August 26, 2010
Why Can't Johnny Research Practice Law? Is Johnny thinking like "Chad," the LRW instructor, instead of thinking like a law librarian?
Michael Murray is the co-author of the legal research textbook I refuse to identify since he once said that librarians shouldn't teach legal research because librarians research differently than lawyers according to David Walker's recent LLB post. "This book obviously wasn't intended for law librarians since one of the authors believes that we shouldn't be teaching legal research in the first place." (Try to pick which of the two images, left or right, is the author.) Hello Sarah, please go give "Chad" a good swift kick in the pants for me. My next trip to Chicago is months away so I won't be able to turn off I-65 to drop by Valpo anytime soon to do so myself.
The competency of LRW instructors who are not law librarians to teach legal research is mixed at best. Thanks to the younger ones' own exposure to online legal resources, it is improving although most may still fail to grasp the theoretical framework that exists. In the bad old days, the typical LRW instructor repeated the same bad advice his or her uninformed LRW instructor taught him/her in law school. Student obsession with writing assignments also doesn't help. Research and writing, in my opinion, should be bifurcated into two unrelated required courses. Let the legal writing profs teach writing. Let professional law librarians teach legal research.
Thinking Like Law Librarians. Don't most of us wish law school grads come out of the legal academy with a research skill set that makes them think like law librarians? It's about access points and routes to legal resources that in the 1980s I used to teach in a format neutral context to BigLaw's newbie attorneys one-on-one and by way of guest lecturing instead of the typical "toolbox" approach to legal research -- "this is a digest [hold up for everyone to see] and this is how to use it [display a page]".
I even demonstrated the approach as late as the mid-2000s in a legal research workshop for Cincinnati Law students to show to one older and one younger law librarian how they should be instructing our students to "think like law librarians." Both took notes; it was a "teachable moment." It registered with one, not so much with the other who claimed that the ways and means of teaching legal research was one of those so-called "academic freedoms" protected by tenure. You guess which. We sent one of the two off to take an ALR course because displaying and commenting on a bibliography as a teaching method, as good as the bibliography was by circa 19th Century standards, just did nothing for creating teachable moments in legal research instruction.
Legal Research Principles Exist.There are principles of legal research that can be drummed into law student heads by law librarians who apply what they learned in LIS bibliographic description and subject access classes. We used to call them cataloging classes; those of us who learned cataloging from galley proofs of the first iteration of AACR2 learned a new terminology for thinking about research that was applicable regardless of publishing medium. Remember youngsters, the task before AACR2's editors in the late 1970s was to craft uniform principles and rules to address the explosion of publishing formats. One unintended consequence was that AACR2's vocabulary provided a way to restructure the principles of research to apply to all publishing formats. The best researcher remains, IMHO, a cataloger metadata specialist or a reference librarian who did not snooze thru cataloging, or whatever that is called these days, classes because that's how to think like law librarians who research. They also make the best legal research instructors, not withstanding what's-his-name brain dead opinion.
Most reference librarians, I hope, at least realize that even if they don't make this conscious association, this is how we think when we perform legal research. See, e.g., Christopher G. Wren & Jill Robinson Wren, The Teaching of Legal Research, 80 Law Library Journal 7 (1988), Theodore A. Potter, A New Twist on an Old Plot: Legal Research in a Strategy, Not a Format, 92 Law Library Journal 287 (2000) and the unfortunately subtitled, J.D.S. Armstrong & Cristoperher A. Knott, Where the Law Is: An Introduction to Advance Legal Research, (1st ed., West, 2004). Unfortunately subtitled because their work should be the required text for all 1L legal research and writing classes. Toss all others, all the old familiar "brands" and the above unmentioned one, into the Reserve Collection.
I do, however, wish someone would produce a new and long overdue edition of Price & Bitner's Effective Legal Research, the best damn text for law librarians which could be the best damn required text for ALR course adoption. Now, who gobbled up Little, Brown's law titles? Ah well, if the readers of this post aren't members of my generation, law librarian or vendor book acquitions editor, they may not even know what the damn I am talking about. Oops, three "damns" in one paragraph! Well, damn it all to hell, who owns the copyright to Price & Bitner? Oops, make that four. Grab a damn copy from the stacks Gen X-Y'ers, if unfamiliar with the title that has been around for over 50 years and get to work because there are royalties, print and e-text, to be earned. Damn, there I go again... what's the record for one paragraph? I'm thinking the Blog Widow will have to engrave "helped reintroduce a frank, if "non-professional" discussion of issues in law librarian 'literature'" as my epitaph. But I already know there will be no tombstone and I will be sitting on the mantle in an urn alongside past and current pets until the next husband arrives on the scene... . I'm "toast," both literally and figuratively.
Dump the Tool Box Approach to Legal Research Instruction. Non-law librarian legal research and writing instructors have been awakened from this Kantian dogmatic slumber that is the toolbox approach by the advent of the Internet in the context of Google-gen law school students but not sufficiently in many (most?) cases to avoid the toolbox approach completely. At least academic law libraries aren't wasting a perfectly good recession to re-think their collection development policies and practices. Hopefully no one is doing the "this is the Shepard's and West's Digest" things anymore using their print versions. That can be eliminated by print cancellations!
I, for one, wonder how behind the curve testing legal research skills will be if the MBE settles on multiple choice questions should research skills become part of the Bar Exam. Can you really test the research thought process in a multiple choice answer format. What the heck, let law librarians draft state-specific questions as essays so they can grab a little cash for grading them.
Starting with the Basics for "Chad's" Benefit. Richard Buckingham, Electronic Services and Legal Reference Librarian, Suffolk University Law School, recently posted Thinking Like a Librarian: Tips for Better Legal Research [SSRN]. It does not address teaching research principles. It is, however, one very good reading assignment for 1Ls because, in his words,
The research techniques described are not new and have been written about by others. But too often they appear in publications read primarily by librarians or introductory legal research textbooks that are several hundred pages long, where their importance is lost on first-year law students. The goal of this article is to share these research tips with a larger audience in a way that demonstrates their usefulness.
And yes, for 1Ls, law school grads and even "Chad," Buckingham's research recommendations are fundamental and so utterly essential they are taken as givens by law librarians. Hat tip to Legal Research Plus for calling attention to Buckingham's article.
Endnote About Those Folks Who Dwell in Law Library Back Offices.Tech services professionals sit in back offices working day in and day without the ego-strokes that come from patron "thank you's." But public services professionals ought to remember, also day in and day out, that without their work, they would not be able to perform their tasks and receive the benefits of patrons' "thank you for your help." Unfortunately, I've known quite a few who don't give a thought to the research infrastructure Tech Services staff create and maintain. These days this unseen staff includes many IT specialists, too.
Previous posts in LLB's Why Can't Johnny Practice Law series:
- Would you hire a law prof to represent you?
- Academic law libraries are not wasting a perfectly good recession to develop collections that look more "real world."
Before any else jumps on Prof. Murray for the assertion attributed to him take a moment and read his response to the original post at http://lawprofessors.typepad.com/law_librarian_blog/2010/08/this-book-isnt-for-you-teachers-manual-to-legal-research-methods.html copied below:
"Dear Law Librarian Community,
If the single statement attributed to me refers to actual comments I have made, it may have been taken out of the context of remarks I made at a conference long ago as to whether the research part of a Legal Method course or Legal Research and Writing course should be split off and taught separately. I oppose that thinking because I think research is integral to the legal method course for the simple reason that legal research is integral to the legal method process. Because the separate legal research course almost always is handed to law librarians to teach, I can imagine that my comments might have been summarized as "Law librarians should not teach legal research" when what I meant is whomever is teaching legal method should teach legal research along with legal analysis, legal reasoning, synthesis, and communication in writing and oral argument.
Of course law librarians know how to do legal research and certainly have the ability to teach what they know. Does the average law librarian know more about legal research than the average lawyer? My guess would be YES, almost certainly she or he does. But my comment and my objection is not as to law librarians' knowledge base or skill set but rather as to the decision to split the course off.
Professor Michael D. Murray
Associate Professor of Law
Valparaiso University School of Law"
Posted by: Nolan Wright | Aug 27, 2010 12:24:05 PM
If the un-named LRW professor still practices administrative law, I feel sorry for his clients. The administrative research chapter of his latest unnamed book tells students that the CFR as published at http://www.gpoaccess.gov/cfr/ is completely up to date since it is online. Of course, I have recently met at least one law librarian who believed this, too.
Posted by: Sara Burriesci | Aug 27, 2010 8:16:48 AM
I agree with a lot of what you say here. I think an argument can be made, however, that it is difficult for most people who have not actually practiced law to understand the difference between practice oriented research on the one hand and scholarship oriented research on the other, with ramifications for who should be teaching. Along those lines, consider Michael Lynch's article, An Impossible Task But Everybody Has To
Do It—Teaching Legal Research in Law Schools, 89 Law Lib. J. 415 (1997).
Posted by: Nolan Wright | Aug 26, 2010 2:49:52 PM
It's funny you should mention Price & Bitner's "Effective Legal Research." When I went to law school, this was the textbook for the legal writing and research class. During law school (1972), I'm not sure that I cracked it once for the whole class. However, once I became a law librarian (1997), I found it invaluable. Beauty is wasted on the young; wisdom, on the old.
--- John :) I have the first edition at home, the last two editions (how many decades out of date now?) in my office. Don't go anywhere without Price & Bitner! -- Joe
Posted by: John Hightower | Aug 26, 2010 6:37:17 AM