“The Cycle of Law Student Information Literacy”

[Slide 1]

Good morning. I would like to thank Paul

Callister for this opportunity to speak to you

today, and I would also like to thank Cynthia

Bassett, Jenny Watson, Jeri Kay Hopkins, and

Therese Arado for all their help in arranging

this address. I’m also quite grateful to my

library director, John Joergensen, for his

helpful comments on an earlier draft of this

talk, as well as for his general support for

this visit.

I will be speaking with you today on the

topic of Law Student Information Literacy, as

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manifest in the recently promulgated AALL

Principles and Standards for Legal Research

Competencies, and I’ll be speaking from my

perspective as a member of two of the task

forces that helped to articulate these

Principles and Standards. But I want to make

sure that I expressly acknowledge that the

opinions I’ll proffer here are exclusively my

own, and not those of the Task Force, nor, of

course, of the Association. I’m speaking for

myself, and from my own experiences and insights

gained from my contributions to the articulation

of the Principles and Standards for Legal

Research Competencies.

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Of course, the threshold question that we

must address is straightforward: What do we

mean by Information Literacy? As defined by the

ACRL, it is the ability to identify, access,

evaluate, and apply information in an ethical

manner. When we apply these elements to law

student legal research needs, we see that this

ability becomes a recursive cycle, folding back

into itself, as the elements of identifying and

accessing legal information are intertwined with

the ethics of information gathering and sharing

as defined by the body of legal ethics. In

particular, in the realm of looking for facts,

the ethical requirement of legal research

becomes highly relevant. Inasmuch as legal

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research looks for facts as well as for

authority, this requirement meshes into the

endeavor’s recursive nature.

Which leads us, logically, to ask: what is

ethical legal research? Or, more precisely,

what constitutes unethical legal research?

Certainly, simple answers to this question

include the misuse of an individual’s Westlaw,

LexisNexis, or Bloomberg login credentialing, or

law students performing research for attorneys

through their student accounts. Additionally,

“cyberstalking” an ex-romantic partner through

the public information available on LexisNexis

or Westlaw would clearly constitute unethical

use of a legal research platform. But a recent 4

case out of New Jersey opens up the notion of

“unethical legal research:” in 2009, two

attorneys “allegedly caused a paralegal to

‘friend’ the plaintiff in a personal injury case

so that they could access information” on the

plaintiff’s Facebook page that they would

otherwise have difficulty accessing, such as

“whether [plaintiff] had travelled, gone

dancing, [or] other activities that would tend

to refute his claims about the seriousness of

his injuries. The New Jersey Office of Attorney

Ethics found that the “‘friend’ request, made

‘on behalf and at the direction of’ the

attorneys, ‘was a ruse and a subterfuge designed

to gain access to non-public portions of [the]

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Facebook page for improper use’ in defending”

their case. The censure is currently under

appeal.

But I’ve gotten ahead of myself. Leaving

aside the question of whether Facebook

constitutes a legal research environment, I’ll

return to the concept of research ethics

shortly. For now, however, let it suffice that

Law Student Information Literacy is an iterative

process, and one that the Principles and

Standards break down into useful components.

And to reiterate, these components, following

the ACRL’s rubric, are as follows: Identifying,

Accessing, Evaluating, Applying, and doing so

Ethically. In articulating the Principles and 6

Standards, we specifically mapped the needs of

law students and legal researchers onto the ACRL

standards, because this framework is so useful.

[Slide 2]

This framework is useful because it not only

maps the research process, it can be used as a

scaffold for legal research instruction. For

example, Identifying sources of information out

of the universe of legal information is often

the first step we teach when we teach legal

research. We don’t just tell students to “look

this case up on the Internet,” we tell students

to use a particular resource to find a case, be

that resource a digest, a vendor’s electronic

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platform, or, yes, even Google Scholar.

Identifying the source of the necessary

information from the universe of legal

information is a critical first step, and one

that can determine research and other

transaction costs. That’s why Identifying, or

possessing “foundational knowledge of … legal

information sources,” is the First Principle

among the Principles and Standards.

The Second Principle, gathering “information

through effective and efficient research

strategies,” or “Accessing” information, follows

quite logically from the first, as accessing

information in a strategic and iterative manner

is the next logical step in the research 8

process, subsequent to the researcher’s

identification of sources out of a foundational

knowledge of legal systems and information

resources. This is more than merely selecting

databases or sources, however; this is the first

mention of research costs in the document,

indicating that we expect competent legal

researchers not to merely know that cost exists,

but to include cost in the calculus of

information access. And again, this Principle

focuses upon the strategic nature of

constructing and verifying research strategies

and results, which re-emphasizes the iterative

nature of the process.

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The iterative nature of research becomes

clearer when we examine the Third Principle,

“Critically Evaluat[ing] Information,” as the

Competencies herein explicitly require that

“information-literate legal professionals

understand the importance of reviewing

information obtained” through legal research,

and the Competencies ask such professionals to

demonstrate their competence by “consistently

applying criteria to evaluate the reliability of

information” gathered through legal research.

Also, the notion of cost-effectiveness reappears

here, intentionally, and not simply to reiterate

the notion of cost-effectiveness, or iterative

processes themselves, but to focus upon the

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importance of monetary and time costs when

dealing with legal research in particular. In

other words, it’s not only Uncle Junior on the

Sopranos who complains about ‘LexisNexis costs,’

and the sooner our students incorporate this

fact into their research processes, the sooner

they approach information literacy.

The application of information to specific

issues, sometimes understood as analyzing an

issue through research product, takes center

stage in Principle Four. Just as in Principle

Two, we see the performance indicators, or

competencies, here explicitly mention particular

research tools, and just as in Principle Three,

we also see an explicit nod to the iterative 11

nature of legal research in the standards (“An

information-literate legal professional modifies

initial research strategies as necessary”).

More importantly, the Standards and Principles

here state, at the outset, the critical nature

of synthesis, which is universally recognized as

one of the elemental skills in the set of skills

known as “thinking like a lawyer.” By

incorporating the importance of synthesis, we

re-emphasize the intellectual nature of the

legal research process (and the Principles re-

emphasize this point throughout).

The ultimate standard, focusing upon ethics,

not only speaks to ethical and unethical uses of

information, it also permeates the other four 12

standards by virtue of such focus. The Standard

here explicitly frames legal research as the

proper subject of life-long learning, and frames

this as an ethical responsibility, requiring

information-literate legal professionals to

revisit their own research skills, and to do so

with a focus on the ethical responsibilities of

the legal profession.

[Slide 3]

And, as noted above, research ethics is a

developing concept, and one that is a moving

target, as the tools of research are also in

seemingly constant motion. It’s helpful here to

recall the distinction between research work

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product and evidence. While standards of legal

ethics require that opposing parties share

pertinent information, they do not require that

opposing parties share research work product.

Moreover, the research may indicate that my case

is the losing side: the bulk of case law may be

arguing against my point. My ethical obligation

then is to argue against the research, to

rhetorically shunt it aside, to describe why it

doesn’t matter in this case.

Note also that plagiarism, as we commonly

understand it in the undergraduate context, is

not an issue in legal research, as the ethical

requirements of legal research (and the

stylistic requirements of legal writing) mandate14

citation to authority. Client demands require

that lawyers rely upon prior work product, in

the interests of efficiency (and again,

billing). Research ethics then, like all

ethical standards, are not monolithic, and

require a particular application to a particular

set of facts.

Taken together, the Principles and Standards

espouse an analytical and methodological

approach to research, therefore, it logically

follows that a standard focusing upon

information and research ethics would not merely

stand alone among a set of Principles and

Standards, but that it would also inform the

research process, and it does. Hence the title 15

of my talk, the Cycle of Law Student Information

Literacy; I hereby formally encourage you all to

look at Law Student Information Literacy as a

cyclical methodology, with inter-dependent steps

that that, when taken as a whole, demonstrate a

cycle of optimal information-seeking behaviors.

The Principles and Standards support the

Boulder Statements quite directly. Not only do

the Principles and Standards reinforce the

intellectual component of legal research, but

they also stand as a taxonomy of competencies,

or objectives, suitable for the COACh template

that Boulder promotes. Moreover, the Principles

and Standards also address issues presented in

the Shadow Structure of Legal Research Pedagogy,16

as articulated in the Boulder Statement on Legal

Research Education: Signature Pedagogy

Statement. To wit, the Principles and Standards

don’t merely articulate the necessary and

intellectual elements of legal research, but

they also provide a very simple model for

incorporating legal research into the curriculum

and offer librarians a tool of value to bring to

legal research curricula.

[Slide 4]

We can also see this relationship when

examining the Surface Structure of Legal

Research Pedagogy: both the Boulder Statements

and the Principles and Standards demonstrate

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“the relationship of legal structure to legal

tools,” and both focus on “inculcating the

practice of iterative research strategies.”

Additionally, by focusing iterative research

strategies, both enable “students to master

analytic and metacognitive approaches to 1st

finding and evaluating sources in the context of

legal questions; 2d determining legal context,

accessing authority, and understanding how what

is found relates to the legal question; and 3d

synthesizing knowledge of the legal resources

and institutional structures to implement

research design…” This language has been lifted

nearly verbatim from the Boulder Statement on

Legal Research Education: Signature Pedagogy

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Statement. Finally, the surface structures of

the Boulder Statements and of the Principles and

Standards model values, attitudes, and norms of

ethical professional behavior. In short, the

Principles and Standards spell out explicitly

those skills that the Boulder Statements

implicate; in turn the Boulder Statements

provide the intellectual frame necessary to give

the Principles and Standards practical

authority, as opposed to exclusively relying

upon institutional approval.

Moreover, both the Principles and Standards

and the Boulder Statements seek to solve the

same problem: namely, how do we routinize the

kinds of research skills issues that our 19

students present with, so that we may resolve

them more effectively? While, in the final

analysis, all resolution of student research

skills requires an instructional intervention of

some kind, by creating templates, models, or

taxonomies of issues in the development of legal

research skills, we end up articulating a

scholarship of legal research instruction. And

while there may be legal research tasks that can

be routinized and ultimately automated, we will

never be able to automate scholarship; in fact,

it may be the one final behavior that separates

humans from automated intelligence.

One key distinction between the Boulder

Statements and the Principles and Standards 20

emerges out of how the two bodies have each

treated the concept of Information Literacy.

The Principles and Standards incorporate the

language of Information Literacy as well as the

form (following the ACRL) of Information

Literacy; but this incorporation was a hard-won

battle, and there are still many who resist the

use of this term, if not the entire body of

scholarship that Information Literacy has

generated. It is worth noting that the term

“information-literate” falls under the AALL

Standards, but not the Principles. Since the

ACRL principles were so foundational in the

early articulations of what would become the

Principles and Standards, such rejection is

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curious, at best. Boulder, on the other hand,

has not only explicitly included “information

literacy” in their calls for papers, but the

Boulder Statements (and the COACh template)

explicitly incorporate the language of the

Principles and Competencies, as indicated above.

So, now that we’ve marched through the

Principles and Standards, what can we do with

them? As a taxonomy of legal research

competencies, the obvious answer is: use them

as a framework for assessing legal research

skills. Indeed, the National Council of Bar

Examiners has expressed a great deal of interest

in the Principles & Standards, and has

apparently been looking at them in their 22

attempts to develop a legal research component

for the Multi-State Bar Examination. This is a

welcome development; because any influence that

law librarians can have on the creation of a

legal research portion of the Multi-State

benefits our profession as well as our students.

After all, we are the experts in legal research,

and we should have a say in how legal research

is assessed, especially on an instrument as

critical as the Bar Exam.

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