Kylie Burns

The impact of “empirical facts” on legal scholarship and legal research training

Publisher: Informa UK Limited

Date: 02-07-2009

DOI: 10.1080/03069400903004236

Judges, ‘common sense’ and judicial cognition

Publisher: Informa UK Limited

Date: 02-07-2016

DOI: 10.1080/10383441.2016.1259536

The Australian High Court and Social Facts: A Content Analysis Study

Publisher: SAGE Publications

Date: 09-2012

DOI: 10.22145/FLR.40.3.2

Abstract: Judicial reasons often include general statements about the nature and behaviour of people and institutions and the nature of the world and society. These statements might be called social facts (‘SF’) and are made as part of judicial development and general application of law. The presence of SF statements in judicial reasoning in Australian cases has been acknowledged by commentators and judges. However, there has been little empirical examination of this phenomenon. This article discusses a content analysis study of SF in negligence cases in the Australian High Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play a range of roles in judicial reasoning. This includes predicting social, economic and behavioural consequences of legal rules, as part of setting a context or background to judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally dominate judicial reasoning. However, they appear to have a significant role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some in idual differences between judges emerged. Judges do not use SF in all cases in the same way. Judges referred to SF more in high significance cases, and cases with multiple separate judgments. Judges also referred to SF more in single and dissenting judgments than in joint and majority judgments. Most SF referred to by judges were not sourced or referenced in any way and reference to empirical research was very rare. Where a source or reference for a SF was given by a judge it was usually to a legal source. Most SF appeared to source from judicial ‘common sense’ with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

‘In this Day and Age’: Social Facts, Common Sense and Cognition in Tort Law Judging in the United Kingdom

Publisher: Wiley

Date: 16-01-2018

DOI: 10.1111/JOLS.12073

When Lump Sums Run Out: Disputes at the Borderlines of Tort Law, Injury Compensation and Social Security

Publisher: Hart Publishing

Date: 2017

DOI: 10.5040/9781509908615.CH-015

Australia: A Land of Plenty (Of Legislative Regimes)

Publisher: Cambridge University Press

Date: 02-07-2015

DOI: 10.1017/CBO9781139946285.011

Judicial decision-making and ‘outside’ extra-legal knowledge: breaking down silos

Publisher: Informa UK Limited

Date: 02-07-2016

DOI: 10.1080/10383441.2016.1264100

Queensland University Of Technology

Location: Australia

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Griffith University

Location: Australia

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Discovery Projects - Grant ID: DP200100742

Start Date: 12-2020

End Date: 06-2024

Amount: $276,968.00

Funder: Australian Research Council

Discovery Projects - Grant ID: DP220100585

Start Date: 05-2022

End Date: 05-2025

Amount: $540,000.00

Funder: Australian Research Council