Many people both inside and outside
the profession have long criticized law
schools for failing to teach law students how
to practice. The charge gained momentum
in the 1970s when Chief Justice Warren
Burger declared that law schools had
generally failed to train lawyers how to
practice. The criticism received added
power in the early 1990s when the
American Bar Association issued the
McCrate report, which severely criticized
law schools and challenged them to focus
more attention on training lawyers in
practical skills.
On the whole, few observers of modern
legal education will find much to disagree
with, nor will many find fault with, the
authors’ suggested remedies to fix it. The
criticisms are that modern legal education
places too much emphasis on teaching
students legal analysis and not enough
on teaching skills, defined in the study
generally as “writing, negotiating, and
counseling.”
The authors also take legal academia
to task for its testing methods, which
frequently involve a single test at the end
of a semester or year-long course, with
no feedback along the way. The authors
argue that the present system reinforces
scholasticism devoid of practical skills.
In a profession that deals with people’s
legal issues on a daily basis, it is absurd that
a law student can graduate from law school
without once practicing to solve a real or
simulated legal problem or without once
practicing interaction with a real or
simulated client. The study uses modern
medical education as a model of what
professional education should be.
Thus, the book proposes a new model
of legal education that integrates the
teaching of lawyering skills, moral ethical
training, and analysis. The proposal is hard
to argue with, and the book presents it
in highly readable, even enjoyable, prose.
But as a law librarian, I was curious
what the authors had to say about the state
of legal research instruction in modern
legal academe. Surprisingly (but perhaps
not), legal research instruction gets almost
no mention anywhere in the book. There
is not a single reference to legal research
in the index. Legal research is rarely
mentioned as a lawyering skill. This got
me thinking about why this might be.
The Evolution of Legal Research
A careful reading of the book reveals an
important insight into why legal research
is not an important part of the dialog.
On page six, the authors describe the
history of legal education and state that,
“Students taught from Langdell’s case books
were being introduced by their professors
to legal research, much as a laboratory or
seminar professor in the arts and sciences
of those days would have led students
to grasp the principles organizing the
particular domain.” The impression here
is that the simple act of reading cases and
analyzing them imparts legal research skills.
My first reaction to this assessment of
legal research training was defensive. But
after reflecting, I think that there is some
truth to the observation above and an
important lesson that law librarians involved
in the training of lawyers should take very
seriously.
First, when Langdell developed his
casebook method of teaching, there
was really very little in the way of legal
bibliography. In the mid-1870s, among
other things that today’s legal researchers
take for granted, there were very few
reporters of record; the National Reporter
System wasn’t developed yet; there were no
official sources at all to federal case law; few
law reviews were extant; the US Code was
only a desperate dream; and the Code of
Federal Regulations wasn’t even a dream yet.
Perhaps, reading cases and treatises really
did effectively teach law students nearly
everything they needed to know about
research.
The late 19th and early 20th centuries
saw the industrialization of legal publishing:
the development of the National Reporter
System, Shepard’s Citations, the explosion
of New Deal policies and regulation, the
eventual rise of administrative law, and
ultimately the passage of the Administrative
Procedures Act all contributed to a climate
of prolific publication of legal materials of
all types—primary, secondary, and scholarly.
In the face of these developments the
process of legal research moved from being
simply finding and reading cases and
treatises to knowing where to read about
what and when