Zen and the Art of Legal Research and Texts

I made a comment some time ago on a posting originally made by Ted Tjaden on the nature of legal research. I was very busy at the time and did not take the time I should have to make myself clear. Now that Simon F’s piece on “Tomorrow’s Texts” and the comments on it are open for discussion, they offer me an opportunity to elaborate.

I suggest that, in responding to what Ted said and Simon’s topic, we consider the purpose expressed by Robert Pirsig in “Zen and the Art of Motorcycle Maintenance”, viz., an inquiry into “quality” and ask now in the legal context, “How can we find the good decisions, the reasons for judgment, that can safely be relied on?” Or, more broadly, we can ask, “What is really good research?” or, to take a different approach, “What is a really good text writing?” We could even consider what might be the best research or the best texts.

We may have reached the point where we can find all kinds of decisions but what are the good decisions and how can we find them? In Pirsig’s terms, much modern research (and writing based on it) can be described as “romantic”, i.e., as accepting what is done, just because it is there; I would like to suggest that we explore the “classical” version where it is important that we consider whether what we have found is actually correct, useful, sensible or just—whatever those might mean in the particular context. The extent to which these criteria are satisfied is more important than the mere fact that it was said.

The picture I have of Jay David Bolters “Writing Space” (which I have from Anne Burdick’s review of it (which Simon C. referred us to)) terrifies me, just as John Davis’s view of what a “new” text might look like alarms me.

The inter-relation between the power we have to find stuff now and how that stuff is organized and to be understood seems to me to be at the heart of what a focus on what is the best in both legal research and legal writing entails.

Start with texts. While no one, apart perhaps from a reviewer, is likely to read any legal text from beginning to end as one would read a novel, biography or history, any good text is nevertheless more—I hope far more—than the sum of its individual paragraphs. I can only speak for myself, but I argue (In Chapter 1 of mine) that the role of a text is to be a guide through the vast wilderness of the cases; it attempts to identify principles, concepts and solutions that transcend the individual cases. I do not think that it can perform that role satisfactorily if it is not organized around pervasive themes, problems and, of course, the commonly accepted topics of the law. In other words, it should try to tell a story—admittedly more of a soporific than a “page-turner”—and the story would be incomprehensible if one were only to read a paragraph.

I can imagine technological enhancement in links to the cases being examined or to the articles referred to. The provision of these links does not, however, detract from the integrity of the text and the arguments and explanations it provides. When John Davis says, “[t]he text should be marked up with XML in such a way that it can be parsed and extracted from according to taste with appropriate software,” it seems to me that we would do to texts what the explosion of cases has done to research, viz., we would be left adrift in a sea—a vast ocean now—of stuff with no guide to what is good, let alone the best.

A search (in a legal context) for the good or the best entails at least these features:

● it matters who said it;

● it matters how consistent what has been said is to statements by other people; and what’s most important

● it matters how persuasive, sensible and suitable—having regard to ethics, morality and justice—the statement or principle is.

So, what do we do now? I would like to invite Slaw’s readers to embark on a “Chautauqua”; a voyage to explore, not just what is available to the legal researcher, but what good legal research is and how it can be done. On the text side, we have to consider what it is that texts can do (and, of course, how they can do it better). I don’t think that the future is in blogs and their reductionist tendencies but in efforts to develop principles and analyses that illuminate, guide and direct.

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Comments

  1. Defining good legal research is difficult and will probably vary on the perspective of the person asked and how traditional their view of information resources is. I tend to believe librarians view research as a much deeper process than many lawyers, and that many lawyers reach a satisfactory research plateau earlier than perhaps they could if they were doing really good research.

    At the same time, the resource pyramid is starting to lose its top, and the preeminence of reported decisions and particular texts is less certain, though not eliminated, than it was even 20 years ago. So-called unreported decisions, blog postings by lawyers who would be authoritative if captured on paper, and other resources are broadening that plateau as well. I don’t think it’s possible to identify the “best” as clearly any more.

    The reality of researching using online tools is that John’s view of marked up documents has already started in commercial databases. Instead of having to return to a text, assuming I started with one, I can set up an electronic monitor focused on elements of content, the subparts that matter to my research: a judge, a topic, a citation, a term of art, whatever.

    I don’t see the content (arguments, analysis) changing in texts but I would expect to see them prepared online in a way that eliminates the text as a single entity, since it is the paragraphs and subparts that are used. As you suggest, they’re not read end to end. The framework in which they are presented should enable quick access to the subpart and then browsability to related sections, flipping a page forward or backward for context or serendipity, using linking for broader connections.

    Currently, texts are prepared in a way that enables them to be printed, and then often are slapped online in that same structure. It may be that we need to be thinking about how to make the text more usable in its native electronic format. They would have a greater place in online legal research if they played the gateway function they have in print.

  2. Hi Angela,

    I’m not in your (legal) field, but I see this issue in every professional / industrial / business field I come across.

    The problem is not with “blogs” and personal publishing technologies per se, but with the reductionist tendencies of certain kinds of people (bloggers or not) – particularly people who see the enormous potential of so-called “semantic web” technologies, but have little “wisdom” in the particular domain.

    We probably shouldn’t scoff at the possibility that one day technology-based tools will be able to read a text the way a human intended and wrote it – but that’s a potential, and far from a reality. It’s not that the technologists have overlooked factors like trust, intent and context – just that it’s a very hard problem to solve by reductionist means. In the meantime human to human story telling a la Chautauqua is highly recommended. (More enlightened business consultants adopt this approach see http://www.anecdote.com.au/index.php by way of example.)

    Also interesting to me is the Pirsigian approach to quality … “what is good”. The Classical / Romantic split is almost certainly too simplistic, but it is a good metaphor to redress the balance against those who are overly reductionist in the objectivity. Good luck.

  3. I’m in very much the same position as you were, Angela, in that I don’t have the time right now to formulate a detailed response — which your post deserves — though I will get to that in due course. Now I can only sketch some of the lines of thought I would follow.

    Your plaint is perhaps too much of a broadside. It’s true that the blog format doesn’t easily lend itself to efforts at meticulous analysis and criticism; but I would like to know more specifically what ills you’re upset about and, I guess, why exactly they’re ills. I’d suggest that changing the focus in either direction would help: in order to criticise the effects of technology in law, it’s necessary to discuss that technology with some precision — to know the “enemy,” if you like, because there’s a considerable difference between Twittering by lawyers, say, and using CanLII to find out which courts have cited a particular judgment; or we might step back from the concerns of legal research per se and see that things legal are in fact proceeding much as they always have, which suggests that whatever troubles technology brings, the profession as a whole is coping well — and, I’d suggest, better than well, in fact.

    Your post appears to lament the loss of authority. This is, indeed, a process ocurring in all fields, as publishing has become democratized thanks to the fact that the cost of putting text on the web approaches zero. Now that we all speak Greek, it’s not so easy to recognize the barbarians. I’d like to explore later two responses to this broadening of the top of the pyramid, as David Whelan calls it, within the context of law, using again the altering of focus I’ve just suggested. “Narrowly,” I’d like to examine the technology available and soon to be available to see how exactly it might assist or impede a researcher in finding the “good” cases, textbooks and other documents. As you’ll guess, my suspicion is that it is more helpful than hurtful. “Broadly,” I’d want to be more sweeping (and bold), and to raise the possibility that these technological changes as they impinge on law might change the nature of our legal system quite considerably in time. For instance, it might just be possible that the ready availability — indeed, the omnipresence — of judgments from every court in the land will lead to their ultimate (relative) irrelevance and that we will find ourselves developing a civilian system in which code — there’s a verbal irony! — becomes the touchstone.

  4. I never meant for my comment to be alarming, so perhaps it will help if I try to clarify it a little. The International Federation of Library Associations and Institutions (IFLA) has, in recent years, developed a conceptual model called “Functional Requirements for Bibliographic Records” (“FRBR” for short). The model provides some useful terminology. The model’s first group of “entities”, intended to represent the products of intellectual endeavour, are “work”, “expression”, “manifestation”, and “item”. In the realm of print publishing, the work would be the “work” in a copyright sense, a particular edition would be an “expression” of that work, a particular printing of that edition would be a “manifestation” of the work, and an individual printed book would be an “item”.

    It seems to me that Angela is concerned with what makes for better or worse works. I’m concerned about that too, but I was only writing about what makes for better or worse expressions. In other words, I assumed, for purposes of discussion, that there were works worthy of propagation, and addressed (or so I thought) only the best way to edit them for propagation on the web. I expected many if not most to be indifferent to this, but didn’t anticipate that some would be alarmed. Sorry about that.