Monday, August 08, 2005

A Jurisprudential Approach to Teaching Legal Research

Charles ten Brink's excellent article, A Jurisprudential Approach to Teaching Legal Research, appears in 39 New Eng. L. Rev. 307 (2005). The author makes a number of important points about the importance of teaching legal research as more than a simple skill set.

This essay suggests that the legal research instructor must find the time to at least approach these theoretical and foundational issues with students. Absent exposure to the “why” behind the “how,” students will continue to approach legal research as automata, trained to press particular buttons in a particular order without any understanding of the reasons why this often produces suboptimal research. The author’s experience in teaching advanced legal research has shown that students are capable of absorbing theoretical concepts and applying them to the practical task of legal research. This results in a substantial improvement in their work, and these students are much better equipped to adapt to a changing research environment.

According to ten Brink, "[t]he goal is that students consider how structures of legal thought affect structures of information, with a particular focus on the contrast between late nineteenth century formalism and early twentieth century realism. The class opens with an excursion into research as part of the process of communication, and the effect of differing purposes of communication on the way we carry out a research plan."

It is the premise of the ALR course that research is a fundamental part of the process of communication. That seems ludicrous to most students. For most of them, research is just about the most solitary activity imaginable, and conjures up a picture of rows of monastic carrels with silently brooding scholars. Students normally think of written and oral advocacy as the communicative aspects of legal work, and an important first step in opening up their minds is asking them to think about why research is the third leg of that stool.

ten Brink locates the root of our traditional legal research tools in the legal formalism of the nineteenth century. In his admittedly simplistic summary of formalism:

• Rules are knowable.
• Rules can be perfectly communicated; once stated, everyone shares in the same understanding of the rule.
• Rules can be discovered by the right application of reason.
• Rules are capable of filling space, that is, of deciding all propositions capable of being formulated.

Chuck argues that this intentionally simplified view of the context of 19th-century law "throws a harsh and unforgiving light on the corresponding deficiencies of that monument to nineteenth century formalism—John West’s digest topic and key number system."

What was intended as a useful and descriptive indexing system has become an end in itself. Researchers tacitly believe that there are exactly 414 legal topics, each with its own detailed outline, and that in some way this mirrors the reality of the law.

Chuck then contrasts this view with legal realism, which students immediately recognize as "their familiar law school world":

• Rules are mutable.
• Law is a means to a social, political, or economic end.
o Rules are just predictions of behavior.
o Rules do not rule, policy rules.
• The communication of a rule is inherently ambiguous.
• Rules can be arbitrary.
• Rules do not fill space.

I would generalize this method to something customizable by different teachers. Not everyone would be comfortable with attempting this sort of nutshell approach to the history of jurisprudence, but one way of looking at it is to see the value of wrestling with legal research as a substantive area of law rather than merely a rote set of skills. I suspect that one of the things that makes first year research and writing a painful class to teach is the severe disconnect between research as it is commonly taught and the other first year classes. The harsh, frightening Socratic professor may be a thing of the past, but the core of Socratic method--requiring the students to work with the sources in their casebooks and to construct their own order out of the materials given--remains. Only in legal research courses do the students sit through lectures purporting to give them rules on how to do things. ten Brink's article is an important step in reconstructing legal research as a subject with its own substantive matter.

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