Teaching FCIL Research Series: Teaching FCIL Research? Consider Not Requiring a Textbook

AJ-Books-2By Mary Rumsey

After years of teaching, I’m convinced legal research instructors shouldn’t make students buy textbooks.

We all know the tremendous financial strain affecting most law students; they accrue appalling debt. We shouldn’t impose any costs on students unless the benefits greatly outweigh those costs. Unfortunately, the benefits of textbooks don’t outweigh the costs.

Researchers can use an FCIL research text in two different ways. First, they can look up specific tasks or questions as needed. Second, they can read assigned sections before doing research.

The latter practice doesn’t work for most students. The information isn’t “sticky,” because it’s arbitrary and—let’s face it—boring. Students find nothing interesting in instructions for finding treaties on the OAS site, for example. Unlike other subjects in law school, legal research techniques have no human interest or policy implications to help students remember them.

Well, how about using textbooks as needed? That will help sometimes, but the lifespan of an FCIL research textbook is short. Websites, the primary tool for FCIL research, change often. For example, the Council of Europe’s HUDOC site, the UN Treaties database, and the EU’s legal research site have been completely overhauled at least once in the last several years. Databases such as GLIN (which had thousands of foreign laws), EISIL, and the WHO Health Law database have disappeared. Foreign government websites, particularly from developing countries, flicker on and off. New websites, such as the UN’s Women’s Family Law database (a work in progress) arrive without warning. Moreover, reading about a research process will never implant it as firmly as using that process.

For these reasons, teachers should focus on helping students navigate the legal information landscape. In my experience teaching and observing students over the past twenty years, the most effective method for learning legal research techniques is doing legal research; the least effective is reading about it. In practice, lawyers will be jumping into unfamiliar databases and figuring out how they work, so it makes sense to have them practice doing that.

Better than reading:

  • Use research problems for practice and to assess their learning
  • Show students how to find and use “about this site” information, FAQs, search tips, help pages, and updated research guides
  • Push them to think about what organizations might collect information on topics—literacy rates, patents, or denials of asylum—and to test their ideas
  • Provide a target case in a foreign language and ask them to use online translation tools to find it on a court website
  • Use brief demonstrations (live, or on video) to show how to find information on complex databases (e.g., EUR-LEX), or how to do things like use Google site-searching instead of a site’s own search engine
  • Let students work together rather than read alone
  • Ask them to write descriptions of how they found information, or to teach other students
  • Instead of reading assignments, give them problems to research outside of class

Lots of practice along these lines will be more effective than teaching from a mandatory textbook. Granted, if we could pour the contents of a recently published textbook into students’ brains, they’d learn a lot about FCIL research. But since we can’t, consider making textbooks optional and placing one on reserve. Your class can be just as effective and you’ll have done your small part in reducing the crushing debts many of your students are accruing.

AALL 2018 Recap: FCIL-SIS Teaching Foreign and International Legal Research Interest Group

By Meredith Capps

This year, Beau Steenken moderated a discussion with Marci Hoffman and Heidi Frostedad Kuehl, discussing the writing and editing process for their books, International and Foreign Legal Research: A Coursebook and International Legal Research In a Nutshell (Hoffman), and International Legal Research in a Global Community (Kuehl), and how they utilize research texts in their own courses.

Hoffman created the coursebook with the hopes of assigning it to her class as a supplement to in-class lectures, feeling that she did not have enough time to cover topics in sufficient depth (though she’s recently found it challenging to convince students to read the material–a difficulty echoed by others in attendance!).  Hoffman and co-author Mary Rumsey divided chapters for drafting, and then swapped those chapters for editing; she emphasized the importance of having a good relationship with one’s co-author.  The coursebook is now in its second edition, published in 2012, and she and Rumsey have considered updating it and publishing a third edition, though she believes that even if some of the sources cited in the second edition are dated, the research methodologies described are not.  The coursebook covers foreign and comparative law, which Hoffman did not include in the initial edition of the nutshell.  With respect to the nutshell, Bob Berring, who was approached by West, asked Hoffman to co-author the book, and she substantially completed the initial draft, with Berring contributing edits and stylistic flourishes.  Meant to be more casual than the coursebook, the nutshell is suitable for students completing cite-checking assignments and participating in moot courts and clinics.  Hoffman currently assigns the nutshell as a primary text in her course, plus certain chapters from the coursebook.

In considering how to structure their book, Kuehl and co-author Megan O’Brien considered how they could add to the existing literature, topics with which students commonly struggled, gaps they wished to highlight, and how to organize the material they decided to cover.  Ultimately, they chose not to focus primarily on researching international law, and organized the book around Article 38 of the Statute of the International Court of Justice, including substantial discussions of customary and subsidiary sources of international law, and a section on cultural competencies.  Kuehl feels that, like Rumsey and Hoffman’s coursebook, instructors could select certain chapters to assign in class, if they did not wish to assign the entire book, and that the bibliography will be a useful tool.  Keep an eye out for the forthcoming Teachers Edition!

Hoffman and Kuehl offered several pieces of advice to law librarians with publishing aspirations.  One was that authors should allow more time for editing than they anticipate and should not assume that editors assigned by the publisher will do substantive editing or provide an index (a substantial undertaking!).  They should also be cautious in assigning rights to a publisher and negotiate designations such as a Creative Commons license, if desired, up-front.  Consider working with a co-author, as co-authors hold one another accountable throughout the process, and co-authors should consider one another’s strengths when dividing the workload.   In considering teaching opportunities and text use in a course, the discussion highlighted the limitations of time (one- vs. two- vs. three-credit course offerings) and students’ difficulty in absorbing a text when they were not faced with a specific need to understand the material.  Hoffman noted that training opportunities for Jessup Moot Court teams provide a teaching opportunity for librarians who wish to teach FCIL research but do not have their own course, and that if librarians can design courses that meet the ABA’s experiential learning requirement, they are more likely to be approved and see substantial enrollment.  They also emphasized that in teaching foreign and international legal research, more examples are always better than few, and that librarians can consult multiple works and resources (including the FCIL-SIS teaching materials page) to locate examples to utilize in teaching.

Teaching FCIL Research: Revisiting 15 DipLawMatic Posts on Teaching

By Alyson Drake

As the semester winds teachingdown, many of us begin turning to summer projects. For some us, this involves either revamping or overhauling our FCIL Research courses. Others may be prepping to teach FCIL Research for the first time. With that in mind, this month’s installment of Teaching FCIL Research revisits DipLawMatic Dialogues‘ posts on teaching. Check them out for tips as you begin thinking about your courses!

  1.  Textual Selection: Chair of the Teaching FCIL Research Interest Group Beau Steenken gives some considerations for choosing a textbook for your FCIL research course.
  2. 7 Things I Wish I Knew Before I Started Teaching Legal Research: Alyson Drake shares some broader considerations on teaching, including some helpful resources for getting started with course planning.
  3. Using the “A” Word in Legal Research Instruction: Alyson Drake advocates for the importance of talking explicitly about research as an analytical task.
  4. Fun with FCIL Assignments: Beau Steenken gives some tips on developing assignments for a FCIL simulation course.
  5. Reflections on Teaching Foreign & International Legal Research for the First Time: Beau Steenken reflects back on his first semester of teaching his Foreign & International Legal Research course.
  6. Teaching Foreign Customary Law: Tips and Tricks: Susan Gualtier gives her pointers for tackling teaching foreign customary law.
  7. Teaching Foreign & International Legal Research — From the Beginning:  Beau Steenken outlines steps for creating your first FCIL research course.
  8. Using News Stories to Connect Students to the World: Alyson Drake discusses the four reasons I use news stories as a teaching tool in my FCIL research course.
  9. An Experiential Learning Primer: Alyson Drake outlines the requirements that must be better to meet the ABA’s Standards for experiential learning courses.
  10. The Special Challenge of LL.M. Students: Jim Hart addresses some of the challenges of teaching LL.M. students.
  11. First Time Teaching FCIL Research: Final Weeks: Alexis Fetzer reflects on teaching foreign law to her students and giving them their final project.
  12. First Time Teaching FCIL Research: Weather Woes & Student Conferences: Alexis Fetzer reflects on holding conferences with her students for their final projects.
  13. First Time Teaching FCIL Research: Initial Class Meetings: Alexis Fetzer reflects on her first few weeks teaching FCIL Research for the first time.
  14. First Time Teaching FCIL Research: Preparing a Syllabus & Marketing My Course: Alexis Fetzer discusses her process for creating a syllabus and advocating her course to her school’s curriculum committee.
  15. On Film and the FCIL Librarian: Susan Gualtier discusses using films in FCIL courses to help students understand different legal systems.

Are there teaching-related topics that you’d like to see covered on DipLawMatic Dialogues? Leave your ideas in the comments and we’ll work to solicit posts on those topics in the coming months!

Teaching FCIL Research Series: Textual Selection

By Beau Steenken

Of all the decisions that go into designing a course, the selection of textbook perhaps impacts the students’ experience the most. Not only will students (presumably) spend dozens of hours diligently reading the text, but the organization of the text often informs, at least to some degree, the organization of the course. Similarly, the choices and selections made by the authors of texts can influence the choices of teachers adopting the text. (I find that there’s never enough time in a course to cover everything I’d like to in an ideal world, and the coverage of topics by the text helps with the necessary triage when deciding how to apportion limited class time.) Happily, those of us who teach FCIL research benefit from the availability of multiple high-quality textbook options.

When I was finalizing the syllabus for my first FCIL Research course a little over two years ago, I found myself seriously considering two texts, namely: International and Foreign Legal Research: a Coursebook by Marci Hoffman and Mary Rumsey[1]; and International Law Legal Research by Anthony S. Winer, Mary Ann E. Archer, and Lyonette Louis-Jacques[2]. Each text struck me as incredibly helpful and well-written, though the two works differ quite a bit in their coverage. For instance, Hoffman and Rumsey cover both international and foreign legal research, while Winer et al focus solely on researching international law (and mostly public international law at that). Also, Hoffman and Rumsey go a bit further in their coverage by providing topically-specific guidance (e.g. human rights research, international environmental law, etc.). While the inclusion of foreign research, comparative research, and private international law research made Hoffman and Rumsey appealing, ultimately I decided to go with Winer et al as the text for my course. I made this choice primarily because my course is a 1 credit hour course, and I could not envision working through everything covered by Hoffman and Rumsey in my limited class time. Secondary considerations were the fact that I also liked the historical background provided by Winer et al and the fact that Carolina Academic Press publications generally come with smaller price tags than works distributed by Martinus Nijhoff Publishers.

kuehltextEarlier this year I was excited to notice that in the time between when I first taught my course and when I will next teach it in the fall, another excellent textbook has hit the market: International Legal Research in a Global Community by Heidi Frostestad Kuehl and Megan A. O’Brien.[3] Several aspects of the new text appeal to me, and I am planning on using it for my course next semester. First, in addition to covering public international legal research in a thorough and straight-forward manner, Kuehl and O’Brien also include a chapter on foreign legal research under the guise of cultural competence. Second, I like how Kuehl and O’Brien organize their book by introducing the sources of international law before turning to the research process itself to put everything together. As this is the organizational method I use to teach 1Ls, I anticipate this being a good fit with how I tend to design my courses. Finally, I think Kuehl and O’Brien’s tone and pacing will mesh very well with my 1 hour course. (While I personally love the historical background provided by Winer et al, I fear it may have eaten up too much of my limited course time the first time I taught the course, though this was probably due to a personal failing as once I start talking about history I have a hard time stopping and moving on to other things.)

All told, I’m quite excited to be trying out the new text in the fall, and I enjoyed investigating all three of these quality works. In fact, the investigation and comparison of the three texts also helped me think about the choices I am making for my course as I compared and contrasted the choices made by the authors of the three works. After all, a lot of the decisions of what to include in a course are similar to the decisions of what to include in a textbook, and approaching the decisions from other points of view can be enlightening.

If anyone is interested in learning more about the choices that go into creating a textbook or in hearing from FCIL research text authors about the specific approaches they took in creating their work, I encourage you to attend the FCIL-SIS Teaching Foreign and International Legal Research Interest Group meeting during AALL in Baltimore in July. Both Marci Hoffman and Heidi Frostestad Kuehl have agreed to share their experiences in writing their respective texts during the session, which will occur from 3:30 to 4:30 p.m. on Monday, July 16. It promises to be an interesting discussion, and may be of help in course design as well as text selection. I hope to see everyone there!

[1] Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: a Coursebook (2d ed. 212).

[2] Anthony S. Winer, Mary Ann E. Archer, & Lyonette Louis-Jacques, International Law Legal Research (2013).

[3] Heidi Frostestad Kuehl & Megan A. O’Brien, International legal Research in a Global Community (2018).

7 Things I Wish I Knew Before I Started Teaching Legal Research

By Alyson Drake

YoungerSelf2

Image via Women’s Executive Network.

I started as a Reference Librarian on August 1st, 2012, with just a few weeks before I was expected to take on my role as a law school professor, co-teaching in the first year Legal Research, Analysis, and Writing Program. I had graduated from law school a mere three months earlier–and had zero formal training in how to be an effective teacher (like the vast majority of law librarians and law faculty). I’ve learned a lot since then, but there are definitely a few things I’d wished I known.

  1.  There are a lot of great resources out there to help you. The RIPS-SIS Teach-In Kits; the FCIL-SIS Syllabi & Course Materials Database; the ALL-SIS Sourcebook; numerous articles in Spectrum, Law Library Journal, and LRSQ, among other law and education journals; conference presentations; webinars. No one is expecting you to start from scratch–and regardless of what time of year you’re starting, you probably won’t have time to anyway.
  2. Some of the greatest resources you can use are the other educators around you. I was particularly lucky in this regard. My teaching mentor, Terrye Conroy, took me up to a classroom before every class and ran through the materials. Then, due to being scheduled to teach first in the week, I’d go teach my own classes. The next day, I’d go watch Terrye teach her class. Each of these experiences helped me. In the preview, I’d watch her walk through the content, make sure I had a full grasp of everything we wanted the students to walk away with and see helpful ways she broke down the bibliographic skills we were teaching. Before my own class, I’d also walk through the materials carefully, including the in-class exercises (we created them as a group, so if I wasn’t the original designer of an exercise, this was particularly important). By watching Terrye teach her own class, I was able to learn a great deal about handling classroom dynamics–and sometimes I’d be reminded of things I wanted to emphasize to my class the next time I met with them. But Terrye was not the only professor I learned a great deal from; I went to all the sessions taught by the legal writing instructor I shared my section with the first year. From her, I learned an enormous amount about how to break down material into digestible pieces for my students. You have to be proactive about finding ways to learn from others; I was lucky enough to have Terrye offer to help teach me to be a good teacher, but I had to dedicate myself to it.
  3. Reflection is critically important. You can sense when an exercise doesn’t work well or when students aren’t fully grasping something. Most of the time, we teach the same class about a year apart; if you don’t reflect immediately after teaching and then make a note somewhere you will be sure to look back at it, you’re likely to forget by the next time you teach again. If possible, update any exercises that don’t work perfectly well right after using them, rather than waiting for the next year. Remember that we don’t read questions the same way novice student researchers do, so upon review sometime in the future, we may not see the problem. Immediately after my own class, I’d jot down notes about anything I thought I didn’t handle particularly well or things I wanted to make sure I wanted to remember for next year. I kept all those notes in a folder, so I could review them before I taught that same session again the next year.
  4. It’s okay to say you don’t know something. Students will know you’re uncertain. They’ll respect your honesty if you say you’ll get back to them, and when you follow up, it’ll build trust with your students.
  5. To be a really good teacher, you need to have some grasp on educational theory and curricular design, not just the area of legal research you’re teaching. It’s important to be an expert on the type of research you’re teaching, whether this is UN research or foreign law, but it’s just as important to be well-versed in teaching theory. This means reading about effective strategies for teaching in higher education. Because legal research professors almost never have enough time with our students to properly prepare them for practice, it’s critically important that we’re teaching them in the most effective way possible. Read about formative assessment, backward design, experiential education, etc., and then use what you’re reading about to develop your courses accordingly. Yes, this is challenging, because we are not JUST teachers and have many other tasks to do, but for many librarians teaching is a critical component of our jobs and we need to do it well.
  6. You will constantly have to advocate for your place in the law school and legal academy. Some of your fellow professors and perhaps even some of your students will look down on you because you’re not a “real” professor (regardless of what formal status you have in the law school). Some will see your class as less important and get frustrated if they have to “waste too much time” on your class. So, you’ll have to constantly remind them how much time is spent on legal research in practice and that research is an analytical task, not just Googling. We need to do better at this collectively, as a profession, if we want to progress our place in the legal academy as we’ve seen legal writing professors and clinicians do.
  7. Age, race, and gender matter. As a female professor, I’ve had male students wink at me from the back of class and when walking past me at the Reference Desk in the library. I’ve also had students who have been older than me and as a result thought they knew more than me about everything and students who have been around my age who have thought they could do better in my course by trying to be my friend. There’s no one set way to develop your professional persona or classroom style, as it depends on your age, gender, gender identification, race, etc., but you must put some consideration into your specific circumstances when figuring out how best to present yourself. Your students are going to pass judgment on you before your first class begins, so how you carry yourself and command your classroom matter. For example, I learned that having students call me by my first name in the library in my other role as student services librarian didn’t work, because then it follows into the classroom. I’ve also learned that it’s important to dress professionally, even on “casual Fridays”, to make it clear I’m not a student (though perhaps as I get older this will be less of an issue).

There are lots of other lessons, but I’d really like to hear from others about things they wish they’d known before they started teaching. Please comment below. After all, future librarians benefit from our collective knowledge.

 

Teaching Religious Law Research as Part of Comparative Law: Focus on Jewish Law

By Marylin Raisch

Why bother to learn about legal research and methodologies in the niche area of religious law? From the perspective of training lawyers in law schools, this pursuit appears to be completely and literally academic (read: useless for the practice of law). In order to move from “what?” to “so what?” and beyond that to “ok, how?” one has to move into a mind-set that opens up to comparative legal systems generally and wants to find out if learning about the unfamiliar, even obscure, legal cultures helps one better understand one’s own. Practical inquiries made through comparative law may illuminate the impact of legal systems on economic development in their respective jurisdictions.[1] This topic can be a good way into comparing our common and many civil law systems with a system which permits conflicting opinions and is ultimately not driven by precedent at all.[2]

What follows below is an outline of selected sources that have been presented in a 40 minute research talk to a Jewish Law seminar at Georgetown. Some editions of texts we use are not necessarily definitive, but I list what we reference for the students. Unless otherwise indicated, web sites listed are free sources.

Jewish Law in General; together with issues relating to American law

  • Hollander, David. Resources to Begin the Study of Jewish Law in Conservative Judaism, 105 Law Libr. J. 305 (2013) available via HeinOnline (fee-based).
  • ______________. Jewish Law for the Law Librarian, 98 Law Libr. J. 219 (2006) available via HeinOnline (hereafter Hollander, Jewish Law)
  • Elon, Menachem. Jewish Law: History, Sources, Principles = Ha-mishpat ha-Ivri; translated from the Hebrew by Bernard Auerbach and Melvin J. Sykes. 4 vols. Philadelphia: Jewish Publication Society, 1994.
  • University of Miami Law Library, Jewish Law Research Guide
  • WashLaw: Legal Research on the Web (Washburn University Law School), Jewish Law portal.
  • Cardozo Law-Yeshiva University Center for Jewish Law and Contemporary Civilization, blog Ancient Traditions, New Conversations (highlights legal questions within Jewish law along with book reviews useful for new title acquisitions.

Talmudic Law and Primary Texts

The Halakha (transliterated variously) is defined broadly at the Jewish Virtual Library’s Encyclopedia Judaica as the totality of oral and written law from the Bible (Torah/Pentateuch) down from Moses through sages, codification, and rabbinic literature, with some of the latter in the form of specific decisions answering thorny legal questions, called responsa.

From a library collections point of view, primary texts would include:

  • The Mishnah, and edited collection from the late Second century CE attributed to Rabbi Judah the Prince that collected oral law or the oral Torah to transmit teachings after the destruction of the Second Temple in 70.
  • The Mishnah = [Shishah sidre Mishnah] [Jerusalem : Eliner Library, Dept. for Torah Education and Culture in the Diaspora, 1994-1996].
  • The Babylonian Talmud (TB) is a commentary on the Mishnah (and its commentary, the Gemara), and this version predominates in general study over a version produced at another Talmudic academy in Jerusalem, the Jerusalem Talmud, dating from 350–400 CE.
  • The [Babylonian] Talmud: the Steinsaltz edition, translated and edited by Adin Steinsaltz. New York: Random House, 1989- .  Digital copies are emerging, such as the one at the Jewish Virtual Library.
  • The Mishneh Torah (MT) of Maimonides, dating from 1170-1180 CE has been described as “the most comprehensive and significant code of Jewish Law ever compiled.” (see Eliav Shochetman, “Jewish Law in Spain and the Halakhic Activity of its Scholars before 1300” in work cited at footnote 2, above).
  • Maimonides, Moses, 1135-1204.The Code of Maimonides. New Haven: Yale University Press, 1949- .
  • The Shulchan Aruch of Rabbi. Joseph Ḳaro, in the sixteenth century, used the ṣefer halakhot and Maimonides’ Mishneh Torah to create an authoritative statement of halakha.
  • Karo, Joseph ben Ephraim. The Concise code of Jewish law: compiled from Kitzur Shulhan aruch and traditional sources: a new translation with introduction and halakhic annotations based on contemporary response. 2 vols. New York : Ktav Pub. House, 1977- .

(See Hollander, Jewish Law cited above at 228-233 for citation guides to these complex works).

Judaica Electronic Texts: This site at the University of Pennsylvania, contains texts in several languages, notably Hebrew-English parallel Bible from the Masoretic text, and “Internet Resources for the Study of Judaism and Christianity.”

Internet Sacred Text Archive, Judaism (older texts no longer in copyright)

Dafyomi Advancement Forum, at which provides hyperlinks to free online resources. Can be used as an easily accessible English summary of the Talmud, for basic orientation through daily study, from The Ministry of Religion and Culture of the State of Israel, Estate Distribution Fund of the State of Israel, Dr. Lindsay and Rivki Rosenwald, Memorial Foundation for Jewish Culture.

CCAR (Central Conference of American Rabbis) Digital Responsa Collection (fee-based),

Bar-Ilan University Responsa Project

Article Indexes ISpecific to Jewish Law and available free on the Internet

RAMBI – the Index of Articles on Jewish Studies: A multi-lingual bibliography of selected articles on Jewish Studies, from the Jewish National and University Library, also via The Library of the Faculty of Law at Bar Ilan University, maintains its own Index to Legal Periodicals in Israel. This platform is the same Aleph platform as RAMBI. It contains articles, written in Hebrew and in English that address matters of Jewish Law. This index can be found by going to, choosing the hyperlink at the top left for English, and then the Index to Articles. The difference? This additional resource also searches for books.

Article Indexes II: General & Legal Periodicals Indexes; search within them for Jewish Law

Law reviews: via Index to Legal Periodicals and Books and the Index to Foreign Legal Periodicals; Lexis and Westlaw with easy search strings that add in the narrower topic, for example this search string: arbitrat! w/s divorce AND “Jewish law”

Google Scholar (with library links to your institution’s catalog)

Digitization, Notable Journals and Collections: Specific to Jewish Law

HeinOnline Religion and the Law collection, section on Jewish Law. Many valuable titles, some older or discontinued journals.

Hebrew digital library Otzar HaHochma: (fee based). May be cataloged as Otzar Online, containing “over 90,200” electronic texts, though not all are on Jewish law.

Treasures of the Library, Jewish National and University Library, Writings of Maimonides, Manuscripts and Early Print Editions

Jewish Theological Seminary, archives and links to other e-content and holdings,

HebrewBooks.org– digitization and free download, all in Hebrew, not all specific to law.

Touro College, Jewish Law Institute, Lillian Goldstein Traveling Judaica Collection – Upon request, they will loan your law school a teaching collection!

Finally, do not overlook the often-cited In Custodia Legis blog of the Law Library of Congress. Search this comparative law blog in the box at the upper left with phrase in quotations “Jewish law” for posts such as this one from 2011, highlighting their Jewish Law collection and rare materials within it.

[1] See Chapters 9 and 10 on legal systems and legal change in Milhaupt, Curtis J., and Pistor, Katharina. Law & Capitalism: What Corporate Crises Reveal about Legal Systems and Economic Development around the World. Chicago: University of Chicago Press, 2014. Accessed February 28, 2018.
[2] “Stemming from the original prophetic concept of divine revelation, the concept persisted that rival, apparently (to humans) contradictory traditions, could subsist simultaneously, each claiming the validity of divine law. No ‘rule of recognition’ … could deprive such revelation of its validity. From this stems the understanding here propounded of both the ‘either-or’ phenomenon of the Talmud…” in Ben-Menahem, Hanina. “Postscript: The Judicial Process and the Nature of Jewish Law” in An Introduction to the History and Sources of Jewish Law, N. S. Hecht, B. S. Jackson, S. M. Passamaneck, Daniela Piattelli, and Alfredo Rabello, eds. Oxford: Oxford University Press, 1996 at p. 434-435. Oxford Scholarship Online, 2012. doi: 10.1093/acprof:oso/9780198262626.003.0016.

Using the “A” Word in Legal Research Instruction

By Alyson Drake

Both the legal academy[1] and librarians[2] have long recognized that analysis is a critical component of the legal research process.  Despite this, legal research has long been put on the back burner in legal education and is often viewed by our colleagues and our student as a rote, mechanical task.  This is partially due to the fact that we don’t talk about research explicitly as an analytical task, probably because analysis is so entrenched in legal research that it seems obvious to librarians.

As legal research instructors, it is critical that we point out the analysis inherent in our research classes to our students. Students will value our courses more and get more out of them if they do not view research as simply a gathering task. Students will also become better researchers and attorneys by practicing engaging in analysis while they research.

Yes, this can be difficult to do. After all, it can be challenging enough just to teach students how to locate materials using the wide variety of databases and other sources they must be familiar with, and we only have so much time with our students. This may be especially true in FCIL research courses in which students are often researching outside of Westlaw and Lexis for the first time. But separating the ability to locate sources from analysis only serves to diminish the importance of researching as a lawyerly task.

So how can we bring the analysis into our classroom, even if we don’t always have considerable time to spend on it, due to the need to also teach the bibliographic side of legal research?

  1. Have a discussion about the values of a good legal researcher. In a fantastic post on the RIPS-SIS Law Librarian Blog this past week, Paul Gatz identified several virtues valuable to the legal researcher, including curiosity, intellectual honesty, perseverance, adaptability, and humanity. This discussion should expand into what skills legal researchers should have. Part of this discussion should include the importance of analytical thinking in conducting research effectively. Trust me, if they’re not hearing it from us, they’re definitely not hearing it from anyone else in their law school careers.
  2. Have discussions with your students about where analysis comes into play in legal research, from research planning to evaluating resources to knowing when it is appropriate to stop researching (plus many others). Without pointing it out, these times when students must use their analytical skills stay hidden. Students won’t be necessarily be able to identify those times when analysis is important if we don’t tell them; instead, they’ll look at research as just using technology to gather sources, rather than a problem-solving endeavor.
  3. ELRclass

    Whenever possible, try to incorporate simulations into your practice exercises so students have an opportunity to use their analysis skills.  Not every problem has to require students to analyze the sources they’ve found to a factual scenario–after all, first we do need to ensure they can locate a foreign law or a bilateral treaty. But they should do this regularly enough that analysis becomes a regular part of the research process for them. These simulations do not have to necessarily be long fact patterns; they can simply ask the student whether a certain provision of a treaty they just located would apply in a given situation and asking them to explain why. This simulates exactly what they would do in practice–considering whether that source would be relevant to the issue they’re researching.  Just like any other skill law students are learning, there must be multiple opportunities for practicing their legal research analysis. Treasure hunts, while they have a value for the bibliographic skills we must teach, tend to reinforce the ideas that research is just gathering and that analysis is a separate task.

Analysis does not belong solely with writing in the law school curriculum. By the time students sit down to write, they should already know which sources are helpful for which issues. As analysis has long been the hallmark of legal education, reclaiming it as a legal research skill may also be key to illuminating the importance of legal research in the law school curriculum, which is long overdue.

 

[1] See, e.g., Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar, Legal Education and Professional Development—An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap 138-141 (1992) (MacCrate Report).

[2] See, e.g., Am. Ass’n of Law Librarians, Principles & Standards for Legal Research Competency (2013).