1 Introduction

Goals

Over several years of teaching legal research, our law librarian instructors have listened to students who express a need for more hands-on practice with legal research because they lack confidence in the thoroughness of their research, and they lack the level of efficiency necessary for effective professional legal practice. This text targets those concerns by posing a client scenario involving major sources of law and legal information (state and federal): secondary sources, enacted law, case law, administrative regulations, and legislative history. This text will provide background on the sources of law, supplement text with video demonstrations, and suggest group and individual activities that emphasize formative self-assessment and simulate practice experiences so that students have many opportunities to develop and improve research skills.

What is missing?

The problem used in this text does not cover every legal research topic. Two important topics missing from this problem are tribal law and foreign and international law. These two areas of legal research warrant entire courses. For information on tribal law research, please consult several excellent research guides: Indian Law Research Guides, National Indian Law Library; American Indian Law, Harvard University Law Library; Native American Law Guide: Federal Indian Law and Tribal Law Materials, UCLA Law Library; Indian and Tribal Law, University of Washington Gallagher Law Library.

You can also find research guides for foreign and international law research: Foreign, Comparative and International Law, University of Washington Gallagher Law Library; Foreign and International Law, Georgetown Law Library.

Process and practice-based approach

The client scenario provides an opportunity for you to explore your own research process, develop methods of documenting and organizing research, communicate research results to the simulated client or supervising attorney, and keep time records of research tasks to track efficiency. This text does not aim to be a comprehensive explanation of all sources of law. Rather, it focuses on practicing the research process: how to find and analyze legal information sources in an efficient, thorough way. The client scenario presents few specific facts. This is intentional. You will be investing time and energy exploring and reflecting on the research process and finding sources, rather than making complex factual arguments in a legal memorandum.

organization and content

In keeping with the spirit of open and accessible education, this book will emphasize freely available legal information resources, rather than focusing mostly on commercial research platforms such as Westlaw and Lexis. Commercial platforms are important tools for the practice of law, so texts used in first year research and writing instruction necessarily focus on how to use Westlaw, Lexis, and Bloomberg Law. But for many entering the profession, the expense of these platforms makes them unattainable. Even for new attorneys who have access to commercial platforms, they must learn to use them in a limited, fiscally responsible way, so knowing how to find information on freely available websites is an essential professional skill.

reflection and collaboration

There are many ways to structure a legal research course for effective learning. Law librarians and legal research and writing faculty tend to be creative, energetic, engaged teachers who care deeply about student learning. I have learned as much from talking to my colleagues and watching them teach as I have from being in the classroom myself. Equally important is what I learn from you, the students: your questions, reflections, observations, and commitment to excellent professional skills continuously inspire and inform instructional design choices and teaching methods. This book provides one approach to teaching a second/third year legal research course: it uses one complex scenario for the whole semester so you can see the interplay of different types of sources, experience the iterative nature of legal research, and have time to reflect deeply on the effectiveness of your research process. The collaborative approach of this book allows you to develop teamwork skills that are essential in professional practice, as well as appreciate and learn from different approaches and perspectives of your colleagues. Throughout this resource, you will have opportunities to share discussion and reflection questions, as well as your ideas for research logs.

Course design

This text offers some suggestions for exercises, activities, assignments, and assessments. It also provides an opportunity for collaborators to contribute other ideas for course materials. In addition to content, instructors and students should think about course design and delivery. Student learning is best when the course materials, course design, and instructional approaches are as inclusive and accessible as possible. Many articles and books on inclusive and accessible course design and instruction are available; some suggestions for further reading are listed below. As a short summary, here are some important considerations for designing and teaching a legal research course:

1. Transparency: Have an in-class discussion about the purpose and goals underlying course exercises, activities, assessments, and course design. Reflect on whether the purpose and goals were achieved. Transparency allows students to see the relevancy of their coursework to their larger professional goals, and requires instructors to be able to articulate clearly how course work is aligned with those learning goals.
2. Predictability: The course should be designed and structured with a predictable rhythm to each class session, each week, and the semester. Predictability is enhanced by consistent due dates; clearly communicated class agendas; consistent and organized weekly modules in the learning management system; overviews and recaps during each class session; and a clear syllabus that lists overviews and learning goals for each class session, as well as due dates for every assignment and assessment.
3. Flexibility: The concept of flexibility might seem opposite to predictability. However, within the predictable structure of the course, students should have some flexibility in how to complete activities, exercises, and assessments. For example, if a weekly research journal is assigned, then students could have some flexibility in either creating a written journal entry, sound recording, or short video. Similarly, allowing some flexibility in the medium for final projects will allow students to communicate what they have learned in the most effective way for them. Creating frequent opportunities for formative feedback also promotes flexibility, as instructors will be able to address students’ unique challenges and strengths, and supplement classroom sessions to address any common questions that arise in real time.
4. Timely and frequent feedback: Adult learners seek frequent feedback so they can improve their skills and achieve professional goals. Courses should be designed so that feedback from instructors is provided in a predictable and timely manner. For example, if students submit a weekly research journal entry on Friday afternoon, feedback should be consistently provided by Monday afternoon so that students can use that feedback in their work for the week. Set due dates for instructor feedback and stick to them. Feedback should be provided in multiple forms: answering common questions or addressing common challenges during a class session; personalized feedback to individual students on assignments; responding to questions during office hours; responding in a timely way to student emails; and providing substantive, formal feedback on summative assessments.
5. Formative assessments: Provide multiple opportunities for students to practice skills and receive feedback before they have a higher stakes summative assessment. Formative assessments decrease student stress and emphasize growth and skills development, rather than focusing on grading and ranking students. Using multiple formative assessments also allows for variety in media (written documents, oral presentations, video or audio projects, visual charts or tables) which promotes inclusivity in the different ways that students communicate their learning.
6. Universal Design for Learning principles: Universal Design for Learning (UDL) is one way of approaching inclusive course design and teaching. UDL, based on neurological science, provides guidelines for engaging all students in effective learning. Course design should address the affective network (student engagement, motivation, and persistence), recognition network (ways in which students take in information), and strategic network (ways that students demonstrate mastery of the course material).
   1. Transparency, predictability, and frequent feedback address the affective network by communicating relevancy of course materials, aligning activities and assessments to learning goals, and providing an organized, step by step approach to achieving professional goals.
   2. Varied course materials (demonstrations, readings, discussions, written outlines, clear class session overviews and recaps, and substantive videos) address the recognition network by providing multiple means by which students can take in information, given individual challenges such as ADHD, other neurological challenges, visual or auditory processing difficulties, mental health concerns, as well as family  situations.
   3. Varied and multiple formative assessments, predictable weekly assignments, and flexibility in media for assignments and projects address the strategic network. Students will be able to demonstrate mastery of the material most effectively if they can plan their time, have multiple opportunities to show their growth, and have some flexibility in how they communicate their knowledge and skills.
7. Backward Design: There are many instructional design models. Backward design is one model that facilitates thoughtful, methodical planning of a course so that it is as inclusive and student-centered as possible. Backward design begins with determining the end result of the course: what students should know or be able to do at the end of the course. This is another way of saying “what are the learning outcomes of the course?” The next step is to create assessments that will measure if the learning outcomes are being achieved. Then, create class activities and materials that will allow students to practice and prepare for those assessments. The goal is to align course activities, materials, and assessments with the learning outcomes. Student engagement, motivation and persistence wanes if a class activity or assessment is unrelated to a desired outcome. For example, if a learning outcome is for students to practice using multiple platforms to find secondary sources, a multiple choice test or quiz on terminology would not align with the learning outcome and students might perceive it to be busy work, or a needless source of stress and unrelated to professional goals. Many instructors use backward design charts or tables to help with effective course design.

Backward Design sample chart.pdf

Suggested Reading

Dyane L. O’Leary, Flipped out, Plugged in, and Wired up: Fostering Success for Students with ADHD in the New Digital Law School, 45 Cap. U. L. Rev. 289 (2016);

Rebecca Flanagan, Anthrogogy: Towards Inclusive Law School Learning, 19 Conn. Pub. Int. L. J. 93 (2019).

Mary Cheney, (2023) A More Inclusive Classroom: Considerations for the Legal Research Professor Teaching Neurodivergent Students, Legal Reference Services Quarterly, DOI: 10.1080/0270319X.2023.2264689

Sean Darling-Hammond and Kristen Holmquist, Creating Wise Classrooms to Empower Diverse Law Students: Lessons in Pedagogy from Transformative Law Professors, 25 La Raza L.J. (2015).

Tessa L. Dysart and Tracy L. M. Norton, eds. Law Teaching Strategies for a New Era: Beyond the Physical Classroom (Carolina Academic Press 2021).

Next Generation Bar Exam

Law students entering law school in 2023 may be taking the NextGen Bar Exam in 2026. The NextGen Bar Exam will be the first version of the bar exam to require test takers to demonstrate legal research proficiency. In May 2023, the National Conference of Bar Examiners (NCBE) issued its “Bar Exam Content Scope” identifying the foundational skills, concepts, and principles to be tested in the new bar exam. The following excerpt from the NCBE Bar Exam Content Scope outlines the legal research skills to be tested in the NextGen Bar:

Foundational Skills Group C: Legal Research

The purpose of Foundational Skills Group C is to test the extent to which an examine can identify and implement legal research strategies, including preliminary issue-spotting, working with provided resources, developing and refining a theory of the case, and reaching closure on research questions.

15. In a matter that requires legal research, identify the research questions that need to be answered.

16. Identify ambiguities in the language, standards, elements, or factors of a provided resource (such as a statute, contract, or judicial opinion).

17. Identify efficient legal research strategies (including appropriate search terms) that are likely to uncover other legal sources to assist in the interpretation of a provided resource (such as a statute, contract, or judicial opinion).

18. Given a collection of legal sources, identify the roles and characteristics of the sources, including their authoritative weight.

19. Given one or more judicial opinions, identify the facts in a matter that are analogous to and/or distinct from the dispositive facts in the opinions.

Note: Depending on the context of the question, a question assessing Task 19 may be classified as either an Issue Spotting and Analysis question (Group A) or a Legal Research question (Group C).

20. Given a collection of legal sources, identify other sources, search terms, or research strategies that might be used to update sources or find additional sources.

21. Given a collection of legal sources, identify which sources are relevant to or dispositive of a legal issue in the matter.

22. Given a collection of legal sources, identify whether the sources are sufficient to complete an assigned research or other lawyering task. (NCBE Bar Exam Content Scope Outline, May 2023). 

While test takers will not be tasked with an open-ended research question that requires searching for online legal sources, they will be required to identify legal research questions; analyze legal sources; develop effective research plans, including identifying search terms; apply knowledge of different types of legal sources and their authoritative weight; update sources; and determine when their research is complete. You will be practicing and reflecting on all of these skills throughout this text. You are encouraged to add reflection and discussion questions at the end of sections and chapters that focus on the crucial analytical and legal information literacy skills that go hand-in-hand with actual searching for and finding legal sources, so that you can begin your skills practice for the NextGen Bar Exam. You will find that the following student learning outcomes for this text reflect the skills that you will need for success on the new bar exam and law practice.

learning outcomes

After using this resource, you will be able to:

1. Read and analyze a set of facts; identify and articulate initial legal issues and associated areas of substantive law; formulate a research plan that identifies relevant primary and secondary legal authorities; and document and communicate that plan to a colleague or senior partner.
2. Locate, retrieve and search within legal resources, using indexes, tables of contents and keyword searching; recognize the terminology associated with legal resources; and assess the relevance and authority of federal, state, and local legal systems that may impact a given research issue.
3. Read, evaluate, analyze and organize research findings (considering authority/credibility, current-ness, and authenticity) and communicate them through a research summary, log, letter, video presentation or other work product.
4. Reflect on the research findings and how they apply to the research issues; determine the accuracy and thoroughness of results; critically evaluate the efficiency of the research process; and determine strategies to modify the research process if necessary.