By Jim Hart
LL.M. students face a challenge that is more daunting than the one our J.D. students face; their knowledge of their own legal systems and legal publications interferes with their learning of ours. Indeed, it is something like learning another language. At the beginning, it’s like doing a puzzle in which all the pieces fit. You learn it at this stage by comparing the foreign language to your own language. At the intermediate stage, the two languages are no longer always comparable. A lot of pieces of the puzzle don’t fit any more and it’s confusing. At the advanced stage students don’t compare the languages anymore. The foreign language has become separate from the native language. Using it is now unconscious.
At the beginning of the semester, many LL.M.s don’t seem to have a clear idea of why they have to learn legal research. But as the semester goes by, they become increasingly engaged. I think that the reason for this apparent disengagement at the beginning is that, like American students, the U.S. legal system is entirely new to them. American J.D. students, on the other hand, come to law without any previous idea to interfere with their learning the system. LL.M. students, however, are already trained in their home legal systems.
Lawyers are experts in the legal systems of their own countries, including gazettes, codes, and other publications. Their knowledge is highly complex, implicit, and entirely automatic to them. They have used it as professionals for some period of time. It would be nearly impossible for such knowledge not to interfere with new learning! Let me explain. We represent knowledge in our minds in structures. It doesn’t matter whether you call them schemata (sg. schema), or mental models, or frames as used by Minsky. These structures are organized hierarchically with more general concepts encompassing more specific ones and specific concepts encompassing particular instances. Students are just learning these concepts and structures, but experts have become so adept at using them that they are unconscious of their use. In other words, experts use them automatically.
So when lawyers from other countries try to learn our legal system and its publications, they will find that the two systems do not have the same structures. Some aspects of their native systems may not have corresponding features in ours at all and ours will have some aspects that their systems lack, not to mention those aspects that are partially congruent. To make things worse, our legal publications form a bibliographic system that adds another system to the complexity. If the foreign students come from a civil law tradition, they may have difficulty with the need for the volumes of case reporters that are essential to a common law system. Our codes may seem like a disorganized hodgepodge of laws to someone who is used to codes that are written like philosophical treatises. But, as they learn more about our system, they see the usefulness of our tools of legal research.
So I believe that our LL.M. students begin learning our system by comparing elements of theirs to ours. As they learn more, they go through a period of confusion from which they emerge near the end of a semester. At this point, they no longer compare their native system to ours. They understand ours as a second, independent one. This explanation is simplistic of course. This is a blog post, after all. I hope this will do.
I suspect that there is no complete solution to this problem. But I also suspect that giving the LL.M. students an overview of our system that includes the bibliographic aspects at the beginning of the semester and reminding students of the role (purpose?) of the relevant publications in the system when they study them might both help. In addition, this kind of experience can suck their self-confidence right out of them. Give them sympathy and encouragement. Of course a little tea and crumpets wouldn’t hurt either.
In summary, the idea is to link the structure and content of the legal system with the concomitant publications.