Legal research gets a lousy deal in legal education. When you arrive as a first year student you are enrolled into mandatory classes that take a deep dive into the Common Law. You will wrestle with the Rule Against Perpetuities and try to wrap your head around the Statute of Frauds. But does anyone take the time to show you how to carry out legal research effectively? Most law schools have a research and writing class for first year students, but these classes usually focus on writing skills. You may be asked to write a brief or a motion, but the materials that you need will be handed to you.
Over the years, I have often heard law professors say that students really teach themselves legal research. To put a fine point on it, this is totally bogus. It is as if you spent a year studying how an engine is built and the history of car making (including the history of buggies that led to cars) but no one taught you to actually drive a car. You can learn that by trial and error.
Nor do folks arrive at law school already adept at legal research. Many students arrive at law school with very little understanding of how legal information works. The exceptions are the students who worked as paralegals who may be more skilled researchers than their professors, but I digress. A new student may know the policy implications of a judicial decision or a statute, but few have actually looked under the hood to see how the system works. Dropped into a world of casebooks, such a student may be lost at sea.
Some contend that teaching truly sophisticated legal research skills in the first year is a mug’s game. Learning how to do effective legal research is a skill, just like learning to ride a bicycle. You have to do it, do it a lot, to become proficient. First year students do not have enough knowledge of the substantive law to really apply the skills that they ARE taught. To solve the problem long-term, I started teaching Advanced Legal Research to large groups of second and third year students. In truth it was basic legal research, but the school would not let a course with that title be worth three units. The second and third year students had enough background to work on the real world problems we assigned and many had worked or interned over the summer after the first year and they knew what they did not know.
But that still leaves the problem of the first year student. What to do? One approach is to take one good case and pull it apart. Each judicial opinion is a universe of information. The judge will cite to cases, statutes and regulations that apply to the problem. Secondary sources will be cited. The opinion is a reflection of how the law came to be. The complete version of an opinion, the version that a practicing lawyer uses, will have helpful shortcuts built in. The case can then be dropped into a citator that will project it into the future. How was it handled, has it prospered or has it been rejected or ignored? Ergo the past, the present and the future is there.
The trick is to find a good case to use as an example. My favorite is Gonzales v. Raich, 545 U.S. 1 (2005). The added bonus with Gonzales is that it has a majority opinion, a concurring opinion and dissents. The student can see how precedent develops in the real world. The whipped cream on the sundae is that the opinion has to interpret the Constitution, analyze a California statute, live under an administrative regulation and try to reconcile colliding lines of authority. All of this is one judicial opinion. For cheap thrills the opinion is about the legitimacy of California’s medicinal marijuana statute.
Having taught Contracts at Berkeley Law School for the last two decades, I have seen the glazed look in a first-year student’s eyes when she first tries to puzzle out where a case came from and what it means. The structure of the court system, the way cases are assembled, these are vital matters that no one explains. This is to say nothing of the rigors of the Blue Book that await the neophyte. It can be scary. The Legal Research Survival Manual with video modules, 2d was written as an amulet against the fear. Gonzales v. Raich is the case that we pull apart. The book is short and it is written with tongue firmly in cheek. Working with collaborators we made a set of videos to accompany the book. We made the videos in recognition of the fact that some folks prefer to learn that way. Understanding that time is precious, we kept the videos to ten minutes. These are quick power hits of information.
There are two videos that reach beyond the book. One is on how to read a case. We stuck with Gonalez v. Raich, 545 U.S. 1 (2005). This case is used throughout the book and videos as an exemplar. In this video, we take a deep dive into sketching out how, in this controversial case about the collision of state and federal marijuana laws, the opinions are written. We do not try to teach the substance of the case, we tease out its structure. There is also a video on research strategy at the end. What can I say? I could not help myself.
Will it work? Is the book ahead of its time? Or is it behind the curve? Will AI systems replace lawyers all together? Our goal was smaller than all that: just lay out the basics for those who need to know.
The book is available in two options: softbound book with video modules or eBook with video modules. Both can be found at westacademic.com. If you are an ABA Premium law student member, you can receive 20% off and free shipping at the West Academic Store.
To learn more about this book, view this short video.