What's Wrong with Legal Research and Writing? Problems and Solutions

Law Library Journal

Volumn 88, Issue 2, 1996, Pages 247-279

  Fitzgerald, Maureen F ^a,b  

^a UNIVERSITY OF VICTORIA   (Canada)

^b Law Society of British Columbia   (Canada)

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EID: 0030519348     PISSN: 00239283     EISSN: None     Source Type: Journal    
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References (121)

1. Innumerable articles have been written about the inability of lawyers to research and write. For example, it was stated that "students manage to deal successfully with the material in their substantive courses, while legal research teachers (and eventually, employers) complain that students fail to learn how to do legal research." Christopher G. Wren & Jill Robinson Wren, The Teaching of Legal Research, 80 LAW LIBR. J. 7, 51 (1988). See also Nancy L. Schultz, How Do Lawyers Really Think? 42 J. LEGAL EDUC. 57 (1992).
2. Innumerable articles have been written about the inability of lawyers to research and write. For example, it was stated that "students manage to deal successfully with the material in their substantive courses, while legal research teachers (and eventually, employers) complain that students fail to learn how to do legal research." Christopher G. Wren & Jill Robinson Wren, The Teaching of Legal Research, 80 LAW LIBR. J. 7, 51 (1988). See also Nancy L. Schultz, How Do Lawyers Really Think? 42 J. LEGAL EDUC. 57 (1992).
3. Howland and Lewis found that "Summer clerks and first-year associates are woefully ill-prepared to research the types of issues they are assigned because they are unable to design effective research strategies, and they do not fully understand the mechanics of even the most basic legal research tools." Joan S. Howland & Nancy J. Lewis, The Effectiveness of Law School Legal Research Training Programs, 40 J. LEGAL EDUC. 381, 390 (1990).
4. Robin K. Mills, Legal Research Instruction in Law Schools, the State of the Art or, Why Law School Graduates Do Not Know How to Find the Law, 70 LAW LIBR. J. 343, 343 (1977).
5. For purposes of this article, legal research and legal writing are discussed together as "legal research and writing." Although it is acknowledged that the two subjects are quite different, they tend to be taught together as one course in most law schools in Canada and, therefore, will be referenced as such.
6. For a summary of the criticisms that have been made and references to the existing literature, see Maureen F. Fitzgerald, Stirring the Pot of Legal Education, 10 J. PROF. LEGAL EDUC. 151 (1992). With increasing external pressure and limited resources, law school faculties have begun to look closely at curricula. The pressures of demanding students, questioning governments, and concerned lawyers have required university law faculties to be more accountable than ever before. Among the more positive effects of these pressures are the focus on teaching legal skills and the attention devoted to alternative teaching methods.
7. Howland & Lewis, supra note 2, at 390. See also Schultz, supra note 1, at 63 (describing the dissatisfaction with the current state of legal education).
8. The fifteen law schools surveyed were University of Victoria, University of British Columbia, University of Alberta, University of Calgary, University of Saskatchewan, University of Manitoba, University of Western Ontario, Queens University, University of Ottawa, Osgoode Hall Law School, University of Toronto, University of New Brunswick, University of Windsor, McGill University, and Dalhousie University. I am not a proponent of surveys, and the survey I conducted once again demonstrates the difficulty of gathering meaningful information in this manner.
9. The legal education of lawyers in the early twentieth century was under the control of provincial law societies and consisted of long periods of apprenticeship (for up to five years). Articling students learned through a mentor system, which involved a close working relationship with a principal. Articled students modeled themselves after a skilled senior practitioner, spending most of the time with the principal.
10. At first, many of the bar admission courses merely duplicated what was taught at law school. For example, in British Columbia, the bar admission program consisted of ten areas of substantive law and procedure and a final examination at the end of articles. The first recognition of skills as an important aspect of a bar admission program occurred in the late 1970s in Australia. The Law Society of British Columbia was the first Canadian Law Society to look at lawyering skills as a major component of post-LL.B. education. It recognized that many lawyering skills were not taught in law school nor were they picked up during articles. Accordingly, the Law Society of British Columbia created a full-time professional legal training course based on these necessary skills while continuing to teach substantive law.
11. For example, University of Victoria and University of York (Osgoode Hall) offer first-year courses in legal research and writing.
12. See James D. Gordon III, An Integrated First-Year Legal Writing Program, 39 J. LEGAL EDUC. 609 (1989).
13. Such as University of Victoria, Osgoode Hall Law School, and University of Windsor.
14. University of Calgary and University of Saskatchewan.
15. Burke conducted research for purposes of curriculum development at the University of Montana and detected serious problems in a number of areas: In our initial review of both traditional legal education and our own academic program, we detected weaknesses in content, methodology, and assessment practices. First, most academic programs concentrate almost exclusively on the doctrinal and analytical dimensions of lawyering. Second, large classes characteristic of legal education "lead to a passive and impersonal educational experience; whereas law practice is both active and personal." Third, rarely does a law school "delineate clearly and precisely . . . the educational objectives toward which its evaluation process is directed," and rarely do individual law professors publicly and explicitly articulate specific course objectives to students, nor do they announce the criteria by which they assess student performance. Last, law professors provide students with minimal assessment. Bari R. Burke, Legal Writing (Groups) at the University of Montana: Professional Voice Lessons in a Communal Context, 52 MONT. L. REV. 373, 381-82 (1991) (footnotes omitted).
16. Rowland & Lewis, supra note 2, at 389.
17. David Barnhizer, The Purposes of the University in the First Quarter Century of the Twenty-First Century, 22 SETON HALL L. REV. 1124, 1173-74 (1992). In commenting on the assertion by John Sexton, dean of the New York University School of Law, that law students can master legal analysis and reasoning in significantly fewer than three years, Munro, director of Professional Skills at the University of Montana Law School, writes: "An itinerary that devotes three years to analytical skills arising from appellate case analysis cannot include even a 'visit' to professional competence, much less achieve a level of competence appropriate to one undertaking the representation of client." Gregory S. Munro, Integrating Theory and Practice in a Competency-Based Curriculum: Academic Planning at the University of Montana School of Law, 52 MONT. L. REV. 345, 370 (1991) (footnotes omitted).
18. David Barnhizer, The Purposes of the University in the First Quarter Century of the Twenty-First Century, 22 SETON HALL L. REV. 1124, 1173-74 (1992). In commenting on the assertion by John Sexton, dean of the New York University School of Law, that law students can master legal analysis and reasoning in significantly fewer than three years, Munro, director of Professional Skills at the University of Montana Law School, writes: "An itinerary that devotes three years to analytical skills arising from appellate case analysis cannot include even a 'visit' to professional competence, much less achieve a level of competence appropriate to one undertaking the representation of client." Gregory S. Munro, Integrating Theory and Practice in a Competency-Based Curriculum: Academic Planning at the University of Montana School of Law, 52 MONT. L. REV. 345, 370 (1991) (footnotes omitted).
19. Schultz, supra note 1, at 63-64.
20. Neil Gold, The Role of the University Law Schools in Professional Formation in Law, 20 LAW SOC'Y UPPER CAN. GAZETTE 191 (1986).
21. LEGAL EDUCATION IN CANADA: REPORTS AND BACKGROUND PAPERS OF A NATIONAL CONFERENCE ON LEGAL EDUCATION HELD IN WINNIPEG, MANITOBA, October 23-26, 1985, at 2 (Roy J. Matas & Deborah J. McCawley eds., 1987) [hereinafter LEGAL EDUCATION IN CANADA] (emphasis added).
22. See RALPH W. TYLER, BASIC PRINCIPLES OF CURRICULUM AND INSTRUCTION (1949), in which four stages of curriculum development are described: Stage 1: Identifying educational objectives which the school or course should seek to attain. Stage 2: Selecting learning experiences which are likely to be useful in attaining those objectives. Stage 3: Organizing the selected learning experiences for effective instruction. Stage 4: Designing methods for evaluating the effectiveness of the selected learning experiences.
23. See Barnhizer, supra note 16, at 1161-62: [I]f university law schools are to be honorable and productive participants in American society during the first part of the Twenty-first Century, they must examine what they do far more fully than ever before, develop new tools and intellectual content in teaching and research and redefine important elements of their visions and goals. This is something they are unlikely to do, or to do willingly.
24. The deans of each of the faculties of law should clearly define the objectives of law school in terms of measurable objectives. Each course could then be analyzed to determine whether it meets the objectives. It would then become clear where the gaps and overlaps are in terms of student learning.
25. Howland & Lewis, supra note 2, at 389.
26. See generally Wren & Wren, supra note 1, at 9 ("Throughout the period the bibliographic emphasis has prevailed in legal research instruction, law students, law professors, librarians, and employers have lamented the inadequacy of students' and recent graduates' research skills."); Mills, supra note 3 (noting that the bibliographic emphasis has dominated legal research instruction for nearly seventy years); Anita L. Morse, Research, Writing, and Advocacy in the Law School Curriculum, 75 LAW LIBR. J. 232 (1982); J. M. Bechtiel, Conversation, A New Paradigm for Librarianship, 47 C. RES. LIBR. 223 (1986) (criticizing the bibliographic method of teaching research).
27. See generally Wren & Wren, supra note 1, at 9 ("Throughout the period the bibliographic emphasis has prevailed in legal research instruction, law students, law professors, librarians, and employers have lamented the inadequacy of students' and recent graduates' research skills."); Mills, supra note 3 (noting that the bibliographic emphasis has dominated legal research instruction for nearly seventy years); Anita L. Morse, Research, Writing, and Advocacy in the Law School Curriculum, 75 LAW LIBR. J. 232 (1982); J. M. Bechtiel, Conversation, A New Paradigm for Librarianship, 47 C. RES. LIBR. 223 (1986) (criticizing the bibliographic method of teaching research).
28. Wren & Wren, supra note 1, at 11.
29. "Without relevant frameworks for discerning the functional relationships among law books, and the relationship between law books and the process of using them, students will remain puzzled as they try to figure out how to use the law library and do legal research." Id. at 21.
30. Twining quotes Peter Wesley-Smith's arguments against the mere acquisition of knowledge out of context: [M]ere acquisition of legal knowledge in law school is of little value to a practitioner because that knowledge (a) can only be a tiny portion of the whole, (b) can be understood only superficially, (c) is easily forgotten or only partially or inaccurately remembered, (d) is rarely needed in practice in the form in which it is learned, (e) is likely to be quickly outmoded and thus dangerous to rely on, and (f) is of little use when new problems arise to be solved. William Twining, Preparing Lawyers for the Twenty-First Century, COMMONWEALTH LEGAL EDUC. ASS'N NEWSL., Jan.-Apr. 1991, at 115.
31. The following is a succinct definition of the process of legal research: Legal research consists of a series of steps by which someone attempts to solve a legal problem. These steps are gathering and analyzing the facts of the research problem; identifying the legal issues the facts raise; organizing the issues for effective research; and finding, reading (i.e. evaluating), and updating the law. Wren & Wren, supra note 1, at 10 n.12. The Wrens further comment: "[L]egal research is not a collection of law books. Legal research is, rather, a series of steps in the course of which a researcher develops a comprehensive strategy for selecting appropriate resources that may yield a solution to a legal problem." Id. at 61.
32. A survey of law professors conducted in 1981 indicated that the majority of professors think that they are teaching the same thing: thinking like a lawyer. JOHN S. MCKENNIREY, CANADIAN LAW FACULTIES: A REPORT TO THE CONSULTATIVE GROUP ON RESEARCH AND EDUCATION IN LAW BASED ON THE 1991 SURVEY OF CANADIAN LAW FACULTIES AND STATISTICS OF THE CANADIAN DEANS OF LAW (1982). Twining stated, "Most University and Polytechnic law teachers say that they wish to give a high priority to the development of generic intellectual skills." William Twining, Intellectual Skills and Law Degrees: Twelve Theses, in TENTH COMMONWEALTH LAW CONFERENCE 203, 205 (1992). See also Julie Macfarlane et al., Education for Life or Work? 137 NEW L.J. 835 (1987) (claiming that universities are in the skills business, too, since they aspire to have graduates who are able to read, write, think, argue, use a law library, solve problems, and count).
33. A survey of law professors conducted in 1981 indicated that the majority of professors think that they are teaching the same thing: thinking like a lawyer. JOHN S. MCKENNIREY, CANADIAN LAW FACULTIES: A REPORT TO THE CONSULTATIVE GROUP ON RESEARCH AND EDUCATION IN LAW BASED ON THE 1991 SURVEY OF CANADIAN LAW FACULTIES AND STATISTICS OF THE CANADIAN DEANS OF LAW (1982). Twining stated, "Most University and Polytechnic law teachers say that they wish to give a high priority to the development of generic intellectual skills." William Twining, Intellectual Skills and Law Degrees: Twelve Theses, in TENTH COMMONWEALTH LAW CONFERENCE 203, 205 (1992). See also Julie Macfarlane et al., Education for Life or Work? 137 NEW L.J. 835 (1987) (claiming that universities are in the skills business, too, since they aspire to have graduates who are able to read, write, think, argue, use a law library, solve problems, and count).
34. A survey of law professors conducted in 1981 indicated that the majority of professors think that they are teaching the same thing: thinking like a lawyer. JOHN S. MCKENNIREY, CANADIAN LAW FACULTIES: A REPORT TO THE CONSULTATIVE GROUP ON RESEARCH AND EDUCATION IN LAW BASED ON THE 1991 SURVEY OF CANADIAN LAW FACULTIES AND STATISTICS OF THE CANADIAN DEANS OF LAW (1982). Twining stated, "Most University and Polytechnic law teachers say that they wish to give a high priority to the development of generic intellectual skills." William Twining, Intellectual Skills and Law Degrees: Twelve Theses, in TENTH COMMONWEALTH LAW CONFERENCE 203, 205 (1992). See also Julie Macfarlane et al., Education for Life or Work? 137 NEW L.J. 835 (1987) (claiming that universities are in the skills business, too, since they aspire to have graduates who are able to read, write, think, argue, use a law library, solve problems, and count).
35. Twining has suggested that legal analysis is not taught but rather is learned through osmosis: Some law teachers maintain that students learn orthodox legal method (how to read cases, how to construct and criticise arguments about questions of law, how to interpret statutes and so on) in courses on Torts and Contracts and Property. Some even claim that the main objective of such courses is to teach Legal Method ("thinking like a lawyer"). Others, including myself, doubt such claims. Often they are implausible as an account both of the objectives of the teachers and of what students in fact learn. So we advocate (usually unsuccessfully) devotion of substantially more time to direct study of such basic skills on the ground that this is more efficient and more effective than "Pick-it-up" strategies. William Twining, Legal Skills and Legal Education, 22 LAW TCHR. 4, 6 (1988).
36. See, e.g., Gold, supra note 18, at 191: Instead of focusing on what we hope new legal professionals will know and be able to do, we focus narrowly on subject matter. Until we describe the ideal product of a legal education we will never be able to elucidate an appropriate program of study. Students should always be provided with a course outline at the beginning of the course; not just periodic handouts and postings. Students must be able to pace themselves and anticipate where the course is heading. An outline also provides students with an overview of the course and what they will be expected to learn.
37. See, e.g., Peter Clinch, Legal Research Skills: Development of an Undergraduate Course, 22 LAW LIBR. 77, 83 (1991), in which the author describes a useful set of learning objectives in his article on legal research and writing: On completing the course each student should: 1. Be able to use the computerized library information system to find books by author, title or subject and law reports and journals by title; 2. Understand the layout of the law library and locate the majority of materials required for problem resolution or through directed reading, without the necessity of asking library staff for assistance; 3. Have a general knowledge of the structure of the literature of law, the purpose and content of different publications; 4. Be aware of and capable of using effective techniques, such as cart wheeling, to exploit indexes and tables of contents; 5. Understand the structure, format and layout of elements commonly found in respectively, acts of parliament, statutory instruments and law reports; 6. Know how to keep up to date with legal developments and law publishing generally; 7. Understand the systems of citation and referencing employed by lawyers for statutory materials, cases and journal articles; 8. Understand the purpose of and be capable of compiling correctly bibliographies and footnotes.
38. One aspect of legal research and writing that is often overlooked is reading. The Wrens note this omission: In light of the integral character of reading in the legal research process, the failure of typical bibliographically oriented legal research instruction to teach about this step is incongruous. Perhaps the omission derives from a belief that students' reading of the law in their substantive law courses addresses the skill adequately for legal research purposes. This belief misses the mark, however. Courses on substantive law focus students' attention on thinking about legal doctrines relating to specific subject matter; although the courses require students to engage in various techniques for reading the law, the instruction rarely, if ever, explains how to develop effective reading skills. Wren & Wren, supra note 1, at 47.
39. A similar breakdown of the process is contained in what I consider to be one of the best brief descriptions of how to research the law. Barbara Cotton, a research director in a Calgary law firm, describes research in terms of five simple and practical steps: identify the facts; analyze the facts to identify the issues; identify the issues; gather the raw research; and analyze the raw research. Barbara E. Cotton, Advanced Legal Research and Writing: How to Build a Cadillac, 13 ADVOC. Q. 232 (1991).
40. See Schultz, supra note 1, at 68: "Some instructors fear that comprehensive coverage will be sacrificed if too much time is spent on supplementary exercises and materials. One wonders, however why coverage is so crucial if the goal is to teach an analytical process rather than the ever changing details of the law."
41. "There are differing views on how best to prepare graduates for the reality of change. But generally a capacity to educate oneself was thought an essential capacity to be developed." Trevor Anderson, Report on the Workshop Discussions, in LEGAL EDUCATION IN CANADA, supra note 19, at 42, 44.
42. Some have suggested that teaching secondary sources first is problematic. The argument is essentially that use of secondary sources prevents creative thinking and makes students think that there is one right answer. Wren & Wren, supra note 1, at 43-44.
43. FACULTY OF LAW CURRICULUM COMMITTEE, UNIV. OF BRITISH COLUMBIA, STATEMENT OF PHILOSOPHY OBJECTIVES AND RELATIONSHIP OF SKILLS AND CORE CURRICULUM TO PROFESSIONAL LEGAL TRAINING 10-11 (1989) [hereinafter STATEMENT OF PHILOSOPHY].
44. Weiler has stated of legal educators that we are "not to send out young lawyers fully trained in how to perform tasks which are required in the first three or four months of practice, rather how to develop the mental equipment needed for creative responses to issues which may only arise thirty or forty years hence." Quoted in Roy J. Matas, Law as a Learned Profession, in LEGAL EDUCATION IN CANADA, supra note 19, at 29, 33.
45. The case method is currently used to teach the vast majority of substantive law courses in the LL.B. program. Other methods, such as the problem-based method, have been slow to gain recognition in the law schools, although they have been adopted in a number of professional schools. The most prevalent are the business administration programs that have adopted the Harvard Case Method. Real problems (cases) are used as a basis for instruction and allow students to immediately apply what they have learned. See Myron Moskovitz, Beyond the Case Method: It's Time to Teach with Problems, 42 J. LEGAL EDUC. 241 (1992).
46. See generally STUART G. GULLICKSON, STRUCTURING A GENERAL PRACTICE COURSE 15 (1976) ("The lecture method - an appropriate way to learn theory - cannot teach skills, for skills can only be acquired through performance. It is a maxim that one learns skills by doing.")
47. Some of the more basic information on teaching can be obtained through faculty departments in universities or other staff help groups (which appear to be on the increase as teaching has gained a position of priority in universities).
48. According to the statement of philosophy of the Faculty of Law of the University of British Columbia: "There is no reason, however, to believe that the traditional method of case analysis, text parsing, identification of internal inconsistency of argument, and external consistency with other cases is the only, or indeed necessarily the best, technique for teaching legal concepts and principles as part of professional training, nor the best method to understand the behavior of regulatory factors," STATEMENT OF PHILOSOPHY, supra note 38, at 8. "We acknowledge that no single methodology of teaching, and certainly no single way of thinking about law can claim to be politically or ethically neutral or objective." Id. at 5.
49. "The case method is now the primary method of teaching in American law schools. Just about all current American law professors - you and I, that is - were taught by the case method. When we began teaching, we chose our teaching method by looking back to our own teachers, looking around at other professors (many of whom would be judging us at tenure time), and looking into the classroom books available. Everywhere we looked, we saw nothing but the case method. Was some young, insecure assistant professor likely to buck the system? Not likely. The rookie followed the crowd, adopted the case method, was knighted with tenure, and now passes the tradition on to new rookies." Moskovitz, supra note 40, at 241.
50. Some criticisms of the case method are as follows: Excessive reliance on the Socratic method compounds the message of combativeness that we send to our students. Teaching students to be tough, analytical, and quick on their feet gives them useful skills for the "real world," but the perception that these are the only useful skills for a lawyer and that they are appropriate or necessary in every context in which our graduates will find themselves is erroneous. Do we really want to turn out legions of competitive warriors? Or do we want to give future lawyers a more well-rounded perspective on what life in the law is and ought to be like? Schultz, supra note 1, at 65. We know, for example, that Langdell's legacy can fairly be argued to have distorted the legal curriculum and the direction of much of legal scholarship in the quest to develop a legitimate legal science. Some would even conclude that there was no real intellectual quest being engaged in by many faculty in the past century and that the rhetoric of "legal science" was nothing more than an illusion with either the puppies or the predictable effect of shielding intellectually incompetent and unproductive legal academics from external criticism. Barnhizer, supra note 16, at 1163-64.
51. Some have suggested that this is due to the Socratic method that was used in combination with the case method. The Socratic method essentially forces students to read cases and think on their feet. Moskovitz, supra note 40, at 244. Burke stated that "without question, the large student/faculty ratio and vicarions participation characteristic of the Socratic, lecture, and demonstration methods are irreconcilable with genuine 'skills training.'" Simply put, "skills can only be developed by use." Again, "[t]here is only one way to acquire skills and abilities, and that is to practice them." Burke, supra note 14, at 385.
52. See Moskovitz, supra note 40, at 244: "[I]f these benefits are only by-products of a method that was not primarily designed to improve lawyering skills, and if the primary purpose of law school has shifted from the 'scientific' to the 'professional' - that is, if our main purpose today is to turn out good lawyers - we should take another look at the case method. It might be time to go back to the drawing board."
53. Twining, supra note 30, at 6. See also Twining, supra note 29, at 206, where he listed the following reasons skills are not being "picked up" as efficiently or effectively as substantive law subjects: a. Unclear or competing learning objectives are pursued in many such courses, b. Skills development tends to be swamped by demands of coverage. c. Given the chance, students may tend to give priority to know-what over know-how objectives as the easier option. d. It is often difficult in practice to assess competence and detailed knowledge simultaneously. e. The teaching methods actually employed and the available literature and other materials actually used are often not suitable vehicles of skills development. f. Substantive law courses are often too context-specific to provide a suitable vehicle for developing (as opposed to reinforcing) transferable, general intellectual skills. g. Some such claims are not serious: For example, even some courses and books on "Legal Method" do not seriously aim to develop competence in method; for example, they may be vehicles for learning about the doctrine of precedent or the "rules" of statutory interpretation rather than how to read and use cases and statutes in different contexts.
54. Munro also blames the lack of variety of teaching methods in law schools on the case method: "Situational method, clinical method problem-solving approaches, and interdisciplinary approaches have been largely absent from the law schools because of the emphasis given the Langdellian casebook method." Munro, supra note 16, at 363. Munro stated some reasons for reluctance to introduce new methods: First, models for teaching professional practice competence are few. Even the clinical models are inapposite, often being limited in scope and isolated from, rather than integrated into, the "substantive" curricula. Second, individual faculty members may be reluctant to shoulder responsibility for implementing the competency-based curriculum in their respective areas. This reluctance may be because they lack a foundation to teach some practice competencies, either because of lack of practice experience or from the narrow scope of their practice experience. Or the reluctance may stem from a failure to see how general competencies, such as negotiating or interviewing, are pertinent to the "substantive" subject areas they teach. Third, traditional courses taught by casebook method dominate the curriculum, claiming resources and time that would be necessary to any substantial integration of professional practice competencies. Fourth, there may exist a bias in favor of competencies that can be defined in terms of knowledge, over those competencies that are defined in terms of skills. Faculty may, for example, settle for a competency that the students "understand" the elemental theory of contract as opposed to ensuring that the students can also negotiate and draft contracts. Fifth, a competency-based curriculum requires individual performance of exercises designed to apply theory to specific transactions. These performances by their nature require time, space and intensive use of faculty and other personnel to a far greater extent than traditional legal teaching methods. Sixth, as Victor Rosenbloom noted, a major barrier to curricular reform is failure of law school administrators to reward reform efforts by faculty. A system that values and rewards only research and writing cannot motivate faculty to expend the energy necessary for curricular reform. Id. at 358-59.
55. The case method is akin to doctors learning by studying dead bodies. Although students learn how to diagnose the problem in that particular situation, they are unable to predict what might go wrong with a new set of factors or a live person. Indeed doctors, like lawyers, have been criticized for being reactive as opposed to proactive. This is evidenced by the lack of both medical and legal education in the area of prevention.
56. See, e.g., Moskovitz, supra note 40, at 243 (Christopher Columbus Langdell's main problem was that "he believed that 'mastery of doctrine' through the study of cases would enable students to apply the doctrines to new situations. In reality lawyers do not learn how to apply the rules until they are taught how to do so and are provided with an opportunity to apply them in a number of situations."); W. H. Charles, What Is the Problem Method? 40 CAN. B. REV. 200 (1962); Victor Tunkel, Teaching Articled Clerks to Research, 20 LAW SOC'Y GAZETTE 14 (1989) ("This much is true: we tend in university law courses to provide the students with the principles, the reasoned conclusions, distilled from cases and statutes, rather than presenting them with the raw facts and sending them to research their way to a lawyer's answer. The teachers and textbook writers have already done the research, analyzing and digesting. They state their interpretations first and give their sources as mere footnotes; yet, as we know, in reality the legal process is the reverse"); Munro supra note 16, at 347-48 ("In the 1930s and 1940s, Jerome Frank, the noted educator and Second Circuit jurist made an avocation of pleading for abandonment of the Langellian method, likening it to restricting the education of future horticulturists to the study of 'cut flowers'").
57. See, e.g., Moskovitz, supra note 40, at 243 (Christopher Columbus Langdell's main problem was that "he believed that 'mastery of doctrine' through the study of cases would enable students to apply the doctrines to new situations. In reality lawyers do not learn how to apply the rules until they are taught how to do so and are provided with an opportunity to apply them in a number of situations."); W. H. Charles, What Is the Problem Method? 40 CAN. B. REV. 200 (1962); Victor Tunkel, Teaching Articled Clerks to Research, 20 LAW SOC'Y GAZETTE 14 (1989) ("This much is true: we tend in university law courses to provide the students with the principles, the reasoned conclusions, distilled from cases and statutes, rather than presenting them with the raw facts and sending them to research their way to a lawyer's answer. The teachers and textbook writers have already done the research, analyzing and digesting. They state their interpretations first and give their sources as mere footnotes; yet, as we know, in reality the legal process is the reverse"); Munro supra note 16, at 347-48 ("In the 1930s and 1940s, Jerome Frank, the noted educator and Second Circuit jurist made an avocation of pleading for abandonment of the Langellian method, likening it to restricting the education of future horticulturists to the study of 'cut flowers'").
58. "In practically every respect, legal education fails to provide adequate criticism. Students are seldom told with any precision what elements of knowledge or skill they should be learning and precisely how the instructor will measure their performance of those elements. . . . At best, the professor will only have hinted at the required standard of performance." Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 GEO. L.J. 875, 898 (1985), cited in Burke, supra note 14, at 381-82 n.32.
59. Biggs describes the major components in classroom learning as (1) student-based factors (e.g., prior knowledge and motivation); (2) teaching context (e.g. curriculum, methods and assessments); (3) approach to task; and (4) learning outcome. J. B. Biggs, Teaching for Better Learning, 2 LEGAL EDUC. REV. 133, 137 (1991). For a discussion of metacognition, see Paul T. Wangerin, Learning Strategies for Law Students, 52 ALB. L. REV. 471, 474-91 (1988) [hereinafter Wangerin, Learning Strategies].
60. Biggs describes the major components in classroom learning as (1) student-based factors (e.g., prior knowledge and motivation); (2) teaching context (e.g. curriculum, methods and assessments); (3) approach to task; and (4) learning outcome. J. B. Biggs, Teaching for Better Learning, 2 LEGAL EDUC. REV. 133, 137 (1991). For a discussion of metacognition, see Paul T. Wangerin, Learning Strategies for Law Students, 52 ALB. L. REV. 471, 474-91 (1988) [hereinafter Wangerin, Learning Strategies].
61. Following is one such theory: The optimal instructional program enhances the student's predisposition to learn, structures the knowledge and skills to be learned in an economic and powerful way, and presents the material in an effective sequence. A program promotes willingness to learn, for instance, by provoking and maintaining the student's interest in the subject and facilitating the student's sense of participation in the learning process. How well a program structures and arranges the materials can be gauged only by reference to the end product - in this case, a good legal writer. Neil Feigenson, Legal Writing Texts Today, 41 J. LEGAL EDUC. 503, 505 (1991) (footnotes omitted).
62. "Because learning theory and research indicate that we learn in different ways and that multiple modes of learning and feedback are preferable, it is more effective, in principle, to teach in a way that provides various modes of learning with regular opportunities for assessing one's strengths and weaknesses." John Delaney, Demystifying Legal Pedagogy: Performance-Centered Classv room Teaching at the City University of New York Law School, 22 SETON HALL L. REV. 1332, 1351 (1992).
63. BENJAMIN S. BLOOM, TAXONOMY OF EDUCATIONAL OBJECTIVES: HANDBOOK I: COGNITIVE DOMAIN (1956).
64. Julie Macfarlane, Look Before You Leap: Knowledge and Learning in Legal Skills Education, 19 J.L. & SOC'Y 293, 308 (1992). See also Wren & Wren, supra note 1, at 51: For example, it is important that students be able to build on the base that they already know. For example, they may be familiar with Courts, governments or libraries. These systems of information should be used as a basis on which to build the entire course. It is their framework for information and unless you create a new framework for information, it is helpful to take advantage of the one already in place.
65. See LEARNING IN GROUPS (C. Bouton & R. Garth, eds., 1983). Gold stated that the following elements are necessary for teaching skills: 1. The learner must be aware of the purpose and function of the skills taught; 2. The function must clearly relate to the learner's conception of her own future practice: 3. The learner must observe the skill performed, preferably well, and possibly also poorly; 4. The learner must be given clear expectations of the criteria and standards of adequate performance; 5. The learner must have chances to practice the skills and receive feedback on her performance; 6. The feedback must be criterion-referred, specific, helpful and directed at feasible improvements; 7. The learner must have many opportunities to see adequate performance, critiques of others' performances and the opportunity to practice over and over again; 8. The skill must be set in life-like context and be tied to the purpose of its implementation; 9. There must be opportunity to inquire into and observe the many, varied successful examples of performance - there is no one way to perform well; 10. This cycle should be repeated formally in classes and outside them through practice and observation with peers and experts reviewing video-taped performances or the specific products of the skill (for example draft documents) as the subject of scrutiny and the basis for feedback. Neil Gold, Are Skills Really Frills, 11 J. PROF. LEGAL EDUC. 1, 10 (1993).
66. See LEARNING IN GROUPS (C. Bouton & R. Garth, eds., 1983). Gold stated that the following elements are necessary for teaching skills: 1. The learner must be aware of the purpose and function of the skills taught; 2. The function must clearly relate to the learner's conception of her own future practice: 3. The learner must observe the skill performed, preferably well, and possibly also poorly; 4. The learner must be given clear expectations of the criteria and standards of adequate performance; 5. The learner must have chances to practice the skills and receive feedback on her performance; 6. The feedback must be criterion-referred, specific, helpful and directed at feasible improvements; 7. The learner must have many opportunities to see adequate performance, critiques of others' performances and the opportunity to practice over and over again; 8. The skill must be set in life-like context and be tied to the purpose of its implementation; 9. There must be opportunity to inquire into and observe the many, varied successful examples of performance - there is no one way to perform well; 10. This cycle should be repeated formally in classes and outside them through practice and observation with peers and experts reviewing video-taped performances or the specific products of the skill (for example draft documents) as the subject of scrutiny and the basis for feedback. Neil Gold, Are Skills Really Frills, 11 J. PROF. LEGAL EDUC. 1, 10 (1993).
67. STATEMENT OF PHILOSOPHY, supra note 38, at 17-18.
68. For an excellent book that teaches legal analysis in a direct manner, see JOHN C. DERNBACH & RICHARD V. SINGLETON II, A PRACTICAL GUIDE TO LEGAL WRITING AND LEGAL METHOD (1981).
69. Delaney, supra note 55, at 1359.
70. Paul T. Wangerin, Skills Training in "Legal Analysis": A Systematic Approach, 40 U. MIAMI L. REV. 409, 423-31 (1986); see also Wangerin, Learning Strategies, supra note 53, at 518.
71. Paul T. Wangerin, Skills Training in "Legal Analysis": A Systematic Approach, 40 U. MIAMI L. REV. 409, 423-31 (1986); see also Wangerin, Learning Strategies, supra note 53, at 518.
72. Wangerin states, "Twenty years ago, Robert Gagné, a social scientist, described the process of problem solving in terms that should be quite familiar to legal educators. The kind of human capability that is acquired in problem solving,' he wrote, 'seems to be a capability of applying a rule to any number of specific instances.' This is, of course, the kind of deductive reasoning that lawyers and law students use when they apply rules of law to newly encountered factual situations." Wangerin, Learning Strategies, supra note 53, at 511 (footnotes omitted).
73. Problem-based learning is also referred to as "experiential learning" and has been described as "a method of teaching in which student's performance of a task or role is the first step and the primary data in a process of discussion and analysis." Schultz, supra note 1, at 67. See also Charles, supra note 51; Delaney, supra note 55.
74. Wren & Wren, supra note 1, at 9.
75. Moskovitz, supra note 40, at 249. Moskovitz also discussed how problem-based learning has quickly spread among the other professions, especially medicine, dentistry, psychopathology, and nursing.
76. Moskovitz provides a good description of how to create problems and how to use them in large-group classrooms. Id. at 265-66. He suggests that to be problem-based learning, it must have three features: the problem, advanced distribution of the problem, and the problem as the focus of class discussion. Id. at 250. See also Delany, supra note 55, at 1352.
77. "By rejecting the 'teacher-as-fount-of-wisdom' ideal, the teacher becomes a facilitator of self-learning and small-group learning, a 'coach' of the students who play the role of performers, what I call lawyers in training. In addition, with its emphasis on individual performance in each class as an important key to learning, this method operationalizes the ideal that each student is responsible for her own learning." Delaney, supra note 55, at 1355.
78. Wangerin, Learning Strategies, supra note 53, at 471-72 (footnotes omitted).
79. Schultz, supra note 1, at 60. Also stated by Schultz: "It is often argued that we cannot teach competence. This is true, but we can teach students how to analyze their own performance and thus continue their education throughout their careers. We can teach them how to gather, process, and then communicate information in the most effective and efficient manner." Id. at 64; see also Delaney, supra note 55.
80. Another problem with these particular types of library assignments is that they are often mass-produced, leading students to overuse the books and cheat. Several students in my class at UBC indicated that copying was rampant and that books were either worn out, marked up, or missing. The librarians were concerned about the damage and strain put on the library and the books by first-year students doing their research and writing assignments.
81. The organization of the moots is a nightmare for most legal research and writing instructors. Moots typically occur over a few months in the spring of first year. As part of the preparation for the moots, students are often required to draft factum. Serious consideration should be given to why the moots are conducted at all. What skills are students expected to learn? How do they learn these skills? Factums are complex and detailed legal documents that require certain drafting skills. Is a factum an appropriate assessment tool in a first-year legal research and writing class?
82. Instructors should try to keep old assignments and maintain a system of precedents in order to guarantee some consistency among years. Having a model to follow assists instructors in creating new and stimulating fact patterns for new assignments. Other faculty members should play a role in drafting fact patterns for assignments, since they are the experts in the area and are familiar with the level of the students' knowledge of the subject at various points in first year. One suggestion for an exercise is a written library tour. A written assignment could include a brief description of the general philosophy of cataloging of law libraries and ask students to walk through the library and answer questions as they go along. If the exercise is designed properly, it will ask the student to follow a map and locate sources but also will point out special features about each source. An audio or video (or virtual reality) tour of the library is another alternative that might be more enjoyable for students. Both a written tour and a video would save librarians time and prevent library congestion and disruption.
83. See, e.g., Munro, supra, note 16, at 358-59: "A competency-based curriculum requires individual performance of exercises designed to apply theory to specific transactions. These performances, by their nature, require time, space and intensive use of faculty and other personnel to a far greater extent than traditional legal teaching methods."
84. "Not surprisingly, several faculty have found it difficult if not impossible, to find textbooks that adequately serve courses integrating theory and practice." Id. at 362.
85. DOUGLASS T. MACELLVEN, LEGAL RESEARCH HANDBOOK (3d. ed. 1993).
86. MARGARET A. BANKS, USING A LAW LIBRARY (1994).
87. Macfarlane, supra note 57, at 294.
88. A number of groups in the United States have been formed to discuss legal research and writing issues and share materials, all in an effort to assist them in teaching legal research and writing. Sharing the following sorts of items should help to improve course materials for legal research and writing: student handouts, student assignments for memos of law, library assignments, instructors' teaching notes and tips, course outlines, and bibliographies.
89. MAUREEN F. FITZGERALD, LEGAL PROBLEM SOLVING: REASONING, RESEARCH AND WRITING (1996).
90. For a discussion of articles that call for research in legal education, see Fitzgerald, supra note 5, at 161-62. She states: It is not surprising that the loudest or perhaps the most determined call for research has been from a past student of Karl Llewellyn, William Twining. He has repeatedly stated that, "what is involved in teaching, learning and assessing individual professional skills is under-theorized and under-researched." As a result, those involved in the debates "do not really know what they are talking about . . . and [t]here is, in short, an almost complete vacuum in research and development." Id. at 162 (citations omitted). Twining has also written: At least until recently, most talk about skills in legal education was data free and under-theorized. Most of these theses are based on impression and "experience" rather than research. The recent emphasis on the importance of educational theory and systematic research and development in respect of skills in legal education, as exemplified by the work of the Legal Skills Research Group and the commissioning of research by both branches of the profession is very welcome. It is to be hoped that such research will soon extend to intellectual skills in law degrees and beyond. We may soon know something of what we are talking about. Twining, supra note 29, at 207.
91. See, e.g., Macfarlane, supra note 57, at 294: "An unfortunate dimension of the current context of curriculum change is the serious dearth of theoretical (rather then purely descriptive) literature in this area."
92. Id. at 296.
93. Id. at 295. Macfarlane suggests that educational models must be developed for the teaching of skills. She notes that: Knowledge is sometimes described in terms which suggest that it is the antithesis of skills. This approach gives rise to anxieties that time spent on learning skills will reduce the amount of knowledge which can be absorbed and learned. The relationship between knowledge and skills is a highly complex one and deserves a more subtle and considered understanding than simply a blunt separation of these two elements of learning. The fact that these debates characteristically separate and even juxtapose knowledge and skills suggests that many law teachers intuitively characterize knowledge as content - rather than process -related. Other law teachers would argue that the relationship between skills and knowledge is symbiotic; that knowledge of law is implicit in any "skilled" application, and, similarly, that the best test of legal knowledge is its application in practice. What this debate highlights is that the way in which knowledge is characterized - as content, as fact, as context, as hands - on experience, as reflection on experience - is crucial to how we understand and make use of the ideas of skills education. Id. at 298.
94. Barnhizer, supra note 16, at 1172. Stating that "these factors define an institutional system that is very resistant to change when that change is generated as part of comprehensive, sweeping and conscious proposals," Barnhizer lists the following obstacles to change: 1. The expectations and demands of the legal profession, 2. The personal and professional agendas of law faculty, 3. The skills and knowledge of law faculty, 4. Inertia, 5. The career goals and the values of law students, 6. The artificial hierarchy of elite, sub-elite, middle class and inferior law schools in which the elite schools dominate the research and academic curriculum, 7. The job market in which most law students still aspire to a traditional role in law practice and for whom little else is available, 8. The rigidity of other academic disciplines which are neither oriented toward cooperation with others or easily restructured toward that end even if they desire, 9. The structure and content of bar examinations, and 10. Financial resources.
95. Id. at 1127. He also notes: "Thomas Green describes how humans often organize their core-belief systems in ways that protect them from evidence that would otherwise require change in those beliefs, stating: '[W]e tend to order our [core] beliefs in little clusters encrusted about, as it were, with a protective shield that prevents any cross-fertilization among them or any confrontation between them.'" Id. at 1152 n. 108 (alteration in original) (quoting THOMAS GREEN, THE ACTIVITIES OF TEACHING 47 (1971)).
96. Id. at 1154 (footnotes omitted).
97. Jeeves and Boon state, "Unwillingness to examine teaching methodologies reflects an inherent conservatism in much of the teaching profession, insecurity as to the demands for relevant teaching expertise and, perhaps most significantly, a concern to protect the hard-won academic respectability of legal study against attack from vocationalism or the influence of a 'training' ethos which undermines academic goals." Michael Jeeves & Andrew Boon, The Common Law in Action Stimulation: Reversing the Burden of Proof in Skills Education? 24 LAW TCHR. 82, 85 (1990).
98. Barnhizer, supra note 16, at 1155.
99. "The academic's commitment is to the expansion of understanding rather than its repression," and "The university ideal has been described as the 'academic Dogma,' the pursuit of knowledge for its own sake." Id. at 1126 & n.8.
100. Id. at 1165. "The combined power of need, creativity and intellectual curiosity is too great to allow academic disciplines to remain static for too long. Academic orthodoxy therefore go through 'boom and bust' cycles in which their strength and ability to control waxes and wanes. The emergence of often rigid mind sets in the academic world is not a new phenomenon." Id. at 1126-27.
101. Twining has repeatedly described the dichotomy and its problems: For the sake of brevity let us take some potentially controversial assumptions for granted. First, the current structure of legal education and training in this country - academic, vocational, apprenticeship, and continuing - was established more for reasons of political convenience than on sound theoretical or educational grounds. It more or less conveniently divided up spheres of influence between different interest groups - notably the Bar, the Solicitors, the law teaching profession and the Treasury (which was thereby relieved of pressure to provide large-scale finding for the last stages). Secondly, the current structure is likely to stay for the foreseeable future; the best we can hope for is to mitigate some of the worst effects of these artificially sharp divisions. Thirdly, some of the standard dichotomies in discourse about legal education - liberal/vocational; theory/practice; book-learning/experience; academic/practical; education/training; clinical/intellectual; skills/understanding - are at the very least too sharp. Often they represent mischievous nonsense. Twining, supra note 30, at 5.
102. This is based on learning theory that identifies different ways in which skill and knowledge should be taught and learned.
103. See Macfarlane, supra note 57, at 296: Some academics are concerned that in concentrating upon so-called "professional" skills, skills education in law will fail to challenge the legitimacy of the status quo of legal professionalism, that is, it will be even less successful than the academic model in "radicalizing" student thinking and transforming behaviors. Still other law teachers (largely those in undergraduate schools) see demands for skills education as a throw-back to earlier appeals for trade-school training for lawyers based in the universities, appeals which have traditionally been strongly resisted as a blurring of the "proper" role of the university law school.
104. Munro, supra note 16, at 370-71 (quoting Donald G. Gifford, remarks at the American Bar Association's National Conference on Professional Skills and Legal Education (Oct. 15-18, 1987), in 19 N.M. L. REV. 14, 15 (1989)). See also Phil Jones, A Skills-Based Approach to Professional Legal Education - An Exemplary Case, 23 LAW TCHR. 173, 187 (1989) ("Any attempt to bisect legal education into practical and theoretical aspects is misguided and obscures all understanding of both academic and professional concerns. . . . Professional knowledge . . . requires a combination of knowledge, skills and attitudes that cannot be separated out into separate spheres and learnt in separate institutional processes.")
105. Munro, supra note 16, at 370-71 (quoting Donald G. Gifford, remarks at the American Bar Association's National Conference on Professional Skills and Legal Education (Oct. 15-18, 1987), in 19 N.M. L. REV. 14, 15 (1989)). See also Phil Jones, A Skills-Based Approach to Professional Legal Education - An Exemplary Case, 23 LAW TCHR. 173, 187 (1989) ("Any attempt to bisect legal education into practical and theoretical aspects is misguided and obscures all understanding of both academic and professional concerns. . . . Professional knowledge . . . requires a combination of knowledge, skills and attitudes that cannot be separated out into separate spheres and learnt in separate institutional processes.")
106. Wren & Wren, supra note 1, at 25.
107. It is critical to any discussion of skills to distinguish between intellectual and practical skills. Intellectual skills are those necessary to "think" in a legal way, whereas practical skills are those necessary to "act" in a legal way. Every practical skill involves some intellectual skill, but not all intellectual skills involve practical skills. See Twining, supra note 29.
108. Brian Dickson, Excerpts from the Speech Delivered at the Closing Dinner of the Conference on Legal Education, in LEGAL EDUCATION IN CANADA, supra note 19, at 68. The Curriculum Committee of the University of British Columbia stated: "Law school rests on two ideas - the practice of a profession and intellectual inquiry at the university. . . . [I]t is our view that the curriculum at the law school should prepare our students for the practice of law and we recognize that to a very large degree the curriculum can and does influence how and what our graduates do once they leave the law school." STATEMENT OF PHILOSOPHY, supra note 38, at 2-3.
109. Brian Dickson, Excerpts from the Speech Delivered at the Closing Dinner of the Conference on Legal Education, in LEGAL EDUCATION IN CANADA, supra note 19, at 68. The Curriculum Committee of the University of British Columbia stated: "Law school rests on two ideas - the practice of a profession and intellectual inquiry at the university. . . . [I]t is our view that the curriculum at the law school should prepare our students for the practice of law and we recognize that to a very large degree the curriculum can and does influence how and what our graduates do once they leave the law school." STATEMENT OF PHILOSOPHY, supra note 38, at 2-3.
110. See, e.g., Wren & Wren, supra note 1, at 25: "Improving legal research instruction requires curriculum planners to disregard the false dichotomy between 'skills' and 'substantive' courses."
111. Schultz, supra note 1, at 71. Above all, we must stop viewing legal education as an either/or proposition. If we agree that a legitimate definition of necessary lawyering skills must reflect the complexity of what a lawyer actually does, and if we agree that a good legal education ought to train students to achieve some basic level of competence in the practice of law along with an ability to continue to learn in a meaningful way from experience, then we have identified our educational objectives in a way that we can use to guide our curricular choices. Id. at 66.
112. See Wren & Wren, supra note 1, at 24: Equating substantive courses with skills training and, in effect, lining up legal research courses with substantive courses will undoubtedly strike some as unorthodox. This equation is unorthodox, however, only if viewed against the backdrop of the conventional, long-running debate about a law school's mission, i.e., whether a law school should operate on a graduate school model or on a trade school model.
113. STATEMENT OF PHILOSOPHY, supra note 38, at 17.
114. Feingenson, supra note 54, at 503 n.1. "The marginal status of the legal writing program at most law schools, paradoxically, renders its faculty all the more vulnerable to charges that they might educate better; hence, the legal writing community's greater felt need to justify its mission through its teaching materials." Id. at 503.
115. Munro, supra note 16, at 363.
116. Richard F. Devlin, Legal Education As Political Consciousness-Raising or Paving the Road to Hell, 39 J. LEGAL EDUC. 213, 216 n.17 (1989) (citation omitted). From the viewpoint of equality, the terms of employment for the position leave much to be desired. Instructors are hired on a ten-month contract, renewable for one further ten-month period, and are paid about sixty percent of a first-year tenure-track law professor's salary at the same university. Although the work load of instructors is substantially heavier than that of their tenure-track counterparts, the ratio of their earnings parallels that of the average salary differential - greater than one third - between women and men in contemporary North American society. It is also worth noting that Richard Chused's 1986-87 study on the composition of United States law faculties indicates that women hold seventy percent of all legal writing positions but only 15.9 percent of all tenured or tenure-track positions.
117. Id. at 215-16.
118. Howland & Lewis, supra note 2, at 390.
119. Maureen Arrigo-Ward, LRW: Worthy of Academic Respect in Its Own Right, SECOND DRAFT, Mar. 1994, at 4.
120. It was stated by an American academic that Neither law firms nor the bar have proven that they are prepared to undertake the task of systematically addressing practice competence. Indeed, the practicing bar is increasingly looking to the law schools to design programs to ensure lawyer competence. Yet, it is the bar and not the legal educational establishment that feels compelled to respond to pressure to ensure that graduates are basically competent to advance the art of the profession. As Robert McCrate, Chairman of the ABA Task Force on Lawyer Competency, notes, "Change is everywhere in the profession except among the gatekeepers." Munro, supra note 16, at 369-70 (footnotes omitted).
121. Gold, supra note 18, at 198.