“Every day, critics of the American president decry his penchant for “false or misleading claims,” while he and his supporters fire back with accusations of “fake news.” It’s no wonder those of us who teach are worried more than ever about information literacy,” wrote David Gooblar in How to Teach Information Literacy in an Era of Lies, Chronicle of Higher Education (July 24, 2018). Gooblar believes that professors in every discipline should make teaching information literacy a priority. He provides ways to incorporate information literacy into various courses.

H/T Information Today. — Joe

From the abstract for Alexa Z. Chew’s Citation Literacy, 70 U. Ark. L. Rev. 869 (2018):

New lawyers and law students spend a lot of time worrying about legal citation. But most of that time is spent worrying about the wrong thing—formatting. The primary purpose of legal citation is to communicate information to the reader. Thus, legal citations are integral parts of the legal documents that lawyers read and write. But rather than viewing citation as communication, law students, and the new lawyers they become, tend to view it as a formatting sideshow dictated by the Bluebook or other citation style guides. This view is both inaccurate and counterproductive.

I argue that the reason for this detrimental and misplaced focus on citation form is because law schools do not teach what I call citation literacy: the ability to both read and write legal citations. Despite the pervasive presence of citations in judicial opinions, which first-year law students spend most of their time reading, pondering, and discussing, law schools teach students only how to write citations. This “write-first” approach to teaching citation deprives legal novices of opportunities to learn to make meaning from citations as readers. Were students able to understand as readers how legal citations operate as communication, the tedious task of writing legal citations would be grounded in an intrinsic purpose rather than a seemingly arbitrary style guide. As things stand now, students must be prodded to follow citation norms for extrinsic gains, which satisfies neither student nor professor.

The citation literacy pedagogy I propose would first teach law students to study the citations in the documents they read—the edited judicial opinions they find in casebooks, the unedited judicial opinions they read in legal writing courses, and sample memoranda or briefs. To teach students to make meaning from citations, citation should be introduced concurrently with foundational lessons in legal authority. Once students understand what citations mean, they can more easily write the citation forms set forth in citation style guides and adapt that knowledge to the heterogeneity of citation forms they will encounter in practice.

Recommended. — Joe

In The Complete Professional: How Our New Professional Ideals for Law Students Help Us in the Legal Research and Writing Classroom, 26 Perspectives: Teaching Legal Res. & Writing 14 (2017), Michele Bradley and Nancy Oliver explain how LRW courses benefit from the aboption and implementation of the University of Cincinnati College of Law’s The Complete Professional: Professional Ideals for Law Students because it provides a common language for the Cincinnati Law community tailored to the experience of law students. — Joe

In A-I is a G-O,  Dyane O’Leary offers her perspective on ROSS, an artificial intelligence legal research tool. Artificial intelligence is a hot button issue, and this article explores what these new platforms might offer and whether LRW professors should be teaching them. — Joe

The latest issue of “Perspectives: Teaching Legal Research and Writing” is out now. From the editor:

In this issue, our authors explore a variety of topics ranging from whether and how to introduce artificial intelligence tools into the LRW classroom, to teaching professional identity, avoiding missteps and insensitivity when using hypotheticals involving racial issues, and teaching persuasion through the use of popular movies. There’s something for everyone in an issue that reflects one of our most diverse group of topics yet.

The Editorial Board is now working on the next issue of Perspectives which will be published in the fall. Accordingly, we are looking for relatively short, highly readable articles (typically between 1,500 and 7,000 words and lightly footnoted) that address issues pertinent to the teaching of legal research and writing. Articles may focus on curricular design, instructional goals, teaching methods, assessments, and similar topics. We’re also seeking book reviews on publications (excluding textbooks) relevant to our audience. Your idea can be large or small, but if it provides a fresh and creative way to teach or learn about legal research or writing skills, we’d like to publish it. Perspectives gives you the opportunity to get published relatively quickly, add a publication credit to your resume and reach a large audience of more than 4,000 subscribers

The Editorial Board is also looking for micro essays — that is, 100 words or less — inspired by the prompt: “Will Artificial Intelligence (AI) change how or what we teach in LRW classes? What do you anticipate the impact of AI will be on teaching or learning?” We are looking to publish a range of creative responses, and we’ll even do so anonymously if asked.

The submission deadline for articles is September 1 and for micro essays it’s October 1, though the Editorial Board may decide to accept articles on a rolling basis after the deadlines depending on the circumstance. Please get in touch with a Board member if you have any questions. Author guidelines and other information regarding article submissions can be found on the Perspectives website here.

— Joe

Here’s the abstract for Alyson Drake’s You Can’t Write Without Research: The Role of Research Instruction in the Upper-Level Writing Requirement, 18 Fla. Coastal L. Rev. 167 (2017):

This article examines the role legal research instruction should play in the American Bar Association’s upper-level writing requirement. It argues that, despite the importance that research plays in most types of writing that students do to fill this requirement (student journal notes/comments, seminar papers, independent research papers), there is little-to-no standardized research instruction in and across law schools. Finally, the article proposes four methods that scholarly research instruction can be incorporated into the law school curriculum by utilizing law librarians and suggests why law librarians are best suited for this type of instruction.

— Joe

Here’s the abstract for Deborah N. Archer’s Political Lawyering for the 21st Century (2018):

Legal education purports to prepare the next generation of lawyers capable of tackling the urgent and complex social justice challenges of our time. But law schools are failing in that public promise. Clinical education offers the best opportunity to overcome those failings by teaching the skills lawyers need to tackle systemic and interlocking legal and social problems. But too often even clinical education falls short: it adheres to conventional pedagogical methodologies that are overly narrow and, in the end, limit students’ abilities to manage today’s complex racial and social justice issues. This article contends that clinical education needs to embrace and reimagine political lawyering for the 21st century in order to prepare aspiring lawyers to tackle both new and chronic issues of injustice through a broad array of advocacy strategies.

— Joe

In On Embracing the Research Conference (2018), Alyson Drake promotes the use of the research conference in LRW courses because “the individualized formative feedback allows each student to improve in the areas in which they are struggling.” Here’s the abstract:

Research conferences are a tool that should be included in any research or writing instructor’s arsenal. In addition to have multiple pedagogical benefits for students, including providing individualized feedback and another opportunity for formative assessment, legal research conferences help students prepare for practice and comprehend that analysis is a critical part of legal research. Learning that research is an analytical exercise rather than a mechanical task will ultimately help them to be better researchers, writers, and attorneys.

— Joe

Legal research courses are and have been for quite a while the “stepchild” in the legal education curriculum. But legal research is closely tied to each of the four competencies laid out by the ABA in Standard 301. Standard 301 could be transformative for legal research instruction if legal research courses are given the opportunity to fill necessary experiential learning gaps in legal education.

In The Need for Experiential Legal Research Education, 108 LLJ 511 (2016), Alyson Drake makes a strong case for experiential legal instruction. “Designating legal research courses as experiential would allow schools to both increase offerings in legal research and to meet the ABA’s newly-expanded six credit experiential course requirement for every student. When structured appropriately, stand-alone legal research courses clearly meet the requirements laid out in the simulation category of experiential courses.”

From the conclusion of Drake’s excellent article:

The primary goal of experiential legal instruction is to prepare students to do the type of work that awaits them as legal professionals. In response to frequent reports from employers and scholars that new hires’ research skills are lacking, the ABA now mandates that law schools produce attorneys who are practice-ready from day one. And since thirty-five percent of new attorneys’ time is spent conducting legal research, being practice-ready clearly requires that students practice and refine their research skills throughout law school. Experiential courses are the ABA’s answer for increasing students’ practice skills; as such, law schools need to embrace the experiential legal research course so more students have the opportunity to strengthen their research skills and the chance to enter the profession as practice ready professionals.

Recommended. — Joe

From the introduction to Statutory Interpretation: Theories, Tools, and Trends (R45153, Apr. 5, 2018):

The two main theories of statutory interpretation — purposivism and textualism — disagree about how judges can best adhere to this ideal of legislative supremacy. The problem is especially acute in instances where it is unlikely that Congress anticipated and legislated for the specific circumstances being disputed before the court. While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text.

Regardless of their interpretive theory, judges use many of the same tools to gather evidence of statutory meaning. First, judges often begin by looking to the ordinary meaning of the statutory text. Second, courts interpret specific provisions by looking to the broader statutory context. Third, judges may turn to the canons of construction, which are presumptions about how courts ordinarily read statutes. Fourth, courts may look to the legislative history of a provision. Finally, a judge might consider how a statute has been—or will be—implemented. Although both purposivists and textualists may use any of these tools, a judge’s theory of statutory interpretation may influence the order in which these tools are applied and how much weight is given to each tool.

This report begins by discussing the general goals of statutory interpretation, reviewing a variety of contemporary as well as historical approaches. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. The report concludes by exploring developing issues in statutory interpretation.

— Joe

Here’s the blurb for Victoria Nourse’s Misreading Law, Misreading Democracy (Harvard UP, 2016):

American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.

Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.

Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.

— Joe

“When exercising its power to review the constitutionality of governmental action, the Supreme Court has relied on certain ‘methods’ or ‘modes’ of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. This report broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods of constitutional interpretation” is how Modes of Consitutional Interpretation (March 15, 2018 R45129) starts its overview of methods of constitutional interpretation.

Modes of constitutional interpretation covered by the report are:

  1. Textualism
  2. Original Meaning
  3. Judicial Precedent
  4. Pragmatism
  5. Moral Reasoning
  6. National Identity
  7. Structuralism
  8. Historical Practice

— Joe

“Call me naive,” wrote Bob Ambrogi about the conclusions reached by Susan Nevelow Mart in her excellent research found in The Algorithm as a Human Artifact: Implications for Legal {Re}Search, “but I would have thought that entering the identical search query on, say, both Westlaw and Lexis Advance would return fairly similar results.” I was somewhat shocked that Bob hadn’t realized what law librarians have known for 40 years, an insight made even more important since WEXIS implemented “black box” searching because it won’t release proprietary information about the construction of their search algorithms.

Perhaps the editors of the ABA Journal thought their readers might also be naive because the Journal published a summary of Nevelow Mart’s research results in the March issue. See Results may vary in legal research databases by Susan Nevelow Mart. Here’s a snip:

At first glance, the various legal research databases seem similar. For instance, they all promote their natural language searching, so when the keywords go into the search box, researchers expect relevant results. The lawyer would also expect the results to be somewhat similar no matter which legal database a lawyer uses. After all, the algorithms are all trying to solve the same problem: translating a specific query into relevant results.

The reality is much different. In a comparison of six legal databases—Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel and Westlaw—when researchers entered the identical search in the same jurisdictional database of reported cases, there was hardly any overlap in the top 10 cases returned in the results. Only 7 percent of the cases were in all six databases, and 40 percent of the cases each database returned in the results set were unique to that database. It turns out that when you give six groups of humans the same problem to solve, the results are a testament to the variability of human problem-solving. If your starting point for research is a keyword search, the divergent results in each of these six databases will frame the rest of your research in a very different way.

Highly recommended. This ABAJ article should be assigned reading for law school students — all law school students, not just 1Ls taking their LRW courses. — Joe

Comment 8 to Model Rule 1.1: Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

From the abstract of Jamie Baker’s Beyond the Information Age: The Duty of Technology Competence in the Algorithmic Society, 69 South Carolina Law Review ___ 92018):

While law has generally been slow to adapt to technological change, the ABA Model Rules of Professional Conduct amended the Duty of Competence language to include a Duty of Technology Competence. This duty requires lawyers to keep abreast of “changes in the law and its practice, including the benefits and risks associated with relevant technology.” A majority of states have now adopted this new Duty of Technology Competence, but there is little guidance on its current reach. The guidance documents mainly discuss the duty in terms of eDiscovery, electronic storage, social media, and the cloud. As society moves beyond the Information Age to the Algorithmic Society, this duty should extend to the competent use of artificial intelligence and algorithms in law. As such, it behooves the legal academy to prepare lawyers for ethical practice in this brave new world.

Recommended. — Joe

Using Information Literacy to Prepare Practice-Ready Graduates by Ellie Margolis and Kristen Murray is “an attempt to find a new way to think about how to prepare law students to be ‘practice ready’ for the legal research and writing tasks they will face as they enter law practice, and how to equip them with the skills they need to communicate with older generations of lawyers while adapting to new and evolving technologies. In essence, recent law school graduates must be ambassadors of technology, simultaneously able to communicate with lawyers who may not be conversant in, or even understand, the new technologies taking over law practice and able to use those new technologies to be effective lawyers. This article traces the paths that led to the current state of technology in law practice, and discusses ways educators might rethink what it means to be ‘practice ready’ in this environment.” — Joe