Docstoc

Embedded Librarians Teaching Legal Research--PDF

Document Sample
Embedded Librarians  Teaching Legal Research--PDF Powered By Docstoc
					                                  Embedded Librarians:
                       Teaching Legal Research as a Lawyering Skill

                                               by

                               Vicenç Feliú and Helen Frazer

I. Introduction

       Embedded librarians1 are to be found working in research settings of all kinds in

academia. Librarians have moved out of libraries and into the research laboratories of science

and medical departments, and also into traditional and online courses.2 Although there is




  This paper was selected for presentation at the Association of American Law Schools‟ (AALS)
Annual Meeting, January 5-8, 2011, at the AALS Section on Law Libraries session on “Legal
Research and Information Literacy: The Intersection of Intellectual and Practical Skills”; and at
the American Association of Law Libraries (AALL), 104th Annual Meeting & Conference, July
23 - 26, 2011.
        The authors extend heartfelt appreciation for editorial insights from Professor Lisa C.
Ikemoto, University of California, Davis School of Law; Professor Michael A. Olivas,
University of Houston Law Center and Director of the Institute for Higher Education Law and
Governance; and Professor Joseph B. Tulman, University of the District of Columbia David A.
Clarke School of Law.

   Vicenç Feliú, J.D., LL.M., M.L.I.S., Director of the Law Library and Assistant Professor of
Law, Charles N. and Hilda H. M. Mason Law Library, David A. Clarke School of Law,
University of the District of Columbia, Washington, D.C.

    Helen Frazer, J.D., LL.M., M.L.I.S., Associate Director of the Law Library and Head of
Public Services, Charles N. and Hilda H. M. Mason Law Library, David A. Clarke School of
Law, University of the District of Columbia, Washington, D.C.
1
  In the context of libraries, „[t]he term “embedded librarianship” is widely used in the
professional literature. . . .It encompasses the work of librarians in a research institute or
corporation whose offices are moved from a central library to their customer groups . . . .I
includes the role of a medical librarian who goes on “rounds” and participates in clinical care
teams.” David Shumaker & Mary Talley, Models of Embedded Librarianship: Final Report,
Special Libraries Ass‟n, June 30, 2009, at 4, available at
www.sla.org/pdfs/EmbeddedLibrarianshipFinalRptRev.pdf.
2
  See, e.g., Gary Freiburger and Sandra Kramer, Embedded Librarians: One Library’s Model for
Decentralized Service, 97 J. MED. LIBR. ASSOC. 139 (2009) (discussing placing librarians from
the Arizona Health Sciences Library in a new multidisciplinary research building); Angela Tod
et al., Exploring the Contribution of the Clinical Librarian to Facilitating Evidence-Based
Nursing, 16 J. CLIN. NURSING 621 (2007); Michael F. Moore, Embedded in Systems
Engineering: How One Organization Makes It Work, 10 INFORMATION OUTLOOK 23 (2006). See


                                                                                                 1
widespread agreement about the need to reform the teaching of legal research as a lawyering

skill,3 the concept of embedding librarians in law school courses and clinics has not yet taken

hold. This paper examines how law schools can maximize the contributions of law school

libraries and their librarians‟ expertise to the education of lawyers in providing instruction and

support as students wrestle with finding and applying the information necessary to represent

clients competently, diligently, and ethically.4 It focuses, in particular, on the experiment

conducted at the University of the District of Columbia David A. Clarke School of Law (UDC-

DCSL) of embedding law librarians in the legal clinics in order to combine the teaching of legal

research knowledge with development of professional acumen and expertise in research planning

and application.

       The legal research environment of lawyers is undergoing wide-ranging change as a result

of technological development and the masses of new information and resources that attorneys

must now be able to manage and analyze. How legal education adapts to these changes is a

challenge that law schools are responding to by transforming the law school curriculum and the

teaching of lawyering skills. The need to reform the teaching of advanced legal research as well

is abundantly clear, as evidenced in surveys of law practitioners and firms,5 law school librarian



also Susan Sharpless Smith and Lynn Sutton, Embedded Librarians: On the Road in the Deep
South, 69 COLL. & RES. LIBRARIES NEWS 71 (2008).
3
  See, e.g., Barbara Bintliff, Legal Research: MacCrate’s “Fundamental Lawyering Skill”
Missing in Action, 28 LEGAL REF. SERV. Q. 1 (2009).
4
  See the MODEL RULES OF PROF‟L CONDUCT, http://www.abanet.org/cpr/mrpc/mrpc_toc.html,
especially Rules 1.1, 1.3, 3.3, and 4.1.
5
  See, e.g., Patrick Meyer, Law Firm Legal Research Requirements for New Attorneys, 101 LAW
LIBR. J. 297, 301-307 (2009) (discussing the results of his and prior law firm surveys indicating
significant legal research deficits among new associate attorneys); Carolyn R. Young & Barbara
A. Blanco, What Students Don’t Know Will Hurt Them: A Frank View from the Field on How to
Better Prepare Our Clinic and Externship Students, 14 CLINICAL L. REV. 105, 116-17 (2007)
(citing survey revealing inadequacy of legal research skills of students in clinics and
externships).


                                                                                                     2
programs to provide bridge-the-gap training for students going into summer jobs,6 measures

taken by the ABA to emphasize the importance of legal research skills,7 and as documented in

the legal research literature.8 There is especially a renewed interest in providing more practical

experiences, as early as the first year of law school,9 in line with the MacCrate Report‟s10 focus

on lawyering skills twenty-years ago, and as recently re-emphasized in the Carnegie

Foundation‟s report, Educating Lawyers: Preparation for the Profession of Law.11

       Educating Lawyers, however, omits discussion of the critical legal research and analysis

lawyering skills that the MacCrate Report emphasized.12 In fact, there is little or no mention of

the law school libraries and their professionally credentialed legal research librarians,13 who are



6
 E.g., the New Jersey Law Librarians Association sponsors an annual “Bridge the Gap” training
program for rising summer associates. 98 LAW LIBR. J. 783, 796 (2006).
7
  In 2005, the ABA amended Standard 302(b)(2)(i) to include the learning outcome of legal
research skills (“learning outcomes shall include competency as an entry-level practitioner in . . .
legal analysis and reasoning, critical thinking, legal research, problem solving, written and oral
communication in a legal context”).
8
   Sarah Valentine, Legal Research as a Fundamental Skill: A Lifeboat for Students and Law
Schools, 39 U. BALT. L. REV. 173 (2010); Meyer, supra note 5, and citations therein.
9
  Antioch Law School, the predecessor of the University of the District of Columbia David A.
Clarke School of Law, established in 1972 by Edgar Cahn and Jean Camper Cahn, was prescient
in its development of a law school curriculum that incorporated law school clinics in the first
year of law school for all students. Katherine S. Broderick, The Nation’s Urban Land-Grant
School: Ensuring Justice in the 21st Century, 40 U. TOL. L. REV. 305 (2009).
10
   A.B.A. TASK FORCE ON LAW SCH. & THE PROFESSION, LEGAL EDUCATION AND PROFESSIONAL
DEVELOPMENT – AN EDUCATIONAL CONTINUUM 135 (1992) (hereinafter MacCrate Report)
(including legal research as a fundamental lawyering skill of identifying legal issues and
researching them “thoroughly and efficiently”).
11
   WILLIAM M. SULLIVAN, ANNE COLBY, JUDITH WELCH WEGNER, LLOYD BOND, LEE S.
SHULMAN, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007) published
by the Carnegie Foundation for the Advancement of Teaching in The Preparation for the
Professions Series [hereinafter Educating Lawyers].
12
    MacCrate Report, supra note 10, at 138, and 157-163.
13
    The position of law school librarian now typically requires both a master‟s degree in library
and information science and a juris doctor degree. American Association of Law Libraries,
Careers in Law Librarianship, http://www.lawlibrarycareers.org/education_lawdegree.html.


                                                                                                      3
trained in both technological skills and legal research. Law librarians, in fact, are the most highly

skilled law school experts in both the technologies of legal research and in legal research and

analysis, with masters degrees in library and information science, juris doctor degrees, and often

significant experience in legal practice. Fortunately, scholars have in recent years been

addressing the need to improve legal research skills of law students and lawyers by developing a

pedagogy for teaching legal research.

       The UDC-DCSL embedded librarians experiment embodies the 2009 Boulder Statement

on Legal Research Education‟s recommendation that “students will experience a cognitive

apprenticeship . . . . [so as to] synthesize information about legal systems and resources to

identify the best research plan for a given question” and to teach students to identify the “ethical

responsibilities, the avoidance of plagiarism, and the fulfillment of the ethical duty to conduct

adequate and thorough research.”14




Many law librarians also have significant practice experience as attorneys.
14
   The Boulder Statement on Legal Research Education, developed at the Conference on Legal
Information: Scholarship and Teaching, at the University of Colorado Law School in Boulder,
Colorado, June 21-22, 2009, available at
http://www.colorado.edu/law/events/legalResearchEducation.pdf (hereinafter the Boulder
Statement).
        In 2010, the second Conference on Legal Information: Scholarship and Teaching
produced the Boulder Statement on Legal Research Education: Signature Pedagogy Statement,
which built on Educating Lawyers‟s identification of four structures of legal education: the
surface structure, deep structure, tacit structure, and shadow structure. The Signature Pedagogy
Statement‟s structures include the modeling, scaffolding, iteration, and assessing components of
a pedagogy for legal research that incorporates both objectives and procedures for teaching legal
research.


                                                                                                    4
       The Boulder Statement, like Educating Lawyers, emphasizes the importance of the first

year of law school in educating students for the profession of law.15 Hence, recent scholarship on

legal research pedagogy focuses on how legal research is taught in the first year.16 Yet it is in law

school clinics, in the second and third years of law school that students are for the first time

exposed to a formal practice environment of legal problem solving requiring both knowledge of

law and lawyering skills, including the skill of legal research.17 Here the opportunity arises for

teaching students advanced legal research skills such as how to search or think in terms of

devising a research plan that is efficient and cost-effective, evaluating results from online

research services, using databases relying on algorithms versus human indexed resources or vice

versa; 18 learning how to research for analogous law,19 for extra-legal resources,20 and for

unwritten rules and practices or custom,21 and for ethical practice.22



15
   Educating Lawyers focuses on the transformative experience of the first year because, by the
end of it, most law students “have developed a clear ability to reason and argue in ways
distinctive to the American legal profession.”Id. at 2.
16
   See 2009 Boulder Statement on Legal Research Education and the 2010 Boulder Statement on
Legal Research Education: Signature Pedagogy Statement, supra note 14. This has not always
been so. Berring and Vanden Heuvel passionately contended that teaching legal research in the
first year was teaching “the wrong people the wrong material at the wrong time” and
recommended instead that legal research education should begin in the second year of law
school. Robert C. Berring & Kathleen Vanden Heuvel, Legal Research: Should Students Learn It
or Wing It? 81 LAW LIBR. J. 431, 441-42 (1989).
17
   See, e.g., Carolyn R. Young & Barbara A. Blanco, supra note 5 (discussing the inadequate
preparation of law students for externship and clinical experiences); Randy Diamond, Advancing
Public Interest Practitioner Research Skills in Leal Education, 7 N.C. J.L. & TECH. 67, 132
(2005) (recommending librarians teach advanced research skills “in the classroom portion of the
clinic”).
18
   Susan Nevelow Mart, The Relevance of Results Generated by Human Indexing and Computer
Algorithms: A Study of West’s Headnotes and Key Numbers and LexisNexis’s Headnotes and
Topics, 102 LAW LIBR. J. 221, 249 (2010) (concluding that “[w]here the search process has more
human intervention, it appears to deliver better results”).
19
   For discussion of reasoning with analogous law as a lawyering skill, see Wilson R. Huhn,
Stages of legal Reasoning; Formalism, Analogy, and Realism, 48 VILLANOVA L. REV. 305
(2003); see also the discussion of reasoning from an analogy in MARJORIE D. ROMBAUER, LEGAL
PROBLEM SOLVING: ANALYSIS, RESEARCH AND WRITING 43-44 (4th ed. 1983); NEIL DUXBURY,


                                                                                                     5
       The pedagogical challenge of teaching advanced legal research lies in the abundance of

online information available to the researcher, both legal and nonlegal, fee-based and free.23 For

law students, the first year instruction in basic legal research methods and resources offers no

guide for addressing the unorganized mass of information available, evaluating it, and its source,

in order finally to solve particular legal problems.24 In contrast to the print information world

where the West topic and key number system provided a guide and structure for research that

correlated with the subject matter courses taught in law school, 25 online information appears to

be unstructured, confusing and unmanageable. Without a way to comprehend, organize and

analyze the masses of information available, researchers can be overwhelmed,26 seeing no

implicit structure in the information they find by descriptive word searching.

       This article addresses how law school librarians can teach advanced legal research

beyond simply offering courses, individual conferences or workshops, research guides and

portals. It examines how the relatively new trend of embedding librarians in practice settings,

offering assistance at the point of need, could be effective in law school clinics. Part II begins



THE NATURE AND AUTHORITY OF PRECEDENT (2008) and LLOYD L. WEINREB, LEGAL REASON:
THE USE OF ANALOGY IN LEGAL ARGUMENT (2005).
20
   Valentine, supra note 8. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) for use
of non-legal argument to change the law.
21
   See, e.g., Andrea M. Seielstad, Unwritten Laws and Customs, Local Legal Cultures, and
Clinical Legal Education, 6 CLINICAL L. REV. 127 (1999); Thomas Michael McDonnell, Playing
Beyond the Rules: A Realist and Rhetoric-Based approach to Researching the Law and Solving
Legal Problems, 67 UMKC L. REV. 285 (1998) .
22
   See, e.g., Margaret Martin Barry, Martin Geer, Catherine F. Klein, and Ved Kumari, Justice
Education and the Evaluation Process: Crossing Borders, 28 WASH. U. J. L. & POL‟Y 195
(2008), Jane Harris Aiken, Striving to Teach “Justice, Fairness, and Morality,” 4 CLINICAL L.
REV. 1 (1997).
23
   Valentine, supra note 8; Ian Gallacher, Forty-Two: The Hitchhiker’s Guide to Teaching Legal
Research to the Google Generation, 39 AKRON L. REV. 151 (2006).
24
   Gallacher, supra note 23.
25
   Id.
26
   Valentine, supra note 8.


                                                                                                     6
with a brief overview of the current methods used in teaching legal research to first year law

schools, where the foundation is laid for this important lawyering skill, and the influence of

Marjorie D. Rombauer‟s groundbreaking process approach to teaching legal research in her 1973

text, Legal Problem Solving: Analysis, Research and Writing.27 Part III examines some of the

recently published work on developing pedagogies for legal research instruction, particularly

Callister‟s Adapted Taxonomy, 28 based on Bloom‟s Taxonomy, 29 to see how their

categorization of knowledge and its acquisition can be used together with Rombauer‟s process

method of teaching legal research as a lawyering skill30 in the practice setting of law school

clinics. Part IV proposes a model for teaching advanced legal research by embedding law

librarians in law school clinics based on the experiment conducted at the UDC David A. Clarke

School of Law, begun by first embedding one librarian in the Juvenile and Special Education

Law Clinic and then continued by embedding a librarian in the Community Development Clinic

in the spring of 2011. This article concludes that the Rombauer Method of teaching legal

research can be expanded to include teaching research for analogy and social justice, and that the

experiment of embedding librarians in the law school clinic is a very promising and

accomplishable avenue for teaching advanced legal research as a lawyering skill consonant with

the recommendations of Educating Lawyers31 and the Boulder Statement on Legal Research

Education.32



27
     Supra note 19.
28
   Paul D. Callister, Time to Blossom: An Inquiry into Bloom’s Taxonomy as a Hierarchy and
Means for Teaching Legal Research Skills, 102 LAW LIBR. J. 191 (2010).
29
   TAXONOMY OF EDUCATIONAL OBJECTIVES: THE CLASSIFICATION OF EDUCATIONAL Goals (B.S.
Bloom ed. 1956).
30
   MacCrate Report, supra note 10 (including legal research as a fundamental lawyering skill of
identifying legal issues and researching them “thoroughly and efficiently”).
31
   See supra note 14.
32
   Id.


                                                                                                 7
II. Technology and Legal Information

        The fundamental skills required to become a successful legal researcher continue to be

changed and challenged by developments in information technology. Legal materials are now

more available online through access to fee based databases, court sites, government pages, and

free access databases. The proliferation of access to information creates a situation that requires

the researcher to be more effective and efficient at the research process. In addition, changes in

regulatory agencies, globalization, and reliance on Internet based sources have expanded the

types of materials relied on by courts in their decisions.33 Practitioners in the field do research in

ways that are quite different from the research methods they learned in law school and this

development is strictly based on technological changes.34 This dichotomy creates a situation that

places law students at a disadvantage in the way they acquire legal research skills because the

process of legal analysis and reasoning they learn does not create the proper scaffolding for the

reality of legal research.35

        Research materials available on the Internet can be broken down into six categories: 1)

Primary source materials, including Lexis, Westlaw, Loislaw, and other non-commercial

alternatives, e.g., Google Scholar; 2) Court docket and case information services; 3) Secondary

sources for topical legal research, legal periodicals, and other legal materials; 4) Financial and

business news; 5) Public records; and 6) Non-legal and legal-related general sources.36 This last



33
   Valentine, supra note 18, at 174.
34
   Marjorie Crawford, Bridging the Gap Between Legal Education and Practice: Changes to the
Way Legal Research is Taught to a New Generation of Students, AALL SPECTRUM, April 2008,
at 10.
35
   Valentine, supra note 18, at 175.
36
   Laura K. Justiss, A Survey of Electronic Research Alternatives to Lexis and Westlaw in Law
Firms, paper presented at AALL Private Law Librarians Special Interest Section discussion
group, Jan. 2010, SMU Dedman School of Law Legal Studies Research Paper No. 62, available
at SSRN:http://ssrn.com/abstract=1649471.


                                                                                                     8
category of non-legal and legal-related general sources is an ever expanding universe that runs

the gamut of divergent sources from free-access online knowledge bases, e.g., Wikipedia, to

general access search engines, e.g., Google. It is not surprising, then, that practitioners turn to

online sources, especially free, general information sources, as a means to conduct cost effective

legal research.37

       Because of the high level of access to general information, legal research has expanded to

include nonlegal resources.38 A study conducted in 2000 noted that citations to nonlegal sources

by judges in their decisions had increased dramatically in the preceding ten years while the

number of citations in decisions had remained practically constant.39 The exponential growth of

nonlegal resources in legal opinions is due to the ease of access to information made possible by

the online environment.40 Increased reliance on the Internet as a source of information, the

emphasis placed on computer assisted legal research (CALR), and automation of access to the

law may be creating, as a consequence, a paradigm shift in the present form of legal education.41

Legal analysis is based on principles and methods developed in the 19th century that reflect the

idea that law is based on a knowable, reliable, and predictable structure.42 But the use of Boolean

word searching of databases bypasses the carefully constructed categories of legal knowledge as




37
   Deborah K. Hackerson, Access to Justice Starts in the Library: The Importance of Competent
Research Skills and Free/Low-Cost Research Resources, 62 ME L. REV. 473 (2010), citing
Sanford N. Greenberg, Legal Research Training: Preparing Students for a Rapidly Changing
Research Environment, 13 J. LEGAL WRITING INST. 241, 246-47 (2007).
38
   Valentine, supra note 18 at 186.
39
   Frederick Schauer & Virginia J. Wise, Nonlegal Information and the Delegalization of Law,
29 J. LEGAL STUD. 495, 497 (2000).
40
   Valentine, supra note 8, at 186.
41
   Id. at 190.
42
   Id.


                                                                                                      9
typified, e.g., in the West topic and key number system.43 Yet the profusion of information

available online also reveals the dilemma it poses for researchers.

       One of the primary issues with the use of electronic resources is the relationship between

precision and recall. Precision is measured as the number of relevant sources returned in a

search.44 Recall is the number of relevant materials retrieved compared to the number of

relevant materials in the source database;45 the higher the precision, the poorer the recall. This

inverse relationship is “a universal principle of information science.”46 Moreover, the inverse

relationship between precision and recall does not alter with the level of experience of the

researcher. Regardless of experience level, the more precise the search, the lower the level of

returns.47 The proliferation of sources available online creates the problem with recall. Because

the volume of material is easily available, it becomes impossible to determine the number of

relevant materials that could be accessed.48 Thus, technology, as internalized by new generations

of law students, has drastically eroded the internal structure of legal analysis49 and with it the

research methods associated with that structure.

       Surveys of law firms going back to 1987 reveal that new associates are deficient in the

skills necessary to conduct effective legal research.50 These surveys also show that law firms

favor an integrated approach to teaching legal research, an approach that combines the use of



43
   Robert C. Berring, Legal Research and the World of Thinkable Thoughts, 2 J. APP. PRAC. &
PROCESS, 305, 311 (2000); Collapse of the Structure of the Legal Universe: The Imperative of
Digital Information, 69 WASH. L. REV. 9 (1994); Full-Text Databases and Legal Research:
Backing Into the Future, 1 HIGH TECH. L.J. 27 (1986).
44
   Susan Nevelow Mart, supra note 18, at 228.
45
   Id. at 227.
46
   Id. at 228, citing Paul D. Callister, Working the Problem, ILL . B.J., Jan. 2003, at 43, 44.
47
   Ian Gallacher, supra note 23, at 184.
48
   Mart, supra note 18 at 227.
49
   Valentine, supra note 8 at 190.
50
   Patrick Meyer, supra note 5, at 302.


                                                                                                     10
fee-based and free online resources as well as print materials interchangeably.51 To face the

challenges created by the explosion in access to resources, legal research instruction must evolve

to fit the new paradigm and take into account how practitioners actually access information.

          Practice based and integrated approaches can provide law students with the right tools to

succeed in law practice. This approach has been used with success at a few law schools

throughout the country, including IIT Chicago-Kent, Loyola University of Chicago, Thomas

Jefferson School of Law, and Loyola Law School (Los Angeles).52 The next step in the

progression is to use this integrated approach with an emphasis on librarians teaching in law

schools‟ practice environments, the law clinics, at the point of need. This progression will

necessitate a refinement/restructuring/reconstructing/reorienting of present legal research

instruction pedagogy.


III. Legal Research Instruction

          Law students have been taught legal research for at least the last forty years by either of

two competing models, the process and bibliographic methods. The two methods are not

mutually exclusive. Although legal research can be taught as a stand-alone course, it is

frequently taught as part of a process of legal problem solving, i.e., it is a component of a

combined legal research and writing course, often with a much heavier emphasis on the legal

writing component. The bibliographic method of teaching legal research relies more on learning

the legal resources available and how to use them. Although seldom used in first year legal

research courses, many of the pre-eminent legal research treatises and manuals express a




51
      Id. at 303
52
     Id. at 310.


                                                                                                    11
bibliographic approach in their titles such as Finding the Law53 and How to Find the Law.54 In

stand-alone courses or workshops, the bibliographic method of teaching legal research has often

relied simply on rote learning of sources through simple finding exercises in the library and

databases.55

       Current methods of teaching legal research in the first year of law school, as expressed in

the titles of some legal research and writing textbooks, characterize legal research as part of a

process including problem-solving, research, and development of written work products such as

briefs and memoranda. The dominance of this method of teaching legal research reflects the

influence of Rombauer‟s innovative 1973 text, Legal Problem Solving: Analysis, Research and

Writing.56 Rombauer‟s work, and that of her successors,57 recognizes that the lawyer‟s expertise

and skill in analysis, legal research and legal reasoning are inextricably combined in the legal

problem-solving process, as it is performed at the professional level. Rombauer explicitly sets

forth this concept in the first part of Legal Problem Solving, titled “Interpreting and Predicting

the Controlling Law.”58




53
   ROBERT C. BERRING AND ELIZABETH A. EDINGER (11th ed. 1999).
54
   MORRIS L. COHEN, ROBERT C. BERRING, AND KENT C. OLSON (9th ed. 1989).
55
   Berring & Vanden Heuvel, supra note 16, arguing that an integrated bibliographic method” is
an excellent way to teach legal research.
56
   Rombauer, supra note 19. Prof. Rombauer developed her process of teaching legal research,
analysis, and writing in the 1960s at the University of Washington, where she taught creditor-
debtor law, legal drafting, and secured transactions. Mary S. Lawrence, An Interview with
Marjorie Rombauer, 9 LEGAL WRITING: J. LEG. WRITING INST. 19 (2001) (hailing Prof.
Rombauer as the founder of teaching legal research and writing as a professional discipline).
Prof. Rombauer was honored with the University of Washington School of Law Distinguished
Service Award and the Association of American Law Schools Award for Distinguished Service
to the Profession. Id.
57
   See, e.g., CHRISTINE KUNZ ET AL., THE PROCESS OF LEGAL RESEARCH (2004); AMY SLOAN,
BASIC LEGAL RESEARCH (2006); and also TEACHING LAW.COM, an ebook, by DIANA DONAHOE.
58
     LEGAL PROBLEM SOLVING: ANALYSIS, RESEARCH AND WRITING 29 (4th ed. 1984) .


                                                                                                     12
          A. The Rombauer Method

          The Rombauer Method is a straight forward process method approach intended to be

used for the teaching of legal research and writing, as a combined pedagogy, to first year law

students. Rombauer meticulously provides instruction on how to analyze, evaluate and

synthesize case law; analyze and construe statutes as well as the cases construing the statutes;

and develop and carry out a research plan, incorporating instruction on finding and using the

major legal resources as part of this process. This method assumes that students will learn the

complexities of legal research as they work through practical problems in legal problem solving

and produce a written legal document. This model is still hotly debated as many academics

believe that first year students need to master the broader concepts of the law before tackling the

finer details of research59 while the others believe that the first year is the time when law students

are more malleable and better able to internalize the concepts of research as it relates to the

law.60

          The methodology and underlying pedagogy of Rombauer‟s process approach to legal

research instruction are similar to those advocated in the Educating Lawyers. Students are

introduced to model documents characteristic of professional trial practice. They are coached in

how to analyze law, perform research and produce similar legal documents. Concepts are

reiterated with every assignment as students move from simple case briefs for classroom

preparation through analysis of a published casenote and preparation of trial and appellate

documents. In other words, the Rombauer method and its progeny appear to anticipate the

pedagogical techniques advocated in the Educating Lawyers, including modeling, coaching,




59
     See, e.g., Berring, supra note 16.
60
     See, e.g., Educating Lawyers, supra note 3.


                                                                                                   13
scaffolding, and fading.61 Rombauer‟s course book includes the most detailed and sophisticated

presentation of legal analysis from precedent necessary to perform legal research at the

professional level of practicing attorneys. It is not a book or method widely used in first year

legal research and writing programs, although Rombauer‟s influence is detectable in the nods to

process in current legal research and writing texts and manuals, as is demonstrated in the typical

examples reviewed in the next section.



       B. Selected Current Texts for Teaching Legal Research

       Publications for teaching legal research and writing in law schools are so numerous as to

be impossible to review in their entirety for this article. The selected printed materials chosen

here are in use in enough law schools as to be representative examples of both the bibliographic

method and Rombauer‟s Method. The one e-book or online program for teaching legal research

and writing is also briefly examined as similarly following in the wake of Rombauer‟s Method.

       1. The Process of Legal Research

       As the title implies, The Process of Legal Research by Christine Kunz et al.,62

encapsulates a process based method approach to legal research. The book presents its user with

the “Canoga case,” a hypothetical situation in which a flutist for a small orchestra seeks

resolution over her termination from that orchestra. The user of this system is then cast in the

role of Ms. Canoga‟s attorney and begins the process of walking through the resources for legal

research using the “Canoga case” as an anchor point and as thread of continuity in the process.



61
   Id. at 61 (describing modeling as “making cognition visible”; coaching as “providing guidance
and feedback”; scaffolding as providing support as needed; and fading as encouraging students
to go forward on their own).
62
   CHRISTINA L. KUNZ, DEBORAH A. SCHMEDEMANN, C. PETER ERLINDER, AND MATTHEW P.
DOWNS, THE PROCESS OF LEGAL RESEARCH (1986).


                                                                                                    14
As the user progresses through the sections on commentary, case law, enacted law,

administrative law, and rules of procedures and legal ethics, the resources and materials

presented are applied to the hypothetical. Each chapter utilizes a series of templates to illustrate

and instruct on the usage of the pertinent resources and materials as applied to the fact pattern.

The book concludes with a short unit on research journals. This process based pedagogy is

thorough and complete. It focuses on how to develop strong research practices in the solution of

a single, unified, complex problem and it successfully integrates print and electronic research

strategies. One possible drawback to this text is that while the one case example unifies the

process it also creates an artificial research environment for the student.

         2. Basic Legal Research

         Basic Legal Research by Amy Sloan63 follows the bibliographic approach to teaching

legal research. The substantive material of the book begins on chapter 2 with a short

introduction to a method of preliminary analysis through the generation of search terms. The

next chapters are dedicated to an exposition of the different materials covering primary and

secondary sources. These chapters illustrate those resources as well as explain how to use them

in the context of legal research. Even though Sloan includes examples of electronic materials in

the chapters covering primary and secondary resources, she addresses the topic of electronic

legal research as a separate issue in chapter ten of the book. The last chapter of the book is

dedicated to the issue of research planning. The book is not organized in a sequential manner

and Sloan says in her introduction64 that the legal research instructor is free to follow her own

sequence of assignments when using it. Basic Legal Research provides clear, step-by-step

instructions on how to use legal resources but it does not integrate those resources into a process.

63
     AMY E. SLOAN, BASIC LEGAL RESEARCH: TOOLS AND STRATEGIES 22 (4th ed. 2009).
64
     Id.


                                                                                                     15
A legal research instructor using these materials would need to create a cohesive plan of

implementation to make the materials presented have any relevance to students.

       3. Teachinglaw.com

       TeachingLaw.com, by Diana Donahoe, 65 is the ebook (electronic book) twist on legal

research and writing texts. This e-book follows a bibliographic approach to legal research but it

exploits the flexibility of the electronic medium by offering a series of companion exercises and

tutorial which each topic covered, giving the whole effort a process method flavoring. The

approach here is more legal writing centered and the emphasis is given over to that topic. There

are short research exercises included with the sections that reinforce the materials described there

and that support the process method flavoring of the e-book. There are also links to Georgetown

Law Library produced tutorials on several topics allowing the users to have a more interactive

experience with the material. The true emphasis of this work in legal writing and it appears to be

a very effective tool but a more process centered method would have made it even stronger.


       C. Critiques of Legal Research Teaching

       Despite the promise of the process approach to teaching legal research, it has not yielded

a high level of skill in law school students and graduates.66 There is a consensus in the legal

practice community that these pedagogies are not accomplishing the desired results.67 Why then

do most law students, after a full year of instruction in legal research and writing know so few of

the legal resources they should be able to use or, after very brief exposure to some basic

resources, do not really know how to use them for research, or have only basic knowledge of

legal resources and how to use them. In other words, they do not reach a professional level of

65
   DIANA DONAHOE, TEACHINGLAW.COM (2006)
66
   See supra notes 18-22.
67
   Id.


                                                                                                  16
expertise, nor do they identify legal research as an essential lawyerly skill informed by legal

ethics.

          In defense of the problem-solving approach, as incorporated in many legal research and

writing courses, it can be said that too often these courses focus on legal writing, require

application of too few legal sources, and employ only basic legal research strategy. Even in the

best environments for learning legal research in law school, however, little or no attention is

given to some challenging aspects of legal research, such as learning how to evaluate online

results produced by algorithms versus results from indexing by human beings, how to

conceptualize analyze legal problems in order to extract and organize terms for research,68 or

how to organize research into manageable units, researching first the general issues and then

“moving to narrower and narrower issues.”69 And little or no attention is given to legal research

strategies that call for finding useful policy or analogous precedent or research that can support

creation of new legal theory. In sum, what first year legal research and writing courses teach is

insufficient for law students to graduate with the skill set of professional researchers, such as the

Legal Research skills identified in the American Bar Association MacCrate Report (1992)70

which states:

          In order to identify legal issues and to research them thoroughly and efficiently, a lawyer

should have:

                 3.1 Knowledge of the Nature of Legal Rules and Institutions



68
   Callister, supra note 27, at 206.
69
   Id.; Brooke Bowman, Researching Across the Curriculum: The Road Must Continue Beyond
the First Year, 61 OKLA. L. REV. 503, 554 (2008) (noting that unless students have taken
advanced legal research courses they will not be “introduced to the resources that attorneys
actually use in the real world; resources such as loose leafs, form books, treatises, continuing
legal education materials, advanced database content, and interdisciplinary materials”)
70
   MacCrate Report, supra note 10.


                                                                                                    17
               3.2 Knowledge of and Ability to Use the Most Fundamental Tools

               of Legal Research

               3.3 Understanding of the Process of Devising and Implementing a

               Coherent and Effective Research Design.



       D. A Response

       Current methods of teaching legal research as expressed in the titles of some legal

research and writing textbooks view legal research as a process including problem-solving,

research, and development of work products such as briefs and memoranda. In practice, they still

rely most heavily on presenting basic legal resources and explanations of how to use them,

giving scant attention to the process of legal research and analysis described in the Boulder

Statement on Legal Research Education71 and as analyzed in the recent taxonomy proposed by

Professor Paul D. Callister.72 In contrast, Rombauer‟s presentation of legal research as an

integrated problem-solving process of legal analysis, research and writing stands out as an early

(1973) exemplar of just this kind of teaching. Her text Legal Problem Solving, however, has not

been adopted generally by legal research and writing programs and is not discussed in the legal

research and writing literature.

       One of the issues that has hindered understanding and appreciation of the Rombauer

Method is the intellectual density of Legal Problem Solving and selection in the first editions of

archaic cases as examples. The message of Legal Problem Solving is viable but the delivery has



71
  See supra note 14.
72
  Prof. Rombauer anticipates the emphasis in Prof. Callister‟s taxonomy of the need for a
conclusion, stating “[a] prediction will not be sufficient to solve most problems . . . . Advice
must be communicated and implemented, which may require writing, drafting, counseling,
negotiation, litigation, lobbying, or other activities,” supra note 37, at 2.


                                                                                                   18
hindered its acceptance. Rombauer‟s method has also been criticized because she wrote before

the advent of generalized electronic research and is not therefore adaptable to online research

media.73 But the Rombauer Method is just that, a method or schema to teach legal research as a

lawyering skill in an effective, cohesive manner and it is adaptable to any variety of legal

resources. The argument that now researchers have the ability to retrieve masses of case law,

persuasive precedent, minor cases, etc., for which first year students cannot use the Rombauer

Method because they don't know how fit all that material into a synthesis of case law does not

hold up. If taught correctly the Rombauer Method provides the framework to synthesize and can

be applied no matter the volume or type of resources available or media used. Her method or

schema for problem analysis, research and problem solving are the foundation for, and

transferable to, addressing the challenges of reasoning by analogy and for transformative change

in the law.



IV. Legal Research Pedagogy

         Educating Lawyers asserts that students learn substantive law best when it is taught

together with lawyering skills in the first year curriculum, and they offer as an example the

teaching of legal writing as simulated practice with instruction, feedback and support from

instructors.74 Of course, for many years first year legal research has been included in legal

writing courses as well and their legal research texts do include basic instruction in how to use

the most commonly used legal research sources, along with some brief instruction in legal

research problem solving. These courses, however, do not appear to address what Callister has

called higher order thinking, of a kind demonstrated, for example, in Rombauer‟s Legal Problem

73
     See Valentine, supra note 18.
74
     Educating Lawyers, supra note 3, at 104-111.


                                                                                                    19
Solving. This is not surprising given that the legal research literature reveals no scholarly

examination of Rombauer‟s approach to teaching legal research and, similarly, until recently

little or no scholarly work has developed a pedagogy or a taxonomy for legal research

instruction. 75

        Planning a program of legal research instruction aided by a taxonomy of teaching

objectives has the advantage of assuring that the pedagogical methods developed can be assessed

and evaluated. Similarly, it can be used for planning instructional activities and assessment that

are “congruent with one another” – i.e., it can be used to evaluate whether and what learning

takes place in the course.76 Fortunately, in the past decade increasing attention has been given to

creating a legal research pedagogy. Subsequent to publication of Educating Lawyers, librarians

developed the Boulder Statement on Legal Education and the Boulder Signature Pedagogy




75
  In his search for a pedagogy for teaching legal research as a lawyering skill, Callister found
fewer than half a dozen articles that addressed pedagogy in any way. Callister, supra note 27.
76
   EDUCATION ENCYCLOPEDIA: TAXONOMIES OF EDUCATIONAL OBJECTIVES, BLOOM‟S
TAXONOMY, at http://www.answers.com/topic/taxonomy-of-educational-objectives, visited 9-11-
10. While a taxonomy for legal research instruction is useful in planning what to include in legal
research instruction generally and how to evaluate the course design as well as assess outcomes,
the actual content of the course depends on the selection of legal research competencies to be
included. At present the only “official source” for competencies is the AALL-RIPS publication
titled Core Legal Research Competencies: A Compendium of Skills and Values as Defined in the
ABA’s MacCrate Report. Research Instruction Caucus, Am. Ass‟n of Law Libraries (Ellen M.
Callinan ed., 1997), available at http://www.aallnet.org/sis/ripssis/PDFs/core.pdf. It has been
criticized, however, for focusing more on the resources available for researchers than pedagogy.
Callister, supra note 27, at 194. In 2009, AALL charged a Joint Committee on Articulation of
Law Student Information Literacy to draft standards which could be used in teaching legal
research. Id. The AALL Law Student Research Competency Standards Task Force has as its
purpose “To review the Law Student Research Competency Standards submitted to the
Executive Board in April 2010, to recommend whether or not AALL should adopt Law Student
Research Competency Standards, and if so, to revise the draft standards and present them to the
Board for adoption” and will serve until December 2010. Task Force web page,
http://www.aallnet.org/committee/res_stds.asp .



                                                                                                   20
Statement,77 and Callister proposed a taxonomy of legal research knowledge and teaching

objectives based on Benjamin Bloom‟s Taxonomy of Educational Objectives.78 Callister chose to

work with Bloom‟s Taxonomy because it is one of the most favored education taxonomies and it

had already been identified in 1996 by Canadian law librarian Maureen Fitzgerald as adaptable

for legal research.79

        Callister constructed his Adapted Taxonomy based on Bloom‟s and also the 2001

revision, A Taxonomy for Learning, Teaching, and Assessing: A Revision of Bloom’s Taxonomy

of Educational Objectives,80 edited by Lorin W. Anderson and David R. Krathwohl et al., which

graphed objectives in two dimensions, first, on the basis of four types of knowledge (the

knowledge dimension) – factual, conceptual, procedural, and metacognitive; and, second (Figure

1) and then along a cognitive dimension of six categories, discussed infra.

Figure 1

        Anderson & Krathwohl‟s Revised Taxonomy, Types of Knowledge

                Factual Knowledge

                       Knowledge of terminology

                       Knowledge of specific details and elements


77
   See supra note 14.
78
   Bloom‟s Taxonomy, supra note 28.
79
   Maureen F. Fitzgerald, What’s Wrong with Legal Research and Writing? Problems and
Solutions, 88 LAW LIBR. J. 247 (1996). The taxonomy has also been explored by Kurt M.
Saunders and Linda Levine, Learning to Think Like a Lawyer, 29 U.S.F. L. REV. 121 (1994).
Bloom himself considered his taxonomy as a starting point model for others, stating in a 1971
memorandum, “Ideally each major field should have its own taxonomy in its own language –
more detailed, closer to the special language and thinking of its experts, reflecting its own
appropriate sub-divisions and levels of education, with possible new categories, combinations of
categories and omitting categories as appropriate.” A TAXONOMY FOR LEARNING, TEACHING,
AND ASSESSING: A REVISION OF BLOOM‟S TAXONOMY OF EDUCATIONAL OBJECTIVES xxvii-xxviii
(Lorin W. Anderson and David R. Krathwohl, eds. 2001) [hereinafter 2001 Revised Taxonomy].
80
    Id.


                                                                                                21
Conceptual Knowledge

      Knowledge of classifications and categories

      Knowledge of principles and generalizations

      Knowledge of theories, models, and structures

Procedural Knowledge

      Knowledge of subject-specific skills and algorithms

      Knowledge of subject-specific techniques and methods

      Knowledge of criteria for determining when to use appropriate procedures

Metacognitive Knowledge

      Strategic knowledge




                                                                             22
        The taxonomies are in what Bloom called the cognitive domain,81 that is, they focus on

knowledge and how it is attained, progressing from simpler levels of knowledge and thought

process to higher orders, concluding with a metacognitive assessment of the entire process. For

example, Callister‟s Adapted Taxonomy says the expert researcher will master “technical

[bibliographic] language” and “controlled vocabularies,82 but in addition he or she will be able to

move “beyond the parts of the problem and look for relationships to other issues, resources,

alternative scenarios for analysis, and possible options as solutions.”83 And above all the

researcher will be able to “assess, not only the result, but the schemata, including the processes

leading to the result.”84

        All three taxonomies have six categories in the cognitive dimension, as illustrated in

Figure 2. While Bloom labeled the categories with nouns -- knowledge, comprehension,

application, analysis, synthesis and evaluation -- the categories all refer to a dynamic and fluid

process. Hence Anderson and Krathwohl, and also Callister, preferred to use verbs to label most

of the categories illustrating “the cognitive process dimension.”85 Callister verbalized his

categories as follows: Remember - Recognize, Understand -Articulate, Application – Exercise,

Analysis and Synthesis - Simulate, Concluding – Resolve, and Metacognition - Assess. To use

the taxonomy, the instructor analyses the objective along two dimensions, the knowledge

dimension, i.e., the kind of knowledge involved, and the cognitive dimension, i.e., the level of

thinking required to attain the learning objective.

81
   The other domains contemplated by Bloom were the affective domain and the psychomotor
domain. Id. at xxvii.
82
   Callister, supra note 27.
83
   Id.
84
   Id.
85
   Id. at 28.


                                                                                                     23
Figure 2. Taxonomy Tables Comparison


                                                  Cognitive Dimension
Knowledge
Dimension                           1.              2.             3.          4.           5.          6.
                   Bloom
                   (1956)       Knowledge     Comprehension   Application   Analysis    Synthesis    Evaluation


                   Anderson &
                   Krathwohl    Remember      Understand      Apply         Analyse     Evaluate     Create
                   (2001)


                   Callister                                                Analysis
                   (2010)       Remembering   Understanding   Application     &         Concluding   Metacognition
                                                                            Synthesis

                   Verb:        Recognize     Articulate       Exercise     Simulate     Resolve     Assess


Factual
Knowledge

(e.g., elements,
terms, details)


Conceptual
Knowledge

(e.g., interrelationships)


Procedural
Knowledge

(e.g., methods, criteria)


Metacognitive
Knowledge

(e.g., cognition generally &
also one‟s own cognition)




          These types are useful constructs for analyzing the knowledge required of an expert legal

researcher but do not provide specific information as to what to teach in an actual legal research



                                                                                                              24
practice setting such as a clinic. Callister‟s subcategories are tailored specifically to the kinds of

knowledge possessed by an expert legal researcher. See Figure 3.




                                                                                                     25
Fig. 3

   Callister‟s Adapted Bloom‟s Taxonomy

         Remembering

               Recognizing
               Recalling
                   o Problems
                   o Paradigms
                   o Terms

         Understanding
             Articulate
                   o Terminology
                   o Controlled Vocabulary
                   o Issues
                   o Taxonomies

         Application
                 Exercise
                     o Paradigms
                     o Research Interviews
                     o Problem Types
                     o Resource Maps
                     o Research Processes

         Analysis and Synthesis
                 Simulate
                       o Legal Practice

         Concluding
                Resolve
                    o Results
                    o Reports
                    o Memoranda
                    o Briefs

         Metacognition
             Results
             Paradigms
             Processes




                                             26
        The subcategories of Callister‟s Adapted Taxonomy are instructive for legal research

pedagogy because they describe what a legal researcher must be able to do in terms of thinking

about which resources to use, how and when to use them, and how to manage the research

process so that a concluding result can be reached, offering a professional opinion on a particular

issue. For example, Callister‟s Adapted Taxonomy says the expert researcher will master

“technical language” and “controlled vocabularies,86 but in addition he or she will be able to

move “beyond the parts of the problem and look for relationships to other issues, resources,

alternative scenarios for analysis, and possible options as solutions.”87 And above all the

researcher will be able to “assess, not only the result, but the schemata, including the processes

leading to the result.”88 In other words, the educated, expert researcher will be able to assess the

process and schemata of his or her research and, when the results are unsatisfactory, “creatively

use or even invent the most appropriate technique in solving the problem, given one‟s

understanding of the strengths and weaknesses of the various resources at hand.”89 In other

terms, this means that the researcher should be able to “[s]how why some application of a legal

rule or concept calls for an extension, limitation, or rejection of another rule or concept” and then

be able to “separate, combine, and sequence arguments to formulate a [new] legal theory.”90

       Callister‟s Adapted Taxonomy is designed for use in legal research instruction that

includes instruction throughout law school. Most of the examples and explanations, however,

relate to matters taught most often in the first year legal research and writing courses. In this

86
   Callister, supra note 27, at 202.
87
   Id. at 208.
88
   Id. at 210.
89
    Id. at 211-12. For a discussion of this kind of creative research and lawyering problem-
solving, see infra notes 104-105 and accompanying text
90
   UDC-DCSL Clinical Program, Competencies (2010) (on file with the authors).


                                                                                                     27
paper, we accept Callister‟s Adapted Taxonomy as useful for first year legal research instruction.

We examine it now, however, in the context of legal research instruction in the second and third

years of law school, and specifically in law school clinics which aim to teach students to practice

law like lawyers.

       Practicing legal research as an integral part of lawyering skills in practice settings

provided in the second and third year of law school should expose the law student to more

complex research problems. The legal research process taught in first year courses is primarily

confined to legal reasoning from precedent. In other words the research aims to discover the law

and custom applicable to the research problem. To do so, he or she learns skills of legal analysis,

develops knowledge of legal systems and legal resources, learns bibliographic skills such as

evaluating research sources, differentiating between sources mediated by human beings versus

mediated by computer algorithms,91 etc.

       But legal reasoning from precedent is not the only kind of research skill required in

lawyering. In fact this skill has been attacked as no longer relevant because of the prevalence of a

sea of undifferentiated information that can overwhelm new researchers and as “eroding the

foundational structure of the American legal system.”92 Valentine has in fact urged that

“reconstructing legal research” instruction can “provide students the skills necessary to

understand and manage the explosion of information currently swamping the law.”93

       The overwhelming amount and kinds of legal information available through online

searching is, however, manageable for researchers with sufficient legal research instruction.

Callister, for example, notes that the useful concepts of precision and recall “from the library and



91
   Mart, supra note 18.
92
   Valentine, supra note 8, at 175.
93
   Id. at 176.


                                                                                                  28
information sciences. . . . can help students understand some of the pitfalls of electronic

research.”94 Similarly, students who understand the difference between Boolean and Natural

Language searching can also evaluate information better in order to narrow results for relevancy.

       It is important to remember, however, that discovering the law, analyzing it, synthesizing

it (in Rombauer‟s language, a different meaning from when Bloom says “synthesize”) is the first

step in legal research – basically analyzing from precedent95 or lack of it. When Callister talks

about the researcher recognizing what he/she does not know, being “on the edge of one‟s

construct (or schema) of reality”96 – he‟s talking about the researcher keeping in mind that there

is probably law, and also custom, and solutions, in the research universe that he/she does not

know about. So a good researcher must acknowledge and challenge the edge of his/her own

unknowing by following a rigorous process of research in the hope it will reveal what is unkown

to the researcher.

       The research process taught in most first year legal research and writing programs,

analyzing from precedent, however, does not provide sufficient instruction and practice for

students to become expert at legal analysis and research. This approach, researching for

precedent, teaches only the basic level of skill. It cannot resolve most of the research issues that

attorneys have to solve, e.g., where there is no precedent on point, where the law has been either

misunderstood or misapplied,97 and where the law is out of joint with the times.98 Here is where



94
   Id. at 202 (noting that “precision measures the relevancy of results from a search, but recall
measures what was missed” and provides the formulas for both relevancy and recall).
95
   For a discussion of teaching legal research from the formalist perspective of reasoning from
precedent, see Thomas Michael McDonnell, Playing Beyond the Rules: A Realist and Rhetoric-
Based Approach to Researching the Law and Solving Legal Problems, 67 UMKC L. REV. 285
(1998).
96
   Callister, supra note 27.
97
   For example, the legislative history of the Juvenile Justice and Delinquency Prevention Act of
1974 clearly states Congressional intent to channel juvenile status offenders (i.e., truants,


                                                                                                    29
the educated researcher arrives at what Callister calls the metacognitive stage of legal research,

and tries new approaches, such as analyzing from analogy, a slightly more sophisticated version

of reasoning from on point precedent, in order to arrive creatively at a solution. For example, in

a case where a steamboat passenger‟s wallet is stolen from his berth through an open porthole,

the court held that the steamboat owner was strictly liable, i.e., regardless of whether there was

negligence.99 The court, choosing between two opposing precedents – the liability of innkeepers

v. the liability of railroad companies – based its decision in favor of the steamboat passenger on

the basis of similarity to the public policy that holds innkeepers strictly liable.100

        When parallel law, or analyzing from analogy,101 is not the basis of the ruling, however,

legal reasoning that invokes an entirely different justification for a change in law (i.e., not simply

adopting precedent from another area based on parallel situations) might be called a process of




runaways, curfew violators, etc.) to social services agencies which can help them with their
“human and social issues” and out of the juvenile offender system. See S. Rep. No. 93-1011
(1974), reprinted in 1974 U.S.C.C.A.N. 5283 (“These status offenders generally are
inappropriate clients for the formal police courts and correction process of the juvenile justice
system. These children and youth should be channeled to those agencies which are mandated . . .
to deal with the substantive human and social issues involved in these areas.”) Nevertheless
many such children are not directed to helping services but go directly into court proceedings,
particularly children from low-income and minority backgrounds. OFFICE OF JUVENILE JUSTICE
AND DELINQUENCY PREVENTION, JUVENILE OFFENDERS AND VICTIMS: 2006 NATIONAL REPORT 9
(2006), available at http://ojjdp.ncjrs.org/ojstatbb/nr2006/index.html..
98
   See infra notes 110-111 and accompanying text.
99
   Adams v. New Jersey Steamboat Co., 151 N.Y. 163 (1896), discussed in Scott Brewer,
Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by
Analogy, 109 HARV. L. REV. 923, 1013-16 (1996) (categorizing Judge O‟Brien‟s reasoning as an
example of “”Competing” Analogies as Disanalogical Argument” where “two (or more) lines of
precedent both seem, prima facie, to govern a case at hand, yet each line of precedent suggests an
opposite result”).
100
    Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal
Argument by Analogy, 109 HARV. L. REV. 923, 1003-04 (1996).
101
    Id.


                                                                                                     30
research and analysis to “[s]how why some application of a legal rule or concept calls for an

extension, limitation, or rejection of another rule or concept.”102

          The case of Brown v. Board of Education103 is instructive because it is famous for Justice

Thurgood Marshall‟s making seemingly nonlegal arguments from psychology, anthropology,

and sociology, so that Harvard Law School Dean Erwin N. Griswold justified the ruling not on

its legal merit but for "carrying out the spirit which lies behind" the equal protection clause. And,

as Justice Souter has explained the reasoning of the Court:

                 As I‟ve said elsewhere, the members of the Court in Plessy remembered the day

                 when human slavery was the law in much of the land. To that generation, the

                 formal equality of an identical railroad car meant progress. But the generation in

                 power in 1954 looked at enforced separation without the revolting background of

                 slavery to make it look unexceptional by contrast. As a consequence, the judges

                 of 1954 found a meaning in segregating the races by law that the majority of their

                 predecessors in 1896 did not see. That meaning is not captured by descriptions of

                 physically identical schools or physically identical railroad cars. The meaning of

                 facts arises elsewhere, and its judicial perception turns on the experience of the

                 judges, and on their ability to think from a point of view different from their own.

                 Meaning comes from the capacity to see what is not in some simple, objective

                 sense there on the printed page. And when the judges in 1954 read the record of

                 enforced segregation it carried only one possible meaning: It expressed a

                 judgment of inherent inferiority on the part of the minority race. The judges who

                 understood the meaning that was apparent in 1954 would have violated their oaths

102
      UDC-DCSL Clinical Program, Competencies (2010) (on file with the authors).
103
      347 U.S. 483 (1954).


                                                                                                      31
               to uphold the Constitution if they had not held the segregation mandate

               unconstitutional.104

       Although neither legal reasoning from analogies nor legal reasoning to achieve the better

result is described in Callister‟s Adapted Taxonomy, this kind of lawyering is clearly within the

highest level of the cognitive domain at the metacognitive stage of problem solving. It may also

be possible to include these concepts possibly as “paradigms (schemata)” under the second

category of learning, Understanding.105 While this kind of reasoning may not be necessary in

solving everyday legal problems, it certainly comes up in practice settings where lawyers must

find unprecedented solutions. For example, Congress intended a broad application of the

Individuals with Disabilities Education Act (IDEA) for children with disabilities but specifically

addressed only some of the discrete populations of children in what might be called “federal

populations,” such as students covered by the Bureau of Indian Affairs. The question then arises

of how the IDEA applies to other “federal populations” such as the children of United States

Department and military employees stationed abroad, and students in federal immigration

detention centers. Research and analysis for this issue would require going to the general purpose

statement of the statute and analyzing whether and to what degree Congress addressed these

issues in the IDEA, its amendments, or other statutes. It would necessitate creating a legislative

history of the IDEA and its amendments, and pursuing research into regulations of the

Department of State and the Department of Defense addressing the special education needs of

children of diplomats and military stationed abroad. Ideally, this research and analysis would



104
    Text of Justice Souter‟s Speech, Harvard Commencement, May 27, 2010, available at
http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/ (explaining
why the separate but equal ruling of Plessy v. Ferguson, 163 U.S. 537 (1896) was unacceptable
by the 1950s both in terms of social consciousness and constitutional interpretation).
105
    See Callister, supra note 27 at 202.


                                                                                                 32
clarify the intent of Congress with regard to child populations not specifically mentioned in the

IDEA and provide guidelines for application of the special education law to such populations.

       Consider another problem with no clear precedent available. A high proportion of

minority children from low income families are disproportionately represented in delinquency

and criminal proceedings106 and have untreated disabilities that in various and serious ways have

contributed to the behavior that put them into the court system in the first place. When only the

juvenile and criminal law is applied to their situation, without consideration of their disabilities,

these children end up prosecuted and incarcerated at much higher rates than other children.107

Creative lawyering, however, brings to the attention of schools and courts that these children

have rights under the Americans with Disabilities Act108 that would equalize their treatment in

the courts and criminal systems109 and that receiving treatment and assistance in their education,

as required by the Individuals with Disabilities Education Act110 can resolve their behaviors and

prevent these children from being directed into the criminal justice system.111

       This kind of lawyering requires the higher order of thinking expressed in Callister‟s

taxonomy of legal research learning objectives, and it is a lawyering skill that is or can be taught

in law school clinics. The next part examines how to teach legal research as a lawyering skill by

106
    Joseph B. Tulman and Douglas M. Weck, Shutting Off the School-to-Prison Pipeline for
Status Offenders with Education-Related Disabilities, 54 N.Y. L. SCH. L. REV. 875 (2009) (citing
JOY G. DRYFOOS, ADOLESCENTS AT RISK: PREVALENCE AND PREVENTION 39 tbl.3.7 (1991));
Joseph B. Tulman, Disability and Delinquency: How Failures to Identify, Accommodate, and
Serve Youth with Education-Related Disabilities Leads to Their Disproportionate Representation
in the Delinquency System, 3 WHITTIER J. CHILD & FAM. ADVOC. 3 (2003).
107
    ROBERT B. RUTHERFORD, JR. ET AL., YOUTH WITH DISABILITIES IN THE CORRECTIONAL
SYSTEM: PREVALENCE RATES AND IDENTIFICATION ISSUES 10-19 (2002).
108
    104 Stat. 327, codified at 42 U.S.C. § 12101 et seq.
109
    Tulman & Weck, supra note 147; Joseph B. Tulman, Applying Disability Rights to Equalize
Treatment for People with Disabilities in the Delinquency and Criminal Systems, vol. 8,
American Bar Association, Children‟s Rights Litigation Committee, Spring 2006. p. 1.
110
    Pub. L. No. 101-476, 104 Stat. 1142, codified at 20 U.S.C. § 1400 et seq..
111
    Tulman & Weck, supra note 147, at 876-79 (2009).


                                                                                                    33
including librarians in the law school clinic teaching, a practice called embedding librarians at

the point of need, often where legal research instruction is given spontaneously as the need

arises.


V Embedding Librarians in Law School Clinics

          The present state of evolution of legal research, and information gathering in general, and

particularly with the advent of online research, has resulted in a mix and match approach to

methods for teaching legal research in an attempt to meet the need of producing effective

researchers upon graduation.112 This challenge is common throughout academia. Some research

libraries, finding that fewer researchers use their libraries, have taken to sending librarians to the

research sites and embedding them there,113 often in scientific research laboratories and

centers.114 Embedding librarians in the law school setting is a new concept for academic law

librarians, but it has been tried in some law firms‟ practice groups.115 A review of the literature

has not revealed any project of embedding a librarian in law school clinics as yet. Whatever the

methodology, there is a strong argument to be made for bringing law librarians into clinical

programs as legal research teachers and advisors.




112
    See Gallacher, supra note 23 at 172-178.
113
    The concept of embedding librarians is similar to the practice of attaching journalists to
military combat units in the Iraq war. See, e.g., Bonnie Azab Powell, Reporters, Commentators
Visit Berkeley to Conduct In-depth Postmortem of Iraq War Coverage, UCBERKELEY NEWS,
(Mar. 15, 2004),.
114
    Steve Kolowich, Embedded Librarians, INSIDE HIGHER ED (June 9, 2010),
http://www.insidehighered.com/news/2010/06/09/hopkins.
115
    American Lawyer‟s annual survey of law firm librarians asked “are any librarians embedded
in practice area groups?” The response showed that 9% surveyed said “yes.” For free online
access, go to http://bit.ly/dwNhzo.


                                                                                                      34
       A. Librarians as Lawyering Skills Educators in Clinics

       The Boulder Statement states as foremost that “[l]egal research education teaches the

resolution of legal problems through an iterative and analytical process.”116 The clinic setting for

teaching legal research skills is ideal for this kind of process. It offers real problems to be

resolved for real clients. When the librarian acts as the primary legal research educator in the

clinic, he or she is meeting with students and helping them with the analytical process, providing

instruction and support as needed, what Educating Lawyers labels as scaffolding,117 giving

feedback, and assisting students “to continually re-evaluate their progress and results to arrive at

the optimal answer”118 to the legal problems they are assigned. Because of the one-on-one

assistance that the librarian can offer students and the clinic faculty, the clinic setting appears to

offer an ideal setting for the kind of legal research education recommended by Educating

Lawyers and the Boulder Statement. In addition, the librarian is the model for the student of the

professional and ethical legal researcher. The next section examines the qualifications of law

school librarians for this important role in educating future lawyers.



       B. Law librarians’ qualifications for teaching in law clinics.

       By their very nature, law librarians are expert users of legal materials.119 As information

professionals, law librarians are taught to understand and master the resources at the disposal of a

legal researcher, according to Berring and Vanden Heuvel, law librarians are the “most

knowledgeable, experienced, and capable researchers at any law school or law firm…”120 Law



116
    See supra note 14.
117
    See supra note 3.
118
    The Boulder Statement, supra note 14.
119
    Bintliff, supra note 3, at 2.
120
    Gallacher, supra note 23, at 173, citing Berring & Vanden Heuvel, supra note 16, at 438.


                                                                                                     35
librarians in the public services area come by their positions with a mixture of education and

experience. A vast percentage of law librarians are dual degreed professionals, i.e., holders of

Juris Doctor (J.D.) and Masters of Library and Information Science (M.L.I.S.) degrees. Some of

these law librarians, in addition to the dual degrees, have come to the profession with experience

in law practice and law firm libraries, others have advanced law degrees, and still others have

both advanced law degrees and practice experience. Most of the non-dual degreed law librarians,

those who have either a J.D. or a M.L.I.S., in public services today have come to those positions

through extensive experience, either in law libraries or in practice. Based on these statistics, the

argument can be made that law librarians can be qualified as specialized experts in legal research

and that they are uniquely positioned to provide the research teaching component in a clinical

environment.

       The question then arises, should law librarians embedded in a clinical program be

selected only from those law librarians holding a J.D.? One of the big bonuses attached to a

clinical experience is the fact that the students receive the benefit of working with a clinician

who is an expert in the specific practice area of the clinic. The clinician not only acts as a

supervisor but also as a mentor, and models effective strategies and procedures for the students.

In a clinical program were the clinician is an effective model of a practitioner, the function of the

law librarian is to provide the students with the model of the effective researcher. For a law

librarian to be effective in this role, she must understand and be a master-researcher in the

specific area of the clinic. This mastery level can be achieved through actual experience in legal

research without the need of a J.D. What is needed is a librarian who understands the needs of

the practitioners and how to best utilize the legal resources at hand to support those needs. As a

prime example to support this hypothesis, we need look no further than the interaction between




                                                                                                    36
attorneys and law librarians in law firms. Clinics are, in effect, mini law firms where groups of

students develop the roles of effective practitioners under the direction of a supervising attorney,

the clinician. In the firms, most law librarians do not have J.D.s , yet they work closely with the

attorneys to support their needs and to effectively train new associates into the intricacies of

whatever area of law the specific firm practices. These law librarians are effective in their roles

not because of the degrees they hold but because they have mastered the specific requirements of

an area of practice.



       C. Preliminary Matters

       To make a system of embedding law librarians in clinic work effectively, the factors that

affect the daily operation of the law library must be taken into account. The issues of work and

responsibility allocation, sharing the reference load, and assignments to specific clinic must be

addressed and considered before launching a successful program. As a guide to the

implementation of an embedded law librarian program we will examine how the program at the

University of the District of Columbia David A. Clarke School of Law (UDC-DCSL) system

was conceptualized and begun. In planning the program we drew on the experiences of

embedded librarians in other settings.121

       With eight active clinics122 at UDC-DCSL and the law library‟s very small public

services department, our program has had to be launched in increments. Our first step was to



121
    See, e.g., David Shumaker, Who Let the Librarians Out? Embedded Librarianship and the
Library Manager, 48 REF. & USER SERV. Q. 239 (Spring 2009).
122
    The UDC-DCSL clinics are the Community Development Clinic, the Government
Accountability Clinic, the HIV/AIDS Clinic, the Housing and Consumer Law Clinic, the
Immigration and Human Rights Clinic, the Juvenile Law Clinic, the Legislation Clinic, and the
Low-income Taxpayer Clinic. See the UDC-DCSL Clinic website, at
http://www.law.udc.edu/?page=ClinicsMenu.


                                                                                                    37
consider the expertise of the law librarians assigned to the program so that we could best tailor

those strengths with the needs of the clinics. Planning sessions were conducted by the Clinical

Director and the Library administration to determine the best clinic to use for the pilot program

and the librarian best suited to support that clinic. The next step was to ensure that the assigned

librarian became a permanent and active member of the clinical faculty team and that she was

included in planning meetings and presentations to the students. Finally we involved the other

librarians in the process as a learning tool and as a preparation for their turn in the clinic. This

system allowed for the implementation of the program with our most experienced librarian and

for the creation of a mentoring model for the other librarians who will be included as the

program develops.

       We wanted to make this effort more than a simple collaboration with and assistance to

the clinical instructors in the program. We desired full immersion so that we could develop new

services to meet both the ongoing needs of the clinic faculty and students but address unforeseen

needs as they arose. We anticipated that the librarian should be present at as many class and

tutorial meetings as possible to share knowledge about information sources, about how to find

information, and how to analyze it in the context of the legal problem to be solved. In other

words, the embedded librarian would become a member of the clinic community, interacting as a

professional with faculty and students so as not just to provide information but to provide a

model for students learning research methods and skills.

       Care has to be taken that the working model for the program be one of collaborative

effort among the law school‟s librarians, as the work load of supporting the clinic can quickly

overtake a librarians‟ other duties. The creation of a completely accessible knowledge base

system, similar to a searchable blog, was essential for this collaboration as a tool to share work




                                                                                                       38
load and avoid duplication of effort. The knowledge base is also usable as an assessment tool

because all librarians have the ability to work together on any clinic project and fill the gaps

where necessary. The work product included in the knowledge base creates a database of prior

experience as well as a mentoring and teaching tool for the staff.



         D. The UDC-DCSL Example of Librarians Embedded in a Law School Clinic

         In August 2010, we began an experimental program to embed a librarian in one of the

University of the District of Columbia‟s David A. Clarke School of Law clinics, specifically the

Juvenile & Special Education Law Clinic. In beginning this program we were concerned with

setting up guidelines and goals for the program. Our plan followed the suggestions of David

Shumaker in Who Let the Librarians Out? Embedded Librarianship and the Library Manager123

for setting up an embedded librarian program. He advises starting off with an assessment of

readiness with regard to staff members and the institutional organization, followed by

implementation of a pilot program. This pilot plan would then be reviewed as to how it worked,

allowing for revision and expansion as necessary. Initially, however, he advises, is to establish

agreements with the institution relating to space, “inclusion in group communications and

collaboration” and meetings, obtaining senior management sponsorship, and getting feedback for

the project.124

         Our first step in this process was to assess how we might implement the project given the

constraints of staff, time, and budget. We determined that one of the co-authors, Helen Frazer,

could carve out enough time to become embedded in one clinic, including learning the law that

the clinic uses. If the program, went well, we would be able to add a second librarian to another

123
      48 REFERENCE & USER SERV. Q. 239 (Spring 2009)
124
      Id.


                                                                                                    39
clinic in the following semester. Because we had just added another librarian position to our

staff, which would lighten the reference duties for all librarians, we were assured of time opening

up for the first librarian and, possibly, for the second embedded librarian. Next, we contacted the

director of the clinic, Professor Joseph C. Tulman, to come to an agreement as to what would be

expected of the embedded librarian and the clinic. We established that co-author Helen Frazer

would be listed in the syllabus of the course and the syllabus itself would include the requirement

that all clinic students meet with her regarding their individual research projects and be required

to turn in a research log. In addition, she would prepare materials for the clinic related to legal

research methods and techniques.125 During the semester she met with each student to provide

guidance in finding appropriate resources for the individual research projects.

        What has been learned from this experiment so far is that while individual research

consultations with clinic students are effective for addressing each student‟s needs in terms of

legal research skills, all the students needed more foundational training in advanced legal

research skills. The interviews revealed that while most students know how to perform some

kinds of research such as finding statutes and caselaw, showing that they have achieved the skill

the MacCrate Report labeled as “[k]nowledge of the nature of legal rules and institutions,”126 the

concept of an overall research process127 still seems ambiguous and amorphous to them. In other

words, what they learned from the first year legal research education remains a series of separate

research steps and they need assistance in constructing a research plan to achieve the skill the

125
    See, e.g., Research Log Guide, Sample Research Log, and Research Plan Guide by Helen
Frazer, Spring 2010, to be published on the UDC-DCSL Mason Library website.
126
    See supra note 10.
127
    See the diagram of a Research Process from the 2008 AALL-RIPS National Legal
ResearchTeach-in documents, at
http://www.aallnet.org/sis/ripssis/TeachIn/2008/GotschallResearchProcess.pdf. The concept of a research
process is articulated in the “Surface Structure” and “Deep Structure” process of the Boulder
Statement on Legal Research Education: Signature Pedagogy Statement, supra note 14.


                                                                                                          40
MacCrate Report calls “[u]nderstanding of the process of devising and implementing a coherent

and effective research design.”128 Similarly, although they knew about keeping a research log or

diary, almost all the students needed help in creating them to document effectively their research,

results. In sum, these students appear to have attained the formalist stage of legal research of

reasoning from precedent. This is insufficient for the challenge of this particular clinic, however.

In other words, they needed to learn to apply higher order thinking at the state that Callister

defines as Synthesis – moving “beyond the parts of the problem and look[ing] for relationships

to other issues, resources, alternative scenarios for analysis, and possible options as solutions.”129

          While teaching advanced legal research in what amounts to individual tutorials is

effective in the clinic setting, this experiment shows that there is still a need for some formal

research instruction before the individual consultations begin, primarily to bring all the students

up to speed regarding the legal reasoning and research process, and instruction in the different

applications for legal reasoning from precedent, from analogy, and for social justice. Thus, in

preparing for next semester‟s clinic, when second year students take their first clinic, the clinic

instructors and librarian have decided to offer a research workshop at the beginning of the

semester. This instruction will include a review of how to begin research in a totally unfamiliar

area of law and develop a research plan, how to conduct research efficiently in regards to time

and cost (these students are billing their hours), and an in-library research exercise in some law

relevant to the clinic subject matter. Thereafter, individual research tutorials will continue to

meet students at their point of need for advanced legal research instruction. And much of this

instruction will additionally include the special legal research resources and skills pertinent to the

subject matter of the clinic, including the professional and ethical duties of competence,

128
      See supra note 10.
129
      Callister, supra note 27, at 208.


                                                                                                      41
diligence, candor towards the tribunal, and truthfulness in statements to others; and the

procedural rules requiring citations to supporting law.130 The subject matter and professional

duty instruction will be reiterated in a webpage, in development, for the clinic, designed as an

instructional portal.

        Overall, the embedding project has gone well in its first semester, and a second public

services librarian will be embedded, in the spring of 2011, in the Community Development

Clinic. This clinic will also offer an instructional workshop in legal research at the beginning of

the semester, followed by individual tutorial sessions with the clinic‟s embedded librarian.

Additionally, a third public services librarian will follow a similar embedding process, beginning

with a research workshop followed by individual tutorials, in a two credit seminar course, with

the emphasis on assisting students with academic legal writing for credit and possibly

publication.

        One advantage of teaching legal research in the clinic setting is that there is no need for

complicated planning of simulated legal research issues to facilitate learning the specialized

subject matter and legal research resources of the clinic. The clinic‟s legal research issues are all

130
    See the “Tacit Structure” defined by the Boulder Statement on Legal Research Education:
Signature Pedagogy Statement, supra note 14, stating that the “surface structure models values,
attitudes and norms of ethical professional behavior….” Attorneys also have explicit duties of
“legal knowledge, skill, thoroughness, and preparation” which includes the duty of competent
research. D.C. Rules of Prof‟l Conduct, Rule 1.1(a) (2010); Candor to Tribunal . . . A lawyer
shall not knowingly: (2) Make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by the lawyer [with one
exception],” id., Rule 3.3(a)(1); “3) Fail to disclose to the tribunal legal authority in the
controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be
dispositive of a question at issue and directly adverse to the position of the client,” id., Rule
3.3(a)(3); “[i]n the course of representing a client, a lawyer shall not knowingly; (a) Make a false
statement of material fact or law to a third person,” id., Rule 4.1. The Federal Rules of Civil
Procedure require that materials submitted to the court be supported by existing law or a good
faith argument for the extension, modification or reversal of existing law. Fed. R. Civ. Pr. 11.
The Federal Rules of Appellate Procedure similarly require supporting citations to law. Fed. R.
App. P. 28.


                                                                                                      42
real and a given. Each student‟s separate research project assignment has intrinsic learning

motivation simply because the problems and clients are real, and the research products will be

used to solve actual problems and, ideally, provide relief and justice for clients of the clinic.


IV. Conclusion

       This paper has addressed the problem of law school graduates‟ inadequate training in the

lawyering skill of legal research by examining the literature on the pedagogy of legal research

instruction and the methods used to teach legal research generally. It has examined the

recommendations for improving legal research instruction set forth in the 2009 Boulder

Statement on Legal Research Education,131 the 2010 Boulder Statement on Legal Research

Education: Signature Pedagogy,132 and also those Educating Lawyers133 on legal education.

Finally, it discusses the experiment begun in the fall of 2010 at the University of the District of

Columbia David A. Clarke School of Law of embedding law librarians in the school‟s clinics. It

concludes that the embedded librarian project successfully provides an avenue for achieving the

recommendations of the Educating Lawyers and the Boulder Statements on Legal Research

Education.




131
    Supra note 14.
132
    Id.
133
    Supra note 4.


                                                                                                      43

				
DOCUMENT INFO