Modeling Critical Thinking in Legal Research

Recently, I attended a seminar on teaching critical thinking led by Stephen D. Brookfield, a professor at the University of St. Thomas in Minneapolis. I came away from the seminar with ideas and questions regarding how and why we might incorporate more critical thinking skills in legal research instruction.

What it means to think critically varies across disciplines. Dr. Brookfield offered four examples, three of which bear relevance to legal research and analysis.[1] The first comes from analytic and linguistic philosophy, in which critical thinking means finding and correcting logical fallacies, detailing arguments, attending to the use and misuse of language, and identifying evidence for inferences. This is certainly what most law school classes strive to teach along with the vocabulary and grammar of torts, contracts, and property. This kind of critical thinking is necessary for most typical legal research problems where you spot arguments, fill in holes, work with precedent, and build a logical superstructure of law.

Critical theory gives rise to a second genre of critical thinking in which the emphasis is on spotting power dynamics and questioning hegemonic norms, often in order to further social justice. This type of critical thinking is evident in questions of where legal information comes from, who controls it, and how it is made accessible.

The third variety of critical thinking comes from pragmatism, in which truth and beauty are sought because they work. In pragmatism, a critical thinker is one who is open to new ideas and perspectives that could improve their work and their actions. In legal research instruction, we encourage this kind of critical thinking in our students as they approach new research problems, struggle with difficult questions, and incorporate new technologies.

Dr. Brookfield pointed out that, regardless of definition or academic tradition, critical thinking is essentially a process of appraising assumptions, perceptions, and conclusions to determine if they can be trusted. This appraisal is done by identifying the assumptions and then testing them against established knowledge and alternative perspectives. The end goal of the appraisal process is to be able to take informed actions.

The most effective way to teach this process of critical thinking is to model it, to let the students observe you going through the sequence of events: (1) frame the issue; (2) look for assumptions; (3) check those assumptions for validity and accuracy; (4) reassess assumptions in light of alternative perspectives; and (5) act according to the knowledge and insight gained. I think (though perhaps not critically enough since I have not sought the perspectives of others) that many law librarians miss opportunities to model this kind of thinking even though most of us would likely say that the ability to think critically about information sources is key to effective research. In my experience, law librarians prefer having their demonstrations scripted and tested and perhaps even composed of static screenshots rather than live research so that nothing can go awry. I teach legal research almost exclusively online, and the desire – even need – to have everything run smoothly and without glitches is even more urgent than in the classroom. In an online presentation, there is little tolerance for a search that doesn’t work.

In showing our students only the smooth, successful, pre-planned research, we deny them the opportunity to watch us identify information needs, consider our options and assumptions, check our approaches to a research question, consult others for input, test for validity of our sources, and finally decide that we have (or have not) found the information we need. Letting our students and patrons observe more of our real-time research, with all its glitches and unexpected results and dead ends, would give them unparalleled opportunities to observe critical thinking in action.

To teach critical-theory-type critical thinking about the law, we could lead an investigation into the formation of laws and how they are published, organized, and made available. In a recently published chapter in the Boulder Statements on Legal Research Education: The Intersection of the Intellectual and Practical Skills entitled “Critical Information Theory: A New Foundation for Teaching Regulatory Research,” Julie Krishnaswami of Yale Law School’s Lillian Goldman Law Library offered a number of examples of administrative law research exercises intended to increase students’ awareness of how regulations are proposed, promulgated, communicated, and enforced. Statutes, legislative histories, and case law all strike me as areas ripe for similar critical thinking exercises.

Lastly, I think critical thinking could profitably be applied to the presentation of legal information. New directions in the visualization of legal information are quickly gaining attention, and there is so much that can be done to improve how legal information is communicated – with illustrations, flowcharts, typefaces, layouts, data-driven graphics, mapping, infographics, even courtroom displays. My guess is that most law students never stop to think about how laws and other information are communicated, and openness to new ideas and improvements in this area are sorely needed. How I would love to be able to emulate Stanford’s Institute of Design (called the “d. school”) in offering a class called Law by Design: Making Law People-Friendly.

Having given it some thought, I realize that legal research instruction is rich with possibilities for teaching all kinds of critical thinking skills. These skills could help our students be better lawyers, more thoughtful communicators, and perhaps even advocates for greater transparency in the law. I also think practicing and teaching these skills would help me become a more effective law librarian. As always, there is much to be done.


 

[1] The fourth type of critical thinking mentioned at the seminar comes from the natural sciences and is essentially the scientific method of hypothesis, testing, conclusion, the ability to reproduce results, and the requirement that all theories be potentially disprovable.

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