Training United States law students in the skills of legal research has never been easy. It is hard to do well, but that is not the heart of the problem. The lack of institutional support for the effort has always presented the most basic of challenges. Like regular exercise or avoiding sweets, research skills are much praised but seldom actualized. At most law schools legal research is part of the first year curriculum. It is almost inevitably taught by non-tenure track instructors. In the hierarchy of U.S. legal education, and hierarchy is a major theme for law schools, non-tenure track implies second class citizen. Many such instructors are dedicated to the craft but law students quickly suss out who has power and who does not. At some schools research training is not graded, another sure signal to the student about the value of the subject.
A further problem lies in the research and writing class itself. The course combines legal writing and legal research training with most courses skewing strongly toward the writing component. There are many variations on this theme, with courses changing over the years, but legal research training remains the middle child of the first year of law school. The familiar nostrum is that the higher the quality of the law school, the lower the quality of the legal research program. At the risk of sounding churlish it is worth considering that most U.S. law professors do not practice law or do applied legal research. When real life legal research is needed, law student research assistants are on hand to assist. Given budgetary constraints, the real research training in the first year is left to the representatives of LEXIS and WESTLAW who court the students and spend time training them.
Skills training in general has long been neglected at the top tier law schools. In past years the research and writing staff, skills instructors and clinicians battled over meager resources. But this is changing. . Both the American Bar Association (ABA) and the California Bar Association (CA) are revising the requirements that law schools must meet for purposes of accreditation. The ABA sets the standards for the law school’s accreditation, the CA specifies what material must be studied if a law school’s graduate is to be permitted to sit for the Bar Exam. Much of the 2014 changes center on experiential learning, which can be defined as time spent in a law school clinic, a judicial internship or an externship. More skills related courses will be required as well. The organized Bar has been overcome with a sense that recent law school graduates lack real world skills. The economic realities of law practice in any sizeable law firm dictate that on the job training from experienced professionals is just too expensive. A law firm can engage consultants to bring students up to speed, but many firms feel that the students who they employ should actually know how to work as a lawyer.
One would think that this would be excellent news for those who care about legal research. What skill is more basic, more fundamental than knowing how to locate legal information? The answer is—almost every other imaginable skill is more important. Experiential learning in the form of internships and externships, clinics both live-client and simulated, really just about anything except research training is under lively discussion. Once again legal research training sits out the dance. At the risk of sounding churlish, time must have a stop. When I created my Advanced Legal Research course at Berkeley Law School in 1983, it was the act of a desperate man. Why I care so much about good research training may be a question for a therapist, but care about it I do. When I arrived at Berkeley, working with another faculty member, I worked up a plan for the effective teaching of the skill. The faculty rejected as calling for too much work from the first year faculty. Rather than beat my head against a brick wall, I designed a three unit one semester class that was fully graded for second and third year students. Though it was really just a detailed class in how to perform research it was titled Advanced Legal Research. Had it been captioned Basic Legal Research it would have never made it past the faculty. As it was I was able to wheedle my way through the Curriculum Committee of the law school only by mumbling ominously about computers (it was 1983). . They deemed it to be ‘skills training,’ nothing that a fine place like Berkeley needed. But they would humor me. The estimated enrollment was pegged as six. Turned out that many students wanted to know how to do their job. Though the course became quite popular, drawing one hundred second and third year students each semester, Advanced Legal Research was viewed as an odd duck. It sat by itself on the list of courses offered under the subject category “Other.” As faithful readers know, I stepped away from the class last year, but Kathleen Vanden Heuvel and Michael Levy have carried it forward.
Now in 2014 the world has turned to skills course. The ABA wants skills courses, the CA wants skills courses. Experiential learning is an exciting new trend. Advanced Legal Research training should be coming into total legitimacy. But now law schools contend that skills training does not include legal research training. Legal research training is not a shiny, new pedagogic toy. It is old and dull and very hard to teach. No one is receiving grants to design new legal research training curricula. Besides, students are smart enough to learn it on their own, right? Or we can count on the good folks at LEXIS and WESTLAW to do it well, yes? Well, no. So legal research training stays where it was and as it was.
I entertain the possibility that I am dreaming.