The dog that did not bark in the night: Researches on the absence of litigation

This paper considers the role and availability of case-law, case analysis and critique in legal research and writing. Professor Terence Daintith draws attention to the possibility that there may not always be any relevant case-law to review, so a researcher may be confronted with an issue that might reasonably be the subject of litigation – but there does not appear to have been any.  The author suggests that such absences may present research puzzles and problems that are likely to be much more difficult than those involved in developing a critique of a decided case or cases and it is these problems he investigates here, illustrated by particular reference to research on the development of property rights in oil and gas.