I'm just starting to read a fascinating book, "Educating Lawyers," by Sullivan, Colby, Wenger, Bond and Shulman. It's a book about legal education (obviously) published in conjunction with The Carnegie Foundation for the Advancement of Teaching. I'm going to be commenting on it from time time as I read through it looking for information on how legal research factors into the authors' view of legal education as a skill.
Two immediate reactions jump out: First, there is no entry in the index for legal research. But there are several for legal writing. Why is this? Are writing instructors more vocal than librarians, who clearly have the ultimate responsibility, not to mention the expertise, for training law students in the techniques and theories of legal research? If this is so, this clearly indicates that librarians have dropped an important ball. Or is it that research is much more intangible than writing skills which produces something tangible, such as a document, and is therefore overlooked? In this case, librarians have dropped the ball in approaching the topic of legal research as a substantive course of study. I think that it's the latter.
Research is a skill that depends on intimate knowledge of how legal information works (where it comes from and where it goes and how), much more than a study of how to use different tools of legal bibliography.
Second, there is a very curious and surprising sentence in the Introduction, on page 6, in the third line of that page, "Students taught from Langdell's case books were being introduced by their professors to legal research, much as a laboratory or seminar professor in the arts and sciences of those days would have led students to grasp the principles organizing the particular domain..... Through this new procedure, Langdell updated a central tradition of classical jurisprudence: American law was now to be analyzed by academic specialists and criticized in the light of general ideas and principles." This is a very insightful observation. But it presumes the existence and respect of secondary sources and a complex system of organizing case law. As students are introduced to legal principles through the study of cases, treatises and cross-referencing systems aid the student and lawyer to get to the materials needed to answer specific research questions.
But here is where the book gets interesting. The first full paragraph contains this gem: "In the first place, up-to-date legal scholarship was to turn the jumble of court decisions into synthetic overviews or treatises that could organize and explain various areas of the law. Then the school would train future lawyers the way scientists are trained, teaching them to do legal research amid actual cases in the library...." This is a very key observation. Just as Kent, Bacon and even the writers of the classic encyclopedias and the restatements saw their role as attempts to simplify and synthesize the rules of law that were buried amid a morass of ambiguous and sometimes contradictory case law, all treatises and secondary materials' primary importance is in their ability synthesis and clearly state what are the rules of law. (Royalties and ego stroking notwithstanding.)
This is a key element of what legal research instructors must get across to our students: we must educate them to understand that treatises aren't merely old-fashioned legacies of the past; they are valuable tools that help skilled researchers get to the heart of the matter.
In light of the rise of online services and their ability to bring researchers into direct access to primary materials, this is a very interesting observation indeed. If you cut out the middle man, ie, the treatise writer/scholar who produces secondary material, efficiency in researching will not only decline (to the online services great benefit, because researchers will spend more time online trying to make heads or tails out of case law), but it may lead to the sort of crisis in our legal system such as Kent warned about in his commentaries, volume one, page 441-442 (1826): "The evils resulting from an indigestible heap of laws, and legal authorities, are great and manifest. They destroy the certainty of the law, and promote litigation, delay and subtilty [sic]."
Online services' great virtue is that they bring researchers face to face with primary sources. Online services greatest curse is that it brings researchers face to face with primary sources, without mediation. This is a very dangerous thing, indeed.
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