by Paul Gatz
Legal research is often characterized as a skill. For instance, the AALL Principles and Standards for Legal Research Competency repeatedly refers to legal research skills, and Standards 303 and 302 of the ABA Standards for Approval of Law Skills identify legal research as one of many professional skills in which law schools are directed to prepare students to demonstrate competency. As a skill, legal research is a type of knowledge-how, like being able to ride a bicycle or grill a hamburger.
But that knowledge-how is built upon a substantive, “foundational knowledge of the legal system and legal information sources” (Principle I of the Principles and Standards). To develop the skill of legal research, one must have knowledge of “the full range of potential sources of information” (Principle I, Standard A), and the origin, dissemination, and authority of those sources within the legal system (Principle I, Standard B). This knowledge of sources and systems is a type of knowledge-that, like knowing 2+2=4 or that the earth revolves around the sun.
An understanding of legal research as incorporating two distinct types of knowledge is illuminating but incomplete, as legal research goes beyond what the researcher already knows. It is a form of inquiry, which presumes ignorance and uncertainty – precisely a lack of knowledge. A complete understanding of legal research recognizes the motivation of the researcher, which is instrumental in identifying the problem, striving for a resolution, and deciding on the acceptable outcome.
Any number of incentives or threats can motivate, but a truly expert researcher is driven by her own habits of mind, or tendencies of character, which lead her to seek out answers, spot oddities and inconsistencies, and demand excellence from herself and her work. Another word to describe the types of dispositions that push one toward excellence is virtue. More specifically, we may think of these dispositions as epistemic virtues, since they are related to our capacity to form new knowledge.
It is worth noting that there is a stream of scholarship in academic philosophy called virtue epistemology, which focuses on analyzing the theory of knowledge through the norms and values of the individuals and communities who create knowledge. Within this branch, epistemic virtues are characterized as “characteristics that promote intellectual flourishing, or which make for an excellent cognizer.” Wikipedia has helpfully compiled a list of the epistemic virtues, a few of which I have adopted (or adapted) as particularly valuable for the legal researcher.
- Curiosity is perhaps the legal researcher’s chief virtue, as it provides the primary inner motivation to seek out knowledge and to learn something new – to pursue inquiry.
- Intellectual honesty prevents the researcher from being satisfied with easy answers, guides him away from confirmation bias, and extracts honest and critical self-reflection.
- Perseverance grants the researcher the patience and tenacity to continue in the face of strained eyes, opaque results, wasted leads, and all-around moments of despair.
- Adaptability enables the researcher to change course in the light of new information and to navigate unfamiliar jurisdictions, sources, and databases.
- Humanity gives the researcher insight into why this issue is important to her client – to empathize with the human needs and desires that have generated and maintained the laws and system of laws within which we work, and, in short, to care.
This, of course, is an incomplete taxonomy of the virtues relevant to legal research. Others may have suggestions as to additional ones. No researcher possesses them all, but rather partakes in different combinations and different amounts of the various virtues. These are, after all, subjective states, and each of us draws from our own inner experience of the research process in describing them.
Insofar as virtues are habits of mind that can be reduced neither to clear statements of general principles nor step-by-step chains of decision-making, Socrates’s question about whether virtue can be taught (See Plato’s Meno, mentioned in one of my previous posts) seems even more important to legal research pedagogy. As teachers of legal research, law librarians should devote time to thinking how to encourage these habits of minds in their students, and in ourselves.
[*] The title of this post was inspired by Shannon Vallor’s Technology and the Virtues, a book I sadly have yet to read, and probably should before I try to write any more about virtue. Her Twitter account, however, I can recommend with approval and knowledge.