Legal Research and Information Literacy
Via a post on the Legal Writing Prof blog, I’m reading an interesting paper, “Say Goodbye to the Books: Information Literacy as the New Legal Research Paradigm,” by Professors Ellie Margolis and Kristen Murray of Temple University. The paper is available for download in the SSRN Working Paper Series.
Purely coincidentally, a similar thought arose this morning in an internal planning meeting about our legal research and writing instruction this fall. It was expressed that to introduce online research resources by reference to or comparison with their print counterparts is likely no longer a suitable approach. The argument is not that there is no place for such a discussion: Of course we must teach respective scopes, advantages, research approaches and entry points, and the like.
The point is rather that law students – incoming and continuing – as well as new articling students do not see print materials as the reference point for assessing or evaluating online resources. On the other hand, legal research instructors likely learned and instinctively might design instruction within the framework of the longstanding body of print materials.
The authors posit the following [all footnotes omitted]:
But finding is no longer the chief challenge. Legal research is no longer just about how to access materials in all of the various print and electronic sources. Finding tools and secondary authority are no longer a necessary point of access into the primary authority. The changes wrought by technology have replaced access to multiple sources with a single one—the search box. Whether researching on any of the free or fee‐paid web‐based services, the research is conducted by entering terms in a search box. And, unless specific steps are taken in advance, the results of the search are likely to include a larger number of materials—primary and secondary, relevant and irrelevant, useful and not useful. Legal research has shifted from a focus on how to find materials to careful evaluation of the wealth of information each search yields.
Here, I emphasize that one of the requisites of evaluation of legal information is evaluation of the source. In this context, the use of traditional finding tools and secondary authority – whether in print or in electronic form – is essential for students to learn and must not be devalued.
The authors continue:
As legal research teachers come to grips with the significant changes in the legal research landscape, more and more are recognizing the need to teach not only specific electronic legal research techniques, but also a deeper understanding of electronic research so that skills can be transferred as the research technology continues to evolve and change. We are past the point of resisting the shift to electronic research and must accept as a given that law students and new legal researchers will primarily conduct legal research online.
I agree with the authors’ premise. We have to ensure our students learn not only how to access legal information, but also how to evaluate the results of their research. This requires as much an emphasis on information literacy skills as instruction in the use of legal research resources.
I’m interested in the thoughts of others who either design or consume such instruction. Is it time, as the authors say, for a paradigm shift in legal research instruction?
The curmudgeonly view is that those who have undergraduate degrees and can’t figure that question out themselves shouldn’t have been given their undergraduate degrees.
Apart from that, how about reminding them to check in a leading piece on the subject?
Even if it is the case that the group of students aren’t told that in subject X there are Canadian treatises by author Y and the library has an online listing of those treatises, are you suggesting that many of the incoming or continuing can’t figure that out for themselves?
We won’t talk about what happens once they’ve left the academy.
I’m clearly missing your point. It seems, to me, that what you’ve asked is how we make sure future lawyers know how to count to 21 in a Canadian winter without removing their shoes and socks. Are things really that bad, in general, in your experience?
It isn’t in mine over the past 5 years – at least among the JD candidates I met at the U of T Faculty of Law. (And, for those who wonder, I was paying attention to that, too. (g))
David
Digital information literacy is something to be taken into account in teaching legal research, but it can’t supplant what we do, it needs to be integrated. We recently sent around to the various law library lists the Standards developed for BIALL which take this into account, and recognise that there are overarching digital literacy skills that can be integrated into our courses – see http://www.biall.org.uk/pages/biall-legal-information-literacy-statement.html for the detail.
I also disagree with this thought:
It was expressed that to introduce online research resources by reference to or comparison with their print counterparts is likely no longer a suitable approach.
When it comes to real research – in our instance we assess the legal research skills course via compulsory moots in front of judges, our students still find the paper as important as online resources to frame their research, and to actually understand what sort of resource they are reading on screen.
I still think the point is to teach them that starting with the search box isn’t always the best strategy. Or, which search box? How is that not still relevant? Finally, if the leading text on a subject is only available to them in print, then they need to understand that they will be best served by print. I think it’s a mistake to treat “print literacy” and “digital literacy” as different or discrete. If students are biased towards electronic resources, and we know they’ll find the answer more quickly and efficiently in a print resource, we are not doing our jobs if we don’t attempt to teach them that.
The first thing one notices upon reading the paper is that the authors are both professors. Have they had any experience providing advice to clients? In what context are the results of the kind of research they recommend to be applied? If what is taught is to provide an understanding of best practices for legal research after graduation from law school, research that will be used as a basis for legal advice, I take issue with some of the opinions advanced. These are my own opinions as a law librarian and not those of my employer.
1) The authors state that “it is possible to conduct legal research entirely online”. True enough. It is possible to conduct any research online. Is it possible to come up with an answer that your client can reliably act upon? Sometimes. If you’re lucky. Clients expect you to be thorough, not lucky.
2) The authors seem to applaud the Googlization of legal search engines. However, Googlization means that the searcher is relying on Google’s algorithms. The authors think that information literacy is necessary in order to comb through the resulting plethora of results. What if the literacy were applied at the front end, where the literate researcher constructs a tight Boolean search to avoid a plethora of irrelevant results?
3) The authors wonder whether a distinction should be made any more between paid and free legal databases. I think our clients would like us to make that distinction since they are often footing the bill. Here is a perfect example of where information literacy comes into play. Can I achieve the right results for my client using a free source or does this problem require the value-added of a paid source?
4) This is the jaw-dropper : “Secondary sources provided a useful introduction to a subject matter area that students could engage with before attempting to find actual law. Now, though, these traditional steps are inefficient and possibly harmful to our students.” So it is not just print sources, but secondary sources in general that are to be avoided? The authors seem to dismiss secondary sources as simply finding tools for “actual law”. If the only function they serve is as finding tools, they are still extremely valuable. Is it more effective and efficient to do an online search for the leading case on your contracts problem and comb through all the results to identify it? Or does the information literate researcher consult a text written by someone who has spent perhaps his/her whole career thinking about contracts problems to see if that case has already been identified? The text has served as a finding tool and no doubt there is also the value-added of the expert’s commentary which holds persuasive authority when the researcher reports back to the partner after, of course, further examination of the case, other applicable cases and cases decided thereafter.
The authors are correct that publishers are moving away from print to online provision of secondary sources. This is to be welcomed if only so that secondary sources are not confused with “old school” print materials and dismissed. I encourage our students to think about what source is most likely to have the authoritative information that they need and to consult that source first, regardless of print or online format. More often than not, that is a secondary source and for the (very) immediate future, is in print.
We had an articled student — a very good student — who discovered that an arcane point of corporate law had been dealt with by the House of Lords. Since he had never heard of BAILII, he did not search it. When he did (on my instructions), he could not find the case — it was from 1957 — he assumed that he had done the necessary “research” and needed to do no more. I had to lead him (almost by the hand or the ear) to the shelves in our excellent library and show him the volume of the A.C.’s he needed.
It is outrageous that students come to us believing or, worse, being told that books are irrelevant. Whatever one’s views about on-line resources, it is obvious that one cannot usefully search (through a “search box”) for expressions of the courts’ attitude to something; the proper approach to interpretation, to the enforcement of promises, etc. Only a comprehensive text (with a good index) can find those cases. Yes and I have said before on Slaw, a huge (and terrifying) amount of successful legal research is characterized by an element of serendipity, but to imagine that the court will say “our attitude to X is …” is fanciful and dead wrong.
I entirely agree with Laurel Murdoch and the previous comments; we are at risk of producing people who can find hundreds of cases but with no idea of their worth or whether their research is useful or not, let alone complete.
The broader question is still the content a legal curriculum. The minor question discussed in the article (form and content of legal research) seems to demonstrate a limited understanding of legal research. Could it be that the quality of legal education has also been transformed just as the broader educational system ? In other words, has the quality of legal education become as mediocre or second rate as their entire educational system and I would venture their justice system as well (secret courts, torture within and outside the US, etc. (ie. US prisons and US sponsored foreign prisons) ? So perhaps the legal education is playing catchup to the US “justice” system ?
According to Michael Doliner the coming catastrophe can no longer be ignored:
“The whole creaky system rests upon one flimsy leg, the courtroom. The citizen’s acquiescence in the absurd rigmarole of the courtroom is the stage play of government. That the government embodies justice in the courtroom legitimizes it. But belief is faltering. The courtroom stage play looks ever more absurd. Could anyone imagine a trial of Julian Assange? The courtroom would disintegrate into farce. They are afraid to even acknowledge that a Grand Jury has indicted him. You can be sure that if they ever do drag him over here they will bundle him off to some secret court. Military courts are secret courts because they could not stand the light of day. They are a sure sign that the courtroom punch and judy show has lost its dignity, that the dignified judge should wear a beanie. For he certainly looks absurd in that ridiculous black robe. How long would the Supreme Court last if it had to face a sea of faces all twisted in mockery. Such mockery could be extraordinarily subtle– slight sneer, a roll of the eyes, goofy body language, a gesture. Indeed, I suspect ( and hope) that mockery is involuntary once you get the joke. And how far is the American public away from getting the joke? For the law is,now, a joke. I sometimes imagine a burst of laughter in the face of a Supreme Court justice bringing down the entire American system.”
Our Last Hope , Plea for Mockery, by MICHAEL DOLINER (Counterpunch.org – August 24, 2012)