Beyond the Textbook: Assessing the Value of Scholarship in Undergraduate Legal Education.

Author:Laganiere, Guillaume
Position:Canada
 
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INTRODUCTION

This paper examines the value of scholarship in teaching the law to undergraduate students, and its implications for the future of legal education. (1) My point is simple: to the extent that legal scholarship matters in the processes of teaching and learning (which I think is the case), we must achieve a better conceptualization of its uses and misuses. The future of law schools as knowledge communities that "exist to collect, critique, produce, and disseminate knowledge" (2) rests on our ability to recognize the many forms that scholarship takes inside and outside law school. We must expand them even further and most of all, acknowledge that students play an important role in this process. In other words, we must consider scholarship as an inclusive and pedagogical endeavour.

The dominance of traditional (3) forms of scholarship in undergraduate legal education arises partly from our failure to thoroughly address its pedagogical implications. We can no longer afford to sidestep this endeavour. In an era of students' mass-media interventions such as Aurelie Lanctot's, (4) and student-led blogs such as Osgoode Hall's The Court (5) and University of Calgary's ABlawg, (6) we miss out on an opportunity to think about how undergraduate students can not only learn from different types of scholarship but also actively experience, transform, and produce knowledge by themselves. This reflection opens up new ways of bringing together the undergraduate, graduate, and professorial communities by casting doubt over the common assumption that only graduate students and professors are expected to produce meaningful scholarship, using specific and widely accepted media and styles. (7)

Scholarship plays an important role in undergraduate legal education. Students rely on scholarship both as a source of legal principles and as a way to go beyond result-oriented approaches to the law. They use it to supplement a point left unclear by their professor, to make sense of diverging and seemingly contradictory authorities, or to bolster their initial thoughts and reactions to the legal principles they are introduced to. They also get involved in law review editing, write student notes, (8) and act as research assistants--valued experiences in the prospect of securing a clerkship or other employment.

Identifying the functions of legal scholarship in the eyes of a law student is easy enough--but assessing its educational value is more difficult. All sources are not equal. Relying on traditional legal scholarship has serious pedagogical implications that we too often overlook. Today, students in many law schools rely heavily on leading textbooks to make sense of the primary materials they are studying, such as provisions of the Civil Code (9) or case law. While textbooks provide a critical analysis of key problems, they are generally encyclopedic in nature, and they categorize issues in a way that leaves little room for thinking outside the box. (10) Yet, the people who wrote and rely on them in the classroom may struggle to cut across the structural delimitations they have imposed upon themselves. Law reviews have more educational potential because they leave some room for critical thinking and imagination. But law reviews come with constraints of their own: some members of the judiciary criticize them for being mostly irrelevant to decision-making, (11) while others blame them for "saying nothing with an air of great importance." (12) Despite being somewhat of an overstatement, this criticism of law reviews nonetheless adds a serious caveat to their educational value.

I do not argue that all scholarship used in undergraduate legal education is severely flawed. This blanket statement is unfair and counterproductive because it avoids a more fundamental problem: the materials that undergraduate students are exposed to in law school limit their understanding of what good legal scholarship looks like. This affects, in turn, the ways in which students produce legal scholarship themselves.

Mandatory classes on legal research and writing amplify this problem. (13) These classes may require students to retrieve cases from online databases using the proper reference or to write basic "introduction-analysisconclusion" pieces that comply with legal citation requirements. This sterile introduction to legal research affects students' perception of good scholarship, especially those who will not pursue graduate studies in law but who will nonetheless produce (or at least engage with) legal scholarship throughout their career. It may simply be that "the law does not have great learned texts" (14) and that law professors should consider secondary sources for what they are: literally, secondary sources. (15) But if Weiler is right that Canadian law schools should require their professors to demonstrate "capacity for innovative legal scholarship," (16) then we ought to think differently about how undergraduate students can benefit from it.

Important questions ought to be raised and answered. First, what does the production of meaningful scholarship entail? Is there a place for meaningful scholarship in teaching and learning the law at the undergraduate level? If so, what should it be? Can it also be found outside the classroom? These questions are hardly novel but the lack of attention paid to the pedagogy of legal scholarship leaves something to be desired. It also perpetuates old myths about the types of scholarship that are deemed to be valuable to society.

Drawing from the vast body of "[s]cholarship about [s]cholarship," (17) I explore in Part I of this paper the role of legal scholarship in undergraduate legal education. In Part II, I delve deeper into the connections between legal scholarship and pedagogy in order to expose its overlooked potential for the future of legal education. Finally, in Part III, I identify examples of new sites for legal scholarship and advocate for student empowerment in the production of legal knowledge.

A few preliminary observations before I move on: first, this paper results from my participation as a doctoral student in a seminar on legal education held at McGill University in 2016. Throughout the course of the seminar, we discussed the challenges and possibilities of legal education. We reflected on cutting-edge proposals involving, for example, the use of new technologies, (18) experiential learning, (19) and clinical legal education. (20) The preoccupations I express in this paper must be understood as part of this broader conversation about the future of legal education. My hope is that scholars and educators pay greater attention to their students' engagement with legal scholarship, and use it in a more fruitful, inclusive, and pedagogical way--a challenge faced in all forms of pedagogy, including the ones currently being studied, tested, or implemented in law schools.

Second, readers may notice the paradox of adopting a traditional medium and typically doctrinal style to argue that we ought to approach legal scholarship differently and more creatively. Indeed, this paper is not of the "meta" type. (21) But I do not argue that the traditional, written forms of legal scholarship are useless--I simply urge to pay attention to their educational value. By doing so, my guess is that we will inevitably lean towards a broader conception of what counts as legal scholarship, including but not limited to, its traditional forms. This could benefit students in two related ways: by improving the learning materials that they use and by engaging them in the production of knowledge.

  1. THE ROLE OF SCHOLARSHIP IN UNDERGRADUATE LEGAL EDUCATION

    In this part, I explore the current role of legal scholarship in undergraduate legal education and the gaps left by the literature in this area. Conventional wisdom usually treats Fred Rodell's classic essay--a vitriolic and sometimes painfully accurate critique of the law review format--as the obvious starting point for this discussion. (22) I am interested, however, in the educational aspects of legal scholarship rather than its merits per se. I will therefore adopt a pedagogical perspective instead of formulating an all-out critique of legal scholarship. I will also go beyond classes dedicated to legal writing on the basis that students remain exposed to legal scholarship throughout the curriculum, and not only during that formal introduction to legal writing. (23)

    1. The Audience for Legal Scholarship

      Legal scholarship comes in different venues, forms, modes, and media. (24) Despite the lack of consensus on its contents, we still generally speak of doctrinal pieces published in law reviews, textbooks, and treatises as examples of "traditional" scholarship, and of empirical research, clinical writing, and critical studies as examples of "non-traditional" scholarship. (25) Of course, all classifications oversimplify things and this one is no exception. Arguably, "just about anything is a scholarly exercise." (26) For example, some professors use legal briefs to discuss cases, thus turning an advocacy tool into a scholarly exercise. Nonetheless, I think this classification accurately summarizes how most students would perceive the sources that are used in today's legal education.

      For better and for worse, teaching still primarily involves scholarship in written format, (27) mainly through books and articles. (28) The question then becomes whether those texts are useful to law students. Pick up any textbook (29) pertaining to a foundational part of the undergraduate legal curriculum (torts, for example) and there is a good probability that somewhere on the back cover or in the preface, the authors or the editors will have mentioned that their book "will be useful to law students." Some books even have a distinct student version. (30) How, then, should we separate the knowledge worth disclosing to students and the knowledge which should be restricted to other...

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