Research skills: a failure of imagination

by Paul Maharg on 01/03/2014

mindmapsThanks to Kristoffer Greaves for pointing me in the direction of the recent workshop on Teaching Research Skills to Law Students, summarised in Jenni Carr’s HEA Social Science blog.  I’m in Canberra now, so couldn’t make the workshop, but Rosemary Auchmuty, who authored the posting, has done a good job in pulling together the slides and giving a brief summary of the day.  There are some fascinating examples of legal research good practice which could be useful to almost any law school, and quite a few professional organisations as well.  One aim of the day was interesting:

A secondary aim was to share and explore ways of establishing better dialogue between law librarians and law teachers, a relationship too often seen as one of deference and service rather than collaboration and sharing of skills.

Rosemary is surely right about the relationship between librarians and academics, and about its current status.  As she says:

it is clear that many law schools still delegate skills teaching to librarians and fail to integrate their work closely, or at all, into the academic curriculum.

This was an issue raised by BIALL representatives  in their interview with LETR.  Actually there are at least three underlying issues. First, the old model was indeed one of ‘service’, and the presentations at the workshop show how this is changing in some law schools; but even where there are excellent examples of partnership and co-working between librarians and academic staff, there are clear employment demarcations between the two categories of employees that do little to help co-operation, and which need to be addressed by institutions and regulators. Extract from the LETR interview:

[…] regulators needed to recognize the changing role of law librarians as legal educators. Currently librarians are classified occupationally in many institutions as ‘Clerical Staff’ or some such. This needs to change and their role as educators and digital information curators and digital information environment designers should be recognised.

Second, there is a problem if regulators don’t take legal research seriously.  Current practice varies.  Rather remarkably, US Bar Exams don’t include legal research — this in spite of the emphasis put on the skillset by MacCrate:

It can hardly be doubted that the ability to do legal research is one of the skills that any competent legal practitioner must possess. (p.163)

The most recent ABA Taskforce Report on Legal Education recommended that the Exam contain less substantive law and more skills (Recommendation C.5.).  In Scotland, I helped to draft the learning outcomes for PEAT 1 (Professional Education and Training — the Diploma in Legal Practice) which contain learning outcomes in legal research and facilitating technologies.  In England and Wales, legal research is assessed in the QLTS in the OSCE element of the assessment.  In its Report, LETR mapped the knowledge, skills and attributes currently (ie June 2013) prescribed in all programmes in England and Wales.  We identified legal research as a skills gap that needed remedied (Recommendations 6 & 11).  It’s interesting that research was one of the activities that, in our comparison of the skills required in 1991 as against 2012, varied according to the type of firm (Table 2.7, p.40).  And we came up with fascinating issues that go to the heart of how, with an academic mindset, we trivialise the complexity of practice.  As one academic put it:

Well, the one that I’m conscious of not matching up is research. I don’t think we go far enough. Before I became a lecturer I [worked] at a big City firm and they were very conscious of the LPC not producing students with the right written research skills. Because the problem with the way we teach research is that there is an answer. Because it has to be marked. But that isn’t how it works in practice. And so I did a lot of work before I came here on teaching new recruits how to do research and to tackle the issue that you might not find the answer to a question. It might be that there is no answer. And how to deal with that is something which we don’t really equip students for, I think. (2.99, p.44)

Actually, as we point out, there’s a need to enhance research skills at all levels of legal education (2.173, p.62); and to widen the scope of research to include digital literacy: ‘consideration should be given to the BIALL legal literacy and SCONUL outcomes statements’ (4.74, p.135).  To make the point plainer (just in case you thought LETR was only about LSET and had no relevance for the undergraduate law degree), it was clear that academics generally are not doing a particularly good job in preparing students in one of the key intellectual attainments of the discipline: how to find law, both primary and secondary sources, and what to do with it once found.

Third, as significant as occupational re-grading and regulatory focus is the wider context of collaboration between academics and librarians, and the quality of imagination in that collaboration. Four areas come to mind:

  1. The now classic work of Carol C. Kuhlthau on the information search process (ISP) needs to be re-framed.  When she originally published her ground-breaking book Seeking Meaning: A Process Approach to Library and Information Services in 1994, Andreesen’s Mosaic (later Netscape) was still the de facto browser, Google hadn’t been invented.  By the second edition in 2004 Google had won the browser wars and the internet was a significantly different environment and set of tools.  Not that that invalidates her work: it’s just that, a decade on from the second edition, we need to re-think what the tools are doing to process and product.  Her work has proven remarkably resilient to the massive changes in information science in the last few decades, not least because she founded her process approach on what might be termed a phenomenology of research, incorporating the work of George Kelly, Dewey and Bruner.  Her readings gave sophistication to her model: the exploration of routine tasks vs complex tasks, the uncertainty principle, the role of affect and the Zone of Intervention.  But how does digital searching affect the model?  How does Google simplify and how does it complicate the ISP; how does it mask problems in searching, what happens to the model when thousands or millions of results are instantaneously available to us?
  2. The place of rhetoric and compositional studies. Legal research is often only the start of a process of communication of research results, and the spaces between research finding, legal argumentation and genre (essay, dissertation, professional memo or brief, eg) need further research.  How do students move from identification of research results through to the process of structuring their writing, for instance?  I may be wrong (and if I am please tell me), but I have seen so little research carried out on this aspect of law student research, interpretation of results and composition.
  3. The role of visual arts and sciences.  When I was a law student at Glasgow U way back in 1990-92, graphics were pretty much confined to appellate structures.  There’s a vintage, yellowing example on the wall of the Staff Reading Room at ANU College of Law of the sort of thing that adorned our Scots Legal System texts.  I like this one — looks like it’s been assembled by Twining’s plumber, and since the structure ends at Dover pier, it dates to pre-EU accession at least (though if the Tory EU referendum gets back on the rails it could be descriptive of a future English legal system — roll on the Scottish Referendum, and more of that in a future posting). Appellate structures

    And that was it.  Text dominance was absolute and unquestioned.  I was astonished.  I’d come from six years’  experience as an adult educator, where graphics and text fusion was natural and unquestioned, simply good educational design.  In my classes I’d used posters of poems, created performance poetry with students, used music (see here for a discussion).  As a law student I turned to mind maps and graphics to learn law (example below), and learn where to find it, and help me memorise it once I’d found and understood it.  I was doing what I’d done with my adult education students for years, except that I was now the student.  It was a humbling experience, but frustrating as well.  There were around 20 ‘mature’ students at Glasgow U Law School in my year, but our prior experiences were never called on in law school.  By almost all teaching staff except for a few inspirational teachers, we were treated as blank slates for the purposes of the law degree, not humans with rich experience that could be used in the law degree to improve it. Mind Maps 21aMind Maps 21a 2mindmaps Mind Maps2
    How might we do things differently?  Compare the subject matter and the format of the legal system chart to the work of Candy Chang for instance — especially the project Street Vendor Guide, which was carried out in part in the Centre for Urban Pedagogy.  Or the Tenants’ Rights Flash Cards, and for a mega-reflection project, see Before I Die, or reflections on careers.  All of these open up the space of law for people directly affected by legal regulation in their lives.  Or take the excellent work of Margaret Hagan, across a whole range of topics including legal education.  If you find it hard to imagine art & design in a legal curriculum see the Stanford Program for Legal Tech & Design called Law By Design: Making Law People-Friendly.  Her approach is admirably summed up by her graphic (quoted with permission) which pretty much sums up the essentials of user-centred design.

    Wh20130807-150729at does this have to do with legal research?  Look at the work of Chang & Hagan, and others working in the field.  None of them started with a lecture on offer & acceptance or criminal liability.  They started with an issue, something that involved law and behaviour.  Out of that experience was created process mapping, design thinking and analytics – the analytics of the artist working with lawyers and many other intermediaries and clients.  Why can we not do the same for legal research?  Some are already doing that — see the work of Emily Allbon at City University Law School.  But much more is needed; and for that we need not just rhetoricians, compositional scientists, but those researching and performing in…

  4. the critical disciplines of legal informatics and computational law.  See for example the Neocodex project, Hammurabi Project, MIT’s computational legal science projects, and the role that technology is playing in re-engineering legal business process and enabling the unbundling of legal services and new business models, eg Clearspire in the US, Riverview in the UK.  We don’t need to listen hard to hear the profession on the subject.  See Carolyn Elefant’s open letter to law schools, which ends with a list of technology-focused skills and knowledge that, as a solo practitioner, she’d like to see law students have when they come to her office.  Legal research tools are using collaborative approaches to improve their sophistication — see Casetext which bases its model of textual annotation on crowdsourcing and Wikipedia, discussed here, blogged here and which, like Jade, an Australian innovation in the same field, uses a freemium model to underpin development.  As I point out in chapter five of Transforming Legal Educationand in a presentation on knowledge management to the Managing Partner Knowledge Management Conference way back in 2008 (with Richard King of Herbert Smith), this is a scholarly method of learning about and disseminating legal scholarship that goes back to the glossators.  Yet where do we find either use or discussion of these tools in a law school curriculum?

Sarah Glassmeyer made a similar point in her blog post on law school curriculum in the US: ‘The rules aren’t what’s  stopping innovation in legal education.  It’s just a failure of imagination’.  Actually, in quite a few jurisdictions the rules do encourage sloth and conservativism where they don’t actually inhibit innovation.  But as to failure of imagination, and especially in the domain of legal research — totally agree.

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