Another day behind the yellow curtain.

Let's face it, legal researchers tend to be neurotic. To the less experienced researcher, there is always a legal answer which exists, and that answer can be found; it can be found by looking into the past, answered in case law. (My supposition is that the casebook method employed in law school belies a large part of the problem. After all, in a law school class, the answers tend to be found within the readings or extrapolated from the readings.) Often there is the inception of a sometimes debilitating idea that if a court in one jurisdiction has held something, a court in my jurisdiction must have held the very same -"the issue must have been raised here if it was raised there. It must exist. It has to!"

Every summer, a law student emails or calls me asking me to work my wizardly ways, i.e., find something that does not exist. The request usually comes in one of two forms. The first form of the inquiry usually looks something like this:  "I'm looking for the legislative history of a state statute and I can't find anything." On its face, there is nothing really wrong with this request. In fact, I am often pleased to see that a former student remembered that resorting to legislative history is often a valid method to search for legislative intent. More often, however, the student forgets that in certain states (like Tennessee) it is extremely unlikely that any meaningful legislative history exists. (In Tennessee, apart from the bill, the only pieces of legislative history that tends to exist are the actual recordings of floor debates, and this is more often a rare case. And the only way to acquire the statements on the floor is to have a librarian at the Statehouse determine whether any legislative history exists and if so have her send copies of the recordings themselves - never transcripts of the recordings.) I explain this fact to the student every time. The response is often, "But it must exist. Isn't it somewhere on Westlaw?" I sigh.

The second form of the request to conjure law from the dust is more unnerving, but the frustration is exacerbated when I failed to conduct a proper reference interview. The form of this request usually begins with, "I need to find a case that says. . . " Again, on its face, there is nothing really problematic about the question. The problem is that what the student means is, "I have searched far and wide to find a case that holds X. I cannot find it but it must exist; otherwise I wouldn' be looking for it." The frustration is exacerabated by the failed reference interview when I later learn what the student means is, "I have searched far and wide to find a case that holds X. I have found numerous cases that have held the opposite of X (perhaps one even decided by the relevant court of last resort in the last couple years) but I need one to say X. It must exist. I know it exists because I need it." Sometimes there is a variation on the situation where the student explains, "The lawyer I am working for says that he knows that holding X exists."(Well, it must exist then. For as soon as one is admitted to practice, one can never err, right?) The termination of many of these conversations often ends in the sound of a defeated law student when they have looked behind the yellow curtain and realized that I am not, in fact, a wizard.

There was a time that I tried to teach the lesson that legal researchers are not wizards by giving them a research exercise where the answer does not exist in the way one would expect. It is the Jailbird question, where, in the end, the answer is, "zero." I will create one right here:

Between 1803 to 1813, how many lower court decisions were upheld by the State of California's court of last resort?

It seems like a somewhat daunting question until you realize that there couldn't be any dispositions affirming lower court decisions in the State of California during that period as California was not yet a state. I stopped asking any such questions as some colleagues though them to be cruel. However, they are not cruel; they merely require critical thinking.

And critical thinking must be fostered in law schools. Law students must learn that an answer cannot always be found within the volume of a reporter. And instead of a law student sounding defeated after peering behind the yellow curtain, there should be joy in his voice as the lack of precedent provides for the opportunity to - wait for it - make an original argument. And if no legitimate original argument can be made, then the logical consequences must follow.

I hope to one day see the names of these students listed as the attorneys in the cases contained in future reporter volumes, to see them as a part of the great chain of change that is American law. In the meantime, I am more than willing to let them peer behind the yellow curtain to see that I am not the conjuror that they can be.