Cappa, C --- "A Model for the Integration of Legal Research into Australian Undergraduate Law Curricula" [2005] LegEdDig 44; (2005) 14(1) Legal Education Digest 15

A Model for the Integration of Legal Research into Australian Undergraduate Law Curricula

C Cappa

[2005] LegEdDig 44; (2005) 14(1) Legal Education Digest 15

14 Legal Educ Rev 2, 2004, pp 43–62

The marginalisation of the teaching and learning of legal research in the Australian law school curriculum is, in the author’s experience, a condition common to many law schools. Rather than analyse the reasons for this marginalisation, this article deals with what needs to be done to rectify the situation, and to ensure that the teaching of legal research can be integrated into the law school curriculum in a meaningful way. The adoption of legal research as an integral part of the Australian law school curriculum is outlined through the use of a normative model. The proposed model incorporates five transparent stages, each of which is interdependent with each of the others, but each of which is important in its own right. The five stages can be summarised as: analysis; contextualisation; bibliographic skills; interpretation and assessment; and application.

Over the course of the research conducted into this area, it became obvious that one of the greatest causes of the lack of understanding about the appropriate role for legal research is ambiguity in the terminology of this area of knowledge. There are at least three identified categories of legal research. The first can be characterised as ‘client-centred’ or doctrinal research in that it is the type of research that underlies an attempt to formulate an answer to a specific legal question by applying legal doctrine to a factual situation. The second type of legal research is reform-orientated research. The third type of legal research is scholarly research.

The major reason for the misconception about the importance of legal research in the law school curriculum is that many course planners adopt a constrained approach, believing that the more narrow definition of legal research, often termed bibliographic instruction, or library-based research, is all that is involved in the legal research process. The acceptance of such a narrow definition of legal research may partly explain the difficulty faced by many course planners who, assuming that it is a one-dimensional concept, fail to afford the legal research process the attention that it deserves.

The first stage of the model involves analysis, which can be described as the process of formulating the problem from the facts that have been presented, and in light of the question being asked. This analysis of the situation, comprising factual analysis and characterisation of the facts presented, is an important initial step as often the analysis of the facts reveals that the situation is more complex than at first appears. Constructivist learning is based on students’ active participation in problem-solving and critical thinking regarding a learning activity that they find relevant and engaging.

In order to provide meaning and organisation to the facts of the situation which has been presented to the legal researcher, it will be necessary for him or her to construct the meaning by reference to his or her current knowledge and socio-legal context. This therefore falls neatly into the next stage, which encompasses contextualisation — that is, the placing of the legal facts and issues being worked with into context. However, contextualisation of a legal problem is not always as easy to achieve as would be thought. Traditionally, legal problem-solving has been approached from the view that it is only necessary to find out which rules to apply. In law school, legal problems are situated squarely within the paradigm of the ‘block’ of law currently being considered, and students are not encouraged to explore outside this paradigm for possible solutions or complications.

Understanding how the law operates in society, and how their practice of the law might affect it, are integral parts of a complete law school education. Contextualisation, as an interrelated part of legal research, also involves being aware of how the various aspects of the relevant law fit together, and being able to assess jurisdictional and statutory limitation issues.

The third, and arguably the most important, stage is bibliographic skills. This stage would commonly be recognised as the process of finding and ensuring the currency of the law which is relevant to the facts and issues in the problem being addressed by the researcher, and is variously referred to as doctrinal research or library-based research. The process of that part of the legal research continuum which is concerned with bibliographic instruction has changed to accommodate the efficiencies brought about by technological innovation, although the impact on the overall methodology has been minimal.

A crucial aspect of this third stage is an awareness of the range and interrelationship of the tools and resources available. There are basically two schools of thought about how best to introduce law students to the plethora of legal research materials available to them. The functional approach relies on introducing legal materials and their features in the order in which they are to be used in library-based research exercises. The bibliographic teaching approach relies on introducing the tools and their features in isolated units, pointing out the functions of the tools, the various methods for using them and the interrelationship of the resources for any future application.

The fourth stage is interpreting and assessing the results of the process so far. This is a crucial step in the legal research process, but one that is rarely emphasised in any of the practical literature. Too often the focus is on finding an answer, instead of finding the correct or best answer, and too often quantity is preferred over quality. This fourth stage is a complex step which relates in part to the process of contextualisation but which also has an extra unique dimension that relates to the nature of secondary legal resources.

The final step is application of the results of the research to the fact situation as presented. This step is nearly always mentioned in accepted legal research schemas, although in undergraduate research exercises this process of applying the findings to the problem is often overlooked in the task-orientated teaching that predominates in today’s law school environment. Reflection is also an important part of the final step in the research process. This results in a student who can understand the connections between the methods employed and the results achieved, and who can step back from the result and analyse what has taken place in terms of the learning experience.

It is necessary to consider all five elements of the proposed model as a continuum in the whole process, or as inextricably linked parts of a holistic process, in order to gain the full benefits of the proposed model. Although the research model is capable of being adopted and adapted to any research paradigm, in order for the research process to be fully functional within the law school environment, legal research needs to be incorporated as much as possible into the normal learning paradigms which the student is experiencing.

To co-ordinate the analysis of the five-stage model and the underlying pedagogical theory with the principle of integration of legal research into the law school curriculum requires a consideration of general subject-design issues. These issues include: the objectives of the whole program; the ideal sequencing which allows for the building-up of skills and knowledge over the years; the issue of alignment of assessment with the teaching objectives; and some suggested methods of instruction.

It is proposed that the best way to structure the presentation of legal research knowledge is by integration into the substantive law curriculum, which has the advantage of providing the scope for analysis, manipulation of information, and synthesis. The mechanics of the integration of legal research into the law school curriculum poses two challenges. The first challenge relates to the integration of problem-based instruction into the whole of the law school curriculum; so that students are exposed to ways of thinking and learning that encourage them to approach the problem-solving process from a holistic point of view. The second challenge confronting integration is more problematic, as it involves integrating a particular aspect of the problem-solving methodology, namely legal research, into the substantive law being taught. Therefore, although it is still argued in some circles that the role of a law school is to teach students the substance of the law for future use, it is also recognised that it is necessary for them to learn the skills of analysis and self-instruction.

The overall objective for the teaching of legal research in the undergraduate curriculum must accord with the broad educational purpose of the undergraduate law degree. Therefore, it could be argued that the general objective is that of developing critical thinking and problem-solving strategies within the broad educational goals of being able to think ‘sceptically, logically, analytically and creatively’.

The conclusion drawn is essentially that a change in the way legal research is approached in the undergraduate law school curriculum would be beneficial. An overhaul of the teaching methods used throughout the law school is an ambitious goal that challenges the inherent conservatism of much of the teaching profession. Researching the law cannot be a process that occurs separately from considering the law. The symbiosis between legal research and the legal principles involved is necessary for a complete and thorough legal research process. Therefore, the teaching and learning of legal research must be incorporated into the substantive law curriculum and the instructional design of the curriculum will need to reflect this necessity.