Margolis, E; Murray, K E --- "Say goodbye to the books: information literacy as the new legal research paradigm" [2013] LegEdDig 11; (2013) 21(1) Legal Education Digest 40

• Say goodbye to the books: information literacy as the new legal research paradigm

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Say goodbye to the books: information literacy as the new legal research paradigm

E Margolis and K E Murray

Temple University Legal Studies Research Paper Series, Research Paper No. 2012-34, 2012, pp 1-59

The ever-changing nature of technology has had a profound effect on legal information and resources. Lawyers have more access to more information than ever before, and are finding new ways to find and use that information. Many law libraries are shrinking their expensive print collections in lieu of more cost-effective electronic technologies. The advent of free electronic legal databases such as Google Scholar, as well as the new WestlawNext, LexisAdvance and Bloomberg Law, have made conducting legal research online easier than ever. In combination with the decrease in print sources, the ease of electronic research makes it not only more efficient, but obligatory to conduct legal research online.

Legal research is no longer just about how to access materials in all of the various print and electronic sources. The changes wrought by technology have replaced access to multiple sources with a single one – the search box. And, unless specific steps are taken in advance, the results of the search are likely to include a larger number of materials – primary and secondary, relevant and irrelevant, useful and not useful. Legal research has shifted from a focus on how to find materials to careful evaluation of the wealth of information each search yields.

In this research environment, ‘information literacy’ provides a new paradigm for legal research pedagogy. ‘Information literacy’ is the ‘ability to identify what information is needed, understand how the information is organized, identify the best sources of information for a given need, locate those sources, evaluate the sources critically, and share that information’.

Law schools are just beginning to figure out how to incorporate information literacy into the legal research classroom.

An important piece of the ‘information literacy’ puzzle is understanding what skills and knowledge students bring to the table when learning legal research. The generation of students currently in law schools has grown up on the internet. They are called ‘Digital Natives,’ or ‘the Google generation.’ Many assumptions have been made about the research skills of these students, ranging from thinking that, since they are so conversant in technology, they must naturally know how to find and evaluate sources to assuming that because they have not learned research in an organised and disciplined way, that they lack any skills at all.

Information literacy provides both a framework for thinking about research, as well as a way to identify competencies and assess student learning to make sure that students are developing the skills they will need for law practice.

Information literacy has really come to the fore in the last decade, since the Association of College and Research Libraries (ACRL) formally adopted a definition and set of competency standards for information literacy. The ACRL defines information literacy as ‘the set of skills needed to find, retrieve, analyze, and use information’. An individual who is information literate has the skills to adapt to changes in the research environment and retain the ability of lifelong learning. The ACRL assessment rubric is designed to apply to higher education at all levels, and to serve as both an assessment method and a tool for teachers to shape their pedagogy.

The ACRL developed five primary competencies for assessing information literacy. They are as follows: (1) Know: ‘The information literate student determines the nature and extent of information needed’; (2) Access: ‘The information literate student accesses needed information effectively and efficiently’; (3) Evaluate: ‘The information literate student evaluates information and its sources critically and incorporates selected information into his or her knowledge base and value system’; (4) Use: ‘The information literate student, individually or as a member of a group, uses information effectively to accomplish a specific purpose’; and (5) Ethical/Legal: ‘The information literate student understands many of the economic, social and legal issues surrounding the use of information and accesses and uses information ethically and legally’.

Within each of these five standards are 22 performance indicators. The performance indicators provide a concrete description of the skills needed to achieve competence. The performance indicators identify specifically what the student should learn. Each performance indicator contains a set of learning outcomes, which provide specific means of assessing whether the student has learned.

While the ACRL has not adopted information literacy standards for legal research, they have obvious application in that context. However, because legal research is specialised, it is important to give careful consideration to how to implement information literacy principles in a law school context.

While there have been increasing calls for considering information literacy in a legal research context, no legal research textbooks explicitly use an information literacy framework, and legal research courses have been slow to make use of information literacy principles. Law librarians have devoted a little more attention to information literacy, and in 2009-2010, the Joint Special Interest Section Committee on the Articulation of Law Student Literacy Standards drafted the Law Student Literacy Standards. These standards were never adopted, but were sent to the Law Student Research Competency Standards Task Force of the American Association of Law Librarians for further development. This group developed the Law Student Research Competency and Information Literacy Principles, which were approved by the executive board of the American Association of Law Librarians in March, 2011.

The principles are modelled on the ACRL standards, but they are more explicitly tied to the process of legal problem solving and analysis. One of their purposes is to serve as a basis for law school curriculum development and design, and they provided a good starting point for a discussion of how to use information literacy as a framework for teaching legal research.

Like the ACRL Standards, the law student principles identify five primary competencies, each further defined with particular skills. The five principles are that students (1) possess fundamental research skills; (2) implement effective, efficient research strategies; (3)critically evaluate legal and non-legal information; (4) apply information effectively to resolve a specific issue or need; and (5) distinguish between ethical and unethical uses of information and understand the legal issues arising from discovery and use of information. The first three of the principles are most closely related to the material generally covered in legal research courses. The final two, which involve the application of information and its ethical and legal uses, are more typically covered in instruction related to the writing, rather than research, process.

An important part of incorporating information literacy into the legal research curriculum involves taking into account the information literacy skills incoming law students are (or are not) bringing to the table. The literature is full of commentary on the skills and abilities of the millennial generation. Much of that commentary is negative, articulating the worry that, while today’s students have grown up using computers, they have not learned with sufficient rigor the skills necessary for complex and in-depth research projects.

These concerns are not entirely unfounded. Common concerns about today’s college researchers include inefficiency, problems distinguishing among sources, preference for easy access to sources, ‘satisficing’ (or doing just enough research to get by), and overconfidence in their research and writing abilities.

While the information literacy skills of college students have been studied extensively, there have been relatively few studies of those college graduates matriculating to law school. In the only published study, in 2006, incoming law students at seven different law schools were asked about their reading, writing and research habits. The study showed that incoming law students read more than the national average and tend to overestimate their research and writing skills.

None of the existing surveys focus explicitly on the information literacy skills of incoming law students. The online environment has changed so rapidly that a snapshot of the current generation entering law school will be useful for understanding how to tailor a legal research program based on an information literacy framework. To this end, we developed and conducted a survey of students entering law school in the fall of 2011.

The survey data was collected in August and September 2011. We sought to survey a population that included both public and private schools, schools with both large and small incoming classes, and schools that were diverse with respect to geography and the academic profiles of their incoming classes. The incoming classes of 12 law schools took part in the survey. The survey was administered with the permission of the Institutional Review Boards of all the participating schools. Survey participants were recruited through an email containing a URL link to the survey. The survey was administered using SurveyMonkey, an online data collection tool.

The survey instrument was designed to elicit information regarding students’ research training, experience, and general research practices. It contained 29 questions, and took approximately 25 minutes to complete.

Ultimately, 712 students participated in the survey. The survey respondents were 54.2 per cent female and 45.8 per cent male.

The majority of the respondents were age 25 or younger – 71.5 per cent of the total survey participants fell into this group. Their year of college graduation dates ranged from 1981 to 2012. The respondents attended 308 different colleges and universities for their undergraduate degrees. They represented more than 100 different undergraduate fields of study; 162 of the respondents began law school after earning an advanced degree in another field.

Information literacy as an assessment tool is easy to both conceptualise and implement. What is difficult is making the transition to using information literacy as a foundation for rethinking the way research instruction is delivered in law schools. This new paradigm requires those who teach legal research to let go of the process-based, bibliographic method of legal research instruction and start to conceive of the teaching of legal research as an expansion of law students’ baseline information literacy. The survey provides useful information for all the stages of this transition.

First, the survey establishes a baseline of the information literacy levels of incoming law students that includes a mixed bag of results. Overall, the survey shows results that are consistent with studies of the general undergraduate population, with indicators of both high and low points of information literacy. For example, almost 30 per cent of the respondents noted that they had no formal research training before coming to law school. Many respondents also indicated that, at least sometimes, convenience would play a role in their research choices. However, there are also a fair number of results that are promising, as the respondents claimed to have experience, proficiency, and high comfort levels with a wide variety of types of sources. These core research skills set the table for a transition from general information literacy to legal information literacy.

Furthermore, some of the results that might be seen as negative in the undergraduate research context might actually be seen as a positive in the context of legal research. For example, broadly speaking, the survey results suggest that respondents have a certain amount of confidence in their own research abilities. This is consistent with general information literacy research, which suggests that students’ confidence in their own research abilities has risen even as core skills have declined.

However, a little confidence might not be a bad thing when it comes to legal research. Lack of confidence leads to many issues identified by legal writing professors teaching first-year law students. These include worry about finding the ‘right’ answer, spending too much time researching (particularly for the ‘one’ case that they believe will answer the legal question at hand), and not knowing when (or feeling confident that) their research is complete.

Second, the baseline information contained in the survey also shows that students are ready to move past traditional research instruction. Generally speaking, the survey respondents demonstrated comfort with general online search materials, less comfort with traditional print materials, and even less comfort with specialised materials both online and in print. The respondents also seemed less familiar and/or comfortable with a process-based research approach, and tended to eschew the idea of using a research plan or journal.

Taken together, these results indicate that today’s researchers arrive at law school with basic familiarity with – and a preference for searching with – search engines, development of key words and search terms, and are used to culling through online search results. And they want to begin their research by doing, not planning. This type of searching is possible with today’s legal research technology; what these students need is guidance to sharpen their research skills in the legal context.

Third, and finally, the survey provides opportunities to see where traditional information literacy and legal information literacy require different approaches. No college graduate will arrive at a graduate or professional school with full information literacy in the discipline she plans to study. Part of the experience of advanced higher education will necessarily include an introduction to discipline specific concepts, norms, and competencies. Thus, irrespective of new law students’ baseline levels of general information literacy, they also need to learn legal information literacy.

For example, question 27 of the survey asked students when they deemed their research to be complete. By far, the majority of respondents chose what in a traditional research environment would be an acceptable answer: 64.7 per cent of them indicated that they sought to find enough material to allow them to competently discuss their topic. However, the best answer in the legal research context is the one that only 10.2 per cent of students chose: when you start seeing the same source over and over again. This is knowledge that students must acquire in law school, and we would not expect even those students who have high levels of general information literacy to know this at the start of the first year.

Students arrive at law school with certain research competencies, confidences, and practices. Irrespective of these, we must introduce them to the legal research world, which overlaps only partly with the types and nature of research they have done before. The remaining question is how we can leverage their existing knowledge to develop high levels of legal information literacy.

The first step in the transition to the information literacy paradigm requires teachers of legal research to let go of the old paradigm and embrace the idea of legal research as fluid and non-linear instead of the result of a prescribed, multi-step process.

This first step – moving away from the traditional method of teaching bibliographic research through a multi-step process – will be difficult. It has been the status quo for many years, and its components are well-established and fit neatly together.

The traditional approach to legal research, because of its focus on finding, does not teach students how to discern and evaluate different types of sources until late in the process. New legal researchers are going to get their hands on primary legal authority without any idea of how to evaluate the source. We need to teach students how to be discerning without relying on the bibliographic model as a way of reaching them.

The second step in this process is developing a method of legal research instruction built upon the idea of legal information literacy. The anchoring principle here is that we no longer need to teach about ‘finding’ the law.

Our goal, then, is to allow our students to jump into researching and then to teach them about analysis and evaluation of those results and how to ask questions that will let them filter through resources. These skills are precisely what information literacy is designed for. By providing students with a deeper level of information literacy, we will equip them with skills that are easily transferable as research technology continues to develop and change.

What teaching analysis and evaluation looks like depends on the level of information literacy the students already possess. It might come in the form of a series of questions: ‘What did I find? Is it law or something else? If it is law, is it law I need to answer my research question? If it is not law, is it a source I can trust?’ Similar concepts could be laid out in a research flowchart or diagram.

In the classroom, the transition to a paradigm based on information literacy must be marked by an increased focus on process and hands-on research. For example, one common method of introducing students to legal sources and the legal research process involves lecture-based instruction about mandatory and persuasive authority and primary and secondary sources, followed by a structured research assignment with questions designed to expose students to the basic bibliographic sources required for the assignment. The ensuing discussion would then involve an analysis of their research results that includes categorisation and evaluation of the different types of sources they found, as well as a review of their search techniques and evaluation of various resources.

This is only one example of the many ways that information literacy principles can and should be implemented in the classroom.

The next wave of legal research instruction requires several actions on the part of those who teach it. First, we must embrace the abstract idea that our goal is not to teach about the steps of the research process or the identification of certain specific sources, but is to increase the legal information literacy of our students. This change may be daunting and overwhelming but is necessary and will provide us with a more fluid, transferable approach that incoming law students are ready to embrace.

Today’s students need less instruction in how to find the law and more instruction in assessing and evaluating the sources they find. Because finding is no longer an issue, there is no ‘right’ process that all researchers should follow. Instead, we should take what we know – that legal research technology is ever-changing, that students arrive at law school with a wide range of research practices and habits, and that today’s researchers will have little trouble finding legal information – and begin to develop methods of research instruction that result in an increased level of legal information literacy, no matter the students’ starting points.