By Dr Pedro Telles, Senior Lecturer in Law (Hillary Rodham Clinton School of Law, Swansea University) and Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).
Brexit, its research and its teaching are increasingly becoming a field of study on their own—see eg the illuminating contributions to the special issue edited by C Wallace & T Hervey on ‘Brexit and the Law School’ (2019) 53(2) Law Teacher 133-229, some of which build on the earlier series of SLS ‘Brexit and the Law School’ Seminars, one of which Albert had the pleasure to host at the University of Bristol Law School in July 2017. This seems rather natural, as it is hard to overstate the impact that Brexit is having on the work of academics active in all areas, but particularly for public and EU law scholars. In this post, we offer some personal reflections on the frustrations of carrying out Brexit-related research, some of which are related to Brexit and its unforeseeability, while others are derived from more general constraints on the ways legal research is published and assessed.
Researching a moving target …
The first issue that concerns us is the need to try to foresee what is likely to happen along the Brexit process (itself unknown and highly volatile), which puts legal scholars in a difficult bind because this is clearly a politics-driven phenomenon that curbs almost every imaginable rule or precedent remotely applicable to a comparable situation. We are not sure that legal scholars are in the best position to offer policy forecasts but producing research that is of any use to policy-makers requires such an effort.
This seems to broadly lead to two alternative approaches. First, a descriptive approach resulting in research that outlines multiple different scenarios and provides limited additional guidance on what the researchers think is the most likely outcome. The difficulty with this research is that it may enable policy-makers to opt for any of the described scenarios and claim it has academic backing, regardless of the likelihood or desirability of such scenario. Second, a prescriptive approach resulting in research that stresses what should happen and probably also covers an analysis of alternative scenarios and the reasons why they are not desirable. The difficulty with this research is that the moment the favoured scenario is discarded in the political process, the entirety of the research loses relevance.
Opting for one approach or the other is difficult and, in our experience, trying to avoid that choice is increasingly conditioning the type of research that is carried out. It is also pushing legal scholars to act as practicing lawyers or consultants and pepper their research with caveats to avoid being seen as too clearly pegged to any specific future outcome. The problem is that this obscures legal analysis. Of course, offering an unqualified opinion has its risks. Most recently, we were proven mostly right regarding the process for the UK’s accession to the World Trade Organisation Government Procurement Agreement—except for a timing issue. However, this required us to take a jump and our first ‘Brexit and procurement’ piece could have been a disaster if things had turned out differently. It would have been frustrating to see our research shelved simply because some of our predictions turned out to be wrong. Adding this element of risk-taking to legal research makes researching on moving targets such as Brexit less than plain sailing. Was that a fair risk to take? Would we do it again?
… with an eye on how that research will be evaluated
The second issue we find troubling concerns the impossibility of squaring the circle between producing ‘high quality’ peer-reviewed publications and keeping up with the developments of the Brexit process in a timely manner. Given the requirements of the REF2021, UK-based academics are under pressure to meet requirements of ‘originality, significance and rigour’ that are assessed in a qualitative manner that is (largely?) driven by reputation-based criteria such as eg the journal where research articles are published. This puts pressure on submitting research to a relatively limited number of prestigious journals that are increasingly clogged (as the REF deadline approaches) and thus have a long lead time between acceptance of a piece and its publication.
To put it plainly, in the Brexit context, this results in the eventual publication of outdated analysis, which is also a source of frustration for legal scholars. Once again, this happened to us with our second ‘Brexit and procurement’ piece, which has been published after some political developments have put a massive question mark on the practical relevance of most of our analysis of the procurement chapter of the UK EU’s Withdrawal Agreement now repeatedly rejected in Parliament. Whether our research will be of use or a piece of extemporary legal fiction is out of our control.
Of course, there are some ways in which researchers can try to mitigate this issue—such as eg posting drafts on institutional repositories or databases such as SSRN, or publishing blogposts—but the fact remains that those are not (suitably) ‘REF-able’ outputs and thus researchers still need to repackage their research and try to have it published (properly).
Given these potential sources of frustration, we would not be surprised if more and more scholars moved away from Brexit-related research—at least in traditional formats. We would however be very surprised if the way legal research (and that of other social sciences) is assessed was to be impacted by Brexit, in the sense of adapting evaluation rules to cover non-traditional research outputs (ie blogs and, increasingly, twitter threads) and to reduce the perverse incentives for the gamble of taking up journal space with research that may or may not ever be of relevance.
 P Telles & A Sanchez-Graells, ‘Examining Brexit Through the GPA’s Lens: What Next for UK Public Procurement Reform?’ (2017) 47(1) Public Contract Law Journal 1-33.
 P Telles & A Sanchez-Graells, ‘Brexit and Public Procurement: Transitioning into the Void?’ (2019) 44(2) European Law Review 256-278.