Legal Research

Zen and the Art of Legal Research and Texts

By Angela Swan

I made a comment some time ago on a posting originally made by Ted Tjaden on the nature of legal research. I was very busy at the time and did not take the time I should have to make myself clear. Now that Simon F?s piece on ?Tomorrow?s Texts? and the comments on it are open for discussion, they offer me an opportunity to elaborate.

I suggest that, in responding to what Ted said and Simon?s topic, we consider the purpose expressed by Robert Pirsig in ?Zen and the Art of Motorcycle Maintenance?, viz., an inquiry into ?quality? and ask now in the legal context, ?How can we find the good decisions, the reasons for judgment, that can safely be relied on?? Or, more broadly, we can ask, ?What is really good research?? or, to take a different approach, ?What is a really good text writing?? We could even consider what might be the best research or the best texts.

We may have reached the point where we can find all kinds of decisions but what are the good decisions and how can we find them? In Pirsig?s terms, much modern research (and writing based on it) can be described as ?romantic?, i.e., as accepting what is done, just because it is there; I would like to suggest that we explore the ?classical? version where it is important that we consider whether what we have found is actually correct, useful, sensible or just?whatever those might mean in the particular context. The extent to which these criteria are satisfied is more important than the mere fact that it was said.

The picture I have of Jay David Bolters ?Writing Space? (which I have from Anne Burdick?s review of it (which Simon C. referred us to)) terrifies me, just as John Davis?s view of what a ?new? text might look like alarms me.

The inter-relation between the power we have to find stuff now and how that stuff is organized and to be understood seems to me to be at the heart of what a focus on what is the best in both legal research and legal writing entails.

Start with texts. While no one, apart perhaps from a reviewer, is likely to read any legal text from beginning to end as one would read a novel, biography or history, any good text is nevertheless more?I hope far more?than the sum of its individual paragraphs. I can only speak for myself, but I argue (In Chapter 1 of mine) that the role of a text is to be a guide through the vast wilderness of the cases; it attempts to identify principles, concepts and solutions that transcend the individual cases. I do not think that it can perform that role satisfactorily if it is not organized around pervasive themes, problems and, of course, the commonly accepted topics of the law. In other words, it should try to tell a story?admittedly more of a soporific than a ?page-turner??and the story would be incomprehensible if one were only to read a paragraph.

I can imagine technological enhancement in links to the cases being examined or to the articles referred to. The provision of these links does not, however, detract from the integrity of the text and the arguments and explanations it provides. When John Davis says, ?[t]he text should be marked up with XML in such a way that it can be parsed and extracted from according to taste with appropriate software,? it seems to me that we would do to texts what the explosion of cases has done to research, viz., we would be left adrift in a sea?a vast ocean now?of stuff with no guide to what is good, let alone the best.

A search (in a legal context) for the good or the best entails at least these features:

? it matters who said it;

? it matters how consistent what has been said is to statements by other people; and what?s most important

? it matters how persuasive, sensible and suitable?having regard to ethics, morality and justice?the statement or principle is.

So, what do we do now? I would like to invite Slaw?s readers to embark on a ?Chautauqua?; a voyage to explore, not just what is available to the legal researcher, but what good legal research is and how it can be done. On the text side, we have to consider what it is that texts can do (and, of course, how they can do it better). I don?t think that the future is in blogs and their reductionist tendencies but in efforts to develop principles and analyses that illuminate, guide and direct.

Full post as published by Slaw.ca on July 28, 2009 (boomark / email).