Secondary Sources: Should they really be first?

by Christina Glon

Another semester’s over, and I’m another semester wiser. This academic  year, Emory Law tried something radically different in our JM program. Lucky for me, I had the opportunity to represent the library in this new endeavor. Allow me to introduce you to “ARC” (also known as LAW 590 – Analysis, Research and Communication for Non-Lawyers), our new 2-credit hour required first-semester course for all incoming Juris Master students.

The JM program has been around at Emory for more than a few years now, and, as with any program, it is in a constant state of development. As all good administrations are wont to do, our administration often solicits student feedback and adjusts accordingly.  Enter: the library. Beginning in the summer of 2013, a pattern appeared in the feedback. The students began saying things like, “We love Professor Sneed’s Introduction to Legal Research [for graduate students] class,” and “Professor Sneed’s research class answered so many questions I’ve had during law school,” and “This should be a required class for the JMs,” and finally, “This should be the first class JM students take.” After hearing the feedback from three summers’ worth of students, the JM curriculum committee decided to take Thomas Sneed’s 1-credit summer class and combine it with legal writing to create a brand new 2-credit introductory class required for all incoming JM students that could be co-taught by both library and writing faculty. For a few reasons, Thomas opted to hand off his role in the new class to me.

I began collaborating with the legal writing instructor to create Emory’s first ARC class. The plan was to incorporate all of the great things from Thomas’s Introduction to Legal Research class with the traditional first semester legal writing class to create a class specifically geared to this unique law school population. Since it was the success of Thomas’s class that triggered this curriculum shift, I wanted to stay as true to his syllabus as possible. Naturally, I planned to stick with our tried-and-true course map of teaching primary vs. secondary and persuasive vs. mandatory authority, then move on to cases, statutes, regs, and secondary sources—in that order.  What could possibly go wrong? Well…

While I was busy creating my lesson plans for research, the writing professor was busy creating the open memo scenario. I could teach case law research as she taught analysis and application skills. I could teach secondary sources as she introduced the issues.  And so on and so forth. Except there was one little glitch—the sample scenario (and thus the required case law) included an issue influenced by the Restatements on Torts. How do you teach restatements to first semester non-lawyers? How do you teach the concept of “very persuasive but not mandatory except sometimes” when the students are still struggling to figure out what a “tort” even is? In my opinion, this was a poor choice for a memo scenario. In her opinion, I should teach secondary sources first. We both weighed in on the other professor’s area of expertise and we both dug in. Not good. Not good at all. In our defense, this was in the very early stages of the collaboration, and we were both feeling our way through this process. Also (spoiler alert), there is a happy ending and we both laugh about it now. But, before we knew it, we were involved in a stare-down. And I blinked first. Fine. I’ll start with secondary sources.

I re-worked my semester and decided the students would need a checklist to keep things straight as we progressed through this course. So, I created the following “Process of Legal Research” list:

  1. Identify the Issue(s) Presented.
  2. Consider reading an Overview of the issue(s) involved (using Secondary Sources).
  3. Find and read the Law (Primary Sources).
  4. Confirm the law is up-to-date and still “good law” (using Citators).
  5. Construct your legal analysis/argument.

Step 1 is the Analysis, Steps 2-4 are the Research, and Step 5 is the Communication that will comprise this ARC class. The legal writing professor will teach Steps 1 and 5 and I will teach Steps 2, 3, and 4. Simple as that.

The semester went on as planned, and the students got through it. They struggled with some things, and we struggled with other things, but we all made it through and the semester was deemed a success by everyone involved. Then, a short break for Christmas, and we do it all again with the next group of new JMs.

As you would expect, we tweaked several things for the second time around. The writing professor decided that the open-memo was too difficult for the students to do from scratch, so she filled in some of the blanks for them. In particular, she removed the requirement to discuss the issue influenced by the restatements. In her new scenario, the parties agreed to follow the rule provided in the restatements. With that, I was free to move back to my original plan of teaching secondary sources last. Which I promptly did.  Easier writing assignment? Check. More traditional legal research instruction? Check. Let the new semester begin!

Another semester over, another semester wiser. As I am reflecting on this semester and planning for the fall, I can’t help but wonder, should secondary sources really be first? I mean, this semester went fine, but the first semester of ARC did have a nice flow to it.  “Don’t reinvent the wheel – find a secondary source,” was a nice mantra. As the students read cases in Westlaw or statutes in Lexis, they actually understood the annotations. They knew the difference between an ALR, a treatise, and a law review article (not to mention the value of each source). They could actually click the links and understand how beneficial the right secondary source really could be. And why not take a “non-traditional” approach to a non-traditional class? Isn’t this precisely why we take risks and try new things? To see what works and what doesn’t? Finally, regardless of the order of topics, the students still struggle to piece it all together. But honestly, that’s just the way legal research is. You have to start somewhere and spend some time in the foggy grey areas before it all starts to click together. Maybe, just maybe, knowing there are secondary sources out there to help with the transition from “completely lost” to “hey, I totally get it” is a good thing to start with.

I am proud to say that for Fall of 2016, the incoming JM students are going to learn early on the value of secondary sources, even if they don’t quite understand the difference between case law and statutes. The truth is, they will have challenges no matter where you start and I really believe that our first semester of ARC was actually a bit more successful than our second semester. Was that because we started with secondary sources? The bottom line is, you have to start somewhere, so why not with secondary sources? As it turns out, it might not be a bad place to start after all.

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About Christina Glon

Christina Glon is an Assistant Law Librarian for Reference at Emory University School of Law in Atlanta. She currently teaches Health Law Research and Technology in Legal Practice.
This entry was posted in Legal Research Instruction, Legal Writing, Teaching (general) and tagged , , , , , , , . Bookmark the permalink.

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