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STRAIT to the future8th Asia-Pacific Specials, Health and Law Librarians Conference Objectivity and omissions?The current batch of Australian legal research texts reviewed.
Terry Hutchinson, Queensland University of Technology Keywords: Legal research; legal writing; reviews Focus session paper presented to the 8th Asia-Pacific Specials Health and Law Librarians Conference, 24 August 1999, Hobart, Tasmania, Australia IntroductionLegal research should be taught as a process. Very few academics or law librarians would argue with that statement since the debates raged in the United States in the late 80's.[1] However, have the legal research texts that we use to teach our law students kept up with the current ideology? Indeed, what is the current legal research teaching ideology in Australia? Simplistically, it could be said that legal research courses in Australian law schools are predominantly research skills based. In the US, the pendulum has swung the other way, and the courses tend to be legal writing based.[2] Some Australian law schools have championed legal reasoning as a means of acknowledging the depth of process in the equation. But what of legal writing? Isn't this the lawyer's ultimate goal - the closure, the end of the research process? Law librarians can sometimes stop at the 'information located and supplied' stage. Lawyers (and law students) need to be able to actively read the materials, link and extrapolate, analogise and deduce and then they have to communicate it to someone else. Often, they have to write their conclusions down in an assignment, a memo, a letter - or an exam. This is but one view. However, in reviewing the existing legal research texts, we are necessarily approaching the task with personal views about research skills training. We are also approaching the task with our own world views. This viewpoint encompasses a healthy critique of the whole 'objective' process of the law, and doctrinal methodology as the 'only' way of doing things. The current batch of texts seems to proceed totally within a doctrinal framework. We need to acknowledge that framework, while not necessarily agreeing with it. Working within that framework, and taking into account accepted criteria, we can offer various perspectives on the current range of excellent texts available. It is worth noting a little legal publishing history at this point. Australian law librarians and legal researchers today have a plethora of texts available for their guidance. This was not always the case, and due recognition should be given to the earliest players. Enid Campbell's text was the only useful handbook available for many years. It was first published in 1967, and new editions in 1979, 1988 and 1996 followed this. Each new edition has been an opportunity to extend and improve this valuable publication. Laying Down the Law was next on the scene, being published in 1985, 1988, 1992 and 1996. It has been a standard first year text and most useful for this group. Rob Watt's publication followed in 1993, with regular new editions in 1995 and 1997. Dayal's LDL, of course, was published as an electronic companion text for Laying Down the Law with editions in 1996, 1997 and 1998. Irene Nemes and Graeme Coss's Effective Legal Research is very much the 'new kid on the block', being published in 1998. It is very basic and totally targeted at the first year student market. 'Objective' criteriaWhat do we look for in a good legal research text? I would necessarily state accuracy as the first criteria. Good index and contents tables, that is, indicators, to guide the reader through the text, are also essential. Layout is important. Research is a fascinating and exciting process, but a boring subject if treated in isolation - and very dense if not treated well. Our criteria are very much 'wedded' to the stated audience so perhaps this particular criterion can translate to 'fitness for purpose'. Thus, these might be summarised as:
Individual reviews
The Scholarly Manuals:
The contents are wide, including chapters on:
This is still an excellent reference book for law librarians, but not really an accessible manual for first year law students. It has good coverage, and an excellent index, although it does suffer from the fact that it was published in 1996, and the latest edition was out of date in places at the time it was published. Unfortunately, too, the fourth edition might have been more carefully edited in parts. Later year students will appreciate the more complete coverage of the extent of Australian material. This book has the small points and thorough detail that makes it a 'must' for every Australian law library. Where else can you find information on the laws of Norfolk Island?
Student texts:
There is a detailed index with a table of Internet addresses in the back, though electronic sources are noted in the text where relevant. There are also various illustrations and examples of pages of the sources considered. No doubt, the most useful chapters of this publication are those dealing with foreign jurisdictions. Globalisation demands that modern lawyers have strategies to access international and comparative law sources, and these are explained in this text with sufficient clarity to provide support for Australian researchers.
I.Nemes and G.Coss, Effective legal research, Sydney: Butterworths, 1998
Like Watt, they have included a citation chapter at the very beginning of the book. Perhaps now that there are several manuals of legal citation available on the market, individual segments on this important topic will become less necessary. The authors have included a section on the catalogue, which is certainly unique with the current range of research texts. Although the catalogue is certainly an important tool, it will vary from library to library. The text is very quotable, including such gems as these definitions of legal research: 'Legal research, as with so many important fields of knowledge, is a self-learning process. Practice is all.'[4]; and 'Legal research is what happens between the time you are presented with a legal problem/ question/ situation and the time you provide your opinion. Most commonly it involves analysing a fact situation, identifying relevant issues and finding authority to support an opinion.'[5] In addition, the authors have endeavoured not to become too bogged down in detail to the detriment of the message - or the forest: 'All we can say is that we have attempted to engender a 'feel' for a database, and for electronic searching in general, and so the changes in the appearance of an individual electronic research resource do not really matter.'[6] There are a few highlights in the book. One of these is the list of Searching Aids for Australian Cases at 290-297. This table lists the hard copy reports along with the electronic Butterworths, CLS, AustLII, Scale and LEXIS equivalents. There is a similar table for legislation at 305-306. The early chapter on Basic research technique is also useful, containing sound advice for the beginner such as 'Document your Research'. In all, this is a very useful and palatable handbook for the first year student.
Morris, G et al Laying down the law: the foundations of legal reasoning, research and writing in Australia, 4th ed, Sydney: Butterworths, 1996
The book originated, like many of the other texts, as materials produced for a research course, but it is more than a research handbook. It covers material more suited to a Legal Foundations curriculum, with good coverage of the common law system in Australia, legal problem solving including deductive and inductive reasoning, reading cases, casenotes and precedent. There are useful tables illustrating tasks and searching aids, and graphic symbols to indicate when electronic sources are available. Further reading is available for each topic. A useful appendix includes court hierarchies from the various states. Evaluating this text from the perspective of legal research as opposed to legal reasoning or writing, it very satisfactorily alerts readers to the major legal research sources.
Dayal, S and Davey, S LDL online 1998: computer assisted legal research, Sydney: Butterworths, 1998
The text is accessible with good layouts, fonts and illustrations. Each chapter includes exercises, and a summary table of its contents. The coverage of legal electronic sources is excellent. The only drawback to using this type of text for teaching is that each large university system tends to have its own idiosyncrasies. These differences can tend to 'throw' a novice. Thus the book becomes most useful as a reference text, to be used after class, either by working through the examples or by sitting down in front of the computer and repeating the steps. The e-mail sections are a welcome addition to the whole. Ideally this text should be updated via the Web. There is of course a mailing list sponsored by the NSW Law Foundation on legal research. Readers are urged to 'stay in touch' and the authors' e-mail addresses are included. The ANZ Law List also acts indirectly as a legal research updater. In addition, Butterworths offers a multimedia Interactive Legal Research and Methods Web Course to lecturers and students where either Nemes and Coss or LDL are prescribed texts. LDL is an excellent electronic companion and well worth purchasing. The difficulty is that it dates so quickly!
Johns, F et al Monash guide to law online, Sydney, Butterworths, 1998
Two of the writers are Butterworths employees, so not surprisingly the bias of this title is towards Butterworths products. It also reflects the electronic resources accessible from Monash University campuses, which limits the number of products examined. Bibliographic handbooks:
Research Staff School of Law Deakin University, R.Haigh and L.Poh-York, Researching Australian law. Sydney: LBC Information Services, 1997
This is a handbook that you would pick up to find specific pieces of information. It is certainly not one that you might read for pleasure - or indeed browse. In conclusionFrom the above analysis, it appears that there are a variety of legal research texts on the market. In fact, all the legal publishers, bar CCH, have at least one on their lists.[10] It would seem that the market is fairly well served at present in contrast to 10 years ago. However, our assessment is that some of the current 'breed' of research texts have been written within a bibliographic framework. This is certainly not 'bad', but there seems to be room for a more accessible and user friendly approach to the topic. We have noted the publication of a legal research nutshell in the United States,[11] and suggest that there is room in the Australian market for an accessible guide such as this to cater for students and practitioners alike. Sometimes, it is not so much that lawyers need to know how to do something but that they need a 'memory jogger'. They need reminders and prompts rather than long explanations. There also seems room for more integration of electronic and print products in the text. Electronic products are often treated quite separately. Butterworths, of course, devote a separate text to electronic sources. Other authors have tended to tack the discussion on the back of the texts after a discussion of the print products. This is understandable in terms of the difference in approach needed to actually use the products. However, it is not so understandable in terms of research methodology where the researcher is looking for pointers on where best to find materials quickly. Perhaps part of the difficulty in compiling a research text is the fact that research is a personal, and oftentimes lonely, process. Therefore handbooks or manuals, that can be delved into when the individual need arises, are possibly preferable to progressive development and information based textbooks. Librarians may be fascinated by the ability to create order out of the information chaos, but lawyers just want the information so that they can make sense of it, and use it. There are different worlds at play here. End notes
1 CG Wren and JR Wren, Legal research manual: a game plan for legal research and analysis, 2nd ed, Madison, Wisc, Adams and Ambrose Publishing, 1986; C.G.Wren and J.R.Wren,'The Teaching of legal research' (1988) 80 Law
Library Journal 7; T.A.Woxland, 'Why can't Johnny research? Or it all started with Christopher Colombus Langdell' (1989) 81 Law Library Journal 451; R.C. Berring and K. Vanden Heuvel,'Legal research: should students learn it or wing it?' (1989)
81 Law Library Journal 431.
Bibliography:
E.Campbell, L.Poh-York, J.Toohey, Legal Research:Materials and Methods, 4th ed., Sydney:LBC Information Services, 1996
Reviews:Some relate to previous editions. Included are the ratings given by LegalTrac for each review.
E.Campbell, L.Poh-York, J.Toohey, Legal research: materials and methods, 4th ed., Sydney:LBC Information Services, 1996:
Dayal, S and Davey, S LDL online 1998: computer assisted legal research, Sydney, Butterworths, 1998
G.Holborn, Butterworths Legal research guide. London: Butterworths, 1993
Morris, G et al Laying down the law: the foundations of legal reasoning, research and writing in Australia, 4th ed, Sydney, Butterworths, 1996
I.Nemes and G.Coss, Effective legal research, Sydney: Butterworths, 1998:
Research Staff School of Law Deakin University R.Haigh and L.Poh-York, Researching Australian law. Sydney: LBC Information Services, 1997
R.Watt, Concise legal research 3rd ed., Sydney: Federation Press, 1997.
Biographical
Terry Hutchinson was admitted as a solicitor in 1985. From 1987 to 1993, Terry held the position of Law Librarian at QUT, and during this period she was instrumental in introducing three new legal research courses in the Law Faculty. These included
two subjects at the undergraduate level as well as a postgraduate research subject. Her previous experience included more than 10 years in law firms, state and court libraries. She is presently teaching in legal search, Theories and Criminal Law and
Procedure.
Colin Fong is the Librarian with the Australian Taxation Studies Program (ATAX), a consultant with Desktop Law and Research Librarian, University of Sydney Law Library. Colin worked for many years in a Sydney law firm as librarian and is nearing completion of a Master of Legal Studies, University of Technology, Sydney. Colin has over 70 publications to his credit, the most notable being: Australian legal citation - a guide 1998; (with Edwards, A) Australian and New Zealand legal abbreviations, 2nd edn, 1995; (with Rodwell, J) Popular Australian and English case names, 1994; (with Ellis, G) Finding the Law, 1990. Dedicated to the memory of Beverley Anne Caska
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