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Should Bar Exams Test Legal Research Skills?

Should the bar exam test prospective lawyers on their legal research skills? Joe Hodnicki considers the question over at the Law Librarian Blog. He writes that several prominent law school librarians have advocated for inclusion of a legal research component on the bar exam for a long time. But their proposal has been met with pushback from the National Conference of Bar Examiners, which doesn't believe that legal research lends itself to a bar exam format. Hodnicki disagrees, explaining that most skilled legal research instructors would be capable of devising a test that could determine if "exam takers are thinking like law librarians by analyzing a research issue from the perspective of access points and routes to legal resources."

Though I recognize the importance of strong legal research skills, I strongly disagree with Hodnicki and other law librarians (including Clair Germain of Cornell Law, my alma mater) over the value of including a legal research component on the bar. First, I don't think that there's an objective way to measure effective legal research skills because the amount of research that lawyers perform, and the way in which they do so will depend upon the availability of resources. Consider two lawyers asked to research the type of conduct that might give rise to a claim for sexual harassment. A lawyer working on an unlimited budget at a large firm could turn to computerized legal research tools and identify Westlaw headnotes on the topic or pull up lawyer briefs from seminal cases to find a string cite of cases with parentheticals describing various fact patterns. By contrast, a new solo with few resources might start with a Google search of the terms (yes, that can work!) or hop over to the library and review a couple of treatises or guides on employment law. In each scenario, the tools that the lawyers select are equally effective. It doesn't make sense for the BigLaw attorney to bill the client for a library trip when he can find the information through Westlaw and likewise, it doesn't make sense for the solo who doesn't have a Westlaw or LexisNexis subscription to pay for per diem searches when other lower cost options are available. Would a bar exam credit both answers equally -- or favor one form of research over the other?

Hodnicki's suggestion of seeing whether researchers are "thinking like law librarians" is not necessarily satisfactory either. Law librarians often have access to many resources that practicing lawyers don't, or may be inclined to take a more research-oriented approach to tackling a problem that demands a practical solution.

What do you think? Is there a way to measure prospective lawyers' legal research aptitude on a bar exam and if so, what's the best way to do it?

Posted by Carolyn Elefant on June 10, 2009 at 02:06 PM | Permalink | Comments (3)


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