Wardell, K --- "From caveman to casebase: the evolution of legal research through the technological age" [2011] LegEdDig 25; (2011) 19(2) Legal Education Digest 30

• From caveman to casebase: the evolution of legal research through the technological age

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From caveman to casebase: the evolution of legal research through the technological age

K Wardell

Australian Law Librarian, Vol 18, No 1, 2010, pp 10-23

For many years legal researchers relied on the legal context printed on the pages of case reports, indexes and digests, however as the volumes of print legal materials increased, so did the burden of locating the relevant rule of law.

The problem of dealing with an unwieldy collection of legal tomes was particularly noted in the early 1960s by the legal profession in the United States. As a result, the concept of using computers to manage the information was raised in a number of forums. In the beginning, no substantial advancements were made, but after Professor John Horty’s work at the University of Pittsburgh converting statutes to machine readable form became widely known, the feasibility of such a concept was finally realised. His work with the KWIC (Key Words in Combination) search system and text retrieval methods led to the development in 1963 of the US Air Force computerised legal information program FLITE (Federal Legal Information Through Electronics). This database was almost certainly the largest collection of machine readable legal sources in existence at the time.

Following on from the development of the FLITE system, the Ohio State Bar Association in the late 1960s developed and tested a commercial CALR (Computer Assisted Legal Research) system, which was further developed by Mead Data Central in the 1970s. At the beginning of 1973, the redesigned and rebranded full text computer retrieval system, now known as Lexis, was released to the world. Soon after, in 1975, West Publishing launched their online legal research system Westlaw. Initially, it was not full text, but with further development and redesign it was to become a strong competitor of the Lexis system, and for decades these legal publishing giants dominated the online legal research landscape.

As with the rest of the world, the rapid growth in the amount of legal materials being published became an encumbrance on the legal profession in Australia. They responded to this by turning to advancements in information technology to provide ‘the panacea to the problem of the flood of legal material’.

The evolution in the provision of online sources for legal research in Australia started in the 1970s, with the development of limited free access to legal resources via SCALE (Statutes and Cases Automated Legal Enquiry), the Attorney General’s system, which used STATUS retrieval software. SCALE included Commonwealth cases and statutes and a collection of negligence cases. Its use was limited to government lawyers. The SCALE database later developed into SCALEplus, and this is now gradually being replaced by the ComLaw database which provides free access to the full content of Commonwealth legislative instruments.

In the early 1980s, there was a move to the commercialisation of legal materials when Australian states (excluding Queensland) distributed their case law and legislation through the CLIRS (Computerised Legal Information Research System). This system gradually morphed into Info-One and within a decade the product had been sold to Butterworths and much of the content was later migrated to its online platform. It should be noted that a significant development in this decade was the launch of the Lexis database onto the Australian market in 1985. Australian legal researchers were offered access to United States, United Kingdom, New Zealand and European law. However, because of copyright issues, Australian content was not included until the mid 1990s.

In 1990, Computer Law Services was the first to release a significant commercial CD-ROM product containing Commonwealth legislation. Many of the key legal publishing companies in Australia, who had been well positioned in the print market, then started to migrate their products onto the new CD-ROM technology which utilised the revolutionary hypertext system. CD-ROMs were commercially very successful until the late 1990s when advances in the World Wide Web allowed the publishers to provide online access to their publications.

Since the mid 1990s, there has also been a strong move to unlimited free web access to legal materials across the globe with the development of legal information institutes such as AustLII, which saw its debut onto the legal research scene in July 1995. The Cornell Law

School LII, which had already launched its website in 1992, could probably be considered to have been the first site of its kind on the Web.

Developments in the commercial sector over the first decade of the New Millennium have also resulted in substantial changes to the provision of legal research resources as more print content continues to be migrated to online format. Some of the resources are simply electronic versions of the print content, such as the Law Journal Library provided by HeinOnline from mid-2000, but others have been transmuted into new products.

Many of the long established Australian legal publishers of print and online legal materials have been absorbed into global companies so that, fundamentally, competition in the legal publishing marketplace has been reduced to three major players: LexisNexis (Elsevier), Westlaw (Thomson) and CCH (Wolters Kluwer). The changes that are brought about by such a marketplace will have an ongoing impact on the very nature of legal research.

The most significant impact of the technological age arose around half a century ago with the creation of the communication medium ‘the screen’, and the subsequent transformation of society from a printed-text to a hypertext culture. Over a relatively short period of time, the nature of legal information experienced a parallel transformation, and ‘[t]he abundance of information available online and the speeds with which it appears has changed the face of legal research’. This transformation has resulted in a distinct paradigm shift in legal research from the traditional hierarchy of the print digest system, to the new world of online legal resources and computer assisted legal research.

Foster observes that the fast access to online information has been a significant benefit as:

[w]here the attorney once walked from digest to reporter volume to reporter volume to Shepard’s, and carried on research surrounded by a pile of books, she can now sit at the computer and gain access to databases larger than most law libraries.

Access to these online legal resources has particularly benefited legal practitioners as they are now able to view court decisions very soon after they have been handed down.

Researchers now have access to the full text content of case law, legislation and secondary legal materials from jurisdictions all over the world, either through subscriptions to huge commercial databases such as LEXIS, or from sites freely available on the Web. However, as with any transformation in a society, there will be benefits from the changes and conversely, issues of concern. One of these is the issue of the authority of legal information available to legal research practitioners and educators in the digital world.

Where once researchers were able to assume accuracy and authenticity through the exclusive use of the official published print sources, powerful web search engines like Google have blurred the boundaries and now they must establish or verify the authority of the information they find in cyberspace. Therefore, as the world of legal information becomes more digitised, it is critical that legal researchers in the 21^st Century have acquired the skills to not only effectively search for relevant legal information, but to also evaluate both the content and sources of information available.

Law librarians are particularly well placed to teach the required legal research skills in the new technological environment. Due to the rapid evolution of online legal publishing, they have been the leaders in embracing technological change for some time. They are required to not only keep abreast of these technologies, but must also learn new ways of engaging with their legal research students and accommodating the information needs and learning behaviours of these students.

The place of technology in an academic environment is becoming increasingly important and many universities are utilising web-based or emerging technologies to enhance student learning. Law students are one of the many groups engaging with these technologies and there has been some discussion in the legal education literature regarding the use of emerging technologies in the academic setting.

These technologies primarily consist of what is known as ‘second-generation Web’ or social software tools, but also include teaching or eLearning programs. The use of such technologies can potentially fill the gaps left by the more traditional models of education, which had been ‘dominated by texts and lectures [and] traditional didactic or transmission approaches to teaching and learning’. Current literature indicates that with the rapid development in online distance education, there has been a paradigm shift in pedagogical approaches with greater emphasis on student-centred learning. Opportunities and challenges have arisen for educators to utilise these emerging technologies to create an interactive and collaborative learning environment for 21^st Century students entering universities and law schools.

Students attending academic institutions in the new century, and who belong primarily to Generation Y and to a smaller extent Generation X, are demanding more control of their learning experiences. There is a plethora of literature regarding the specific characteristics of these generations with a common thread indicating that 21^st Century students are culturally diverse, like to work collaboratively, are comfortable with new technologies and primarily use the Web for their research.

Students, regardless of their generational profiles, will also bring to their academic lives a diverse range of learning experiences and educational backgrounds. Each of these students will have an individual learning style, which will influence their engagement with the online educational experience.

It is therefore critical that educators are aware of different learning styles so that they can design the most effective learning experience for the students. An examination of learning styles is also particularly important to academic law librarians, as they are one of the key stakeholders in helping students to prepare for their future legal careers.

There is a vast range of educational research on students’ learning styles. Much of this research focuses on analysing the styles according to the learners’ methods of absorbing information through their visual, auditory and tactile or kinaesthetic senses, and how the learners process this information. Murley and Newman note that students and their learning styles fall into the following three main categories: Visual learners who need to learn about a concept holistically rather than in parts and prefer to learn with diagrams, pictures, graphics and models, Auditory learners who are analytical and abstract thinkers and would rather receive their information orally in individual parts which they then join to get the whole concept, and Tactile or kinaesthetic learners who need to have physical interaction and movement and they learn by doing and being actively engaged in a task.

To address the diversity of students, a number of authors believe that the task of providing appropriate and flexible learning experiences for all student cohorts can be made easier if educators develop blended teaching and delivery models. Blended models of teaching and learning are noted as being effective in engaging these students and providing them with opportunities to ‘deepen their learning’.

There is much debate as to the authoritative definition of blended learning. Graham, in his working definition of blended learning systems, states that blended learning occurs when educators ‘combine face-to-face instruction with computer-mediated instruction’. Universities in Australia, particularly those with distance education programs, are moving towards blended or converged models of teaching and learning, and are utilising new and emerging technologies to accommodate diverse learning styles and engage students in a range of learning experiences. The importance of these technologies has been recognised by a number of these universities, including Southern Cross University and its School of Law & Justice.

Southern Cross University is a regional, multi-campus institution with a range of undergraduate law programs offered in internal and distance education modes. To effectively provide flexible and quality learning experiences to students enrolled in these programs, the School of Law & Justice is working towards the development of a blended or converged model for the delivery of some of its units. This initiative is part of the Converged Delivery Project currently being implemented at Southern Cross University.

One of the pilot units chosen for the project is Legal Research & Writing. This unit is a core foundational first year unit offered across all of the Law School’s undergraduate programs and covers two important skills in legal studies and legal work: research and writing. The unit is offered in both on-campus and distance modes, and has a diverse student cohort from various backgrounds and demographics including young adult school leavers, graduates of other disciplines, a variety of adult learners and employed professionals.

Interaction with the cohort of distance students has been mostly two dimensional via access to unit materials and a study guide on Blackboard (and on CD), podcasts of lectures posted to the learning site and an asynchronous discussion board. Face to face interaction has been via attendance at two non-compulsory workshops and recently the synchronous virtual classroom system Elluminate has been utilised to engage with these distance learners. Internal students interact in the traditional lecture and tutorial format and also have access to the resources on the unit’s learning site.

The Converged Delivery Project will provide an opportunity for the Legal Research & Writing unit assessor to develop strategies to improve the pedagogical framework of the unit.

A particular focus of this project will be on the use of digital technology to support the development of blended learning experiences for both internal and distance education students. The use of technologies can assist in improving student engagement, provide greater flexibility to cater for the diversity of students’ learning experiences and backgrounds, and to promote self-directed learning.

The proposal for the development of the converged delivery unit incorporates a number of eLearning and emerging technologies to facilitate learning and will include: the development of a self-directed interactive study guide, further development of the use of the Blackboard course management system (including the use of podcasts, wiki technology and chat services), integration of the use of the virtual classroom software Elluminate into the core program, development of a series of digital modules to engage students in learning core legal research and writing skills, and the creation of self-testing exercises and pathways to cater for diverse student capabilities.

Support and resources for the development of the unit will be provided by a range of teaching and learning services, and will include involvement of the Law Librarian in the creation of digital learning objects for the unit.

It is undisputed that the foundational heart of legal research can be found in the established structure of the printed text. However, as more and more legal materials were published, the traditional method of using print volumes of primary and secondary materials to locate relevant legal principles became a burden on the legal researcher. The answer to the problem was found in the advances being made with computer technology and the development of computer assisted legal research systems.

The evolution of print legal information to online formats, and the subsequent impact on legal communities, has been noted extensively in the literature and with much discussion on this shift in the legal paradigm. With the transformation of legal materials and developments in new technologies, there is a need to examine the current pedagogical approaches to teaching legal research in an academic setting.

The utilisation of a range of emerging and eLearning technologies has been especially noted in the paper as ‘[e]lectronic technology should be integrated into the teaching of 21^st Century law students to better connect with students who are the product of a learning revolution and to enhance their learning experience’. Law librarians are an integral part of this connection with students and are great advocates for the use of these technologies in an academic setting.

It is important that they continue to be involved with the development of new pedagogical approaches to the teaching of legal research to ensure that students are adequately prepared for their future roles in the professional legal community.