research presented in this article was funded by a grant from the National Collaborative on Gun Violence Research. Dr. Swanson’s work was supported additionally by a grant to Duke University from the Elizabeth K. Dollard Charitable Trust.
Drs. Kapoor and Norko acknowledge the salary support of the Connecticut Department of Mental Health and Addiction Services (DMHAS). The work described in this article was funded in part by the State of Connecticut, DMHAS, but this publication does not express the views of DMHAS or the State of Connecticut. The views and opinions expressed are those of the authors.
Disclosures of financial or other potential conflicts of interest: None.
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After years of hard-fought litigation, most claimants are thrilled to obtain a final and enforceable judgment or arbitration award. However, more often than one thinks, this excitement is followed by the disappointing realization that the defendant has little interest in voluntarily satisfying the award.
This article explores how a judgment creditor might consider creating an enforcement strategy by leveraging an asset trace report. While the research focuses on identifying assets, the ultimate strategy requires a thoughtful engagement between asset tracers and counsel—often across multiple jurisdictions—to achieve success.
Benefiting from an Asset Trace Report
Third-party researchers are often terrific at mapping out assets of the defendant in the hopes of identifying a path to recovery, it is however critical to integrate an experienced asset tracing team and dedicated enforcement lawyers to leverage the findings and develop a strategy to execute the campaign.
Upon obtaining an asset report, the first task is to ensure that the judgment debtor is able to pay, the so-called payment capacity analysis. This question ideally would have been asked at the outset of the case, however asset positions and ownerships structures can evolve over time. So even performed at the outset, it will still likely need to be confirmed given the increasing length of litigation proceedings and the ease of manipulating ownership interests. And while the case is pending, it is important to monitor the payment capacity throughout the life of the case. If the defendant’s position deteriorates or the defendant is seen trying to restructure holding structures or insulate assets, a claimant needs to be attentive and consider pre-judgment attachment remedies or applying for other security. Diligent enforcement lawyers not only thrive post judgment, but also in seeking interim relief and looking-around-corners for future risks.
Once the payment capacity concerns are alleviated, it is necessary to analyze the identified assets of the defendant to see where they are and of what they consist of. This may seem obvious, but that is not always the case. A good asset trace report requires significant research and starts with an analysis of the income flows and current asset positions of the defendant. One must verify that the defendant—the actual defendant, not a subsidiary or related entity—is indeed the legal owner of any assets. This is rarely simple given the ease with which structures can be created and manipulated. For instance, sovereign assets are rarely held directly by the state but often by state-owned entities. In addition, many large corporations have paymaster entities responsible for paying day to day bills and overhead, and while those entities hold significant cash sums, they are rarely counterparties in contracts.
Next, a good asset tracing report will not only identify the direct assets of the defendant but also include an overview of any payment obligations third parties may have towards the defendant which can also be attached. For example, if you know who a judgment debtor’s leading customers are and can attach upcoming payments or gum up the cash flow, this could be a pressure point that brings the defendant to the negotiating table. A good report should identify any pressure points like this that may incentivize the defendant to resolve the dispute. Those are not going to be hard assets but leverage points that can enhance and expedite an enforcement campaign. Informing third parties such as banks or rating agencies about the unpaid judgment obligation, or even the threat of such, can pay off. An alternative can also be to seek publicity to pressure the defendant to come to the negotiating table.
A worthwhile asset tracing report will also endeavor to list other creditors pursuing the defendant—especially secured creditors that could seek a foreclosure sale or place the defendant into bankruptcy. Ultimately, however, the asset trace report is a starting point to the enforcement campaign. But with a worthwhile report, a judgment creditor can properly engage with enforcement counsel to piece together the strategy in earnest.
Researchers and Counsel – a Necessary Combination for Success
A first step in leveraging an asset report in conjunction with enforcement counsel should include gaining an understanding of whether or not the judgment or award can be recognized in the jurisdictions where assets have been identified. Is there a treaty—like in many European jurisdictions—that allows for a streamlined recognition process? There can be quirky and antiquated rules that need to be minded in this stage.
Another important issue to research are the time limitations for recognition. Certain jurisdictions only allow a limited time for recognition of arbitral awards, sometimes only two or three years. Indeed, it is not uncommon to seek to convert an award to a judgment and recognize that judgment in a third jurisdiction if the award recognition limitations period has run in that third jurisdiction.
In addition, and specifically for enforcement against sovereigns and many state-owned enterprises, most assets are considered to be immune for enforcement, and this immunity can only be lifted in narrow circumstances.
The specifics of the judgment are equally important, default judgments are usually more difficult to recognize than those where the defendant appeared and participated. The same applies for judgments with a punitive damages, as not every jurisdiction recognizes them.
If multiple claimants have a judgment against the same party, it is useful to check what the distribution regime is for assets between creditors and determine whether it takes place on a pro-rata basis or on a first come, first served basis. If the latter, it is obvious to file any enforcement application sooner rather than later. In addition, it is beneficial to be aware of liquidation regimes, as well as whether judgment creditors can apply to have defendants placed into receivership or bankruptcy.
Where judgment debtor assets are held in the name of related entities or individuals, it is critical to know about veil piercing and alter ego rules in appropriate jurisdictions. Generally, veil piercing has greater acceptance in common law jurisdictions than in civil law jurisdictions. The criteria differ per jurisdiction, hence appropriate legal advice is required in each jurisdiction where this may be a consideration.
In the event the asset report failed to identify any concrete assets, but only some leads, it may make sense to start post-judgment discovery proceedings, especially in the US. Issuing subpoenas to third parties, including banks, can yield significant and favorable information.
The last thing to consider in defining the enforcement strategy are the costs involved. Seeking to attach a low value asset where the costs of the attachment outweigh the asset value, usually makes no sense, unless it puts specific pressure on the defendant or is part of a broader strategy. In addition, the risk of an adverse costs order needs to be taken in consideration. These are all considerations that need to be discussed and decided in close liaison with experienced enforcement counsel.
In sum, the value of an asset trace report is not in only uncovering cash flows and assets, but rather what you can do with the information to bring the matter to a successful resolution. This requires close cooperation with counsel, and often requires third party funding.
2nd circ. ruling confirms equitable ownership viability *, don’t be late - the risk of arbitral awards becoming unenforceable due to limitation periods *, enforcement case of the month -- llc you in court: recent second circuit decision affirms new york law’s creditor-friendly approach to seizing llc membership interests *, so, the defendant filed for bankruptcy … what’s next *, enforcement case of the month -- tailwinds for judgment creditors: reverse veil piercing continues to gain steam in new york *.
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Abstract. Legal and ethical issues form an important component of modern research, related to the subject and researcher. This article seeks to briefly review the various international guidelines and regulations that exist on issues related to informed consent, confidentiality, providing incentives and various forms of research misconduct.
The article examines law comparison as a research method and its application in reinforcing legal systems. Comparative legal research methods and challenges will be briefly discussed. ... Comparative study results must be analysed thoroughly while recognizing technique limitations and biases. Research credibility and dependability rely upon ...
For individual researchers, undertaking empirical legal research can be challenging in and of itself, ... Through analysing case law in the UK and Australia, I identified major limitations in both legal frameworks that made successful claims unlikely, including wide-ranging exceptions to the prohibition of age discrimination, and complex legal ...
Europeanisa on and globalisa on processes over the last 30 years. Where law as a discipline developed. into a na onal discipline par cularly in the 19th century, it has loosened its es from na ...
Recognize the Limits of Free Research Services. Free legal research services can sound great in theory when you're under pressure to control costs. However, the limitations of free research services can cost you in the long run and put your research accuracy at risk. Free services are free because they are missing valuable features that save ...
Real legal research is conducted in specific sources like case law, codes and regulations. While some of these sources are available on the internet the coverage is not usually comprehensive or up-to-date. The information law students and lawyers use must be accurate, authoritative and comprehensive. Most importantly it must be accepted by the ...
Legal research Paul Chynoweth Introduction Legal researchers have always struggled to explain the nature of their activities to ... The limitations of this form of research in defining the nature of law as an academic discipline have already been noted. Nevertheless, although rarely used as a practical basis for legal analysis, it
I.G.Cohen 3. RCTs to inform legal practice. RCTs in law face funding challenges, a. T he importance of evidence-based pol-icy rooted in experimental methods is increasingly recognized, from the Oregon Medicaid experiment to the efforts to address global poverty that were awarded a 2019 Nobel Prize. Over the past several decades, there have been ...
The Limits of Law. First published Sat Jan 29, 2022. A central—perhaps the central—question of the philosophy of law concerns the relationship between law and morality. The concern breaks down into many issues, both conceptual and evaluative. Among the evaluative issues is the question of obedience to law: does the fact that some norm is a ...
Judicial sources are published by the judiciary and include cases and court rules. This section includes information about each type of source, as well as information about how to locate them, expand them (e.g. find other sources that cite to or are related to a specific case), and use case citators (e.g. confirm the cases are still good law).
The relevance of comparative legal research (CLR) consists in comparative evaluation of human experience occurring in legal systems of different jurisdictions. ... Its limitations include inadequate understanding of the social background of other jurisdiction, language barrier, and so on. Its attainments are many in various fields of law ...
Both historical and historical-legal research has certain limitations. As far as the major limitations . of the historical research are conc erned, these may be described in the following four points.
Types of Sources. There are three different types of sources: Primary, Secondary, and Tertiary. When doing legal research you will be using mostly primary and secondary sources. We will explore these different types of sources in the sections below. Secondary sources often explain legal principles more thoroughly than a single case or statute.
This paper introduces into the fundamentals of legal research, socio-legal studies, conceptual framework on doctrinal research, steps of doctrinal studies, limitations and differences between ...
Research limitations are one of those things that students tend to avoid digging into, and understandably so. No one likes to critique their own study and point out weaknesses. Nevertheless, being able to understand the limitations of your study - and, just as importantly, the implications thereof - a is a critically important skill. In this post, we'll unpack some of the most common ...
One drawback of the independent legal database providers is that the search results for a specific legal category are too high making it very difficult for individuals to find the right research item.
Identifying limitations adds credibility to research and provides a deeper understanding of how you arrived at your conclusions. Constraints may have prevented you from collecting specific data or information you hoped would prove or disprove your hypothesis or provide a more comprehensive understanding of your research topic.. However, identifying the limitations contributing to your ...
Common types of limitations and their ramifications include: Theoretical: limits the scope, depth, or applicability of a study. Methodological: limits the quality, quantity, or diversity of the data. Empirical: limits the representativeness, validity, or reliability of the data. Analytical: limits the accuracy, completeness, or significance of ...
As part of the summary students are required to analyze whether and how their project challenges the limits of legal research, the description of the chosen (or contemplated) research methods and justification of those methods. Ca. 200 pages of reading material will be assigned for the course, including specific questions to some of the readings.
Legal research involves finding information on the who, what, when, where, and why of your chosen area of law or topic. Step 2-- secondary sources-- are an important tool for multiple reasons. ... Secondary sources will include citations to primary authority on which you can rely (but see Limitations box). Depending on the source, you may find ...
Qualitative legal research aims to study things in their natural settings, understand and interpret their social realities and provide inputs on various aspects of social life. It focuses on people's feelings, perceptions, and experiences. It differs from quantitative research in matters of nature of data, theoretical basis, and kinds of ...
Email: Ask A Librarian. Minnesota State Law Library G25 Minnesota Judicial Center 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 Phone: 651-297-7651
Limitations in Research. Limitations in research refer to the factors that may affect the results, conclusions, and generalizability of a study.These limitations can arise from various sources, such as the design of the study, the sampling methods used, the measurement tools employed, and the limitations of the data analysis techniques.
In Step 1, you assessed the genAI tool's limitations, including the crucial question of how current or up-to-date the input layer's dataset is.. Some genAI tools have a specific knowledge cut off date, such as ChatGPT's various models. This means that any legal answer provided by the system will not necessarily reflect current law.
Casting a legal spell. Gibson's research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School.
Casting a legal spell Gibson's research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School. In a 2022 study , Gibson, Martinez, and Mollica analyzed legal contracts totaling about 3.5 million words, comparing them with other types of writing ...
Casting a legal spell. Gibson's research group has been studying the unique characteristics of legalese since 2020, when Martinez came to MIT after earning a law degree from Harvard Law School ...
Knowledge of the thermal environment firefighters operate in has driven advancements in turnout gear and in the facepiece of their self-contained breathing apparatus (SCBA). Following research characterizing the chemical environment, occupational exposure as a firefighter was officially recognized as carcinogenic in 2022. In response to this ...
More than half of suicide deaths in the United States result from self-inflicted firearm injuries. Extreme risk protection order (ERPO) laws in 21 states and the District of Columbia temporarily limit access to firearms for individuals found in a civil court process to pose an imminent risk of harm to themselves or others. Research with large multistate study populations has been lacking to ...
Another important issue to research are the time limitations for recognition. Certain jurisdictions only allow a limited time for recognition of arbitral awards, sometimes only two or three years.