Where Research Problems Come From

In one line

Research problems are not invented, they are noticed, and there are seven places where they are reliably found.

In the wording a student can write in an exam: research problems arise from gaps identified in the existing literature, from conflicts and uncertainties in the law itself, from newly enacted or amended legislation, from judicial decisions that leave questions open, from observed discrepancies between the law and its operation, from the recommendations of law reform bodies that have not been implemented, and from the researcher's own professional or clinical experience.

Source one: a gap in the literature

How it appears. The review of literature, chapter 1290, shows that a question everybody assumes to be settled has never actually been studied.

A live example from this book. The received account is that clinical legal education in India exists on paper, chapter 520. Every source repeats it and this book could find no study establishing it for a defined set of colleges. That absence is a research problem, and it is why chapter 990's census is the study a student should do first.

How to find gaps. Read the conclusions of other people's work, where they say what they could not do; read the literature review sections of dissertations; and notice when an assertion is repeated without a citation, because a proposition everybody quotes and nobody sourced is usually unstudied.

Source two: a conflict or an uncertainty in the law

How it appears. Two provisions that do not sit together; two decisions that disagree; a term nobody has defined.

A live example from this book. Regulation 22 of the 2011 Regulations applies the Regulations mutatis mutandis to student legal services clinics, chapter 510, and nothing says what the necessary changes are. Which of regulations 5 to 21 apply in full to a clinic run by students is genuinely open, and it matters to every law college that runs one.

A second. The 184th Report's finding that no statute defines standards of legal education, chapter 80, is a gap that has been named for twenty-four years and never filled.

Source three: new or amended legislation

How it appears. A new Act creates questions nobody has answered because nobody has had time.

Why it is a good source for a student. Nothing has been written, so the literature review is short and the contribution is real.

The caution. A very new Act has no case law, so the work must be doctrinal and predictive, and predictions are hard to defend. The safer version is to study what the new provision was meant to change and whether the old problem persists.

Source four: judicial decisions leaving questions open

How it appears. A judgment decides the case and expressly leaves something else.