Analysis in Legal Research
But analysis is inherent to the legal research process. Using the 4-step legal research process to find relevant information requires that the researcher has the ability to analyze the law to select the material that will aid in their arguments.
Legal research is inevitably a back-and-forth process. The researcher starts with secondary sources to get a better understanding of the cause of action. The researcher moves onto the codified law to understand what needs to be analyzed in light of the facts of the case. The researcher then continues with binding and persuasive precedent to craft arguments by comparing facts and analogizing or distinguishing from case precedent.
A researcher cannot begin to know what types of binding and persuasive precedent to find without analysis. And this analysis must be part of the discussion in any legal research course.
Many legal research courses teach the mechanics of finding certain types of content without focusing on the analysis that works to bridge the "knowledge in action gap." This means that the research becomes disconnected from the analysis while in law school, but it is very much connected in practice. And practicing lawyers are left to bridge this gap themselves when they should be prepared, instead, to hit the ground running.
The creative analysis that is required during competent legal research also means that legal research will be difficult to automate. Sure, some types of legal research could be automated for efficiency. But when it comes to searching case precedent to make creative legal arguments for clients, a machine is just not capable of that level of deep thinking.
As law librarians design courses for AY2017-18, please keep the very important analysis portion in mind. To that end, see a previous post on selecting a case to cite.
Not for nothing, but the AALL principles and standards for legal research competency focus upon analyzing search results and applying these to the research question at hand. They are also focused upon the iterative process of research. You might find this document of some modest use.
ReplyDeleteAllow me to play devil's advocate for a moment. Those principles and standards are great principles and standards, but they don't give us examples of how such analysis has been done or guidelines on how to do it. Perhaps you will say, "But we do it all the time! We already know how to perform these analyses." I counter, "No we do not do it all the time. As Ms. Baker said we don't teach it and I add that when we do research for faculty, we skip the analysis part. We appear to intuit instantly what the right sources are and in the right order." "Now," you say, "It's not that we skip the analysis and intuit the right answer; we do the analysis unconsciously and instantly." "Yes, I think we can agree on that! But I'd really like to see how other people do it without just showing how a description of a tool and a description of a cause of action have similar characteristics." Hmm. I'll have to think about that one.
ReplyDeleteI saw this on the Legal Writing Prof's Listerv:
ReplyDeleteI think that the legal writing course is exactly the right place to teach reasoning, and -- as Ed says -- perhaps to make the instruction more explicit than in other first-year courses. That's why I like course names such as Legal Analysis and Writing or Legal Method and Writing. In response to Ben's post, my book on legal method and writing (soon to be co-authored by Kim Holst) explicitly addresses deductive and analogical reasoning and how the two can work together in a legal analysis. I'm guessing just about everyone teaches such things (e.g., generalizing from several specific precedents to construct a general rule, which then forms the major premise in a syllogism, although the fact analysis still requires the exercise of distinction and analogy to argue or predict whether the case at hand satisfies the rule), although not all using the same terminology. -- Professor Charles Calleros
We should be explicitly teaching this analysis in our legal research courses, too.