Tuesday, December 13, 2005


I can see how Betsy could read my posting as "a Darwinian model of the Market sorting out the new lawyers who can and cannot do this sort of analysis." I was worried as I wrote it that it would come out that way, but that was not my intention--that's the problem with trying to write a blog response the last thing before going home.

I don't think the operation of the market forces I wrote so loosely will be so draconian as Betsy reads it. If a lawyer loses a case--and learns from that the necessity of research and analysis--it's not the end of the world. (But what of the losing clients, you ask? Part of the skill of legal analysis involves being able to recognize a losing case when you see it. Sometimes the client should lose. I've seen enough misguided pro se patrons in the library to know that just because someone thinks they have a case doesn't make it so.) Young lawyers are seldom literally eaten alive by more experienced lawyers. I don't think that's how the market works anyway. My suggestion is that, overall, market pressures will work at multiple points--in law school, during the course of summer clerking and the first years of work as a law firm associate--to maintain a professional standard of quality in the practice of law. I don't see weak members of the legal herd being thinned out by the lions of the profession--no more than happens now, at any rate. In other words, I agree with Betsy that online legal research is changing the practice of law, but I am unconvinced by fears that this will mean the end of legal analysis as we know it.

I also think that Betsy overstates the situation when she says that "The law professoriate does not seem aware of these changes." I've heard law professors lament the same things Betsy complains of--the cherry-picking of legal authority, the inability to construct a logical argument. This is why law school admissions committees expend so much energy trying to balance the desire to give law school applicants a chance (even if their GPA and LSAT give rise to doubt) against their responsibility to help students who are not going to succeed avoid the time and expense of three years of law school. That is also why law schools have academic support people, advanced writing courses, and so on.

I also agree that we--law librarians and law professors--need to do more. Our students have grown up in an electronic information environment; their skills and habits have been shaped long before they get to law school. Online legal research is just one part of that, and we're not going to change it.

What we need to do is recognize, accept, and embrace the fact that our current and future students are going to be doing their research online. The burden is on us to figure out what that means, to try to become as comfortable with online information as our students are, and figure out how to teach our students that comfort and skill are not the same. But we also need to recognize that the skills necessary for online legal research may not be the same as the skills we developed in a world of print-based research. How do we do that? I'm not sure. That's what I'm trying to figure out.

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